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Taking American Citizenship Seriously: The Recovery of the Fourteenth Amendment by David R. Upham

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, associate professor of public affairs at the Institute of American Civics at the University of Tennessee. With me today is Professor David Upham. He is professor of law at St. Thomas University College of Law. Today, we’ll be talking to him about his new book, Taking American Citizenship Seriously: The Recovery of the Fourteenth Amendment on Bloomsbury Academic Press that just came out. Welcome, Professor Upham.

David Upham (01:13):

Thank you, Professor Patterson, and thank you very much for the opportunity to speak about my work, which I’ve been working on for many decades. Liberty Fund and Law & Liberty is a daily place for me to read what’s going on in the world of the broad discussion of the state of our republic. And I’m genuinely honored and I feel very privileged to be here. Thank you.

James Patterson (01:34):

Well, that’s very generous. And honestly, the book is a real contribution to an area that you actually establish early in the text is quite crowded, which is the study of the Fourteenth Amendment. I think it’s something like why does the world need another Fourteenth Amendment book was a question you actually posed. I had to laugh at the level of consciousness about this. So why don’t you answer that question for us?

David Upham (01:59):

Well, in some sense, the topic is as relevant as it has ever been, and more specifically the original understanding of the Fourteenth Amendment. A decade ago when I really started writing the book in earnest, we had just had the decision in Obergefell in which the Supreme Court had said the Fourteenth Amendment compels the states to extend the status, duties, and rights of marriage to same-sex couples. And although the court in that case did make originalist claims, those claims were so unsupported that I think it’d be fair to say that Fourteenth Amendment originalism was at a nadir. It was the least relevant to our actual politics. So I said to myself, “I need to publish this book just so I can unload my research and leave it for perhaps future generations if anyone should happen to stumble across this topic.” But what happened in the last ten years in American politics and law has been, well, bewildering to many of us and complicated and nuanced, and the story itself will take, for that to be told in any objective way, it will take a future generation to do it because we’ve lived in it so much.

(03:08):

But for whatever reason, the Supreme Court today, all nine justices have taken to writing extensive and I think robust Fourteenth Amendment originalist opinions in a number of areas that have made it such that our discussions of the American Constitution with reference to things like affirmative action and the meaning of birthright citizenship have now made it such that the Fourteenth Amendment originalism is highly relevant. The second question is why a new book? Well, in part, I think many would say that there has not yet been a largely persuasive account. It does seem to be something of a cacophony of voices. And I believed perhaps with much hubris that I have something to say that isn’t simply another set of cacophonous, another addition to the cacophony. One of the things is the book does include a large number of new sources that have either been not discussed or discussed only in fairly remote footnotes.

(04:12):

New drafts that were under discussion, newspaper articles contemporaneous with the liberations of the 39th Congress when they were drafting it, and also the ratification debates. I make a large number of interpretive claims about the evidence that are new. And I think I can say this without sounding too arrogant. I probably say nine out of ten of my things are just wrong, but one of the ten might be really valuable. And I’m confident that some of the interpretations would be considered, if scholars engage with my work or just skim it, would say, okay, let’s say eight out of ten is junk. It’s obvious garbage, but two might help to address or move us forward to a genuine, what I would call a genuine consensus that can give rise to disagreement because disagreement is an achievement because it requires that the parties know the underlying terms. It has to be an underlying agreement and then you can reach disagreement, which incidentally I do think was the case in the recent Trump v. Slaughter, the birthright citizenship case.

(05:16):

There’s a lot of noise there, but the justices actually agreed on a lot of things that made for an interesting disagreement among the judges, common sources, some common premises. And so the goal of my book is not to create an exhaustive and definitive account, and now all times should fall silent because the Fourteenth Amendment is now understood. But I hope to give rise to contribute to what I would call disagreement rather than cacophony. So again, new sources, multiplicity of new observations, and at the very least an argument that we should not, in my first substantive chapter, we should not just throw up our hands and say, “Well, it was deliberately ambiguous.” People talking about it at the time didn’t seem to be bewitched. They act and speak among themselves as if the supporters have a coherent account among themselves. And that alone should give rise to perhaps just a new assessment of the available evidence to try to find what that consensus was, even if I didn’t find it.

James Patterson (06:17):

Yeah, there’s a kind of contemporary account of what the Fourteenth Amendment is, but you have a chapter that goes over what you call the original official understanding, which pertained to a sort of meeting or a committee that talked about this language originally. So why don’t we talk about that?

David Upham (06:38):

Sure. Well, the Fourteenth Amendment’s genealogy is fairly straightforward. There are three evils, at least three substantive evils, there are more, but three substantive evils in the unreconstructed South that need to be addressed according to the Republicans that dominated Congress before those 11 states could send representatives. The first of those evils is large scale lawless violence. There are lots of quasi-military, paramilitary organizations, beginnings of the Klan, but many others, that are operating with one might say the consent of the political power, which are Southern whites and largely formerly disloyal, and you could put formally perhaps in parentheses, disloyal Southern whites, which mean that the government is simply a failed state. They do not provide adequate security to person and property. And there are three groups that are particularly vulnerable, the freedmen, Southern loyalists, that is Southern Unionists, and Northerners. So there’s just an absence of effective enforcement of laws against murder and arson and kidnapping that need to be addressed according to the Republicans who dominate.

(07:51):

The second is the existence of laws we today call them, and they were often called the “Black Codes” that were either made or at least not repealed by the Southern white governments upon emancipation by which freedmen were by promulgated laws, statutes, constitutional provisions subject to many disabilities, not just as to political rights, but also as to civil rights, rights to trade, rights to travel, rights to buy real estate, et cetera. And then third, there’s what I’m going to call the maldistribution of political power. With emancipation, the former slaves who constitute a majority or near majority in six of the 11 seceded states and a large minority in other states go from zero-fifths of a person to five-fifths of a person. So that’s wonderful. They’re freed and now the Southern states have more political power. But the persons who are entitled to vote in the South are Southern whites, and especially in those states where free Blacks were most numerous, they also happened to be the states where Southern white opinion had been overwhelmingly secessionist and disloyal.

(08:57):

So the disloyal, formerly pro-slavery Southern whites acquire more political power as a result of emancipation and the suffrage is reserved exclusively to them by the state constitutions. Now, from our perspective, the answer to that question would be fairly straightforward. Will we need a Fifteenth Amendment to simply say the former slaves will all be voting so that they will have a majority in South Carolina, Mississippi, and Louisiana, and a near majority in Georgia, Florida, and Alabama, the 45% to 50% states. A lot of Americans forget that the history of African-American politics is not a history simply of a disenfranchised minority, but in fact a disenfranchised majority. But that awaited the great migration by which Southern states, we have no more Black majority states in our country. By 1930, South Carolina was the last one. So they have this issue, but one of the things that becomes quite apparent in the course of the formation of Fourteenth Amendment is that the Northern white vote, which by 1865, 66 is overwhelmingly anti-slavery, that public opinion changed dramatically, substantially in favor, large majorities, even in places like Illinois and Indiana, are in favor of equal civil rights for Blacks throughout the union.

(10:23):

When the issue comes up about what about equal political rights, even in those states where Blacks form an almost insignificant minority of the voters, there is this wall that says, “Hold on, not in favor of that.” And in many respects, to understand American public opinion in the nineteenth, and I think really up through Jim Crow, is “Emancipation, yes–substantial kind of civil freedom, yeah–interracial marriage, interracial voting? No, that’s crazy talk.” That opinion does not map onto deep principles and it doesn’t map onto the principles of the actual text of the Constitution, which produces one of the distortions. In the conclusion, I point out one of the problems of the Fourteenth Amendment, I think it’s fair to say that America’s too racist for its own constitution or was. Whether it still is or not is a completely different question. I put those questions aside. So those are the three evils.

(11:20):

The Joint Committee on Reconstruction is formed and the committee members have all of those three problems in mind when they’re forming, deciding what to do. They decide, and the Joint Committee’s charge is to propose any measure basically you want that you think is necessary to establish the conditions for the admission of Southern states, the 11 seceded states into Congress. And they debate a number of measures. Early on, they come to the conclusion that some constitutional amendments are necessary, and there is at least a majority on the committee who want what we would call a civil rights measure, something for securing equal protection and something securing equal protection understood as protect us according to the standing laws that are in the South, that is to say we need security against lawless violence. And secondly, equal civil rights. And they propose a number of different measures. And the ultimate measure they propose and set before Congress on April 30, 1866, is the framework for our Fourteenth Amendment.

(12:24):

And section five is the same section five we have today. Section one is the same section one we have today, except the citizenship clause. First sentence is added later. So what the committee proposes is our due process equal protection privileges immunities clause, which reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; unclear, different drafts, nor deny to any person within its jurisdiction the equal protection of the laws.” Those three clauses, privileges, immunities, due process, equal protection, are the place in which a huge amount of our deeply controversial constitutional laws happens, school segregation, abortion, affirmative action, state laws on guns, on speech and religion. Usually at the end of every term now in June, we have a big Fourteenth Amendment case, at least one.

(13:21):

And that joint committee incidentally not only proposed it, but pursuant to their original mandate from Congress, House and Senate, it was a concurrent resolution, that committee submitted a formal explanation of that language. It was a very lengthy report, but the key language, which should be remembered, I think, by every law student that takes constitutional law, by every originalist in the United States, but has been largely neglected is their official explanation of what that second sentence does. It shall “determine the civil rights and privileges of all citizens and all parts of the republic.” That language is what those prohibitions don’t abridge, don’t deprive, don’t deny, is supposed to establish some sort of baseline of civil rights and civil privileges throughout the entire country. It says very little, but I think it actually says a great deal, and I have a whole chapter explaining what I think what that sentence means and how the explanation is amply corroborated by lots of other originalist evidence.

(14:25):

So the Fourteenth Amendment section one, I would call it the original official explanation by the most authoritative body that participated in this, the one that was appointed by Congress to draft, and I think also appointed to explain it, determine the civil rights and privileges of all citizens and all parts to the republic.

James Patterson (14:43):

And you point out that this joint committee doesn’t get a lot of notice in federal jurisprudence. It escapes notice because people are so wrapped up maybe in the politics of the cases or the priorities of different ideological groups. What is it that led people to ignore this thing?

David Upham (15:02):

In Charlie Brown’s Christmas, where there’s a point where Charlie Brown says, “Can anyone tell me what Christmas is all about?” And then Linus famously comes in and reads from Luke’s Gospel, “Can anyone tell me what the Fourteenth Amendment is all about or reconstruction?” Historians have said, “Well, there’s an explanation. We’ve got the joint committee’s report on what’s going on and what they’re trying to do.” But American jurists have remarkably–I mean, it would be millions of pages on the Fourteenth Amendment, millions, hundreds of thousands of pages on its history, and plenty now with our current big data. One of the benefits of writing this book is I’ve been able to use big data. It’s not because I’m a particularly diligent historian, I have bigger tools now. Almost nobody quotes that one sentence, or I should say that one phrase, which is the explanation of section one, except for interesting moments in American constitutional history, and in particular, a fellow named William Guthrie, who probably launches incorporationism, which we call today an 1898 set of speeches.

(16:08):

He quotes from it, and the most originalist Fourteenth Amendment, the strongest Fourteenth Amendment originalist on the court, Clarence Thomas did so in McDonald v. City of Chicago, which was the right to bear arms case 16 years ago. So there’s something of a mystery, and I do explore it. One is maybe just from a legal historian’s standpoint, it just sounds like blah, blah, blah. I see this elsewhere. Well, of course you do because it’s a consensus account or I see things like this, but I also do speculate that if we took the language very seriously, it would require a reconsideration of much of American constitutional law and maybe a lot of the conservative originalist theories, none of which I believe provide an account that is a determinant account of all of the rights and privileges that are going to be secured in that second sentence.

(17:03):

So for whatever reason, it is a mystery, but I do think that if we are to take seriously the originalist evidence, this statement by the joint committees so formal and also so frequently cited and celebrated at the time should have pride of place in any account of the Fourteenth Amendment has to account for that evidence or at least explain away why the joint committee got it wrong.

James Patterson (17:32):

You refer to the first section of the Fourteenth Amendment with a term that I found startling, and I thought maybe you should explain now in case people have the same experience, which is you describe it as fundamentalist. What does this mean?

David Upham (17:51):

Well, it would be controversial because in some sense it looks toward American fundamentalism with had a long complex history. So it’s deliberately provocative in the sense, but in a strict formal sense, just as the American fundamentalists famously had sort of six things and they could say these are foundational in an effort to resist a certain kind of recent change, the authors of the Fourteenth Amendment were very hostile to what they considered to be the misconstructions of the judiciary, principally Dred Scott, but also in the context of the privileges and immunities clause, at least those that were lawyers understood that what they were doing was trying to nail something down that had been made far too loosey-goosey. It’s also, of course, an answer to the fundamental division on the court between the conservatives who today who wish to define the liberties with reference to only those that are deeply rooted in our history and tradition, as opposed to the progressives on the court that have at least not acquiesced in the opinion which now commands six votes on the court because Roberts has recently joined the conservatives in saying the liberties are only those deeply rooted because the evolutionary review, which has had a place not just in Obergefell, but also in the Casey majority opinion and also in Harper v. Virginia Board of Elections where Justice Douglas says that the equalities protected by the amendment are something subject to historical change and that historical change will be identified by a majority of the Supreme Court.

(19:31):

That is to say that the Court doesn’t say we make it up. The Court says, “We’re going to let you know what’s on the agenda as already dictated by public opinion, social change, and now is the time for this liberty to be in or this equality to be in.” I should mention the more radical progressives of the early twentieth century, I don’t talk about this in the book except in footnotes, also understood the history sometimes takes rights out. And I point to the Olmstead dissent of Justice Brandeis who mentions that opinion and quotes with approval, Buck v. Bell. That is to say it would’ve been bad, unacceptable, but history changes and liberties, it is a flux. Kennedy’s opinion is less radical. Kennedy’s opinion in Casey and Obergefell is that the catalog gets added to but not subtracted from. History only adds rights but doesn’t take them away.

(20:26):

But in any case, my claim is that it is the authors of the opinion, both the text they chose, their explanations and their motives all go in one direction, which is to restrain the courts and other authorities from erasing more or less certain clear foundational rights that are as old as the republic. But we have a country, the way the authors of the Fourteenth Amendment looked at it, reconstruction was that America because of slavery lost its marbles and started saying things contrary to the deepest American principles. And the purpose of the Fourteenth Amendment is to sweep away the junk that got added and to reaffirm and reassert so they could never be forgotten and the courts will never be able to misunderstand them, the fundamental rights and liberties of the American citizen. And so in that sense, it is fundamentalist. I know that fundamentalism carries lots of other connotations with it, and it may not be the best way to phrase it, but certainly in so far as the constitution, is it evolutionary or fundamentalism?

(21:36):

The Founders don’t believe in evolving rights. They fear change because from their perspective, when the courts decided to set aside the Anglo-American definition of citizenship, they not only did grave injustice or they had decided there’s a constitutional right to slavery, misinterpreting a due process clause, we needed these folks reined in. One thing that’s also not noted very much to understand in the motives is that as of the spring of 1866, there are nine judges on the Supreme Court and three of them are old Dred Scott majority holdovers, and a fourth was somebody who was a big fan of Dred Scott. So you have four definite with the Court’s terrible votes, and there were only three judges, Chase, Miller, and Swain, Midwestern, free soil Republicans who were what they consider reliable votes for the equal civil rights of Blacks. There was a very good reason to believe that six justices of the Supreme Court still believe that Dred Scott was rightly decided, or at least four of them, two others weren’t going to change it very much.

(22:41):

And so the idea that they were trying to give the Supreme Court the power to evolve, tell us what evolution is doing, everyone, Republicans and Democrats would’ve laughed. They would’ve said, “No, we need to restrain the court, and this is what we’re doing.”

James Patterson (22:56):

There’s a great phrase that you use in the same chapter, and it’s not just something that I thought was applicable to the Fourteenth Amendment, but just sort of the general problem of constitutionalism, and that is motive and meaning, and it is how do you get the motive for what you’re trying to accomplish, the thing that you want to translate perfectly over to the language that you use? In the same chapter on the fundamentalist consensus, you talk about how sometimes the language almost falls short of what they’re trying to accomplish, and it’s led to this issue of this feeling that maybe the Fourteenth Amendment’s incoherent.

David Upham (23:42):

Yeah, so the motive and meaning the motive issue comes up, and it just came up this past term with birthright citizenship, not so much in the strict legal arguments, but in popular discussion. People will say, “We all know what the Fourteenth Amendment was about. It was about to secure the rights of persons, of the freedmen and their descendants to American citizenship, and it’s outrageous to make it have a much greater implication.” And what’s important to note about the Fourteenth Amendment is the authors of the amendment did think about doing more targeted language with reference, for example, to race. A penultimate draft said, no race discrimination, and that was going to be section one. “Neither the states nor the United States shall discriminate on the basis of race with respect to civil rights.” Why did they not use that language? Well, there’s motives, there’s explanations, but what I call their method, the method of dealing with the problems of 1866 is the committee, I think, very consciously decided, “We want to go deeper.

(24:50):

We want to go right to existing clauses of the Constitution” and what I would call enhance them or fluff them up or clarify them. So instead of no race discrimination, we’re going to rely on the due process clause because that’s already there, and the Privileges and Immunities Clause of Article 4, Section 2, and it’s already there, and we are going to use clarificatory or elaborating language. Now, why would that make sense from a conservative perspective? They were very eager to tell the American people that securing the rights of African Americans is not something grafted onto our constitutional order. It’s not an incongruous patch, just something that doesn’t fit, but will shove something onto the Constitution. They wanted to make it look organic. And I think, by the way, for what it’s worth, I agree with the Republicans. So in explaining and defending their account, I should be candid, it’s not my scholarship in the book, but I generally think that their approach is closer to the truth of our republic.

(25:55):

That is to say, I think the Fourteenth Amendment is strictly speaking a reinforcement and elaboration of principles that are deep in our regime or republic. But the point is we’re going to do it that way, but to go deeper, you must necessarily go broader. So I’ll give you one instance. An early draft said, “We’ll secure the immunities of citizenship, but not privileges.” We know from the discussion around it that at the time, Bingham is telling people, “I’m enforcing the privileges and immunities clause. Why did you forget to say privileges?” Don’t need to talk about that because the only problem in the South is the Southern laws. I’m talking about the laws, not the lawless violence, is that they’re imposing special burdens, taxes, prohibitions on African Americans, and to get rid of those immunities is what we need to do. That was an early more targeted draft.

(26:47):

But then he said “Privileges and immunities, and we’ll make it clear that we’re talking about article 4.” There’s a rhetorical purpose of that, and that is to say we’re not really doing anything new. We’re not a bunch of radicals trying to. The Democrats are all wrong. This is not a radical change to our constitution, it’s an organic change. But once you do that, then you open up the possibility of what are the privileges as well? What are the privileges and immunities of citizens? And it turns out that category must be much broader than simply immunity against racial discrimination or immunity against those type of unequal laws. So the conservatives who sometimes will say, “The Fourteenth Amendment, Privilege and Immunities Clause, it’s only about equal civil rights,” because that’s all they were aiming at, and they’re partly right. And they’re partly right that the effect of the amendment, at least initially, it would only affect those states that have these outrageous abridgements of traditional rights of American citizens.

(27:43):

But it leaves open the possibility, for example, that if there, and this is an argument I’m just opening up as a possibility, suppose one of the fundamental rights of American citizens is the right to bear arms, and suppose by the mid twentieth century, that privilege or right falls out of favor in public opinion, especially elite opinion, as just something archaic. The Fourteenth Amendment might have a hidden power to preserve certain fundamental rights, even those that seem kind of like, “Really? Do we really need armed people in America’s cities? It seems that’s not suitable to our republic.” So yes, the motive is one thing, and it’s important to understand a lot of the evidence goes to the discussion about what we’re doing and what its effects are going to be in 1866. But the minute they choose to go to a much deeper principle and they put it clearly and unambiguously, like birthright citizenship, it doesn’t say former slaves, “Nothing shall be construed in the Constitution to preclude citizenship on the basis of race or previous condition of servitude.” They could have said that, but they didn’t.

(28:48):

They said, “We’re going to try to restate existing law in a very broader sense.” So it produces a constitution that for conservative reasons, in some sense, more traditionalist reasons, has a meaning that is much broader than the motive.

James Patterson (29:02):

The distinction you make later in the book that I see is linked to what you just said is the difference between a citizen of the United States and then also the Constitution’s conferral of rights, that these are not the same thing. And what do you mean by that and why is that the case?

David Upham (29:21):

Well, it’s a huge issue in American jurisprudence, and we’re under the shadow of a century of dominance of positivism, namely that laws make rights. And even among many, many conservatives, they will speak about, and my friend Kurt Lash is someone I disagree with substantially on this, that the purpose of what the first ten amendments do is they create the privileges of American citizenship, so therefore constitutional enumeration is a necessary condition for the identification of rights. Of these privileges and immunities. And once one says, “Well, there are rights that belong to human beings by nature” or a category that I think is underdeveloped that belong to civic membership by the nature of civic membership, that seems just like, “Oh, that’s just loosey-goosey natural rights talk.

(30:18):

It has no boundaries and in fact isn’t true.” It’s not true. The authors of the Fourteenth Amendment are still living in, we might say the Middle Ages. They still believe that the human being as such has certain rights, which is already privy to him or her, of which he or she cannot be stripped without a compelling cause that is identified by this process thing called due process of law. And they also spoke about the American citizenry. And I would say that has two components, civic membership in a universal sense, but then in the way in which our tradition has defined it. The American citizen exists before the Constitution of 1787, exists before the Articles of Confederation. And so in making constitutions with respect to the privileges of citizenship, some of them don’t have to necessarily be enumerated because they’re like, they should have been duh.

(31:21):

The citizen has a right to, if they leave the country, “Hey, can I come back into the place where I’m a citizen?” Well, of course, because the territory is your territory. You live here. This caused the Supreme Court some difficulty in when the Chinese Exclusion Acts and they said, well this is before Wong Kim Ark, an obvious American citizen, the Chinese Exclusion Acts could not apply to him because he’s an American. And so that’s one of these kind of like the court’s opinion is somewhat underdeveloped because they don’t have the vocabulary once the late nineteenth century changes are occurring. But some of them are going to be simply already recognized and merely guaranteed. So from the authors of the Fourteenth Amendment, they’d say that the First Amendment freedom of speech or the right of the people to keep and bear arms, those amendments don’t create those rights.

(32:09):

They recognize them, and they originally guaranteed them against federal infringement. And we’re going to more fully secure what is already recognized, some of which is recognized in the Constitution, some of which is not. And I would say just as someone who spends a lot of time with the Founders and up through the late nineteenth century, if you were to tell Joseph Story, for instance, that the right of the people to peaceably assemble and petition the government for redress of grievances is something that is conferred by the First Amendment, he would’ve lost his mind. He would’ve just gobsmacked by this. In fact, he even says in his commentaries, “Some of these rights are so obvious it’s a joke they’re in the Constitution.” A free people don’t have to say, “By the way, we have a freedom to just talk among ourselves about public affairs.” And so the purpose of constitutional enumeration is a kind of just bucket of ice water occasionally necessary over the people that running public affairs, a kind of, “Hey dummy, of course you can’t abridge this.” But since in the history of both Britain and the United States, the free people of England who did think of themselves as free by the eighteenth century and the free people of America have to reassert, have to clarify things.

(33:26):

And the Fourteenth Amendment itself was intended to be a reaffirmation. You asked me a question earlier which did go to one of the problems of their language and it’s revealed in a quote that the historian Joseph James found 70 years ago that he made prominent. And it’s a statement by, his name escapes me, writing to Sumner, a congressman from Vermont. And he says to Sumner, “Do we have to enumerate them or are words like rights, privileges, and immunity sufficiently clear?” That’s a critical comment which illustrates perhaps a difficulty going forward. He thought that maybe everybody and his brother knows or maybe doesn’t know what privileges and immunities means. Not equal protection. Equal protection was not complicated.

(34:25):

He did not call that a difficulty, but it was equal civil rights, that privileges and immunities language that he suggested might mean we need to enumerate things like contract, et cetera.

(34:39):

It’s a fairly obscure piece, but it’s actually a critical piece of information to anticipate our problems. Even at that time, there’s this kind of fuzziness that’s a little bit that was underdeveloped. And as I suggest in the conclusion, one of the things that just completely swamps it is American racism. America doesn’t know how to talk about the full civil equality of African Americans in part because it will have implications for interracial marriage and interracial schools that gives rise to immediate controversies. I think the answers are in favor of integration, but there’s a lot of white Americans who speak, and I quote from Shylock in Shakespeare’s Merchant of Venice where Shallok says, “I’ll walk with you. I’ll talk with you. I’ll do business with you. And if you know from the story, I’ll even go to court with you, but I will not pray with you.

(35:37):

I will not share grandchildren with you. I will not have my children educated in that extension of the household, the common schools initially, just kind of a whole school co-op together.” That’s just like, “No, I won’t do it.” And is that line a line of principle? No, but it is a line of passion and prejudice that is not the same thing as common citizenship. And it’s their interracial household in the school where a Northern white opinion just says, “I won’t do it.” And if you ask them to explain it, well, that gives rise to the whole host of all of the convolutions of Jim Crow that , and Aristotle would look at this and say, “Well, this is ridiculous. You’re not common citizens if you can’t intermarry and have schools together.” But your constitution says you’re common citizens, and maybe even your deepest sentiments say you’re common citizens, but you don’t want it or you aren’t willing to implement it.

(36:29):

And to me, that’s a hypothesis. I do not prove in the book, but it’s hypothesis for future study why Americans will say common citizenship, but have a difficulty going a few extra steps. And they have to come up with all types of what I call just BS, which is the whole of Plessy and all those separate but equal, all this stuff. Or what they have to say is we don’t actually talk about equal citizenship. We just talk about equality before the law. Equality is part of the deal, but community is what citizenship requires. And I think the nullification of the Privileges and Immunities Clause is part because citizenship implies community, not equality in separate silos, which is the official theme of Jim Crow when it’s defending itself.

James Patterson (37:20):

There’s a popular distinction made during the formation of Jim Crow between civil and social equality, and social equality becomes what is not part of the Fourteenth Amendment. And it is through this sort of division between the two that they then reimpose all of the inequality when they claim to support civil equality when in fact there’s all these informal ways of sorting people out by racial groups and stuff. It’s a very nasty business. I’m sorry, that’s just work I’ve done.

David Upham (37:59):

Sure, sure. And that’s a category. Of course the word social, a lot of these words that exist in our discussion, words like personal and social, a lot of these things that have deliberately, just utterly amorphous categories. But I will say it becomes quite clear that it’s a civil right when you start putting people in prison for interracial marriage. And I would also say I’d want to defend the authors of the
Fourteenth, a little bit of Jim Crow. The Fourteenth Amendment is a partial failure, but a few things do get off the table and they stay off the table. One is formal statutes that prohibit people from engaging in property, from buying, selling land, from engaging in travel and commerce. The ability to restrict that can no longer be done through the formal legal process. And we see that even in the nadir of the early twentieth century where in Buchanan v. Warley, 1915 or ‘17, the Supreme Court unanimously strikes down a law that says that there are separate neighborhoods, white and Black neighborhoods in which people can acquire real estate in the city of Louisville.

(39:04):

From the architects of segregation, it’s like we’re just trying to have the nice segregated country. Even the Supreme Court, which is deeply segregationist at the time, it’s just like, can’t do that, but the Fourteenth Amendment still means something. And it does have some of those things do, some of those securities and also the protection of the freedom of the churches because there were some of the Black codes that prevented people from establishing churches. So if you look at the foundations and the cultural strength of the civil rights movement, part of it does depend on some of the security established by not just emancipation by the Fourteenth Amendment, even segregated, but nonetheless, real businesses being established by African Americans and churches. And it’s in that kind of cultural framework that the next stage of the civil rights movement can build. So I don’t want to say the Fourteenth Amendment is a complete failure.

(39:49):

It does do some substantial things, but it is partially a failure.

James Patterson (39:53):

There is an emergent strain of, I won’t necessarily call it conservative, let’s just call it right-wing criticism of the Fourteenth Amendment as a failed project. And by this they mean the attempt to establish equality. And you see this with the fight over the birthright citizenship case that just came down. The idea is that the Fourteenth Amendment has established a kind of right for the government to elect its own people by bringing them in. It’s a little paranoid. It plays with replacement theory, but how does this book speak to this sort of emerging issue set that we find among more reactionary types on the right?

David Upham (40:41):

I would say there’s two waves of this. There is a big wave in the mid-twentieth century that effectively accepts that the Fourteenth Amendment is a big blob and five, six, seven, eight votes on the Supreme Court can become the national school board, et cetera. And I think they’re mistaken. They don’t have as much. They’ve read too many legal cases and they have not spent enough quality time with the authors of the Fourteenth Amendment who are far more disciplined in what they’re trying to accomplish. I’ll give one example that may surprise everyone, but mid-twentieth century free speech doctrine, which goes all the way up to Brandenburg v. Ohio, which is the right to engage in lots of public racial threats of racial violence, et cetera. According to Brandenburg, effectively, unless there’s a gun to somebody’s head at the time of saying so, the free speech protects it.

(41:34):

The authors of the Fourteenth Amendment are far more conservative in what they would’ve considered to be protected by some of these rights. So for instance, the report of the Joint Committee on Reconstruction, one of the facts in the American South, which they identify as an indication that these states are not yet fit to representation in Congress is the fact that they allow open public mockery of the Star-Spangled Banner. Now, this may not be a free speech that a restriction that anybody today wants, but if conservatives are worried about a kind of just go for it, it means whatever the five votes say, they probably had a far more restrictive notion of what was permissible than we since the 1950s, just really since the 1960s, would allow. So in some respects, that’s the Willmoore Kendall, for instance, his and many others of that criticism of the Fourteenth Amendment was that it was just bad and it was a big fat mistake and it gave the Supreme Court sort of a carte blanche to remake America.

(42:39):

On the other hand, with respect to say the birthright citizenship, I think in some respects, the amendment itself is in fact quite broad. It’s broad, I think, for reasons that are prudential and not simply reckless, which I can put aside for a second, but I think conservatives who complain are entirely misplacing their objections. Regardless of what the Supreme Court says about the Fourteenth Amendment, if in fact we have a central government that will not make and enforce laws to secure our borders, the language of the first sentence of the Fourteenth Amendment, regardless how you interpret it, doesn’t matter much at all. And I think 90% of what they object to can, and I think should be handled by powers that the central government does have. The problem isn’t five votes on the Supreme Court, it’s that in some sense, we don’t have a polity whose elites and many can reach a consensus about what should be our laws about the border and how they should be enforced.

(43:49):

I have my own strong opinions about this, but on the other hand, it’s a political reality that regardless of what the Supreme Court had said, even if they adopted the most restrictive account, would’ve done nothing to remedy the problems that the most vocal opponents have. I have a lot of opposition simply as a rule of law person to what has been going on as to what our target should be in terms of immigration policy. I probably would disagree with a lot of the reactionaries, but I have found as a lawyer what appears to me to be a kind of nullification or just simply erasure of our existing laws to be scandalous. But the Fourteenth Amendment isn’t the problem with that. The problem goes to what Congress does, what the executive does, what the courts do. Let’s look clearly at constitutional text, be honest about things that are clear and try to make certain things non-negotiable if at the very least for purposes of the preservation of the union and the preservation of the government.

(44:49):

So with respect to the Fourteenth Amendment, it’s important actually for us to see that the recent case is actually a fairly reasonable set of disagreements. Everyone knows it’s birth. Everyone knows the time of birth is when you count subject to the jurisdiction. Everyone knows it goes through their parents. Actually, it’s a remarkable consensus we should celebrate there because a lot of questions that could be debated that aren’t. And then we have some disagreement about what the subjection refers to. The answer from the Supreme Court, I think in the last case is something that I think people can acquiesce in, but it’s not crazy, it’s not stupid, it has support. And we should cherish those sorts of questions because the possibility of us having “three popes,” as it were, or three federal governments is not a mere hypothetical. Things get worse and a certain degree of the centrism and constitutional textualism may converge, if that makes sense.

James Patterson (45:42):

Oh, it does. And it’s a great note to end on. I really appreciate the reminder that these rules do a great deal to stabilize the polity and answer questions that we do not want to constantly be raising. So Dr. Upham, thank you so much for coming on to Law & Liberty Podcast.

David Upham (46:01):

And thanks very much for your time. This is very enjoyable.

James Patterson (46:05):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Related Links

Fusionism by Stephanie Slade
“Synthesizing S. Frank Meyer” by Daniel J. Flynn

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson. I’m associate professor at the Institute for American Civics at the University of Tennessee. With us today as our guest is Stephanie Slade. She is a senior editor at Reason, and we are discussing her new book, Fusionism: Liberty, Virtue, and the Future of the American Right, which is forthcoming at the University of Notre Dame Press, September 1. Her writing has appeared in America Magazine, The New York Times, US News and World Report, and the Online Library of Liberty.

(01:12):

And she is also a fellow in liberalism studies at the Acton Institute. Stephanie Slade, welcome to the podcast.

Stephanie Slade (01:20):

Thank you, James. Happy to be here.

James Patterson (01:22):

Well, your book on fusionism has at least been anticipated greatly by me. I know many other people are very excited about it. And one of the focal points in some of the work you’ve been doing leading up to the publication of the book has been Frank Meyer. We had Daniel Flynn on who talked about Frank Meyer, the man. Why don’t you talk about Frank Meyer, the architect of fusionism?

Stephanie Slade (01:46):

Sure. Yeah. So for those who maybe haven’t heard the Flynn conversation, Frank Meyer was a senior editor at National Review magazine from its founding in 1955. So he was one of the founding editors, senior editors. He was the book section editor as well, and just one of William F. Buckley Jr.’s sort of right-hand men, one of the senior core leaders at the magazine of what became the flagship conservative magazine in the twentieth century in America. He worked there for 17 years until his death, and he was very influential during that period, though I think that he’s mostly been forgotten by too many people since then. So I’m so glad that Dan Flynn has this biography out last year that kind of helps to bring him back into the conversation because he was super, super influential. He was referred to often as “ground control” or “air traffic control” for the conservative movement because of the way he helped to bring people into the conservative movement, mentor many young people, and articulate the ideas that he believed that the conservative movement in America specifically should stand for.

(02:45):

And his idea, what came to be called fusionism, though that wasn’t his term, he actually did not like that word, but what came to be called fusionism was his idea that essentially what it means to be a conservative in America is to believe that liberty and virtue are both necessary for human flourishing, that we need to defend both liberalism, classical liberalism as a political tradition, but also virtue as understood through the Judeo-Christian moral tradition, and that both those traditions came together in a unique way in America, and that that’s the thing that conservatives in this country were trying to conserve, which is something kind of different from what you might find in a European context or an old world context. Here, liberalism was part of what it meant to be a conservative. So that’s kind of what makes us unique and exceptional.

James Patterson (03:30):

A really important element to your discussion of him is that for a lot of people, especially maybe listeners to this podcast, a lot of what we take for granted as conservatism is just the fusionism that Meyer was so helpful in producing, but that it was very contingent that it would succeed. There were a lot of alternatives at the very start of all of this. There were a lot of people who disagreed with Meyer. Who were those people and what were their disagreements?

Stephanie Slade (03:56):

Yeah, okay. So the way I start the story that I tell in the book is that, and the sort of conventional wisdom that a lot of people have or that I had at least coming into this project was that the conservative movement in the post-war years after World War II in America had these two sort of competing poles. You had the libertarian influence represented by somebody like Friedrich Hayek, the Austrian economist, and then you had the traditionalist, religious traditionalist or social conservative influence represented by somebody like Russell Kirk, and that you had these two influences that were competing with each other to see which one was going to be the dominant one or the controlling ethos of the conservative movement in America. And what fusionism does is it says, “No, no, we can’t be choosing between these two things. We need both of them. We need both traditions.”

(04:43):

We need classical liberalism. We need to care about individual liberty, rule of law, separation of powers, free markets, all of that stuff that falls under the classically liberal umbrella. But liberalism itself is not enough if we don’t have some sort of moral tradition that will help people understand what to do with their freedom once they have it and how to live a good life and how to build a good life and what does a good society look like, what are our obligations to one another?” And those questions can’t really be answered by liberalism alone. So we need teachings about what does virtue mean? What does a virtuous life look like? And so that’s the fusion, that’s the fusion, those two traditions coming together.

James Patterson (05:21):

There’s a great example of that, and you tell this story during a meeting at the Mont Pellerin Society in which Russell Kirk is called on to respond to a speech given by Hayek. It’s the Hayek speech about why he’s not a conservative. What’s that story like? It’s really like the meetings of liberty and virtue that Meyer’s trying to marry.

Stephanie Slade (05:41):

And I should say, I didn’t finish my thought, which is as I researched my book, what I found was that actually both Hayek and Kirk were extremely fusionist themselves. So although I at least came in thinking that they represented these two poles pulling against each other and with liberty and virtue in an antagonistic relationship, when you actually sit down and read Hayek and you sit down and read Kirk, you realize, wow, Kirk was actually quite libertarian and Hayek was a traditionalist. He was not himself personally very religious, but he believed that religion and morality and the sort of wisdom handed down through generations were necessary and important bulwarks for a free society. So Hayek is very traditionalist in addition to being a libertarian. Kirk is very libertarian in addition to being a traditionalist. So I argue that essentially fusionism was a much more widespread position than just.

(06:27):

It was not just something that Frank Meyer invented. He was describing what he found on the ground as the sort of native indigenous ethos and spirit of what it means to be American. So there was sometimes tension between these different figures. And so this story that you’re alluding to where Russell Kirk comes as a guest, he’s not a member of MPS, but he’s invited as a guest and Hayek presents what became his famous paper, “Why I Am Not a Conservative.” And then Kirk is invited to respond and he gives a response where he’s defending conservatism. What’s interesting though is, again, if you actually take the time to sit down and read the essay, “Why I Am Not a Conservative” by Friedrich Hayek, what you find is that he’s not describing American-style conservatism. He’s quite explicitly talking about a sort of old world European throne in altar conservatism and a conservatism associated even in the UK with a disposition that’s more like we want to maintain the status quo.

(07:21):

We don’t like change. And that doesn’t make a whole lot of sense in the American context because in America, our whole country is founded on going out, people venturing across the sea to found a new country, then venturing west, exploration, adventure, innovation, risk-taking. This is all baked into the American experience. And so a sort of old world understanding of conservatism that is more about preserving the status quo at all costs doesn’t make a lot of sense. And of course an old world conservatism that’s about throne and altar, like defending the monarchy and the aristocracy. We were founded to overthrow that stuff. And so in a sense, Hayek even writes, he says in his speech, he writes in his essay, he kept saying, “I’m not a conservative, I’m a liberal.” But then he says, “But actually Americans are …” And then he said I’m an old Whig.

(08:08):

That’s how he really describes himself, an old Whig, like the old Whig party in the UK, which is a sort of liberal party. But then he says, “In fact, all Americans are Whigs.” So even conservative Americans, because Whiggism in Hayek’s view is the political tradition upon which America is founded. We took an influence from the Whig tradition in England. Okay. So because of that, again, my argument is that although it sounds like they’re arguing or they’re debating each other at MPS, and they were in a sense having a discussion and a spirited debate, in a way they’re on the same team. Whether they realize it or not, I think in hindsight we can look at what they’re both arguing and what Frank Meyer is subsequently arguing and realize this is all fusionism.

James Patterson (08:50):

Yeah. And Meyer, he’s a former communist and a lot of these emphases either on liberty or virtue are a way of responding to that threat of communism. And it’s because in a way communism kind of invites this two front attack. One is that it’s totalitarian and so people want liberty over that, but also that it’s atheistic and so reduces all questions of virtue to utility for the party. And so people don’t know which one to prefer. And Meyer’s like, “You don’t have to choose.”

Stephanie Slade (09:19):

I think some people do get this wrong a little bit because you’ll sometimes hear people say, oh, talk about fusionism as a coalition of the different groups coming together to, for example, vote for Ronald Reagan. And they’ll say, “Well, the religious traditionalists like Reagan because he’s anti-communist and we’re anti-communist because the Soviet Union is militantly atheist and the libertarians support Reagan because he’s a pro-capitalist free market guy and the Soviet Union is anti-capitalist.” But this I think is a mistaken reading of fusionism, at least as I’m defending it, which is my fusionism and Frank Meyer’s fusionism and the thing that the word fusionism was coined to describe was a philosophical synthesis between these two things. It wasn’t just different groups coming together and voting for the same guy for different reasons. And so that’s why the idea that a common enemy in the Soviet Union is what held together the Reagan Coalition.

(10:12):

This is a thing you often hear, and it may be true about the Reagan coalition because in order to win an election, especially in a landslide the way Reagan did twice, you do have to put together a coalition with some strange bedfellows. So that is obviously a political reality. But fusionism, this philosophical synthesis comes along about 20 years earlier than Reagan being on the national stage. And it’s not just about getting different people to play nicely and vote for the same guy. Meyer’s arguing, if you care about liberty, you also need to care about virtue. If you care about virtue, you also need to care about liberty. So the Soviet Union is obviously our enemy and they’re not just our enemy and they’re standing for something that is contrary to everything we believe in, contrary to a free society. It’s an unfree society, it’s a totalitarian society, and you don’t have to choose which reason that’s for.

(11:01):

It’s for all the reasons.

James Patterson (11:03):

There are two people who are kind of kept outside of the National Review camp and opposed this fusionist view. One was Ayn Rand, who’s all liberty and no virtue, and the other is a person who leaves, and that’s L. Brent Bozell Jr. who’s all virtue, no liberty. So who are these people and did they have any effect on the way we understand fusionism?

Stephanie Slade (11:27):

It’s a really interesting question. I think that’s exactly the right way to think of it is that you can have fusionists say liberty and virtue. We need both. They’re mutually reinforcing. Sometimes you have radical libertarians. Rand actually didn’t use the word libertarian. She called herself an objectivist, but we can broadly and broad brush. She was a little

James Patterson (11:43):

Precious.

Stephanie Slade (11:44):

Yeah.

James Patterson (11:44):

Oh, and now I’ve just guaranteed Liberty Fund’s going to get a lot of emails. I’m sorry. I’m sorry.

Stephanie Slade (11:49):

But yeah, so one way you can reject fusionism is you can say, no, no, this virtue stuff is getting in the way of freedom. We need to be prioritizing freedom. Individual liberty is what matters. Liberty is the highest value, and it’s up to every person to decide for themselves what virtue means for them. And we shouldn’t be judging anybody’s choice on that matter. That is one way to be an anti-fusionist. Another way to be an anti-fusionist is to think that liberty is getting in the way of people being able to live virtuous lives. And we hear this a lot in our politics today from people on the “post-liberal right.” Of course, you know all about this, but this idea that we’ve had too much libertarianism and that’s why people can’t live good virtuous, moral, upright lives because we made it too easy to get divorced.

(12:38):

We made it too easy to give church because stores aren’t forced to close on Sundays. We made it too easy to watch pornography by not having enough censorship, all of this. So we need less liberty in order for people to be virtuous. And so Brent Bozell, I think Ayn Rand is an interesting character because her whole thing about objectivism is that she’s not a moral relativist. She thinks there are better and worse ways to live, but her highest value is liberty, I guess I would say. And so the Judeo-Christian understanding of virtue is absent from her worldview. She thinks that no smart people could possibly be a theist or a religious person. And there’s a fun anecdote that I included about a time when she and William F. Buckley Jr. were at a party together and she goes up to Buckley and she says, “Mr.

(13:25):

Buckley, you are too smart to believe in God.” And he didn’t know what to say, but he wanted to show her. This is a Lee Edwards story. He’s the one that told me the story. He wanted to find a way to show her, to demonstrate to her that actually you can be smart and be a believer in God. And so he wrote her a Christmas card in Latin. So anyway, she’s a great example of somebody who thinks it’s all liberty and no virtue, at least as understood in the Judeo-Christian understanding of virtue. And then Brent Bozell is this interesting character. I spent a lot of time on him because he’s just such a fascinating person. He was Buckley’s brother-in-law. He married Buckley’s sister, and he starts out as a Goldwater conservative. In fact, he wrote Conscience of a Conservative. He was the ghost writer for Barry Goldwater’s famous political manifesto, which is extremely libertarian.

(14:10):

So Bozell starts out as a libertarian, basically, a libertarian conservative, but then he converts to Catholicism and he becomes this radical “rad trad,” almost theocratic Catholic. He moves his family to Spain under Francisco Franco because he likes that it’s a Catholic society and he wants his kids to be raised in that society. He ends up leaving National Review. He also, like Meyer, is one of the early founding editors, senior editors, but he leaves to found his own magazine called Triumph, which is going to be a radically conservative Catholic magazine, which becomes quite anti-American and just quite militantly theocratic, I would say, in terms of he also switches from being a free market guy to saying, “We need government that will put up guardrails to help people make better choices in the moral realm and the economic realm.” So he becomes much more statist, I might even say authoritarian, because of this conversion he has, but he basically thinks too much freedom is standing in the way of people being able to live virtuous lives.

(15:06):

And this is a radical departure from the fusionism that at that time I would say was becoming a consensus position on the mainstream sort of National Review conservative movement.

James Patterson (15:16):

Yeah. I was joking with a mutual friend of ours about how it was very easy to be pro-Franco as an American spending dollars in the 1960s given the state of the Spanish economy. But that aside, one of the things, maybe I knew this, I read Daniel Flynn’s book, but maybe it didn’t land for me, but Bozell takes this very radical turn and not at all bothers the friendship with Meyer.

Stephanie Slade (15:44):

That’s right. I actually really love that. So they start out as close friends, Meyer and Bozell, originally as allies on the more libertarian side, fusionist side of the conservative movement, Barry Goldwater supporters. After Bozell has this radical conversion, he and Meyer remain close friends. And in fact, Frank Meyer is famous for, if you’ve heard anybody talk about Meyer the man, he’s famous for he lived in Woodstock, New York in this sort of remote mountainside farmhouse in rural Woodstock, New York. And he would stay up all night talking on the phone, reading and working and talking on the phone. He would call people at three o’clock in the morning and want to debate ideas with them. And everybody remembers this about him because he was nocturnal. One of his main people that he was constantly on the phone with was Brent Bozell. They were always on the phone, at least when Bozell came back from Spain, because he didn’t spend decades there.

(16:32):

He spent a few years there and then he came back. And so when he comes back, Meyer and Bozell are just constantly, constantly on the phone together. And there’s this line that Matthew Continetti recounts in his book of Wilmore Kendall, who’s another mid-century conservative leading thinker saying, “An emergency call between Brent Bozell and Frank Meyer is a call that interrupts the ongoing normal call between Frank Meyer and Brent Bozell.” So they’re like best friends and they’re really close, even though they completely disagree, they’re able to disagree in a friendly manner.

James Patterson (17:01):

Yeah. And you recount some of the sadder elements of Bozell’s life. It seems like he was maybe suffering from some difficulties with psychiatric problems that later resolved with him just sort of packing up all the politics and going into a kind of community service life.

Stephanie Slade (17:19):

Yeah. His final years, he basically gets bored with politics. He realizes politics is not going to save our soul. And so he just kind of decrepit because his years of being ill, he was diagnosed with bipolar disorder and it really wreaked havoc on his life. I mean, he was injured, he was crippled basically by being hit by a car once when he was in a manic phase and wandered out into traffic. He would often disappear. His family didn’t know where he went, and then he’d turn up in a hospital or in a jail cell somewhere because he was just out of his mind. So he was really crippled by his illness. When he finally kind of gets it under control, he just turns to a life of service. So he’s just serving at soup kitchens. He’s just working with the homeless population on the streets of Washington, DC, where he lives.

(18:04):

He goes to mass every day, so he retains his deep Catholic faith, but instead of wanting to impose it, or at least his focus is no longer on changing the politics in order to use government to impose it on the country, which kind of was where he had gone for a while, and now he’s just trying to serve the people in his community. And I argue in that chapter that this is actually a really fusionist. It’s a really beautiful example of a sort of Frank Meyer style fusionism, because the whole idea of fusionism is that we individually and as members of communities and as members of voluntary associations should think of ourselves as being on the front lines of solving problems, social problems, as opposed to reflexively assuming the government will take care of it. It’s the government’s job to take care of it. That’s a very fusionist approach, and this is actually the way Bozell lives his life.

(18:52):

Even when he was in his more theocratic integralist phase, he’s an institution builder. He’s constantly starting new projects, new apostolates, new organizations. He literally founded Christendom College or what became Christendom College in Virginia. He started it in Spain and ends up coming back and still exists today in Virginia. He’s an institution builder. That’s very fusionist actually to say we should try to solve problems ourselves together in cooperation with other people as opposed to assuming government will solve our problems for us. So it’s funny that he believed that we needed more government to do things and then that was his politics or that’s what he wrote in his articles in Triumph magazine. But in fact, the example that he set with his life was as a person who thinks that the civil society is actually the key to everything.

James Patterson (19:40):

So if I focus a little too much on Bozell for some of the listeners, hopefully that was the payoff. I really do, I cannot stress how beautiful the ending to that chapter was. It got me a little verklempt. And it also made me think that there’s another issue that arises with fusionism that’s another one of these difficult problems, which is the issue of race in the civil rights movement. So how much of that you want to go into now is up to you, but it’s one of the things that’s most bothered me about the 1950s National Review. I think I’m not alone in that respect.

Stephanie Slade (20:11):

Yes. Yeah, this is important and I hope that I tackled it well. It’s a hard topic because I’m defending fusionism despite the fact that some of the leading fusionists, including Frank Meyer, including Buckley, had a track record on civil rights and racial issues during this era that was not what I would consider to be a sterling example of moral virtue. So Buckley, for example, notoriously wrote in, I think it was 1957, an essay called “The South Must Prevail,” in which he basically says whites are the superior race. And so we should basically be willing to deny Black people in the South full political rights, full voting rights, if that’s what it takes, because they’re not yet civilized enough to have equal rights. This is a horrific. I mean, even Bozell, who’s a statist at this point and has adopted many, many positions that I would consider to be authoritarian and theocratic, goes to his brother-in-law as like, “That’s taking it a bit too far, friend.

(21:11):

This is not required in order to have a free society.” So there were definitely prejudices. Meyer, I think, was less prejudiced in that way. I think Sam Tannenhaus’ biography of Buckley sheds a lot of light on this. It’s somewhat controversial. People come down on both sides of that book, but the fact that his family split their time between Connecticut and South Carolina, they had a lot of southern prejudices that he was raised with, Buckley. And so I think that explains where that sentiment that appears in that editorial comes from. And to his credit, over time, he becomes a much more enlightened on racial issues. He is exposed to other ideas and he basically changes his mind on that stuff, but he definitely said some things that are pretty horrible and wrote some things that are pretty horrible during that period. Meyer is basically a New York Jew.

(22:03):

He doesn’t have that southern, that experience of being raised in the South with those prejudices being the water that he swam in that Buckley had. And he’s not, I think, racist in that way, but he does really turn on the civil rights movement because he believes that it is militant because he believes that it is socialist, that they’re embracing many of the same figures that are leading figures and pushing for civil rights are also calling for socialism, a socialist revolution in America. And as a former communist, he’s not okay with that. And he has a problem with the sort of breakdown of law and order of protests in the streets and riots and violence and that sort of thing. And so it sours him on the civil rights movement in a way that I think is unfortunate. It’s unfortunate. And I don’t think that it necessarily reflects, again, racism on his part, but it means that we definitely can’t look back and say that because he was a fusionist, he was on the right side of every issue.

James Patterson (22:59):

Yeah. The term you’ve used a few times there, Judeo-Christian, is actually one of the most curious elements to all of that because King used the same phrase. He called it Hebraic Christian, but the two of them both have the same kind of model in their head of values on which Jews, Catholics, and Protestants can agree and they fall on different sides of the issue of civil rights in a strange way. Do you think the reservations maybe evolved in a direction that was good for fusionism or has it kind of been a thorn in its side?

Stephanie Slade (23:36):

I do think it’s a thorn in its side, but I also think that it would be oversimplified to say, “Well, they got it wrong and then we now know better.” Because one of the things that makes this issue so complicated, actually, even for me, starting from my Fusionist and Libertarian first principles, is that part of the reason that many mid-century conservatives were suspicious of the civil rights movement and sometimes took positions even on Jim Crow, on desegregation, and before that, even on the Civil War and whether Lincoln was a good guy or a bad guy, one of the reason that many conservatives took positions that feel really just, I don’t know, they feel wrong to me coming from the twenty-first century perspective as a libertarian, though they got there in many cases, maybe not all cases, but in many cases because they were deeply committed to a sort of Acton-style separation, the importance of separating power because power corrupts.

(24:32):

And so federalism, the idea that we do not want to empower the federal government to come in and overrule democratic majorities in a state or a locality was really important to them as a principle, not tied to the circumstances of Jim Crow or whatever. But it meant if you start with that principle that we need to separate power, we need to make sure that we don’t empower the federal government to be able to do whatever it wants, we need to have states and localities as a counterbalance in a very Madisonian way, that would lead you to say, well then for example, sending in the military to force the University of Alabama to desegregate seems somehow troubling from a purely Federalist perspective, from a pure separation of powers perspective. You don’t have to be a racist. I mean from our perspective today is like, how could anybody think that that was an okay position?

(25:20):

But at the time, there were plenty of people who were not coming at it because they personally wanted to keep Black people out of universities or something, but because they said it’s dangerous to empower the federal government to overrule states to do this sort of thing. And so it’s a complicating factor in this conversation that I think we have to acknowledge that it’s not a sort of clean story even today on this issue.

James Patterson (25:49):

Yeah, it’s a bit of a Sophie’s choice between federalism and racial justice. And segregationist governments are given chance after chance to do the right thing and eventually the troops come in at a time when folks associate troops coming in with authoritarian or totalitarian states, so this looks bad. And that’s a tough issue that you tackle, I think, very well in the book. There’s a missing figure, there’s actually two missing figures, I might get to the second one later, that is getting a renaissance today, which I can barely believe, and that is Richard Nixon. So why is Richard Nixon not in the book?

Stephanie Slade (26:31):

Yeah, he could have been. So the importance of Nixon to the story that I’m telling is that the sort of mainstream conservative fusionist conservative movement that’s emerging with National Review as sort of the epicenter, they see themselves as being conservative insurgents. The Republican Party at the time, it’s not like we think of it today where the Democratic Party are left progressives and the Republican Party are conservatives. There were liberal Republicans, there were conservative Democrats at this time, and the Republican Party under both Eisenhower and Nixon was, from the perspective of these conservatives, the conservative movement, they were mushy moderates or even liberals. They were not committed, fiercely committed to limited government, free markets, that sort of thing. And also at the time, being a sort of hardcore cold warrior, anti-communist was a really important part of what these guys though it meant to be a conservative.

(27:25):

And Nixon goes to China and he toys around with price controls. He’s doing all kinds of things that just are not conservative by the understanding that these conservatives have of where they’re trying to move the party. They’re Goldwater conservatives, and Richard Nixon is a sort of backsliding of the party from the direction that they think it should be going. Now, they’re ultimately successful in influencing Ronald Reagan, who does run as a fusionist, as a conservative as they understand conservatism, but they’re very much like, “We are Goldwater and Reagan types, and we are not just Republicans. We’re not just going to support Nixon because he’s a Republican.” I mean, they definitely weren’t going to support the Democrats, but they at one point withdrew their support from Nixon because they were so disgusted with him not living up to their conservative ideals.

James Patterson (28:11):

I mean, it may be passing now, but for a long time there was this sort of regnant sloganeering of people that are on the nationalist right, like what has Reagan conservatism conserved or we were never asked, and they show some photograph of some crumbling building in Steubenville. And the chapter on Reagan does a great job of showing what that conservatism did conserve.

Stephanie Slade (28:35):

Yeah, and it was not a perfect record from a fusionist perspective, certainly not from a libertarian perspective, which is where I’m coming from.

(28:43):

So I think that the crucial thing is to say that Reagan was himself committed to fusionism. He considered himself to be a Frank Meyer guy. So Frank Meyer dies in ’72, so he’s already gone by the time Reagan runs for president and is ultimately elected. But in 1981, right after he takes office, Reagan goes to CPAC and gives a speech in which he name drops Frank Meyer as one of his influences, along with Frederick Hayek and Milton Friedman and so many others. But he talks about how Meyer and then implicitly fusionism is what he ran on, is what he believes. He is committed to liberty and virtue. He believes in limited government. He believes in the Judeo-Christian teachings, but he’s really suspicious or skeptical of the idea that we can use state power to impose it on society. That said, when he comes into office and he’s faced with the sort of messy necessity of compromising with people who don’t agree with him in order to get things done, and he’s just an imperfect human being himself, he doesn’t always govern as a fusionist.

(29:44):

So a great example of this is that he wants to shrink the state. He believes that the government is too big, the size and scope of government has got grown too big and he wants to find a way to shrink it. He thinks that by cutting taxes, we can help shrink government. However, he’s able to push through tax cuts through Congress. He’s not able to push through the spending cuts that are supposed to go with them. And so the result of that is government doesn’t shrink, the tax burden gets smaller, but our debt triples over the course of his time in office. So this is an example of him trying to do something from his sort of fusionist impulses, but when it runs up against the exigencies of actual politics, it can be hard to actually get it done. So things like that. Or another thing that some people have pointed to is, oh, Reagan was a protectionist.

(30:31):

He believed in tariffs. No, he didn’t. He was a free trader and he always said that. He agreed reluctantly to support a voluntary trade restriction that would basically limit the number of automobiles from Japan that could be imported to the US. But he said he did this only because he thought if he didn’t agree to this small measure that Congress would pass more aggressive tariffs and he was against those. And so he was willing to take a hit, a small hit to prevent a larger hit. That’s the kind of thing you see when you’re talking about people actually having to govern in a society where everybody doesn’t share necessarily their political commitments.

James Patterson (31:05):

You got this great line from friend of the podcast, Steve Hayward, that he won the Cold War but not the culture war. And that’s him, right? Who said that?

Stephanie Slade:

I think so. Yeah.

James Patterson:

I’m looking at it, but I see that there’s quotation breaks from Chevy Seal too. And so that just tells you how sourced this book is. But it’s a really great summary of what I think is the liability of fusionism, that because of the art of the possible in politics, Reagan could advance certain elements of fusionism more than others. And so he could win the Cold War, but he couldn’t necessarily advance some of the contemporary moral majority agenda or even broader Judeo-Christian consensus agenda on rolling back constitutional right to abortion or what have you. That gets me to the other person who’s not in the book. That’s George W. Bush. He’s in there, you mentioned him, but, like, is he a fusionist? What happens with him in fusionism?

Stephanie Slade (32:08):

Yeah, I would say that George W. Bush, both George Bush’s actually, represent the party moving away from fusionism, sort of drifting away from fusionism.

James Patterson (32:19):

I think that’s right. Yeah.

Stephanie Slade (32:20):

So George W. Bush, in fact, Don Devine, who was a member of the Reagan administration, who’s very much a fusionist, he talks about going to CPAC in, I don’t know, 2004 maybe at some point during the George W. Bush era, and Bush was there and Bush was giving a speech where he was touting all of his accomplishments and everybody at CPAC was standing and cheering and Don Devine just sat there and he was like, “This is liberalism,” meaning this is like Democratic politics. So he meant No Child Left Behind, more federal involvement in the education, in the education system, which Reagan style conservatives, old school classically liberal conservatives would always have said education is a state and local issue. It’s first and foremost a question for parents and then for school boards and if necessary for states, but the federal government should not be involved in this stuff.

(33:11):

And so for Bush to take the lead on expanding federal involvement in education was a great example of moving away, moving it in a more status direction from at least in Don Devine’s estimation. And so there are a number of examples of that later in his presidency, obviously supporting the bailouts of the banks during the financial crisis, something that libertarians cried foul about because you’re supposed to let entities fail when they take risks and those risks go bad, you’re supposed to let them fail and accept the consequences so that everybody else can learn. And if you don’t, if government swoops in and saves them from the consequences of their decisions, it creates what’s called moral hazard, which incentivizes more people to make more risky bets that they will then expect to be insulated from the consequences of. So this is not very libertarian, certainly not libertarian.

(33:59):

So it’s moving away from that commitment to classical liberalism, limited government, separation of powers, rule of law on a number of fronts, I would say. Now, George W. Bush I think was temperamentally quite similar to Reagan in the sense of he believed in civility and inclusiveness. He was not rabidly anti-immigrant. Reagan got immigration reform through Bush wanted to, he tried. So there are similarities as well, but it definitely represents, I would say an erosion in the commitments to fusionism at a philosophical level. Oh, and the other thing that Bush does is he creates what was called the White Huse Office of Faith-Based and Community Initiatives, which I think it’s a complex thing because if you’re going to have federal grant money available for nonprofits and charities, then there’s something problematic from a First Amendment perspective to denying religious institutions the right to apply for those grants.

(34:55):

However, there’s also something kind of icky, I think, about the idea of entangling church and state, of bringing more federal dollars into the philanthropic space, making more of our civil society dependent on tax dollars and therefore subject to the strings, whatever strings that the Obama administration might come in and want to attach to those dollars. And so that’s an example where Reagan really wanted to keep these spheres separate. And I would say that the Frank Meyer style fusionism that I’m defending is one where we think of these as very separate spheres, the governmental sphere and the non-governmental sphere. And in the non-governmental sphere, you have charities and you have markets and you have churches and you have all of that and you don’t want to entangle it with federal dollars and federal regulations, but Bush kind of entangles them more arguably. So there’s a lot of ways in which I think he represents a drifting away.

James Patterson (35:46):

Yeah, there’s a long history of churches becoming clients to governments and it is not a happy one. In fact, some of that history, I guess Brent Bozell lived in, but that’s a different podcast. So we have at the end of the book a discussion of populism and anti-liberalism in contemporary politics. I’m going to pretend like I don’t know anything about it and ask you, who are these people and why is it that they seem to have the upper hand over fusionism now?

Stephanie Slade (36:25):

So basically we tend to think of politics as being along a left right spectrum. And one of the things I always start by saying is you have to recognize that there are liberal as in classically liberal people on the left and illiberal people on the left, and there are now liberal and illiberal people on the right. Brent Bozell was an early illiberal right-wing guy. He wants to use the state to impose his understanding of virtue on everyone, whether they agree or not. And what we’re now seeing is a rise, and we have seen over the last 10 years or so, is the rise of illiberal, anti-liberal, classically liberal, right-wing politics. I use the term dissident right as a sort of umbrella term to capture a lot of different factions and voices because they don’t all believe the same exact thing. You have some who are more theological, I call them theocons.

(37:13):

Basically they’re focused on like Bozell was, they’re focused on virtue and they think too much liberty is getting in the way so that they’re rejecting fusionism because they’re saying we want the one and we think the other one is instead of being mutually reinforcing, it’s undermining the thing we care about, which is virtue. And then you have some people who are more like what you might call neo-reactionaries who I say their thing is not that they want liberty or they want virtue. They think all this philosophizing about liberty and virtue is for suckers, but this is all a big joke that we need to recognize that politics is war and all that matters is who’s going to acquire the power of the state and use it against their enemies. And the left is going to use it against us if we don’t do so first.

(37:49):

And so that’s what we’re all about is we’re about winning power so that we can reward our friends, punish our enemies and reorient society to the common good as we understand the common good along the way. But really it’s much more power focused than anything. So there are different ways to be illiberal or anti-liberal right-wing that all sort of fall under the dissident right banner that I use. But that’s I guess the thing that unites them all is that they’re all in one way or another rejecting the fusionist consensus of the twentieth century.

James Patterson (38:23):

Why is this doing well in intellectual circles? It seems to, first of all, not be very intellectually serious. And second of all, it seems very un-American.

Stephanie Slade (38:32):

Well, I agree with you about that last part for sure. I think there are two things I tried really hard to understand what is going on here and why are especially young conservatives being so seduced by these ideas because that does seem to be what’s happening. There are two things that I came up with. One is I think that after the incredible success of Reagan’s back-to-back landslide victories and then the fall of the Soviet Union in ’89, ’91, there was this sense among people on the sort of fusionist right that our ideas have been formally vindicated. Who could possibly doubt us now that we were right, that our way of life is the right way of life, that our values and commitments and institutions are the good ones. So we no longer need to spend a lot of time thinking hard about what philosophy we stand for.

(39:20):

We’ve sort of laid the intellectual groundwork, we’ve seen that it’s the right one, and now we can focus on just building a political infrastructure to allow us to win elections and implement policy. But when you shift, it turns out when you shift focus away from thinking in terms of ideas and philosophy and into trying to win elections, you can lose sight of what you were trying to win elections for. What was the point of winning the election? What were we trying to do? What are our philosophical commitments? And if you don’t, it’s one thing to say, well, we laid the philosophical groundworks and now we can build on top of it. But I think it turns out if you’re not continually tending to that philosophical foundation, it will erode out from underneath the political structure and you’ll have this political structure that exists just to own the libs and win elections.

(40:01):

And it can be taken over by a cult of personality because there’s no actual philosophical commitments there anymore. And there’s whole generations who have come up, we’ve seen this, we now have whole generations of young conservatives who have never known anything other than conservatism of the Trump-era, a Trump-style conservatism. They think that conservative economics is tariffs, for example, because nobody has ever taught them any differently. So I think the first thing I point to is a failure of transmission, that we didn’t transmit the philosophical grounding or tend to the philosophical grounding. And I think that’s important and we got to think hard about how do we do better going forward. The other thing that I point to is what we’re seeing on the far right is a reaction against illiberalism and overreach of the far left. So these young people have come up their entire lives, they feel like every powerful cultural institution, the mainstream media, higher education, Hollywood, the federal bureaucracy, social media companies up until recently, were all in the hands of the far left and they were imposing pretty militantly their far left values on society, not just trying to persuade you, but saying, “We will destroy your life.

(41:08):

We will make it so that you can’t make a living if you dare to express an opinion that we consider outside the bounds of our narrow sort of woke identity politics worldview.” So if you say marriage is between one man and one woman, we’ll make it so that you can never have another job again. If you say something like affirmative action is actually at odds with the sort of race-blind ideals of the civil rights movement, so we should actually be against affirmative action. They’ll call you a racist. If you’re, God forbid, a young straight white man, they’re going to say, “You’re going to be denied equal opportunities to get into the college you want to get into, the grad school, the job program, whatever. You’re not going to have the same opportunities because you don’t have those sort of identity characteristics that we think should be preferred, and we expect you to sit down and take it and roll over and take it and be happy about it and listen to your moral and be quiet while your moral betters tell you why it’s good that you’re being denied equal opportunities.” No wonder a whole generation of young people are resentful of that.

(42:06):

And no wonder they were looking for somebody who was going to fight, they felt was going to fight for them against this. And I think they were attracted to, they are attracted to the idea of somebody like Trump or a movement like the dissident right that says, “We’re going to fight no holds barred. We’re not going to abide by the rules because we don’t think the left is abiding by those rules. And you fusionists, you classical liberals are basically asking us to unilaterally disarm and not use the weapons against the left that the left is going to use against us. And so we reject that and we want to fight back, fight fire with fire kind of thing.” I understand why that is an appealing argument. I think it’s a really dangerous argument. I think it’s a morally bankrupt argument. I think it’s going to come back to bite them and probably already is starting to, but I can understand why young people would be attracted to it.

James Patterson (42:57):

It’s probably the single best answer to that question I’ve ever heard. And it’s sort of like the hideous simulacrum of the dilemma between liberty and virtue is fight or flight. So it’s either fight like Yarvin or Vermeule or flight like the Benedict option in Rod Dreher. If you feel like conservatism, it comes down to the choice between fight or flight, then no wonder it’s A, irrational because these are not rational responses and B, anti-American because this is supposed to be a country founded on choice and reflection, not a panic. But you have a wonderful conclusion to the book that contemplates the future of fusionism, which is, I wouldn’t say it’s melancholy, but I would say it’s at least sort of chastened by its losses and as a result, I think has a kind of sobering view for anyone who takes for granted fusionism as the assumptions that most conservatives have.

(43:58):

So maybe give us a sense of what that conclusion is.

Stephanie Slade (44:01):

I guess I just think now is a time for going back to first principles and rebuilding from the ground up because we have allowed that foundation to erode and because a whole generation has come of age not being asked to engage with these ideas, just being told we’re going to give you a permission structure where you can use whatever weapons are at hand against your enemies and feel good about it, be told that that’s the only option, the only realistic approach to politics, that there’s a lot of just rebuilding from the ground up that’s going to have to happen. And so again, when I was trying to understand why are young people being attracted to these ideas, one of the things I came to realize is that many young people feel very adrift in the modern era. And this is not a novel thing that I’m saying right now, but they feel like they have not been given a blueprint for how to live a good life.

(44:48):

And we in the liberty movement, which is what I come from on the sort of fusionist think tank right, have tended to be really good at talking about economic policy and why one economic policy is likely to produce abundance and flourishing, and another one is likely to commiserate the society through top-down central planning and whatnot. And we think that if government gets out of the way and lets people live their lives, they can pursue good lives. But what we haven’t, I think, fully emphasized the way we should have or realized the way we should have is if young people aren’t given a sense of what to do with their freedom and they don’t feel like they therefore have a path forward for how to build a good life, then they don’t care. To them, it seems beside the point to be talking about how to ring another 2 percent of GDP growth out of the economy when they’re like, “I don’t think that I’m ever going to be able to fall in love and start a family and have a good life.

(45:48):

And I feel like I feel just completely at a loss and adrift in this modern world and nobody is helping me. Nobody’s giving me any guidance for how to live a good life.” And so they’re going looking for help answering these deep existential questions that they have. And if we aren’t willing to help them answer those questions, then they’re going to go to the dark corners of the internet and they’re going to find Bronze Age Pervert or whoever, and they’re going to conclude that the reason that they feel so miserable and alone is because women have the right to vote. And this is what happens if you don’t. But instead I say, this is why I’m hopeful ultimately, not necessarily wildly optimistic, but still hopeful at the end of the day. In our tradition as fusionists where we have the classical liberal political tradition on the one side and we have the Judeo-Christian moral tradition on the other side, we have all the treasures of theology and philosophy, classic philosophy and the literary tradition that we can draw on to help young people answer these questions and understand what a good life looks like without turning to those dark corners of the Internet.

(46:50):

And so it’s just a matter of, I think, reopening the treasure chest and rediscovering that treasure as opposed to feeling like we don’t have to discover it from. We don’t have to invent something new. That’s the beauty of the tradition is it has already been handed down to us and we just sort of forgot about it for a while.

James Patterson (47:06):

The book is Fusionism: Liberty, Virtue, and the Future of the American Right, the author, Stephanie Slade. Thank you so much for coming onto the Law & Liberty Podcast.

Stephanie Slade (47:15):

Thank you so much, James.

James Patterson (47:17):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Related Links

Teaching America Reflective Patriotism in Schools, College, and Culture by Paul Carrese
What Universities Owe Democracy by Ronald J. Daniels, Grant Shreve, and Phillip Spector
Justice by Means of Democracy by Danielle Allen

Transcript

James Patterson (00:05):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, Contributing Editor to Law & Liberty, and Associate Professor of Public Affairs at the Institute of American Civics at the University of Tennessee. With me today are two guests. The first is Professor Lee Strang. He’s the inaugural Executive Director of the Salmon P. Chase Center for Civics, Culture, and Society at the Ohio State University. Before joining Ohio State, he was the inaugural director at the University of Toledo’s Institute of American Constitutional Thought and Leadership. And in 2016, he was appointed to the Ohio Advisory Committee of the US Commission on Civil Rights and reappointed as chair in 2023.

(01:23):

My other guest is Professor Paul Carrese. He is the Director of the Center for American Civics and a professor in the School of Civic and Economic Thought and Leadership at Arizona State University serving as its founding director from 2016 to 2023. Formerly, he was a professor at the US Air Force Academy, co-founding its honors program, blending Liberal Arts and leadership education. He has recently published a book in Cambridge University Press, and it’ll sort of be in the background of our discussion today. The book title is Teaching America: Reflective Patriotism in Schools, College, and Culture. Professors Strang and Carrese, welcome to the podcast.

Lee Strang (02:06):

Thank you. It’s a real treat, as I had mentioned earlier, it’s a real treat to be with Paul. He’s really, in some ways, the father of the paths that James, you and I, are trotting today …

James Patterson:

That’s right.

Lee Strang:

… in the large furrow that he had trod about starting 10 years ago maybe, right, Paul?

Paul Carrese (02:20):

Yes. Well, thanks very much. That’s very gracious. It’s great to be here. I look forward to the conversation.

James Patterson (02:25):

Knowing that about Paul’s influence, I have to make sure to do a good job lest he bring the hammer of judgment.

Lee Strang (02:32):

That’s right. He’ll expel you from being an heir, an intellectual heir.

James Patterson (02:36):

No. No.

Paul Carrese (02:38):

Well, actually, in the spirit of George Washington, I’m a George Washington fan, and I decided about six years into being the Founding Director at SCETL, which really, as Lee would know, you have to be a somewhat strong executive leader to build a department from scratch. And I was tired after six years. I know there were several faculty who were tired of me. I thought I should follow Washington’s example and step down rather than die in office. So now I’m just a professor. I’m just one of the members of the crew. I’m no longer the bigwig director. Lee’s the bigwig director now.

Lee Strang (03:12):

That’s right. That’s right. But you’re like Socrates. You’re giving wisdom.

Paul Carrese (03:19):

Until the hemlock comes.

James Patterson (03:20):

No, I was going to say, just don’t drink anything someone hands to you. For those listening and are not aware of the civics lingo that we’re using, SCETL is how we pronounce the acronym for School of Civic and Economic Thought Leadership at ASU. So we might do this a few times. Hopefully I’ll remember to jump in and explain things. I’m a big fan of the Commentary podcast, and Jonathan Horowitz is always jumping in and explaining things. And I don’t want to do that to you guys, but I might have to. So what is the state of civics education in the United States? And maybe to kind of narrow that, what is the report on the Educating for American Democracy, and maybe what did it find? We’ll start with you, Paul.

Paul Carrese (04:00):

Thank you very much. I would say that the state of civic education in a very serious way, and here I’ll be pointed, not democracy education, not engagement education, not just participation education. The condition of it in K-12 schools and in higher education is better than it was 10 years ago for a range of reasons. You mentioned this national report, Educating for American Democracy that I was invited to be involved with as openly, transparently, the only intellectual academic conservative in a lead author group of seven people. And that’s the credit of Daniel Allen at Harvard, Peter Levine Tufts, Jane Kaminski then at Harvard. James now the president of the Jefferson Foundation at Monticello. They wanted a national consensus report on the state of K-12 civics and history education focused on public schools. So we released that report in 2021. It has gotten some traction. Part of that report was a recommendation that higher education must renew its attention to priority for citizenship education for undergraduate students if there is going to be any hope for renewal and improvement of civic education in K-12 schools, not only because all the teachers have university college degrees, but because the whole culture of any given school is shaped by teachers in chemistry or reading, or whatever the subject is who are graduates of universities and colleges.

(05:35):

And if they never thought of citizenship education, civic education as a priority at the level that English Language Arts is or math is at most universities and colleges, then they’ll just never take seriously something like the civic social studies history teacher in the building. So that report has received some attention in dozens of states. Lee and I are here representing the public university reform movement that did begin at Arizona State University in 2016. There’s an analog effort in elite private universities. Of course, we have to give credit to the James Madison Program and Robby George at Princeton University and the Ashbrook Center at Ashland and some other centers that preceded anything happening in the public university reform over the past 10 years. But there has been a serious effort at Stanford University establishing the Stanford Civics Initiative about five years ago. And there’s now a required course for every Stanford undergraduate called “Citizenship in the Twenty-First Century” taught from a common syllabus.

(06:39):

That development was in parallel to, aware of what was happening in the public university space to establish these new departments, schools, colleges, centers of civic thought and leadership. So I’ll stop here and let Lee pick it up, but in the public university reform space, we can say that there are 12 states and 17 public university campuses that have basically adopted the model started by the state legislature and governor in Arizona, that there will be a new unit. The full size is a college. Three of them are in our colleges in Texas, in Florida, now in North Carolina. Either a college, a department, or a center, and that’s a pretty robust center, for civic thought and leadership under different names. And then in the private university space from Stanford to Johns Hopkins to Yale, maybe at Harvard, some renewed discussion about attention to civic education, citizenship education as a primary role for higher education.

Lee Strang (07:45):

And Joseph, I’ll just add maybe just a couple of comments on Paul’s remarks, which I think are probably representative of Paul’s experience, I’m sure your experience at Tennessee, in thinking about the state of civics education. So young people come to us at age 18 and I’ll just share two anecdotes, one anecdote relating to civic knowledge and one anecdote relating to the virtues which Paul has reflected on very well in his book, his recent book, Teaching America. So on the civic knowledge part, one of the things that is a corollary to what Paul was talking about in many public universities, including many states, has been required civics courses that oftentimes the schools of civic thought are either the leaders or at least one of the mechanisms of providing what used to be relatively common, but has now become rare, access to the common aspects of the American civic tradition.

(08:33):

So Paul, in his prologue or preface, talks about the Declaration of Independence repeatedly. And a lot of our students, they’ve reported to us, they’d never read it before. And that’s not just one document, but entire texts students have rarely read. And then in thinking about terms that Paul also talks about, I think really well, in his book: the virtues that are appropriate to our regime. One of the things that we recently experienced was we had our first study abroad for a cohort of our student society members, and we had a dinner organized in such a way that it was intentionally designed to bring students who have different perspectives together to debate in a civil way. And the students universally reported that was their favorite experience of the entire trip over to the UK. And in particular, what they said was that they had not had a conversation on a controversial issue in a civil way with the person with whom they had disagreed.

(09:22):

Many of them reported that it had never happened before in their lives. So thinking of the virtue of civic friendship and civil dialogue, that the schools of civic thought are able to both give the knowledge and skills that our young people need to be citizens with each other.

James Patterson (09:36):

How did civics education originally decline to the point where we had to engage in this kind of recovery mission? What were some of the policies that we should not repeat that led to this problem?

Paul Carrese (09:50):

One great resource here is crucial to mention because it proves that this is not a narrowly partisan project. You could say as a kind of restoration renewal project, it’s conservative. It is fair to say that at least the public university civic thought and leadership units are intellectually and academically conservative. As he was just recounting, the idea that you would take seriously the Declaration of Independence. And therefore, where did it come from? What are the civilizational sources of it? How could the Second Continental Congress have produced such a document? So you’re talking about a restoration of liberal arts education and American civic education. That’s intellectually and academically conservative. So what’s the need for this? A great resource, to continue my thought, is a totally non-conservative source. President Ronald Daniels of Johns Hopkins University and two co-authors publishing a book now five years ago entitled What Universities Owe Democracy.

(10:56):

And you can notice from the title that featuring the term democracy, not wanting to say “what American universities owe” or “what universities owe to the American Republic.” That would be the more conservative title. What Universities Owe Democracy. So who is Ronald Daniels, the president of Johns Hopkins University, the first research university in the United States of America established in 1876, who has the courage as the president now in the twenty-first century to say, you know, research universities, this model is a great thing. But one unintended… he’s very diplomatic, he’s a Canadian, he’s a lawyer, he’s very diplomatic, he’s very nice. So I’ll be brutally frank in a way he wouldn’t be. One, I think, unintended consequence of the research university model was to kill off the liberal arts spirit, to replace it. And what Daniel says more diplomatically is that a consequence of that was to undermine the civics education that had been provided by American colleges and then universities for hundreds of years, starting with Harvard in 1636.

(12:00):

So there’s a nonpartisan, very serious academic resource saying: we have a big problem in that all of the relevant disciplines that might have provided a citizenship civic education have entirely turned away from that role. It’s beneath them. So my PhD discipline, political science, we can name history, philosophy, other social sciences, but humanities disciplines, which would’ve thought in a literature course that they’re educating citizens. And the choice of readings and how you teach a course, it’s all relevant to this larger mission of the college or the university. You’re educating citizens and really, to be honest, citizen civic leaders. All of those disciplines have turned away from the more traditional liberal arts model, and they’ve definitely turned away from any role they have in producing citizens per se or civic leaders per se, except for a few spaces. And those few spaces think in activist terms. They don’t think in liberal arts, Socratic, intellectually diverse terms.

(13:09):

They think in activist terms. So there are obviously some people in political science departments who still care about this, but it’s all democracy education. It’s civic engagement education. And then there are the analogs obviously in the studies, the new studies disciplines. So this is the difficulty that we’re facing in a whole K-16 ecosystem. Why are students showing up at Ohio State University, very selective university where Lee’s teaching, and they’ll honestly say to him, “Wow, it’s fascinating to read the Declaration. I’ve never actually studied it. I’ve never actually read the whole thing at a selective public university.” How is that happening? It’s because of this research university ecosystem, which has totally pervaded obviously K-12 as well as higher education. So this was the brilliance, I think. I have to give credit to the Arizona legislature and governor in 2016 to say, You know what?

(14:04):

It’s really not going to work well if we ask political science and history and economics and relevant disciplines to reform, or if we just impose a new course, something like that. It’s good to impose new graduation requirements, and the Board of Regents has done that in Arizona for all the public universities in Arizona. But the genius to say, what we really need is a new unit, which would hire PhD faculty from the relevant disciplines and beyond the social science and humanities to lease discipline law. But selecting those excellent faculty with their terminal doctoral degrees to contribute to a restoration mission, to reconnect liberal arts education and civic education.

Lee Strang (14:47):

If I may, James, I’ll just comment and highlight one aspect of Paul’s story and agree it’s a complicated story. How did civics end up being something neglected? And highlight one aspect, which is the rise to modern research university. So, lots of reasons why we have research universities, lots of goods come from them. So the medicine, the scientific breakthroughs, the lives that we lead. So this is not to gainsay any of those. But if you think about what was part of the reason for the transition from, let’s say, the medieval conception of the university to the modern research university, one among many causes was that there ceased to be one common set or one body of knowledge or one discipline that provided a coherence, what I call an intellectual architecture for the university. And so since the rise of the modern research university, first of course in Germany, and then later in the US, Johns Hopkins, Harvard University under Charles Eliot, the modern research university has become discipline-centric, which is one of the points that Paul was making, that publicly accessible knowledge is identified by the criteria of the people in particular disciplines.

(15:49):

So what’s biological knowledge? Ask the biologist. What’s legal knowledge? Ask the law professors. And so each discipline is creating, is curating, is conveying information by the standards of that discipline, but there’s no one discipline whose job is the formation of American citizens or formation of citizens because of the disciplinary focus of it. And one concrete example, because one of the things I’m working on is an article to try to detail and lay out this historical narrative that I’m sharing with you was I had a chance to look at the curriculum. I haven’t completed it yet, but look at the curriculum at Ohio State. And up until the late ’60s, early ’70s, what I’ve seen so far, this is tentative, have been kind of smaller and more residual versions of a coherent introduction to the American civic tradition that up until the early 1970s was still there.

(16:35):

I haven’t seen where it ended yet, so that’s not where my research has gone. But even the late 1960s, I was saying to myself, “Hey, I wouldn’t mind my kid having that education that was being presented at that time in addition to being a great engineer or being a great biologist or whatever it might be.” But then sometime between then and today, it has not quite evaporated, but has almost evaporated. And maybe part of our conversation will be about the general ed requirements that have purported to replace these more coherent civics educations that students used to receive.

Paul Carrese (17:04):

It’s a wonderful overview that Lee has given, but just to make it a little more pointed, Lee’s university, as he well knows, has a motto in Latin, which is the commitment to citizenship education by the state of Ohio. That’s why the state would charter, establish, fund, supervise a university. And this is the story in American higher education from 1789, University of North Carolina, when the state legislature establishes that public university. Why would a state do that? Some of us might know of George Washington as president from his first annual address, what we call the State of the Union, to his last, his eighth, calling upon the Congress to establish a national university because we’re a new federal republic and we need to train, educate in the science of government. He’s very committed to the liberal arts idea. It’s not hack, narrow political education. It’s a liberal arts education.

(18:04):

So Washington’s committed to that idea, but in part, he’s aware it’s already happening in the states. Georgia had done it in 1785, North Carolina in 1789, and it goes on this way. So as Lee well knows, Ohio State University has civic education in the motto, and University of Texas at Austin basically has civic education in the motto. So this is how far we have fallen away from the founding mission of public universities, just in 75 years or so, to have this disappear from the curriculum, let alone the founding mission of public schools. The predecessor elements of that in the colonial period and in the early American Republic, but then Horace Mann and the common schools, what we call public schools movement. Why? Why would a state government be taxing everybody and then helping to supervise, organize these schools? Why? Citizenship education. That’s why. And to have that subject fall not just to second, but to third tier status in K-12 public schools, it’s shocking how far we’ve fallen away.

Lee Strang (19:12):

Paul had mentioned what we’ll call the first founding of George Washington and the original Constitution. But Ohio State’s really part of the second founding period. So Ohio State was found in 1870 after the brutal Civil War. There were continuing political divisions of that. There was massive immigration in Ohio and elsewhere. Lots of parts of America, Cincinnati, for example, parts of Ohio. English was not the most common language. You had these new people who had these weird religions from Protestant Christianity. You had people of different ethnicities. And so what binds them together? This goes with Paul’s common school point. So there’s the K-12 version. Let’s create a higher education version. And in fact, this is part of the research I’ve been doing. During the first year of the Board of Trustees of Ohio State’s existence, they debated: What is the mission of Ohio State?

(19:57):

And they ended precisely on the mission they had before them, two different conceptions. A pure research university, which they described as kind of a mechanics with an archaic spelling, or a liberal arts education. And they wanted a both/and. They wanted a research university that generally produced valuable knowledge while simultaneously creating citizens for the state because of the multifarious backgrounds that we had.

James Patterson (20:21):

Yeah, the curriculum changes that you’re describing, Lee, occur at precisely the time we’re beginning to experience a kind of civic unraveling in the 1970s. And what’s replaced a kind of common vision of the country. And then we have the canon wars of the 1990s. Older listeners might remember this when they were getting rid of Western tradition courses. The replacement was ultimately the idea of STEM education where people were going to become trainees. And that’s not really the model that the universities were talking about originally had. And maybe it was done as a way of avoiding some of these controversies. Instead of saying, “We’re going to make you citizens,” when what that is under dispute, we’re going to say, “We’re going to help you make money.”

Paul Carrese (21:10):

Yes. Again, to underline one theme here, this reform movement in higher education is not a narrowly partisan Republican ideological project. So I’ll invoke another non-conservative in a conventional sense, Danielle Allen at Harvard, who’s written eloquently on this point that the shift since the 1950s, late 1950s, really Sputnik, 1957. The shift in the federal view of its role to support K-12 public schools and higher education. And then the shift within universities and in K-12 to think, oh, a clear priority is STEM education because that advances economic development and technological development for national security purposes. Oh, and it doesn’t have any of those political, cultural, civilizational baggage and conflict that some of these liberal arts turn modern research disciplines have. And the same story in K-12 schools. So I know from personal history, my father was, this is the 1950s, so the term used was a history teacher in the junior high schools, now called middle schools.

(22:24):

He was a history teacher. It later was called a social studies teacher. And he would tell me the story after Sputnik, the 1958 National Defense Education Act. Yes, it had money that the federal government was giving to universities and to K-12 public schools in what we call STEM, science, technology, mathematics, et cetera. But it also had some money for national security-related language study and cultural history study and geography and things like that. Eventually that all faded away and then the money was just STEM. And so that has been the pattern in the federal government. And it just replicated through reasons we’ve just discussed in the intellectual academic culture that was acceptable in a way in the university space and in the K-12 schools. So Danielle Allen, to bring her back into it, she has argued that that was a certain kind of social contract that the universities and colleges made with the federal government in particular, and that K-12 made with the federal government.

(23:25):

This is what we’ll do. We’ll educate for STEM and we’ll educate for employment and these other serious (national security was serious during Cold War!) things, but not anything liberal arts and citizenship related. And that social contract has run its course and we need a new social contract. Partly one dimension of this is that higher education marched farther and farther and farther to the left in these humanities and social sciences fields. So Danielle’s argument is we need a re-centering and a balance in those fields. But one way to show that is to show we are interested again in citizenship education in a more balanced, broad way. Education for all American citizens of all political viewpoints, not just for a left-leaning and more activist viewpoint. That would be the new social contract. And that would deserve support again from a broad American public and even from the federal government and the state governments.

(24:28):

But it’s a prominent center left academic voice saying: that path may have had good reasons at its origin, but after 75 years of it, we need to go on a different path. Higher education needs to go on a different path, and America needs to go on a different path, a different new social contract.

Lee Strang (24:47):

One point that I would add to Paul’s comments, which I think in some ways is unremarkable, and it follows on what James had said, which is that in the 1950s and even up into the 1960s, you had a significant cultural consensus on lots of points. And so in that context, one might imagine that one could afford to focus less on citizenship education because that’s well in hand, and things like Sputnik, the Cold War, and the space race are the priorities. And so it could be deprioritized over time. It’s not to say that there aren’t other causes or other bases. I’m sure there are many of them, but today’s context is not that, as Paul was saying in his introductory remarks, which is this is a time of deep polarization, a time of deep lack of knowledge about the things that we Americans hold in common.

(25:30):

And so following Danielle Allen’s new social compact, this is a new way in which, and Ron Daniel’s argument as well, a new way in which higher education can be partners with the political communities that they themselves are a part of.

James Patterson (25:42):

Beck in April, Elizabeth Corey defended the effort to reach consensus on campus over civics education, and this earned the consternation of Christopher Rufo. And among the things he said is that the conservative movement has been ineffective for decades and DEI took over and crushed the university. And while I disagree with him, I think what he’s getting at is a pretty well-earned skepticism from a lot of people on the right of universities just as an institution entirely. That they have a kind of ideological bias, that there’s no collaboration or consensus achievable with partners on campus outside of the right. I don’t think that’s true. You guys probably don’t either. So maybe explain to someone like Rufo or people who are really sympathetic to the criticism he leveled, what it is that we’re doing and how it often is so constructive and works out well for students.

Lee Strang (26:41):

Yeah, I think that’s a great question. And I actually enjoyed the conversation that you had with Elizabeth and that all the follow-up conversation’s been going on as well. And it wouldn’t be surprising just the fact that Paul and I are in higher education, that’s part of a reform effort of higher education to think that we see some porosity of the existing structures and think they’re flexible in some ways. And I’ll just share my view, which is actually just my view of human beings, which is that human beings come in all different shapes and sizes. And that in my experience, when we present the mission of the Chase Center, which I lead the School of Civic Thought here at Ohio State, is that I’ve never had anybody, at least publicly, say that they disagree with the mission of citizenship education. Where people come apart is skepticism, and Paul has alluded to some of the bases of the skepticism that even though the mission sounds good in its implementation, it would in fact be deeply big-P or deep big-R partisan.

(27:35):

And so what we’ve tried to do in a genuine way, I’m sure with some mistakes along the way, has been to try and faithfully met the mission in which people of all different backgrounds in the United States would see as faithful to the civic tradition. Not to mean that they might do it differently here or there. And then I would say internally in the university, some folks I think we’re just never going to persuade, but I think there’s a large number of people who are open to persuasion, especially as they become more cognizant of some of the criticisms that Paul and I have identified regarding the posture of Ohioans, of Americans regarding higher education. I’ll just give one anecdote that captures it. We’ve had a number of speakers. Danielle Allen came out and it was actually after Dr. Allen had given her remarks, which was on her Atlantic piece about the new social compact that we had a faculty member come up and the faculty member said something to the effect of, “When you guys started, I was pretty skeptical. I’ve been coming to a number of your events.” And she said after the Danielle Allen event that “you persuaded me that this is a valuable enterprise that Ohio State needs.” And now that’s one anecdote that I think captures what I see as the kind of large middle of people inside my colleagues in Ohio State who are open to persuasion if by their lights we’re able to implement the mission in a faith way.

(28:46):

Again, maybe not the exact way that they might do it, but in a way that they recognize is responding to the challenges that Paul and I are identifying.

Paul Carrese (28:53):

In response to Rufo’s concern or criticism, I’ll invoke what is now a conservative virtue: prudence or practical wisdom. American higher education is a big space. There are many different kinds of institutions and many different campuses. And so it makes perfect sense that more than one approach might work. Partly I’m showing my Montesquieu influence. There are different climates and customs and historical realities, and there isn’t one universal blueprint in the sky that’s going to be perfect to achieve justice. So practical wisdom has to be brought in here. This can work in different ways on different campuses. And I think Lee is right that those of us who are in and believe in the role for one of these approaches to have separate units at the college size, at the department size, at the center size or scale, but in a robust way as a center, we should try to be Socratic with our colleagues and persuade our colleagues and say, “This is a serious academic mission which needs to be restored.”

(30:00):

It’s liberal arts learning on a crucial subject. Obviously, I think in private universities as well, but undeniably in public universities, this has to be restored. And we’ll try to persuade you that we’re good faith, serious academics, academic professionals. We’re not partisan actors, but we will also be firm in arguing that there ought to be some self-reflection on the part of on a given campus, the department of political science, the department of history, the department of philosophy, and the list goes on. So I’ll just give one example. At Ohio State University, sorry, at Arizona State University, when I was recruited in 2016, there’s huge criticism coming from political science, philosophy, history related departments. I asked the dean who had just hired me, “Could I do some immersion sessions with these departments and just say, I’m not going to give a presentation.

(30:59):

I’m just going to answer questions that you have and show basically I’m a totally boring academic just like you. I have a PhD and promoted to full professor at the academy. I’m not some political agent.” He says, “Great idea. Let’s go to my tenure home.” His tenure home was political science. So the very first question that comes is, and I’d read it in the press and I’d heard it before, “There’s no need for these new civic though leadership units, this one here, because we already do this.” And the dean, again, this was his tenure home, political science. He said, “Paul, I’ll let you answer, but could I please just take that briefly?” He looked him in the eye and said, “You know we used to do this. What happened when Bob retired and Sally retired? What did we do with those lines?” And these were lines in political philosophy, in American politics, but political though and constitutional though.

(31:51):

What happened when these people retired? He looked them right in the eye and said, “We gave those lines away to other subfields.” And of course the temperature in the room went down about 30 degrees. We need to be firm in saying, “Really? There’s no need to have a separate unit on a given campus? Fine. On a given campus, it could be a center that’s going to collaborate and try and generate, be a catalyst for reform. Fine. But on some campuses, there might need to be a separate department, a separate college, because the legacy departments have gone just so far away from this. I mean, there are departments of history that no longer have faculty teaching the two semester sequence in American history that was standard when all of us were undergraduates: American history from the beginning to the Civil War, second semester, American history from the Civil War to present. Because that would be to give too much attention to America as a theme.

(32:48):

Instead, you have to teach American race, America and gender, America and civil rights, America and labor, something like that. So not to mention other subfields that history is doing away with, military history, diplomatic history, et cetera. And there are analogs in political science, and we can go down the list of other departments. So it’s this balance that we have to strike between being Socratic, persuasive, compromising, try to be collaborative. But on the other hand, to be somewhat firm, to say we are not doing our educational duty. This is not a healthy academic climate if we can’t have space on campus for these areas of teaching and research and inquiry. And we, for public reasons as well, need to restore space on campus for these activities.

Lee Strang (33:35):

Sorry, James, I just highlight and affirm one aspect of what Paul was saying, which is not going in with naivete. Paul has been an academic for a number of years. I was a 20-year academic before I took on this leadership role. I know what higher ed is like. I know its high points, its genuine virtues. I know some of the challenges it faces. And so many of the institutions that have been created, modeling off of Paul and SCETL back in 2016, have had structural provisions that do what I characterize as a both/and posture. Both engagement, both wanting to be a genuine and robust part of the university, and also having the capacity if, and hopefully never is necessary, but also having the capacity to be able to protect that unit’s mission because of the structural mechanisms of that particular unit, including in particular hiring and curriculum.

(34:23):

And one of the things that has struck me just from having been a leader now for three years has been the variety of experiences of different schools of civic thought in their respective universities. Some have been just wonderful and mutually enriching and beneficial. Some have been pretty bad and very challenging. And so having the structural protections with the realistic eye towards human nature in general, and then the particular areas of American higher education now allows one to engage as robustly as one can from a position of also having the independence be able to maintain the mission of citizenship education.

James Patterson (34:59):

Yeah. I find that so many people are unaware of how universities operate internally, that they try to read a kind of ideological shortcut into understanding what we’re doing. So it makes sense to me that there would be a kind of extension of existing polarization into what we’re doing. So you get on the one hand a lot of gloom and doom coverage from more left-wing outfits about the creation of these programs and then skepticism on the right about the effectiveness or the collusion of so-called right-wing professors with the university. But really, when I was thinking about this when Paul was talking, it’s just a lot of committee meetings. It’s not that intense. And when you were talking about surrendering tenure lines, for those who aren’t academics at home, this just means that professors that once taught the civics education, they retired, and then they gave those jobs to someone whose version of teaching civics education is importing equations from R and then using them to develop an R squared for an independent variable. Which is perfectly fine as a discipline, but not civic education.

Paul Carrese (36:12):

So just to follow this thread on whether any of this activity in the public university space or even the efforts at Stanford, Hopkins, elsewhere, we’re just spinning our wheels or to a different metaphor, we’re duped into thinking we’re really doing something effective. We’re sort of just token efforts. Again, 12 states, 17 public university campuses with three of them as colleges, civic thought leadership. And the University of Florida, the Hamilton School for Classical and Civic Education has just launched a PhD degree. They’ve just admitted their first class of about a dozen PhD candidates to study in two different tracks. One track is intellectual history, great works, intellectual history. The other is war strategy and statecraft. I think I’m getting that title correct. So that’s a big move. This could be recognized now as a field of civic thought and leadership that has PhD discipline departments offering a PhD degree.

(37:24):

I know other civic thought leadership units have discussed, made initial steps and plans to have a PhD degree. So we could be at the beginning edge now of what occurred in the past 50 years with this new interdisciplinary field called Science, Technology and Society.

James Patterson (37:41):

Oh yeah.

Paul Carrese (37:43):

A group of faculty in different disciplines from the engineers and the natural scientists themselves to sociology, political science, philosophy, other fields saying there’s a reality that’s worth studying. There’s also a reality that’s very troubling. The power of science and technology, its effects and consequences on politics and society, and no one’s really studying it. The engineers are doing it, but they are not liberal arts people or even social science and humanities people. So this is a field now, science, technology and society, STS, with its own PhD degrees in several major universities around the country, with its own journals. It’s not a huge field, but it’s recognized as a field meeting an important academic need to study reality and have space to discuss and debate and focus on that and an important political need. So I think that’s where civic thought and leadership is at the beginning. And that’s a real effect on higher education and on civic life.

Lee Strang (38:52):

If it’s all right, I’ll just add one kind of concrete aspect. So in Ohio, we have five schools of civic thought and we’re in, depending on which one, our second or third year. And really next academic year will be the year in all five of these schools will be operating in a more robust academic mode. And we just were collecting some of the data. And compared to two years ago, there’ll be approximately 40 faculty have been brought into Ohio from all over the country and all over the world. We’ll have majors, minors in civics or other versions of civic though. We anticipate collectively teaching somewhere between three and five thousand students this next year. So it’s broad, thousands of students across the state, the intellectual enhancement of the university cultures. The students will be deeply engaged through their majors. And then lastly, the university conversation.

(39:41):

So each of the different schools of civic thought has enhanced their university’s conversations and the topics presented. Bringing Danielle Allen, even though broadly there’s debates about higher education, there had not been any debates within our university about the future of higher education, or at least no public debates about it. And we contributed to the conversation because of that. So that’s one concrete in one state with just five institutions have been able to really move the needle significantly for students, faculty, and the state.

James Patterson (40:09):

I mean, here at Tennessee, at the IAC, I think we’re going into our fourth year. We’ve already developed the major and the classes are full. And we’re having to hire. It’s just like at Florida and UNC, we have to hire in order to just offer the courses that we need. And a funny thing about this kind of education, at one point I had a student in a class, and he was distracted on his computer, which he shouldn’t even have had out. And so I sort of called him out on it, and he said, “I’m sorry, I’m following the state legislature to see if they approved a landfill in my county.” And I’m like, “This is it, man. This kid is civically educated. He cares about his county landfill.” Well, it wouldn’t be the year 2026 if I didn’t ask you a final question about artificial intelligence.

(41:08):

The University of Chicago just announced a deal with Anthropic to incorporate AI while it’s also announced a kind of de-emphasis on its liberal arts education. How much do civic educators need to adapt to a world where maybe universities are actually doubling down on a kind of STEM approach as well as the way that AI seems to impact the traditional ways that we used to assess our students such as through paper writing and the like?

Lee Strang (41:38):

Yeah, I’m happy to let Paul talk about some of the internal ways. One of the ways we’ve been thinking about it, James, and it definitely is important and something that we need to address, and I think we do have a special value add. So the value that we see ourselves as bringing to our university community is: How will artificial intelligence affect the civitas, the ability of American citizens to live well together, to bear the responsibility of self-government? And we have a multidisciplinary academic community. And so a person in literature, we have a class on, it’s not the title, but a class on dystopias, a part of which are future dystopias where scientific computer intelligence is pervasive. Part of it will be in our political theory-oriented courses. So how do people live well together in those contexts? Part of it will be, we’re working on forming teachers for schools.

(42:27):

And so what are the ways in which humans learn well? And then how might they be distorted or enhanced potentially by things like artificial intelligence? And so we’re working, and this goes back to one of the points that we were talking about earlier, on finding scholars who have the facility, and the interest of course, but the facility in being able to address this new concern from the perspective of: How will it impact people out in the civic life? And Paul can comment on the internal things that James was talking about. I have some things to say as well on that.

Paul Carrese (42:56):

Yeah, great question. I think it would be wise for all of the remaining liberal arts-oriented faculty in universities and as many allies as you could find in the humanities and social sciences, obviously in other STEM fields and business, et cetera, to use the, I’ll be honest, the threat of AI to rally and focus attention on precisely what AI can never do, and never be, which is human judgment. And educating for human judgment, and educating for, in this case, civic judgment, and the blend of civic knowledge and civic virtues, reflective patriotism, civil disagreement, civic friendship, the character leadership, statesmanship development. AI can never do that unless we’re going to entirely surrender our humanity. So it may be a focus moment. I will say I did try from 2016 onward to, as we were talking about earlier, try to say to colleagues in humanities and social science disciplines who were so skeptical about a new civic thought leadership department, and say, “Don’t look at me as your enemy.

(44:17):

We should be collaborating.” And I would tell this story I remember learning at the Air Force Academy. An Air Force General during the Cold War is talking with a younger officer and the younger officer refers to the Soviet Union as the enemy. And the old Air Force General says, “Young man, Soviets are our adversary. The Navy is our enemy.” So to get the remaining liberal arts faculty to say, “Hey, wait a minute. The engineering school is our enemy, and the business school is our enemy. And the more utilitarian ways of study, we should be collaborating over here.” So I put forward, for example, a PPE degree, philosophy, politics, economics. Our civic thought leadership unit was leading it, but three other departments, philosophy, politics and economics, their courses are listed in it. We’re collaborating on it. So four departments that we’re pulling together and trying to use the sexiness of the title and the idea that, oh, this is kind of a leadership honors degree to get some of the business school students to say, oh, I’ll take a minor in that or maybe I’ll do a double major, do a second major in that.

(45:19):

I think we should use AI in this way as well and be brutally honest about it.

(45:26):

I think this is a neutron bomb going off in higher education. Buildings will be standing, faculty will still be there, and there’s destruction. So we ought to use this to rally and try to find allies, and we are perfectly placed to do this. This is precisely the kind of learning and educational development and research that AI can never do, and it’s indispensable, including the study of it. I’m not saying we should ignore it. We’ve got to know about it and the reality of it, but in a highly skeptical way, and rally the liberal arts capacities.

James Patterson (46:04):

Lee, you said you had more about the internal.

Lee Strang (46:06):

Oh, yeah. It’s one of the things that we’re trying to work through is how do we accurately assess students? How do we accurately encourage them to develop the faculties that Paul talked about that can’t be done by artificial intelligence? And it’s been a learning process. It’s actually one of the things that’s brought the academic community together because together we’re facing these challenges. And I would say our faculty have the same goals on this point, which is that all of us want students to have an education that stretches the individuals, that helps them have the opportunities to hone their intellect and their skills. And then how do we test that? How do we achieve that? So one of the things that’s been, I think, healthy has been, we do a lot of in-class writing again. We have a lot of in-class discussion. So it’s actually given us additional reasons to move towards a more Socratic style of education.

(46:59):

I would say one challenge has been, not all of our colleagues have moved in that direction. And so there are some very large online asynchronous sections that get a lot of students, and therefore, given the budget model that we have, have large amounts of revenue. And so there are structural challenges that that presents. And we don’t have an answer to that yet. We’re working on that.

James Patterson (47:20):

No. I think neutron bomb is right. Even though some people might hear that they might think surely not. But no, it’s pretty crazy how much this has changed in the course of just two years, how I teach. And I think Lee’s description of reforms made reflect my own in terms of in-class writing and discussion. There’s more to develop in that direction that might even be more civically minded. I was thinking about running one of my classes more like a Congress with points of order and stuff like that. Students try to pass legislation and so they can experience that way of life that used to be so common in America and now is fading, at least for now, until we have our way.

Paul Carrese (48:05):

Yeah, obviously there have been for a long time efforts to bring experiential learning into political science courses or history courses, reenactment exercise courses or mock trials or mock cabinet debates, debating the Emancipation Proclamation, et cetera. But just to reinforce the larger theme here, and James, you’ve got a topic for an entire other podcast episode here, related to the civic thought renewal in higher education and also this AI challenge. Both Yale University and Harvard University have released reports or white papers in the past couple of months in spring 2026 that directly addressed the topic of our conversation this hour, but also the resource that a renewed civic education focus can have for reminding these elite universities of what their core mission is and for revivifying or rehabilitating a decayed, deteriorating intellectual academic culture on campus. So the Yale study is the president’s handpicked committee of 10 faculty to write a study about the loss of public trust in higher education.

(49:20):

So that report came out. And the one specific academic topic that they mentioned for further studying reform is perhaps to restore some kind of common intellectual experience for the first year students at Yale. There should be co-curricular learning experiences about citizenship education and civic education. And it’s pretty obvious from the footnotes and the resources report that a player there on that topic was Bryan Garsten, the founding director of the new Yale Center for Civic Thought, helping to host some lectures and have conversations publicly and behind the scenes with the committee members. So they didn’t go all the way that any of the three of us might’ve liked to say: Maybe we should have a required curriculum in civic education as Yale had at one time. But at least the one topic they could pick out, what topic might bring a common intellectual experience to all Yale College first-year students that were all citizens or aspiring citizens, or even the international students are interested in being in America and understanding American politics and American self-government.

(50:24):

That’s the one topic that they picked. Then the Harvard Radcliffe Institute went a step further. This was not a full university report to the president, but it was a Harvard Radcliffe Institute white paper on intellectual diversity and really on the health of the intellectual academic climate of Harvard and other elite universities and more broadly in higher education. They went further and specified this reform of establishing new centers for civic thought and leadership as something that should be seriously studied. It was positive and it was a unanimous recommendation from a white paper committee that had clearly had center left people in there and they were willing to say, “This has proven itself in 10 years.” And it was both for the particular topic, civic education, but also for the kind of renewal of Socratic, they didn’t put it quite this way, but the renewal of Socratic learning and debate.

(51:22):

This is a common topic, being a free person, a citizen and self-government, even if you’re an international student or you’re not fully a citizen yet. It’s a common topic and it’s intellectually rich and it’s Socratic and so full of lively debate discussion, and you have to therefore build the intellectual and civic virtues related to it. So I think it’s quite striking. And again, to make the point that what we’re doing is not a narrowly partisan ideological project. If both a Yale committee and more emphatically, a Harvard Radcliffe white paper can be identifying what we’re doing and talking about as an important reform for all of higher education, then I think we’re at the beginning of bigger and better things.

James Patterson (52:08):

Paul Carrese, the book is Teaching America: Reflective Patriotism in Schools, College, and Culture. And if you liked what he just said there at the end, he really goes into great detail about these and other studies that have really been pushing for the civic education we’ve described. And of course also Professor Lee Strang, thank you to both of you for coming on the Law & Liberty Podcast.

Lee Strang (52:31):

Thanks, James. All great to be with you.

Paul Carrese (52:32):

Thank you, James. Thank you, Lee. Terrific conversation.

James Patterson (52:35):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts, and visit us online at www.lawliberty.org.

Related Links

Accelerating Democracy by John McGinnis
“Blessed Are the Rich” by James E. Hartley, Law & Liberty book review
Originalism and the Good Constitution by John McGinnis and Michael Rappaport
Why Democracy Needs the Rich by John McGinnis

Transcript

Intro (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund.

John Grove (00:40):

Hello and welcome to this episode of the Law & Liberty Podcast. I’m John Grove, the editor of Law & Liberty, and I’m filling in for our regular host, James Patterson. And today I’m joined by John McGinnis, who is a Senior Writer at Law & Liberty. He’s also the George C. Dix professor in constitutional law at Northwestern University, the author of Accelerating Democracy, Why Democracy Needs the Rich, and a co-author with Mike Rappaport of Originalism and the Good Constitution. It’s fair to say that John is the anchor of our constitutional law coverage here at Law & Liberty. So we’re really pleased to be joined with him, as we are every July, to talk about the recently concluded Supreme Court term.

John McGinnis (01:21):

Delighted to be here, John.

John Grove (01:23):

Well, we have a lot of cases to talk about and I think a through line through a lot of these cases is presidential authority. So we’re going to start with one that was decided earlier this year, Learning Resources v. Trump. This is the tariff case, the question whether the International Emergency Economic Powers Act authorizes the president to impose tariffs, or the Liberation Day tariffs, as they were called by the President. I don’t know that everybody agrees with that term, but the IEEPA gives the president in certain emergency situations the authority to investigate, block, regulate, direct, compel, nullify, void, prevent, and prohibit importation. Do not specifically say anything about taxing or tariffs specifically. So, John, why don’t you start us off on this case, and what was the Trump administration’s argument that this legislation did allow the tariffs? And then how did the opinions come down and what do you think about them?

John McGinnis (02:22):

Well, Trump’s administration’s basic argument was this is an Emergency Powers Act, and it should be interpreted accordingly to allow the president to have flexibility in emergencies. That was his argument despite it lacking the words “a tariff or tax.” And the Court did not accept that. This, I think, is good to begin with because while the term had some wins for the institutional power of the president, it was not a good term for this President’s exercise of power. For the matters I think that most concern this president, beginning with the tariff case, he lost at the Supreme Court. And I think, in some sense, I would consider the headline of the term, at least in a political science sense, that the Court remains a separation of powers entity that can push back on the president even when he’s appointed three of the justices and even when six of the justices are members of his party.

(03:32):

And so what the Court did here was that it said, “Well, this is at least ambiguous because, after all, it doesn’t include tariffs or taxes and yet includes a lot of other sweeping powers. And when a statute is ambiguous and has major effects, we have something called the Major Questions Doctrine, which requires the Congress to speak clearly.” And well, here it didn’t speak clearly because it didn’t mention tariffs. And that’s why, at least in the plurality’s view of Roberts, Barrett, and Gorsuch, he loses. In the liberal justices’ view, he just lost as a matter of clear statutory interpretation. With respect to the dissenters, they said, “Well, we’re fine with the Major Questions Doctrine, but we really think it shouldn’t likely be applied much in the emergency context because after all, there’s a place where we might think Congress wants to have the kind of flexibility that the administration is arguing for.”

(04:36):

So that’s the argument. I think what’s important to note here are a few, again, headline jurisprudential facts. One, there are six votes for the Major Questions Doctrine in domestic and non-emergency affairs. The three dissenters are very strong on Major Questions Doctrine, so it’s going to continue being a presence in administrative law. The other I think important fact is the debate about, well, what’s the nature of the Major Questions Doctrine? And there again, Justices Gorsuch and Barrett really debated that. Justice Barrett arguing that it can be just understood as ordinary language. When you want to give someone a large power, you expect them to be particularly clear. And Justice Gorsuch says, “Well, I’m not sure about that as a matter of ordinary language, but as a matter of our legal tradition and agency law that existed at the Founding, as a matter really of our legal and constitutional language, that’s right.” And so that’s a debate about the nature of it.

(05:43):

This is just ordinary language, which fits very nicely into a kind of ordinary language textualism for Barrett, or is it nested within a legal structure of the Constitution? And that’s why we demand because of our concerns about giving the president, in particular, too much power. That’s why we have a Major Questions Doctrine. And Gorsuch, in what I think it may be the most important opinion he wrote for the court, despite its being a concurrence, he tweaks the liberal justices by noting all of the times when they gave the president tremendous power on canceling student loans, for instance, and refused to apply the Major Questions Doctrine, suggesting that they are not being consistent here. And it was quite, I think, a powerful concurrence by Gorsuch, very long and very scholarly concurrence going back into the legal background of the Constitution.

John Grove (06:45):

Yeah. Could you say a little bit more about some of these distinctions? Because as you note, there’s the Gorsuch and the Barrett debate over how you arrive at the Major Questions Doctrine. But then you also have the three, some quote-unquote, “more liberal justices” who agreed with the outcome, but they don’t really use Major Questions Doctrine at all. And they said, “Well, you can just arrive here through regular statutory interpretation.” So are they basically arguing that the statute here was just clear?

John McGinnis (07:12):

Yes, clear, particularly in context because they said, “Well, there are a lot of other statutes that give the president tariff authority. And so we should read it in that contextually. If we want tariff authority, the president doesn’t lack tariff authority, but it’s bounded by the requirements of these other statutes.” So that was their argument in this case. So that’s why they said that we didn’t need the Major Questions Doctrine. So they just read it as a matter of strict textualism.

John Grove (07:41):

Is that a sign that the Major Questions Doctrine might not be embraced beyond the sort of more committed originalist type justices that have come up with it?

John McGinnis (07:51):

Yes. So I think they were not going to see, but there are six justices on the court who embrace it. The dissenters are very clear in general that they are Major Questions Doctrine enthusiasts. And I think we’re going to see that for this reason going forward. The Major Questions Doctrine, quite apart from whether it’s correct doctrinally, it performs an important function. It allows the court to police unbounded or what it sees to be extravagant delegations without declaring them unconstitutional. So if Congress really wants this, they can come back with the same language and say, “Well, we really mean it rather than revive the non-delegation doctrine, which would actually constrain Congress as a constitutional matter.” Now, not to get ahead of ourselves, here they’re very careful to avoid any constitutional arguments. In some of the cases that we’re going to look at, I think the court reaches out to make some constitutional arguments in a piece that will be forthcoming in Law & Liberty.

(08:54):

I critique the Court for that, but at least let me point out that’s an interesting contrast with Learning Resources versus, for instance, Trump v. Cook, also with respect to the birthright citizenship case.

John Grove (09:06):

Alright. Well, that’s a good segue then. Let’s move on to some of these other cases, specifically these two removal cases, first Trump v. Slaughter and then Trump v. Cook. Trump v. Slaughter, for a lot of legal conservatives, originalists, this is going to be a culmination of a sort of long process of movement towards this presidential removal power, solidifying what is sometimes called the unitary executive and cutting some of the independence from independent bureaucratic agencies, which has often been critiqued as sort of the runaway administrative state. So in Trump v. Slaughter, we have essentially the 99 percent overturn of Humphrey’s Executor. Maybe Roberts leaves like a 1 percent of it. I’ll talk to in just a minute, but give us just the historical background of this of Humphrey’s and how this movement got started to overturn Humphrey’s and revive the notion that really the president is in charge of the whole executive branch.

John McGinnis (10:06):

Yes. Well, this is a predictable decision. It’s a predictable decision because it is as you say, Humphrey’s Executor was in the crosshairs of the conservative legal movement, and it’s easily attacked because its originalist bona fides are weak and because there were always counter principles in the law. It’s not as if a Humphrey’s Executor was the only word on presidential removal. Now, I think we need to begin with a case called Myers, which Taft, of course, who had been president, wrote, and in that case, he suggests that the president does have the ability to fire any officials who wield executive power. Humphrey’s Executor came down, though, after the New Deal started, and it came down with respect to the FTC. And the FTC also exercised what they called quasi-judicial or quasi-legislative powers, what we call rulemaking and adjudicative functions within agencies. And the court said there that because of those functions, Congress was able to insulate the heads of those departments from presidential removal.

(11:26):

They could be removed only either for cause or malfeasance and neglect of duty. So that was these dual cases, which seemed in some tension with one another. The tension was even exacerbated by Morrison, the independent counsel case, in which the Court also allowed insulation of removal of the independent counsel. Now the problem there was the independent counsel exercised executive authority. And so they made it just a kind of balancing test. Well, you couldn’t go too far if the office was really important, you couldn’t insulate it from power. But then because of that, they actually unmoored the doctrine and I think opened the doctrine up to the claim that it’s just judicially made up. And there have been a series of cases that have essentially chosen Myers over Humphrey’s Executor, a case called Seila Law, for instance, in which the Consumer Financial Protection Board, which had a single director but did have quasi-judicial and quasi-legislative functions.

(12:36):

The Court said, “Well, it’s different from the other agencies because it has only a single director.” And the other agencies had more and that meant they were less of an affront to the president’s authority because at least he could appoint some people from his own party. So all of that allowed, I think, Roberts to do what he often does to say, “Well, Humphrey’s Executor has been whittled away by a series of decisions,” a series of decisions that not coincidentally Chief Justice Roberts wrote himself and said, “Well, this precedent, we have to actually go back to the original meaning to decide things here.” And the best understanding of the original meaning is that the president does have this authority because he has all executive authority that is vested in him under Article II. And that implies removal authority just because he can’t oversee the executive branch himself.

(13:35):

He has to oversee his own assistance. And particularly because of a contemporaneous Decision in 1789, which Congress debated this question and gave the president removal authority. So this decision was I think really one of the decisions that was most clearly foretold because it is been I think really in some ways as much as the abortion decision, Roe v. Wade was thought to be anathema to the rights aspects of the Constitution and making up rights. This was really thought to be anathema to the structural sense of the Constitution, both because it seemed to violate the text of the Constitution and because it struck at the heart of accountability. Who was accountable for these branches if the president was not accountable? And so there was also a functional idea and these two ideas came together and I think for the majority in this case made this a relatively easy case to decide.

John Grove (14:45):

I’m going to play devil’s advocate a little bit on this case. I liked Justice Gorsuch’s concurrence here, which I often like Justice Gorsuch’s concurrences. I feel like whenever he concurs, there’s always something that needs to be said that usually John Roberts is not wanting to say. But I really liked his, because he approves of the result of course, but he’s not triumphant about it. He recognizes that it sets up a potential concern in that Congress established a lot of these independent agencies specifically with the idea in mind that they would not sort of just be going with the wind of the president, that they thought these are sorts of regulations that we really don’t want going back and forth every four years. And so for Gorsuch, he says this just raises the question of non-delegation, which is something Roberts, and you’ve written about this very intelligently, that Roberts seems a little bit more skittish about bringing that up than some like Gorsuch do.

(15:37):

But I’m going to bring up just the broader institutional perspective. Is this consolidating a lot of power in the hands of the president in a way that even if the sort of legal arguments about the vesting clause are right the Founders never really sort of had this sort of thing in mind because we have so much regulatory power that has been handed over to the executive that now whatever they had in mind for the unitary executive would not have been wielding this much power? So that’s sort of the institutional question. And then sort of the legal question, I guess, I noticed that in Robert’s opinion, he calls rulemaking executive power through and through. He says, so the power to flesh out statutory regimes through discretionary actions largely outside the remit of courts is executive through and through. But a lot of times we think about this sort of rulemaking power as kind of legislative.

(16:32):

So in some ways these agencies can be seen as wielding legislative powers. So doesn’t that give the legislature some ability to put restraints on the agencies that they’ve delegated that to?

John McGinnis (16:47):

Well, this goes back to a big debate between functionalism and formalism in administrative law, because of course the difficulty with saying that the executive branch is wielding legislative powers is that raises directly the non-delegation question. You’re a formalist. The executive branch has no business. All the legislative powers are in Congress. And the argument has always been, well, the executive of course has some power to fill in the details of how to… That’s part of execution of the law, but that raises the question of how to draw the line between legislative power and executive power. And that of course is exactly what Gorsuch is saying, that if we give all this power to the president and we call it executive, it’s incumbent upon us to draw those lines. Now we do it to some extent through our statutory interpretation through the Major Questions Doctrine, but his argument I think is that’s not enough because it’s not only with respect to major questions.

(17:56):

There are a lot of minor questions that are nevertheless very important to individuals and the separation of power should count there too. And that’s the reason he calls for a revival of the non-delegation doctrine. So I think again, just as Gorsuch I think was on a tear this term, I thought his most important opinion ever was the concurrence in learning resources, but this is also an enormously important opinion. And I do think points to some hard questions that the court is going to be grappling with. The only thing I think a political scientist might say is he might say that he or she might say this is not quite as significant an increase in the president’s power as you might think because actually the independent agencies don’t operate that differently because when a new president is elected, almost always he can designate a new chair and the old chair doesn’t want to stick around.

(19:00):

He resigns. And so it takes him a little more time to get control of the independent agencies, but he gets control of the independent agencies. Nevertheless, the independent agencies have, for instance, not been part of the OIRA process, the Office of Information Regulatory Affairs process, which reviews all non-independent agencies for cost-benefit analysis and for the consistency with the presidential program. And this will allow the president to exert more authority in that respect. So I do think it is significant, but maybe not quite as significant as some commentators have said because of the actual way that independent agencies operate.

John Grove (19:46):

He said there might be this tiny sliver where if you could imagine an agency that is doing nothing but legislative, truly legislative type things and doesn’t exercise any actual executive power, he seems to say, well, that could potentially be like a sliver that Humphrey’s could be right there. But the reality was that none of these independent agencies actually did that and they were all doing executive. I’m trying to get

John Grove (20:08):

At Robert’s understanding of what exactly is legislative power and what exactly is executive power.

John McGinnis (20:13):

But I think the difficulty there, if an agency operates just with legislative power, uses real legislative powers, there’s still the Chada question. Well, how can they operate legislatively without going through bicameralism and presentment? So I think if they’re purely advisory, they just give advice. The court has long said that they can be insulated from review from removal. That’s true of a variety of advisory commissions. I think maybe the harder issue might be if an agency only did adjudication. Going back to Myers, Taft even says, “Well, maybe even there the president should be able to fire them, but he shouldn’t be able to control them. They should be able to make their independent decisions and maybe then only to be fired afterwards rather than before they make those decisions.” So that actually I think might be, but there are very few agencies that I can think of that only do that.

(21:14):

That might be the sliver that I think will most likely be contested. But I think you’re absolutely right. For the most part, for the independent agencies that people talk about, the alphabet agencies like the SEC, the FTC, the FCC, those agencies are now wholly within presidential control.

John Grove (21:35):

Okay. Let’s move on and talk about something that is not exactly the same thing, but that will come to people’s minds when we think about “insulated from presidential control.” And that is the topic of the other removal case, Trump v. Cook, about the Federal Reserve. So the obvious segue here is does the decision in Slaughter have implications about the Federal Reserve and the extent to which the Federal Reserve can be exempted from direct presidential removal? Well,

John McGinnis (22:03):

As it was litigated, it didn’t have really necessarily any at all because the executive branch conceded that it had to go through for cause removal. It tried to constrain that for cause removal in ways that I think were not extremely persuasive, but it conceded that point. So that’s, I think, interesting. And then Roberts nevertheless talks about it and says that the Federal Reserve is independent, which is interesting. He reaches out, Thomas also reaches out if we want to talk about that, but it’s important to understand that the administration does not contest that. And I think there’s a lesson there is that in some ways the independence of the Federal Reserve is so important that even this norm-breaking President who criticizes the Federal Reserve more than any other president won’t go there. Why won’t he go there? Because he thinks it’s too damaging to the stability of the markets and to his own presidency.

(23:14):

So ironically, the for-cause removal for the Federal Reserve may actually not be actually necessary because of the tremendous consensus and function that the Federal Reserve performs. Nevertheless  lawyers like to debate these things and we had a debate in the Supreme Court about

John Grove (23:40):

It. So you don’t think the decision in Slaughter would give a sort of incentive or temptation to sort of change their tune on the Federal Reserve and try it out and see if they could?

John McGinnis (23:49):

I do not. I do not. Well, we have a very lab aisle politics. It’s really very unsettled. We have the rise of democratic socialists and who may probably don’t like an independent Federal Reserve either. But I find it hard to imagine a world in which there is a demand to make the Federal Reserve dependent or at least there’d be tremendous resistance to it. But I think the important point here is, at least in our world, I don’t think the removal power is necessary and the best demonstration of that is the administration’s litigation position.

John Grove (24:30):

Okay. Yeah. You did say though lawyers like to debate these things. So very quickly, what was John Roberts’s distinction? Why does he argue

John McGinnis (24:37):

That the Federal Reserve is different to the Bank of the United States, which of course was very early done by an by George Washington. And as Marshall says in McCulloch v. Maryland, was debated by the purest minds of the Republic. And so it was upheld then. And then there was a second bank of the United States. Now query how persuasive that is. Did they look at all like the Federal Reserve? Did they even have executive powers? The Federal Reserve undoubtedly has today after the Federal Reserve is very involved in regulating banks. I don’t recall that the Bank of the United States involved in regulating the state banks. I think that would’ve been a whole nother constitutional crisis. So I’m not at all sure it’s a very persuasive distinction. And that’s what Justice Barrett says is in her opinion and says, “We don’t need to get into this question and your distinction isn’t really very persuasive.” And so it actually shows, again, at least what some people on the Court have said about originalism.

(25:42):

The Court is going to be originalist, but it’s always going to leave itself and out. Which may go back to Thomas Jefferson, who of course was a kind original intent person and who said in defending the Louisiana Purchase, which at least I think many of his party thought was unconstitutional as an original matter. He said, “Well, we’re going to be originalist in all small things but in really important things…” And of course some people said even at the time, John Quincy Adams, for instance, that that gives the game away. All

John Grove (26:14):

Right. Well, moving on then, obviously the most controversial case of the term, and this switches gears slightly, is Trump v. Barbara. The reaction to this one has been unlike the reaction I’ve seen to almost any other cases because both sides were apoplectic about the results. Those people who argued against birthright citizenship saw arguments that this decision was the parallel to Roe v. Wade, that it was a travesty of justice. But even those who were on the winning side who supported birthright citizenship were very angry that four justices could possibly disagree with them. The reality to me at least, and I’ve again, not a constitutional lawyer, but I’ve had the privilege of reading a lot of good stuff on Law & Liberty and elsewhere from some of the best legal analysts on this question. It just seems like a kind of difficult case. The language of the Fourteenth Amendment can plausibly be read in both directions and you see originalists splitting on this question.

(27:20):

Do you agree with that? Is this just a hard case or was it obvious or …?

John McGinnis (27:23):

I think it’s a hard case. My own view is the majority is correct. And I make an interesting parallel here to the, I hope interesting, to the Slaughter case.

(27:34):

While the traditional originalist view on the Slaughter case is that it’s not that hard a case because of both the vesting clause and the Decision of 1789, a contemporaneous construction of the Constitution. There has been a variety of what I would call revisionist originalist scholarship on that point. And they made interesting arguments. To me, while the arguments have been interesting and make it a somewhat harder question than it might’ve been, they really do not change my mind. And that’s exactly where I am with respect to the birthright citizenship case. The view about birthright citizenship, I’ll talk a bit more about that, the traditional originalist view that the jurisdiction of the United States meant anyone subject to the jurisdiction. And of course as any child born here will be subject to the jurisdiction, our criminal laws, our tax laws, all sorts of laws. And that was really the end of it.

(28:41):

And there were certain exceptions made for Indians and people, foreign consuls, armies, and that was a traditional view. Now it is a little more complicated I think than that because while I think Roberts makes a very good argument that not only is that the obvious meaning of jurisdiction, that there was a kind of birthright citizenship idea, jus soli, idea that went back to English law, that idea may have been changing over time. But I don’t think, to my mind, the revisionist view makes a sufficient argument that it changed the language. And one problem I think for the religious view is at least I think the best view, which is it depends on also the domicile of the parents. None of that’s mentioned in the language of the Constitution. The language of the Constitution just talks about the jurisdiction of the United States over people. And of course, people born here are just people.

(29:43):

So I think that’s to my mind, the stronger view. And then we have an early case which also seems to take that view. It’s not as strong as the Decision of 1789 because it’s not quite as contemporaneous, but it’s pretty clear close to the time. And I think that also makes it a harder argument for the revisionists. The final point I’d make though is again, it wasn’t necessary to decide this case as a constitutional matter because Congress had enacted a statute with the same language in the 1950s, when we had the Supreme Court case, which essentially endorsed birthright citizenship in the 1890s, and we had the executive branch saying that was the understanding. That’s the background against which Congress was legislating. So the court, I think, could easily have said, and in my view, as I will argue in a Law & Liberty column, should have said, “Well, we don’t need to reach the constitutional question. As a matter of statutory, it’s clear.”

(30:45):

Kavanaugh says that in his concurrence. He then reached I think unnecessarily the constitutional question. I think he makes overwhelming argument as a matter of statutory interpretation that whatever ambiguities you have are resolved by this very clear construction against which Congress legislates.

John Grove (31:10):

So is the gist of that, and I did not read Kavanaugh’s concurrence very closely. Is the gist of that then that given that you don’t have to come up with the clear constitutional answer because you have the statute, you don’t have enough to sort of just declare that statute unconstitutional?

John McGinnis (31:28):

Well, you don’t. That statute isn’t unconstitutional because of course Congress could grant citizenship. No one denies Congress could grant citizenship to whoever it wants. It could grant it to indeed people who come here on tourism, right? It could grant that. So there’s no question of unconstitutionality. So Congress can just grant citizenship more so that makes it an easy case. And as I will argue again in this Law & Liberty column, there’s a long, I view, constitutionally based tradition of the court saying we ought not to. We must not reach constitutional questions if we can decide them on other grounds.

John Grove (32:12):

Okay. So that view, then, is basically the Fourteenth Amendment’s language is essentially the baseline of citizenship, but more could be added to that. There could be other avenues of citizenship.

John McGinnis (32:22):

Yes. And I don’t think that is contested.

John Grove (32:25):

That’s interesting. Yeah, that’s a very interesting point. I’m curious, have you followed at all the sort of public reaction of conservatives and the right-wing to this case? And I’m curious what you think about how it’s been received by those who are, of course, looking for some sort of limitation to immigration and potentially limit to naturalization.

John McGinnis (32:46):

Well, I think it’s very understandable because, of course, birthright citizenship is exceptional.

John McGinnis (32:54):

Most nations do not have birthright citizenship and it creates all sorts of problematic incentives. And indeed you might say what it does is requires, if you have birthright citizenship, you have to have a more draconian, stronger border controls because otherwise there are greater incentives, particularly when being a citizen of the United States, like being a citizen of Rome 2000 years ago, is so valuable. So there’s this odd, again, paradox that birthright citizenship is great for those who’ve made it here, but it actually may force us to clamp down more strongly at the border and indeed deport people, indeed the parents of people who come here because otherwise people will feel that they’re having citizens, people citizen of this nation who they’ve not agreed to have as citizens. And I can understand that completely. Of course, that’s a basic fact about originalism. The original constitution is not going to deliver 100 percent of your current policy desires.

(34:13):

It’s just not going to do it because it’s working on a completely different plane. It’s much better if you have living constitutionalism because you can shape that according to your political desires. And there’s no reason living constitutionalism can’t be a kind of conservative living constitutionalism. And I think that’s actually what some people in the conservative movement now want. What they would like is a conservative living constitutionalism, one kind or another, so that it will line up better with their policy preferences. And they’re absolutely right. It could line up better with their policy preferences. The difficulty is I don’t think it’s consistent with the function of a constitution in a constitutional republic.

John Grove (35:01):

All right. Well, let’s move from the most talked-about case to a case that didn’t get much attention, but you particularly wanted to talk about this one because you think it should have gotten more. This is Landor v. Louisiana, which the headlines, when it came out, for the most part, the headlines sort of presented this as a question about whether a Rastafarian’s hair could be cut in prison, which that’s not really what it’s about, but that was the background here is Damon Landor is a Rastafarian. He has his vow not to cut his hair. Prison guards in a state prison did cut it. Now everybody has acknowledged that was wrong, that they shouldn’t have done it. But what then was the issue here in this case? Because it wasn’t about the actual cutting of the hair, it was about what remedies he had. So what was the issue here, and why do you think it’s something that we should be talking more about?

John McGinnis (35:51):

Well, yes, the issue was remedies. The question was whether he would have remedies not against the state, because Louisiana dropped out of the case for reasons I don’t entirely understand. So he didn’t have any longer, maybe he didn’t plead it correctly, remedies against the state for money damages. He sued the prison guards themselves. And what the Supreme Court said was, “Well, you don’t have a right to sue the prison guards themselves.” And the interesting argument was why? Well, Congress had not only not been specific enough about that, but there had been no agreement by the prison guards or by the state to force the prison guards to agree. And why that is significant is it goes to the nature of the power that Congress used to pass this Religious Freedom Restoration Act that applied both to land and to prisoners. It used the spending clause saying that to states you only get certain kinds of money if you agree to this.

(36:56):

And the problem was, well, the prison guards had never agreed to it. And why this is significant is it’s a constraint on the spending clause and in my view, a necessary constraint because there’s this problem with the spending clause. If you don’t actually require some agreement, non-coercive agreement with those who are receiving the money for regulations, the spending clause becomes a plenary power. And particularly in our world, where, because of the Sixteenth Amendment and the federal income tax, the federal government has so much money, all it can do can just go and give money to the states and then regulate people who have never heard of this as they will. And so what Gorsuch is doing is saying, “Well, to have regulation in spending, you must have agreement.” Now he says, “Except of course you can take away the money, but to have some additional regulation like liability, you have to have agreement.” And that’s what distinguishes regulation from spending.

(38:05):

And I think that’s a necessary distinction if the spending power isn’t going to swallow the enumerated powers. And that’s why I think it’s a significant case. Now, of course, Congress can come back and say, “Well, states, you have to write into the contracts with your guards that they have to agree to this if you want to get the money.” So I think there are ways for Congress to get around this, but I do think it’s an important shot across the bow to say that Congress, you actually have to think about the actual power you’re using in framing the remedies you want to impose.

John Grove (38:43):

Does it have wider implications, or is it pointing in a direction more towards limitations on these federal restrictions?

John McGinnis (38:52):

Yes, I think it is. It’s really reviving the idea that you cannot have coercive powers and certainly you cannot have powers that have not been plainly agreed to. And so it is in that sense a restriction. So I think it may have effects on other prior legislation. Whether it will have effects going forward depends on how Congress I think writes the legislation because I think it can probably write around this legislation, this decision, kind of like it could write around the famous United States versus Lopez decision, which restricted the commerce clause to economic matters and didn’t allow Congress to regulate guns around schools. So I consider it maybe more of a symbolic decision, but still an important symbol and deserves more talking about because it reminds us of the limits of the enumerated powers.

John Grove (39:50):

Well, let’s zoom out a little bit and think a little bit more broadly. I know that you sort of see several justices kind of staking out distinctive territory in this term. And we’ve already touched quite a bit on Neil Gorsuch. So why don’t we start with him?

John McGinnis (40:06):

Yes. I think it’s just to say those two concurrences are very important and they point to which I think is his real concern with the structural constitution, number one, and his willingness to be strongly originalist in two senses. He’s willing to consider reviving the non-delegation doctrine. He’s already had dissents along those lines. And he’s willing to understand our statutes against the background of the Constitution. Against the legal background of the Constitution, he thinks there should be a kind of judicial, I don’t know, swerve as it were, even in textual interpretation, given the constitutional context. At least if you can find that as he finds for the Major Questions Doctrine in the way law worked at the time of the Constitution. So that’s the significance of Gorsuch. The significance of Justice Barrett is that on the one end, she wants to stake out being a kind of pure textualism without that judicial thumb on the scales.

(41:12):

That’s her debate with Gorsuch. And she’s also very much a decision we’ve not talked about that’s gotten a lot of blow back from conservatives on the mail-in ballot decision in which as a matter of statute, the court said that election was the time that a voter decided things and therefore states could count ballots that were late arriving so long as the voter made the decision. Again, she was a very strict textualist in this view and I think showed again her independence. So I think that Barrett had an important term in this way and moreover was willing to call out the chief justice in his Cook decision because there was of course a decision where she was more on the conservative side by saying that his distinctions were not really very plausible. And again, that shows her as a kind of constitutional textualist. She’s not having any of these carve-outs that can’t be found in the text.

(42:15):

So she also, I think, gets a lot of points for consistency. The other important justice is Justice Jackson. I think we see, and why I bring up Justice Jackson, is because, of course, there will be more Democratic appointees that we’re going to see a greater radicalism in the Democratic appointees across all fronts. Because just to give you three examples of what I would consider Justice Jackson’s radicalism. Again, in a case we didn’t talk about West Virginia v. BPJ, which is a case about whether West Virginia could ban transgendered people from sports. The Court said it could. And one question was a statutory question, whether that violated Title IX. And the question there was, well, whether Title IX’s description of sex was biological sex. And even the plaintiff in this case conceded that it was biological sex. Not so Justice Jackson. And she said, “Not at all clear and we should interpret things, civil rights laws generously.” I think that’s a throwback to people like Justice Brennan who just remake civil rights law in their own image.

(43:38):

So even if it says that we’re not going to discriminate on the basis of race, well, we can discriminate on the basis of race. So we’re back to the Warren Court, I think, then. Then again in the Hawaii case, I thought she had an extraordinary opinion, which is the Hawaii guns case, Wolford v. Lopez. So that case was about whether Hawaii could ban or require only say the gun owners could only go into public stores, public accommodations if the owner put up a sign saying guns are welcome here or otherwise told them verbally that. And the extraordinary opinion by Justice Jackson said, “Well, this didn’t concern the Second Amendment at all because it was just a matter of property law.” To which Justice Barrett again showing her the strength said, “Well, how could this be true? in a concurrence. Would that mean that the state legislature could pass a law saying that no one could wear a hijab into a store unless the store owner had said, “Hijabs welcome here”?

(44:54):

Of course not. That would implicate free exercise because that’s state action. And I don’t see any plausible argument that Justice Jackson has in that respect. And then finally, in more of a technical area, she’s revived the idea that legislative history can be even more important than text. And I think to underscore her radicalism, Justice Kagan, who I consider the most conservative or most centrist of the liberal justices, has not joined a lot of these opinions of Justice Jackson. So one point I would make to people who are on the conservative movement who are worried about Justice Barrett, your worries are nothing compared to if we saw a lot more Justice Jacksons on the Court. We’d be in a completely different Court. She also denounced originalism despite saying favorable things about originalism in her confirmation hearing. We’re seeing what I think, just as we’re seeing the rise of democratic socialism economically, I think we’re seeing a very strong reaction to the conservative legal movement, a more radical reaction, and Justice Jackson embodies that.

John Grove (46:09):

All right. Well, we’re almost out of time. I know a lot of times you like to take a broad view in that we now have ticking through the years of having a Court that is majority originalist in some sense, although there are obviously divisions between them. How does this year rank in your mind in terms of what we might call righting the ship and getting more originalist decisions?

John McGinnis (46:29):

We move, of course, unlike academics who think, well, focus on the flaws of originalism. This is clearly a court that is moving towards originalism as more of a regulative ideal. I think that’s true. I think the most important thing, it shows that is very different from being a pro-Trump court. Because the matters that concern Trump, his tariffs, which is think one of the core beliefs of Trump, I don’t think the President has all that many core beliefs, but tariffs he’s been on for long before he ever considered running for president. They knocked him down on that. With respect to birthright citizenship central to his immigration policy, he’s knocked down about that. And with respect to the result, which we actually didn’t discuss much in the case, they actually said, “Well, Cook deserved a hearing because you conceded that there’s for cause and you’ve got to actually show that these things actually happened, that mortgage fraud before you can remove her.” And that I think concerns the President a lot as well because he’d like to have a lot more de facto control over the Federal Reserve.

(47:46):

So in all these instances, they were very negative, ruled negatively towards the President. And that just shows, I think, how wrong some of the progressive leftist critiques of the court are. Actually, there aren’t that many instances I think in American history where justices of the President’s own party, three of them appointed by that President have so rebuffed that President. This is an independent Court. To be sure, an independent court, not in the progress image, but doing what you would think the judiciary is absolutely supposed to do, being independent of other branches of government. I can’t think of a term where a Court is more proved it’s independence from the president than this one.

John Grove (48:40):

Well, that’s a great point to end on, John. Always a pleasure to have these conversations with you. Thanks so much for joining us here.

John McGinnis (48:46):

Delighted to be here.

Intro (48:48):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Related Links

Harmonizing Sentiments: The Declaration of Independence and the Jeffersonian Idea of Self-Government, Second Edition, by Hans Eicholz
“The Jeffersonian Ideal,” a book review on Harmonizing Sentiments by Michael Lucchese

Transcript

James Patterson (00:06):
Welcome to the   Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the   Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty and associate professor of public affairs at the Institute of American Civics at the University of Tennessee. Our guest today is Hans Eicholz, a historian and a Liberty Fund senior fellow. He is the author of the book we will be discussing today, Harmonizing Sentiments: The Declaration of Independence in the Jeffersonian Idea of Self-Government published on Peter Lang Press, and now in its second edition, very fitting giving the time of year.

(01:16):

Prior to beginning recording, Hans agreed to do something very important, which is to give a few thoughts on the now late Gordon Wood, who tragically died as of this recording only two days ago. So, Hans, could you please do that for us?

Hans Eicholz (01:33):
Yeah, it’s very appropriate to remember Gordon. Gordon Wood, he is one of the great historians of our day and certainly of the period that is leading into the anniversary of the 250th and it’s just a tragedy that he didn’t make it to this July 4 anniversary. But few people have put that anniversary on the map like Gordon has done through his various works and he was extremely important to a whole generation or generations of historians, my generation as well. I first met him in the late 1980s and he was brought together with a number of other historians to comment on a chapter that I had actually written for my dissertation and he was just very generous with his time and a delight to be with and very insightful, of course, as he always was in his work. But for my generation, very important for stimulating debate over the nature of the American political tradition.

(02:41):

His first book, The Creation of the American Republic, drilled down pretty deeply into the question of republicanism and republican ideas and their roots both in the ancient world and then bringing them forward through Machiavellian and what’s called a classical republican tradition of thought to develop how that framework helped to influence the American political experiment. And so that first book was a wealth of information and raised so many interesting points that scholars like my own advisor were able to engage in a very productive debate over whether the American experiment was fundamentally classical republican and conservative and to what extent more modern liberal ideas of individual freedom and political economy were influential in their outlook. Lockean ideas, which was the previous interpretive school that had predominated before the Republican, what’s often called the “Republican Paradigm,” came to prominence in the late ’70s and early ’80s. Gordon was one of the ones to really bring out the rich source material of that whole way of looking at the American founding and that was with his first book.

(04:00):

But he continued to make that kind of fundamental contribution through really drilling down into the primary sources of American thought and pulling out other strands too. So The Radicalism of the American Revolution, another great milestone really brought out some of the early Democratic ideas and how they challenged that Republican, more deferential political culture that had preceded the time of the Revolution, of the Declaration, and what that meant for the rising generations and how that created a wonderful and fertile mix of debate that informed everything from the ratification through the early Republic. And then he went on to look at how liberal ideas also influenced that. So Empire of Liberty, but also his book on Power and Liberty, a very readable book, but going down into the liberal concepts of order as basically self-propagating and possessing an orderliness that was more spontaneous rather than politically generated, how that influenced and leavened the debates over the American political tradition and understanding.

(05:23):

So in each of these cases, he really was one of the main contributors to really fleshing out all of the different themes that you can find in the debates over the American Revolution and Founding periods. His loss is a tremendous loss and our heart goes out to his family and to all of us who relied so much on his insight.

James Patterson (05:49):
So rest in peace, Gordon Wood. I don’t think there’s a single person in my extended network of scholars that I work with who weren’t touched by his work or even by meeting with him or talking with him. And this account you have of him with your dissertation chapter really does testify that not only was he an excellent scholar, but he was a wonderful teacher and a very good man.

Hans Eicholz (06:14):
Yes, absolutely. And he will be very much missed.

James Patterson (06:19):
Well, on that somber note, we’ll move from discussing the legend to maybe the next legend, Hans Eicholz. Big shoes to fill here, but we’re talking about a book that you published about 20 years ago, Harmonizing Sentiments. And the reissuing of it today is it’s an important thing to do in the 250th anniversary of the Declaration of Independence. So why don’t we start with a discussion of what you think Jeffersonian self-government means?

Hans Eicholz (06:52):
Yes. No, this is good and it really does follow up from what we just talked about with respect to Gordon’s work. The original edition did come out in 2001, so 25 years ago, quarter century. So if we’re going to keep to that idea of anniversaries, it’s rather appropriate. And we’re now approaching in 2026, the 250th of the anniversary of the Declaration. The first edition really was to try to bring out some of the interesting overlays and various themes that you could say by the 1990s had left people somewhat perplexed as to whether or not there was a coherent American political understanding at the heart of the revolution. I’d spoken just moments ago about Gordon’s contribution to what was called the Republican paradigm at that time or the Republican interpretation. And for many people that had taken on such solidity and such paradigmatic dominance that it invited people to try to find all of the ways in which it was not the only way in which to conceive of the relationship of the individual to the state or of the state to society.

(08:17):

One of the things about Republicanism was supposedly its look to the ancients, the fact that it found a place for ideas of virtue and self-sacrifice as opposed to the earlier Lockean conception that was represented by such writers as Lewis Harts and others who had tried to argue that or didn’t try but seemed to be generally accepted, had argued for a kind of Lockean liberal paradigm before. Finding all of this stuff from ancient political thought really did open up a whole new way of thinking about the American political understanding. And for a long time it seemed then that Republicanism was going to be the overarching paradigm for looking at the American Revolution. And a number of people, including my own doctoral advisor, were very instrumental in pushing back against that saying, well, “What Is Still American in the Thought of Thomas Jefferson?” was one of the best known articles of Joyce Appleby on that question and attempted to pull out some of the still liberal understandings of individualism, of the nature of liberty, of the fact that government was not so much to cultivate virtue but to be focused on the provision of law and also to be restrained as a force so as not to interfere with the entrepreneurial and creative aspects of individual freedom, which were to basically well up from the ground up and not necessarily something that you would see created by government as opposed to individual entrepreneurial action.

(10:07):

So she wrote about those aspects of the American Revolution. Others brought in different themes. So you’ve had people come back with ideas of religious liberty and the importance of the covenantal tradition. You had others coming in talking about the importance of law and the common law specifically, which did not necessarily have a connection to Republicanism in the broader political theoretical framework, but a very sort of nuts and bolts legal approach that looked at the common law’s emphasis on precedent and customary legal understandings and their development. You had others who looked at constitutionalism and what that might have meant. So I think of Trevor Colburn, for example, The Lamp of Experience and he talked about the ancient Saxon myths of a primordial constitutionalism that was popular certainly with Jefferson, but also with Adams and others who talked about liberty as something that went back before Magna Carta.

(11:10):

In fact, one of the interesting things developed there was the idea that Magna Carta was not a grant by the king, but it was an affirmation of rights already existing from time out of mind or time immemorial. And this was a notion that was often associated with the ancient Constitution of England or the old Anglo-Saxon Constitution. So you had all of these different languages then that were being rediscovered, if you will, in the ’90s and a number of people were coming forward and saying, “well, we have to accept that there was just a plethora of languages, a virtual babel of languages, and there was no coherent specific tradition out of which American ideas came, but we just have to accept that there were all these tensions and even contradictions and that’s where things stood.” When I wrote the first edition then, that was the primary state of the historiography.

(12:16):

And what I thought was there are a couple of important ways in which all of those different approaches to understanding America and its formative period from the revolution through the constitutional period could be understood as overlays of a very consistent set of concepts all relating to the notion of self-government, that Americans accepted that self-government could be individual and personal, that both the liberal as well as the ancient Republican notions could actually fit together if you understood that self-government had this personal dimension to it. And if you looked at some of the earliest conceptions of government, what it means to govern, they often began with government of the self and were used that way. It’s very clearly that was what Jefferson meant by it. But if you look at some of the very earliest dictionaries of that time, that notion that government was to be the government of one’s own passions, for example, as a prerequisite for engagement in the political, you can see that there’s a direct line of personal individual liberty and political liberty.

(13:39):

So my effort then was to look at these different overlays as being complimentary concepts that when taken together and related one to another could be shown to comprise a, what would you call it in modern parlance, an ideal typical understanding of the self-governing American or revolutionary. And that linked all of the different strands of constitutionalism, political economy, political theory, law, and faith. All of those things worked together and it gave a new, not a new, but I would say, underscored the importance of Jefferson’s later reflection on what he did as embracing the harmonizing sentiments of the day. And it came together very nicely as a title, but that referred to a letter which he wrote where he specifically said, “My purpose was not to do something original or to create thoughts never before conceived of, but to bring forth what was of the American mind of that time, the harmonizing sentiments of the day as embraced in various books such as Aristotle, Locke, Sydney.” I mean, right there, he brought together all of the various themes that historians were interested in that time period. So that was the first primary reason for the first edition.

James Patterson (15:15):
It’s funny, between Madison and Jefferson, there are so many of those pithy phrases that you can use as titles that will never run out.

Hans Eicholz (15:27):
Right. Yeah. I’ve often thought that, boy, I wonder why somebody hasn’t thought of that as a title before, but I was ecstatic. When it hit me, I think I was commuting to work and sitting in traffic when it suddenly hit me. I said, “That’s actually the title. It is the harmonizing sentiments of the day.”

James Patterson (15:49):
That’s always a good feeling. You don’t flinch from talking about slavery and the discussion of the Declaration of Independence and its reception in England. Samuel Johnson uses the hypocrisy argument and “Taxation no Tyranny.” And you describe how the Patriots insist that slavery was an institution imposed on them. Where did they get this argument and is there any truth to it?

Hans Eicholz (16:17):
So this is really quite fascinating. So of course, this is an important part of the discussion over the nature of the Declaration. And when I took up the question first in the first edition, the Declaration seemed like the most natural place to begin a discussion of the ideas of self-government in part because it had both a philosophical beginning but also a very practical and legal argument in the grievances themselves. And so trying to put all of these different concepts together to explain the American worldview, that document presented itself as the logical beginning point for such an analysis. So the first edition did touch on the question of slavery and did talk about it, not as Jefferson’s very particular way of looking at it, but something that was consonant with the American understanding itself. The second edition I decided because of the great importance that developed subsequently in the historiography about that slavery question really went into it a lot more.

(17:31):

And I’ve added a great deal more in developing the whole question of how slavery fit with the universalizable philosophical parts of the opening, but also why Congress both decided to extract the grievance that Jefferson had originally put in, sometimes counted as the 28th grievance that was not included against the king and why they did that and was it really just Jefferson’s own peculiarity to blame it on the British, as you pointed out? And a number of historians have done that and continue to do that. Was he assuaging his own guilt of the fact that he was a slave owner and yet he made these very universal arguments about how all men are created equal? Was he just trying to placate his own conscience or try to assuage his own conscience about that? The conclusion I came to was that, no, this is actually a very old argument.

(18:38):

You can see it raised first in regard to Adam Smith in the theory of moral sentiments. He charges the Americans with, or I should say with slave owners and those involved in the slave trade with being reprobate morally and backward looking, and how can we allow this to continue? And Arthur Lee sees this and writes a response and says, “Well, look, you can’t let yourself off the hook. This is going back into the 1760s.” And then the other thing is that Benjamin Franklin in 1770 writes and publishes a piece in London, an essay where he takes this up directly. In this case, he takes it up with respect to a piece that was published by Granville Sharp who criticizes again the colonies. Sharp is deeply worried about slavery’s promulgation and its ability to be carried on in the colonies, especially on the North American continent.

(19:44):

But Franklin points out, it says, “This is not just something that we have adopted, but it was actually imposed on us. And the empire is just as culpable in all of this.” And so you see that and you realize, well, Franklin’s actually on the committee to help compose the Declaration. And then here comes Jefferson. I don’t deny that Jefferson probably felt that he needed to explain himself to some degree, but it wasn’t original with him. Americans had taken this criticism before and felt very sensitive about it and understood that what was happening was an evil that they had inherited, but they recognized that this was a moral embarrassment and they were going to address it at some level. I think it’s highly within the probability that Franklin was not only possibly in on the decision to include that, well, I mean, we know that he was because Adams and Jefferson and the other members of the committee had to approve it before it went to Congress.

(20:53):

I rather think that Franklin might well have been one of the reasons why Jefferson took as much care as he did to extrapolate that out into three particular charges against the attack against people that had done no offense to the empire and then criticized the transport and the means of transporting and the inhumane conditions on those ships and so forth. I think Franklin probably had a great deal to say on these questions in affirming Jefferson’s decision to include that as part of the grievances that then went to Congress. So that’s an interesting part that I’ve tried to develop and some of the reasons for that. Franklin was part of the Bray’s Associates, which was a group that Johnson, you’d mentioned Johnson, Samuel Johnson was a member of, but Franklin was actually charged with being one of those to inspect schools that were to serve African-Americans in the colonies and to try to encourage the education of African-American youth in America at that time.

(22:07):

They both served in that association. And I think that Franklin probably, we know he was aware of Johnson’s essay, which came out in 1775, “Taxation No Tyranny” in which he made that famous charge and probably felt some degree of responsibility and duty to respond to it. And I think there’s just a lot there, but I bring that out in the second edition.

James Patterson (22:34):
So there’s a discussion in your book of the terms “abuses and usurpations.” And when I teach the Declaration of Independence to students, those terms just kind of pass them by. To them, it just means bad things. These are bad things that happened, but they have a real specific meaning and it’s operating within a kind of constitutional framework. So could you maybe go into detail about that and I’ll mark this down for when I need to explain it to my students next time.

Hans Eicholz (23:07):
Yeah, this is a fascinating dimension to it and it’s the best way I think to really get something out of an understanding of the grievances. So the empire for much of the time leading up to the Seven Years War, which for Americans ends largely in 1760, up until that time have been basically left to themselves. You’ll recall that Edmund Burke famously coined the term a period of “salutary neglect,” but what that period demonstrated was the capacity for these colonies basically to govern themselves politically. And it also corresponded to their, how would you say, the maturation of their political thought and their reflections about their relationship to the empire. One of the things that Americans were very sensitive to was the fact that and very proud of was the fact that they were Englishmen and part of this larger imperial system. And as such, they felt that they shared in the equal privileges or rights of Englishmen.

(24:18):

In fact, Gordon Wood’s work was very adamant, this goes back to the Creation of the American Republic, his first work, just how important a concept that was to share in the equal rights of other subjects. And what they really didn’t want was to be seen as the subjects of subjects. So when parliament decided it was going to impose a tax upon them and they had no representation in that body, it raised alarm throughout the colonies because as Englishmen, do they not have the right to have representation? Isn’t this one of the fundamental rights of Englishmen? And if it’s not, then this does come to illustrate for them that they are the subjects of subjects rather than being on the same level as other Englishmen elsewhere in the empire. But their view then is that they have this set of equal rights and that their own representative institutions, that is to say their own assemblies constitute smaller parliaments within the overall system and that the king’s relationship is as much through his governor to them in their various assemblies as it is to anything in England.

(25:40):

In other words, these are equivalent systems. Now, one of the interesting questions has been to what extent Englishmen understood that. I don’t really go into it to the extent that my later work has been going into that question in the second edition. I emphasize the American perception of the unfairness of that, the illegality of that. And I do emphasize that distinction, which is made, made first in Summary View, which came out two years before the Revolution, before Independence I should say. And Summary View was the pamphlet most radical until Thomas Payne’s Common Sense in which he lays out the constitutional understanding of Americans. And they don’t deny that the king has a great deal of authority to suspend or even veto acts by colonial legislatures. They don’t deny that he has powers of enforcement, that even give him the authority to deploy ships and troops.

(26:51):

He certainly has the power to send troops to the colonies to protect them. And all of these constitute regular and legal, how would you say, powers of the executive. But when he allows others to start trying to exercise a jurisdiction that’s foreign to them, such as parliament’s attempt attacks, that is a different kind of matter. So when you look at the grievances, what you have are the first twelve open up really with abuses. This is the king who’s always willing to negate or veto or suspend acts of legislation on the part of the colonies, but isn’t doing so anywhere else. He is simply always taking his thumb and pressing down on the colonists, but he’s not utilizing his power in any particular or balanced way. He’s using it in a very biased and unfair way and that constitutes an abuse. The nature of that abuse comes out then very particularly when he conspires with others who have no jurisdiction over us and this is the 13th charge and it’s followed by nine specific subcategories that illustrate that kind of grievance and those are not abuses but actual usurpations.

(28:23):

They don’t have the authority to apply a direct tax to us to raise a revenue. They don’t have the authority really to impose upon us any pieces of legislation that we haven’t had some voice in. And so those nine subcategories constitute usurpations. Now there are two primary pushbacks against the Declaration that come out. One is by Thomas Hutchison who had been the last civilian governor of the colony of Massachusetts, royal governor. And Thomas Hutchison wrote a piece called “Strictures Against the Declaration” or on the Declaration. And he took those charges very personally and recognized to some degree the nuance in the differences. John Lind writes for the empire and it’s very interesting to see that he does very much what you say your students do. It’s just all bad things and he goes through and really doesn’t recognize that there’s any distinction between abuses and usurpations.

(29:33):

He charges the Americans with thinking that everything the king does is just a usurpation and dismisses it. But to my mind, Hutchinson had a bit more of a bead on this because of his very personal and direct relationship to the colony of Massachusetts and therefore took it personally because many of the charges were directed squarely against him. The whole dust up over the Boston Tea Party was really his doing actually when you come to think of the fact that he refused to allow the tea ship to exit Boston Harbor, that was his decision. And so he takes it very seriously and that’s why I used his “Strictures on the Declaration” as the way in which to understand the loyalist position within the American debate.

James Patterson (30:27):
You say something that I really agree with and I can’t quite put into words, but I think is very true. And that’s that you worry that Americans have become less Whig and more Tory and they’ve also become less themselves and more European. So what does this mean and why is this bad?

Hans Eicholz (30:48):
Okay. Well, that’s a good question. And my intention there embraced a number of points, but two in particular. The first thing is we’ve often heard the debate cast among historians between American experience and the ideas which they inherited, often European ideas, in fact, predominantly European ideas. And many of those who’ve argued for a kind of American exceptionalism have often wished to downplay the ideational, the ideological, the philosophical, and have wanted to emphasize the predominance of America’s own traditions of covenanting and forming their own constitutions and basically governing themselves politically as the core thing. And so while all historians will point to the grievances as among if not the most important part of the Declaration, they do so for various reasons. And those who have argued for American exceptionalism have often done so precisely because they wanted to emphasize what was uniquely American and it was that experience on the ground.

(32:05):

But the ideas were very important, extremely important for both launching a defense of American institutions, but also for giving them the means by which to say, “yes, this is what we’re doing and we’re justified in doing so.” So when Locke talks about the original contract and why it is that the state of nature doesn’t require the kind of political force that Hobbes had argued was necessary, the absolutist form of government, what he was doing was calling attention to the fact that many aspects of our lives, he said, this goes on before there was a political association, are voluntary and rely on just the ability of individuals to form agreements with each other, to come into association with each other for reasons other than politics. And one of these is trade. He’s making that state of nature not quite as desperate, not quite as awful as Hobbes had argued.

(33:15):

And that allows him to assert that we retain certain of these rights. In fact, the reason why we set up government is not so that the king or the prince can lord it over all of us and terrorize us into submission, but in fact, so that we can protect those most important rights, which are rights that allow us to engage in important productive and creative associations and relationships for all manner of reasons, both social, philanthropic, also economic, that these are the reasons why we actually have a government in the first place so that we can control those who can’t control themselves. And he calls those the quarrelsome and the contentious, the people who will rob and steal and murder and maim, they do exist, they do have to be controlled, but that doesn’t embrace all of us. And so we do retain rights and that’s the purpose of why government exists.

(34:16):

Now put those things together, the theory and the American experience and right away you see that they reinforce each other. Again, this was part of the harmonizing spirit of the time and the harmonizing sentiments of the time that American experience affirmed what was only a theory in Europe. So in Europe, the existing governments asserted these rights and it was very difficult to say as long as it was just theory that they shouldn’t be absolute. The Americans set a counter example that future reformers and revolutionaries would point to and say, see, they’re capable of self-government. They illustrate what Locke was talking about. They illustrate what the Scottish enlightenment was asserting that there’s an inborn moral sense. They illustrate that commerce is an order unto itself. We shouldn’t forget that 1776 is also the time when the great synthesis of those ideas, because those ideas did exist.

(35:21):

Hume had written about commerce as a self-regulating phenomenon, but Adam Smith synthesized all of this, put it together in the Wealth of Nations, and it came out the same year as the Declaration of Independence. But for European reformers, they were fighting an uphill battle. And so to answer your question, the growth and importance of government was simply a fact of European life and this would only intensify over time. In the American case, that was something we could actually say our experience affirmed not the absolutist nature of government, but the fact that it should be limited in nature and we could say that it should be limited in nature because so much of the order of our life, of our associations, of society exists not as the result of active intervention by government, but simply by governments being limited to very specific functions.

James Patterson (36:26):
The book is Harmonizing Sentiments: The Declaration of Independence, and the Jeffersonian Idea of Self-Government and the author is Hans Eicholtz. Hans, thank you so much for coming on the podcast.

Hans Eicholz (36:39):
Thank you very much for having me, James. It’s been a real pleasure.

James Patterson (36:43):
Thanks for listening to this episode of   Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Related Links

The Declaration of Independence: A Radical Experiment in Liberty by Bradley J. Birzer
Penman of the Founding: A Biography of John Dickinson by Jane E. Calvert
Thomas Jefferson and the Fight Against Slavery by Cara Rogers Stevens
Vital Remnants: America’s Founding and the Western Tradition edited by Gary L. Gregg II
The Language of Liberty by J. C. D. Clark

Transcript

James Patterson (00:06):
Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring series commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty as well as Associate Professor of Public Affairs at the Institute of American Civics here at the University of Tennessee. With me today is the one and only Dr. Bradley J. Birzer. The Russell Amos Kirk Chair in history at Hillsdale College and Fellow of the Ronald Reagan Presidential Library. Today we’ll be talking about his recent book from Stonehouse Press, The Declaration of Independence: A Radical Experiment in Liberty. Dr. Birzer, welcome to the podcast.

Bradley Birzer (01:18):
James, thank you. I’m so glad to meet you and of course the audience doesn’t know this, but we’ve already had 10 minutes of joking around. So it is so great to meet you in person. I have followed your career for quite a while now and you’ve been a great ally.

James Patterson (01:35):
You start the book with American colonists being decidedly English in their patriotism and in their point of view. So how did this self-consciously English perspective lead almost ironically to an independence movement?

Bradley Birzer (01:50):
Yeah, thanks, James. That’s a great question. I don’t know how to say this without sounding cocky and I definitely don’t mean to sound cocky about this, but you know AIER came to me exactly two years ago in a month. So, 25 months ago, they came to me and asked me to write this book. And at first, the way we laid it out was that it would be a synthesis of everything that’s been written on the Declaration of Independence. And that’s why at the beginning of the book I give credit to the Jaffa students and the Straussians and to the Voegelinians because I’m really interested in trying to tie together all the various views. But the one thing, and again, this is where I don’t mean to sound cocky at all, but the one thing that I came across that hit me really hard that nobody has done, and I think there are probably good reasons that nobody has done this.

(02:48):

Nobody has actually explained, I wouldn’t call it the English character, but what I would call the Anglo-Saxon character of the American colonists. You can find some classicists in the ’30s and ’40s who mentioned this and mentioned that Tacitus was a big deal, or Hengist and Horsa, the original Anglo-Saxon Invaders of England. But when I started digging into it, I found that it wasn’t just Jefferson who was totally taken with Tacitus and with Hengist and Horsa, but that all Americans really saw themselves as the original descendants of the Anglo-Saxons. And James, one of the reasons that I think we lost this view is if you look at American history in the 1830s and ’40s, Anglo-Saxon becomes a synonym for white Protestant and it takes on racialist connotations. When I say Anglo-Saxon in my book, I don’t mean race at all. I’m talking specifically about language, culture, and law, and those are the things that the Americans really embraced.

(04:03):

And so again, one of those things that people have known about but no one talks about when the Declaration was printed in book form on July 6, 1776, two days after its passage, it comes with this 20-page introduction to it by somebody who took the name Demophilus. We don’t know who that is. We think it’s a radical Pennsylvanian by the name of George Bryan, but we don’t know that. That’s a guess. But if you look at this introduction, it starts with the history of Hengist and Horsa, the two great Anglo-Saxon invaders of Britain, the ones the Celts are fighting. It starts with them, and it ends with the passage of the Declaration of Independence being the most recent act of Anglo-Saxon history. And again, as far as I know, unless I missed something, James, nobody’s written about that. And so again, I never went into this project trying to be unique or original.

(05:07):

That wasn’t what the project was meant to be, but that was the thing that I found that hardly anybody else has talked about. And again, I believe that’s mostly because we associate Anglo-Saxonism with racism. And that’s unfortunate. That’s a corruption. That’s not the original. These guys, Hengist and Horsa, weren’t running around saying, “Yeah, we’re white guys.” That’s not what they were doing at all. So that’s something that I’m very proud of with the book that I think I did make an original contribution.

James Patterson (05:40):
You actually describe at one point the militia at Lexington as assuming show of force, not as a way of intimidating the soldiers, but almost to show a sense of mutual respect, right? This is a form of recognition. Maybe explain that.

Bradley Birzer (05:58):
Yeah, I take that argument from Bruce Frohnen. I’m not sure if you’re familiar with Bruce.

James Patterson:
Oh, sure. Yeah.

Bradley Birzer:
Yeah, good. I mean, Bruce is a great scholar, and he had an essay, and it’s not something he’s focused on, but he had an essay in a book called Vital Remnants that Gary Gregg published about 20, 25 years ago. And in that essay, Bruce really talks about the Anglo-Saxon medieval tradition of militias and how in Anglo-Saxon … Now sometimes, and James, I had to be careful with this as well. Much of what the colonists believed about Anglo-Saxon history is probably not true. They believed it, and they believed it was true, but it’s probably more mythological than it is true. But the myth becomes reality because they believe in it. They’re not lying. They actually believe in this. But one of the stories that the Anglo-Saxon Americans told themselves, and I think Bruce Frohnen is amazing on this, they basically told themselves that there are these whole series of ways that a community can show its displeasure with the king.

(07:14):

And the absolute final way of showing your displeasure is by arming yourself and standing there with your arms protecting your community. In the American tradition, once South Carolina did that, it’s secession. And so we in the American tradition tend to think, well, look, if you’re armed, you’re seceding. That is not the Anglo-Saxon tradition. The Anglo-Saxon tradition is, look, we’re at the end of our rope. You guys have pushed us as much as we can. Now we’re arming ourselves. It doesn’t mean you’re not our king. It just means that you have done things that we don’t agree with and we’re going to demonstrate with arms. And that’s exactly … There’s a great … and I’m a Catholic, but there’s a great Protestant minister at Lexington by the name of Jonas Clark, this deep Calvinist minister. And Clark convinces the people of Lexington. Look, we have to stand.

(08:14):

I mean, this is it. If we don’t stand here and show our colors, the British will never respect us at all. And of course, it doesn’t turn out that way. It’s a bloodbath at Lexington, an absolute blood bath. The just horror of horror shows there with a British open fire on the militias as well as into the crowd of civilians. They’re not firing directly into the crowd, but the crowd is right there. And so it’s just a nightmare what happens. But also it’s one of those things, and I think I put this in the book, and I was trying to be dramatic about this, but my argument is essentially once the first Lexingtonian is killed, he’s the first American. That’s the first time we could say: This is an American. Because it changes the whole consciousness to be Voegelinian for a moment or Barfieldian. It changes the whole understanding of who they are and they’re no longer just citizens of Lexington.

(09:14):

They have become Americans. And at that point, there is a kind of secession. But note, and I make a big deal of this in the book. We’re fighting with the British as early as April 19 of 1775. We still don’t declare our independence until July 2 of the next year. So we are openly at arms with the king for 14 months before we secede. Again, I think that’s very hard for us in 2026 to understand. It was not hard for them to understand. It was part of that Anglo-Saxon myth. That’s what you do.

James Patterson (09:52):
How out of step were the American colonists from the culture of the mainland or the motherland, even the British regulars. I’m sure at least some of them, when they saw the formation at Lexington, were like, “What is going on with these people?”

Bradley Birzer (10:06):
Yeah, absolutely. I mean, there are two things I would say about that, James. It’s a great question, but think about this. I mean, just even physically, Americans on average are about five to six inches taller than their British counterparts because of nutrition. And you think about someone like George Washington at 6’2”? That would basically be the equivalent of about 6’6” for us. He’s a giant, and when he’s on horseback, of course, he looks amazing. He looks like a centaur. He’s a mythic figure for the Americans. So even physically, we don’t look like the British, but there’s another real difference. The British are recruiting their soldiers from the lower class. And so when they come to America, and this is something we don’t often think about, but you and I, James, we could go through letter after letter after letter and document of colonial Americans, and we would never find a cuss word or a swear word.

(11:16):

And you know, if a bunch of guys are in a bar or a pub, they may cuss, but it was completely unacceptable to cuss in public, and especially around women. But the British soldiers did this all the time, and they catcalled, and you’re in a place like Puritan New England, where women are treated with almost complete dignity. Man, I mean, it’s no wonder the Boston massacre occurred. I mean, you’ve got these soldiers who are just lower-class dregs walking around a middle-class, very moral society. And so the point I want to make in this second point, James, is there is an immense religious difference between the Americans and the British at this point. I don’t want to exaggerate this too much, but imagine when the Puritans come and settle in New England, they are escaping the Anglicans.

(12:15):

And when the Anglicans come to Virginia and settle, they are escaping the Puritans. When English settlement is going on in North America, it’s at the same time as the English Civil War and the English Reformation. So these are a deeply, deeply reformational people. These aren’t Germans, where they can say, “Yeah, we had that conflict with Luther 200 years ago.” These are people who are coming over in the midst of their reformation. And I always get frustrated with this, James, and feel free to push back on this. Whenever scholars emphasize, well, there’s this great enlightenment project of the Americans, I always kind of laugh at that because yeah, there are four really great enlightenment figures. There’s Thomas Jefferson, there’s Ben Franklin, there’s Benjamin Rush, and there’s Thomas Paine. And then you’ve got the majority of Americans who are so utterly Protestant. As Burke said, they are the most Protestant people in the world.

(13:23):

When you look at the average population in 1775, we are not Enlightenment. We are utterly Protestant. These are deep, serious Protestants. And so that would be the thing I would say, James, to your question. Again, what are the two things that are different? Well, number one, we don’t look like the British because we’ve got this great nutrition. Number two, we don’t act like the British because they’ve kind of lost their Christianity. It’s still there, but it’s not embedded in the very nature of their souls like it is both for the Anglicans in the South and the Puritans in the North. And just good Presbyterians and Quakers! Everywhere you’ve got these intensely religious groups in America. And again, I think that’s very hard for us in 2026 to understand, but it was very hard for the British to understand in 1775, too. And I’m taking this, by the way, I want to give him credit.

(14:26):

I’m taking this argument about the Protestant culture from J. C. D. Clark, his great book, The Language of Liberty, I think, is one of the greatest books written on the Founding. Again, just great stuff. I don’t want to give myself credit. This really is coming from Clark in his argument.

James Patterson (14:43):
Yeah, I know the interest in describing the American Revolution in Enlightenment terms, I think, is a kind of twentieth-century project to maybe open it up to more people because of how Protestant it really was, as well as a consequence of those guys having a lot of writing. Jefferson had the little machine that made copies of every letter he wrote.

Bradley Birzer (15:07):
Absolutely. And those guys matter. I mean, when you’re talking about Franklin, Jefferson, Rush, and Paine, those are serious guys. So I don’t in any way want to downplay their influence. I just want to suggest that they’re unique in what they’re doing.

James Patterson (15:25):
So speaking of the Protestantism here–and this is something you go into in a way that I really appreciate because I’ve talked about it too–is that one of the early causes for the American Revolution was the Quebec Act that the English Parliament passes. Then there’s the line in Common Sense where Paine describes monarchy as akin to popery. So how anti-Catholic, not just Protestant, but how anti-Catholic was all of this and how did it get bound up in the politics of allying with the French?

Bradley Birzer (15:55):
Right, right. No, again, great question, James, and a complicated one. I would say this, the Protestants–and I’m trying to be objective here, even though I’m speaking as a Roman Catholic–the Protestants don’t know what they’re talking about, but they believe very seriously that the Roman Catholic Church is on the verge of worldwide tyranny. The Catholic Church is the force of regression and superstition. It is the force of darkness. It is the opposite of Enlightenment. And so for American Protestants, most of whom who would never in their life have met a Roman Catholic, the Roman Catholic Church is everything they oppose. And so when the British, and of course we in America, we call the Quebec Act one of the Coercive Acts and the Intolerable Acts, that was not what the British saw when they granted rights to the people of Quebec, they basically thought, we’re being good and liberal.

(17:00):

We’re being humane. We’ve controlled these guys militarily since 1759 and by treaties since 1763, now it’s time we give them independent rights. And so the Quebec Act, which is passed in late June of 1774 says two really important things. Number one, it allows Catholics in New France–well, not New France anymore, I’m using that anachronistically, but in Quebec–it allows them to have bishops and that had never been allowed. And one thing we have to keep in mind, and this is part of the extreme Protestantism of America, even among sects in America, when we look at that, even when you have people like the Methodists who have bishops or the Anglicans who have bishops, they never once set them over to North America. Prior to the American Revolution, they would’ve freaked out and it would’ve been legitimate to assassinate a bishop.

(18:09):

It would’ve been culturally acceptable to take a bishop out. And so when the Catholics get bishops for the first time in North America, that is a huge shock to the Protestants. Again, I think the Protestants are dead wrong, but we’ve got to give them credit. They believe this was a horrible, horrible thing to happen. And to imagine now we’ve got French and Indians just north of New England. This was horrible to them. But the second thing the Quebec Act does is that it gives where I’m sitting right now in Southern Michigan, it gives all of the Great Lakes to the Canadians. And this area, what we would call the Ohio country, basically they were already fighting about that in the French and Indian War and the Americans believed that they had already laid claim to the Great Lakes. And now the British are saying, no, we’re going to give that to the Canadians.

(19:09):

So I don’t want to suggest that the Quebec Act is purely anti-Catholic, but it’s at least half anti-Catholic and half worried about territorial expansion. And yeah, I mean the Americans, well, they freak out. It’s no accident that the second, or excuse me, the first Continental Congress meets a month after news has landed in the American colonies that the Quebec Act has been passed. And one of the first things that our Congress, which of course… it’s the root of the House of Representatives. The First Continental Congress is essentially the House of Representatives meeting for the first time institutionally in our constitutional history. But when they meet, the first declaration they make is a horribly anti-Catholic statement about the Quebec Act. As we know, and gosh, this is something in our more modern tolerant age we don’t talk about, but when New England soldiers were on the battlefield, their war cry was no king, no Pope.

(20:17):

I mean, that’s what revolutionary soldiers are saying, and the idea that the Pope would have anything to do with America is ridiculous, but they believed it! And they’re willing to die for that! So that’s a huge part of this. James, sorry, I’m talking too much about this, but that’s a huge part.

James Patterson (20:36):
Yeah. Well, if you’re reading Foxe’s Book of Martyrs and accounts of the St. Bartholomew’s Day massacres, it’s not out of control anti-Catholicism in some ways there’s history there. So I just recorded a podcast with Hans Eicholtz and we were talking about your book after we were done and he said a lot of great things about it. He said that what’s different from the book that he wrote 20 years ago, Harmonizing Sentiments, he spends more time on Jefferson. He says that you spent a lot of time on John Adams and the Declaration. So what is it about John Adams that’s so important to understanding the Declaration?

Bradley Birzer (21:20):
Yeah. Well, first of all, I like Adams. I love Jefferson too, but he’s got so much baggage because of the slaveholding, and because of Sally Hemings, which may or may not have happened. We don’t know. There’s just so much racialist baggage that comes along with Jefferson and as great as he is as a statesman, and he’s very good on the slavery issue in a political sense, he’s really terrible on it in a cultural and personal sense. It couldn’t be worse. And so that’s hard. Whereas John Adams, yes, he’s got a lot of brusqueness to him and he’s obnoxious, but there’s none of that baggage with him. We can look back at him and be really proud. He is anti-Catholic, and I’m sorry he was so deeply anti-Catholic, but other than that, there’s no baggage with John Adams. He’s a serious republican, he’s a serious patriot.

(22:16):

I wouldn’t call him a libertarian because that term’s too anachronistic, but he’s a pro-liberty guy and he’s very anti-slavery. And for a long time, for really almost the first 15 years after the passage of the Declaration, very few people in America knew who had actually written the Declaration. There was actually a serious debate. Was it Thomas Jefferson or was it John Adams? And it wasn’t until about 1826 and the 50th anniversary that everybody recognizes it was Thomas Jefferson. But if you go back and look at what the notes actually say, it seems pretty clear that John Adams helped Thomas Jefferson draft, outline the Declaration. Jefferson’s the author. I don’t want to take that away from him. He is the author, but it does seem to be the result of a very serious brainstorming effort between Jefferson and Adams. So the way I would think about it is Jefferson and Adams are the draftsmen.

(23:28):

Thomas Jefferson is the author and I think I’m guessing a little bit. I don’t know that for certain, but I’m guessing. And what we do know from their notes, and of course they’re older when they’re remembering these things and talking about them they may have faulty memories, but the argument that they make at the time is that Jefferson is the better writer, Adams is the better orator. And I think that’s probably true. Adams is a great writer. You go back, he is truly one of the great penmen of the founding era. He and John Dickinson are the true great penmen, but they’re not going to match Jefferson’s rhetorical style. When it comes to Jefferson’s rhetorical style, the writing of the Declaration is a step below poetry. It is truly prose at its absolute finest, and Adams couldn’t have accomplished that. Adams is brilliant. He’s great.

(24:22):

But that’s not Adams. Adams is a blunt Calvinist. There’s not a lot of poetry. I mean, I think it really takes an Anglican. I think it takes someone with a sense of liturgy and a sense of drama to be able to draw out those things. I’m not suggesting a Calvinist couldn’t have written the Declaration, but I do think it makes more sense that someone out of the Anglican tradition would do that just because of the poetry and the language that’s there. And nothing against Calvin. Calvin was a great writer too. And remember his first book was a book on Seneca’s poetry. So I’m not dismissing Calvin, but there’s a hardheadedness in Calvinism. You look at the Institutes, they’re brilliant, but they’re not poetic. Aquinas is poetic, Augustine is poetic and I think that’s just part of the tradition that we’re getting at. So I’m deviating a little bit from your question, James, but I really do think that we have to give John Adams credit for a lot of the Declaration.

(25:26):

And it is true Adams was a great orator. He may have been the best orator of his day. He was also really good at politics. Jefferson was not. And so Jefferson basically said, look, I’ll write the thing. You get it through Congress. And that’s exactly what they did. So I think for us now in 2026, yeah, we’ll give 60 percent of the credit to Thomas Jefferson, but I think that still means that 40 percent of it goes to John Adams. And I think we would be really unfair to give it all to Jefferson. James, there are a couple of team-ups in American history that I think just make America in so many ways. And I think the first great team-up is Jefferson and Adams. I think the next great team up is John Quincy Adams and Andrew Jackson before they had their falling out. I think there are these elements where these guys–and they end up because they’re so brilliant, they fight each other afterwards–but the moments that they get along, it changes the course of history.

(26:45):

And that to me is what happened with Adams and Jefferson.

James Patterson (26:49):
That’s a great book. The idea of team-ups that become rivals. I like that.

Bradley Birzer (26:54):
Yeah. Right. Well, and again, I mean we hardly think about that, but when Andrew Jackson had his private army running through Florida, it was John C. Calhoun who wanted to send down a counterforce to capture Jackson and to execute him for treason. And John Quincy Adams kept saying,” Are you kidding? This is the greatest Godsend to America. Let the guy run wild.” And then the fact that Quincy Adams and Jackson hate each other in 1824 is such a tragedy because they were the best team up possible earlier, but Jackson didn’t know that. He didn’t know that was going on. He didn’t know that Adams had his back, but he did. So I loved that.

James Patterson (27:41):
Yeah, Jackson was always wheeling around for the next foe, so I just need to stop on that.

Bradley Birzer (27:46):
Oh, absolutely. Yeah. And we don’t think about that. I mean, he had a private army.

James Patterson:
He did.

Bradley Birzer:
This was not sanctioned by the US government.

James Patterson (27:56):
He did some pretty terrible stuff.

Bradley Birzer (27:58):
Pretty amazing. Yeah, absolutely. Absolutely.

James Patterson (28:03):
So Jane E. Calvert just won the Storing Prize on her work on Dickinson and Dickinson comes up in your book, too. And I think she worked very hard on explaining that Dickinson is an important counterpoint to Adams. So should we give him his flowers or was he more of just a pain in the neck for Adams?

Bradley Birzer (28:22):
Dickinson?

James Patterson (28:23):
Yeah.

Bradley Birzer (28:23):
Oh, I love Dickinson. I mean, I think Dickinson is … If you look back at his Letters from a Pennsylvania Farmer, I’m ready to take up arms when I read those. They are so powerful. I mean, when he says in Letter 12 that tyranny is always preceded by sleep, if we could just make Americans realize that over and over again, it’s like, no, be alert. Don’t allow these politicos to get away with this stuff. I think we would be in a much, much better position. And I really, again, it’s Letter 12 for me. I can read that over and over again and I just want to go declare independence after that. So I love Dickinson’s style. He and Charles Carroll are by far the most formally educated of the Founders. These are guys with MAs. These are guys who are figuring out what law decrees are and nobody matches them.

(29:23):

And I love Dickinson in Madison’s notes on the writing of the Constitution and at least the way I teach it, James, and this may have a little bit of hyperbole, but I always tell my students we would never have the Constitution without the radicalism of Madison and the conservatism of Dickinson. I think those are the two great figures of creating the Constitution. And if you go back and look, and I know that the musical 1776 makes fun of Dickinson, but if you go back and look at Dickinson’s arguments for why we shouldn’t pass the Declaration of Independence, they actually make perfect sense. He says, “Look, we need to get a government in place. If you’re just declaring independence, we’re going to go through a period of anarchy.” And it doesn’t happen that way because the revolutionary committees are in charge, but I can understand that.

(30:17):

I can see where Dickinson’s coming from. It’s like, yeah, maybe we should write a Constitution before we declare independence. So I don’t think that Dickinson’s outrageous. I think he actually has a really logical argument right then. He’s wrong, but it’s not an unpatriotic wrong. It’s a patriotic wrong and he’s misguided, but there’s no evil in him at all.

James Patterson (30:45):
So you spend some of the later chapters going through the Declaration structure, I guess just one chapter now. I said multiple chapters. Just one.

Bradley Birzer (30:53):
Right.

James Patterson (30:53):
Both in its final draft and its various edits. Maybe give us a sense of what was the original draft and what was taken out, maybe why.

Bradley Birzer (31:03):
Yeah. There’s only one major change, well, two major changes from the original draft to the one that Congress accepted. So number one, and I think this is really critical. Number one, Jefferson did not include “we pledge our lives, our fortunes, and our sacred honor.” That was not in Jefferson’s draft. That was something that Congress added at the last minute. And I think again, this just tells us so much about the Protestantism and especially a Calvinistic Protestantism. They are, for all intents and purposes, creating a covenant out of the Declaration, and that was not Jefferson’s intent, but that’s what it becomes. And so I wouldn’t put it at the level of the Abrahamic or the Mosaic Covenants, but I would definitely put it above, say, what we might think of as Catholics as a marriage covenant, because it’s a societal one, it’s a cultural one that deals with the entire people.

(32:10):

And don’t get me wrong, I’m not denigrating marriage. I’m totally in favor of it and I’m in favor of that covenant. But this is something in between the Mosaic covenant and a marriage covenant. And I think it has a higher purpose in so many ways. Again, that was not Jefferson’s intent. And remember, Jefferson, on his good days, he’s a deist, on his bad days, he’s pretty atheistic. So we wouldn’t expect Jefferson to make a covenant, but we would expect the Founders to do so. But the other thing–and this is where, gosh, so many hypotheticals and counterfactuals–Jefferson wrote this absolutely huge, beautiful paragraph condemning the king for allowing slavery in the colonies. And historically, that’s not quite accurate, but mythologically it’s true. And if Congress, which had been debating ending the slave trade, that was a part of the debates of the spring of 1776, they were debating it very seriously: should they end the slave trade? Had Congress actually included that paragraph and said, look, what is slavery?

(33:20):

It’s a result of the king. Once they symbolically beheaded the king, they could have destroyed slavery at that moment. And I’m exaggerating a little bit, but it was a possibility and there were so many other revolutionary changes going on. Why not get rid of slavery at that one moment? But South Carolina and Georgia, as they always do, they said, “Well, you guys can do that, but we’re out then. We’re not a part of this.” And Congress backed down. They said, all right, we need you guys. We need all 13 colonies on this so we’re going to ignore that issue. And they excise that paragraph. But here’s what’s so important about that paragraph, not just what could have been but what was. In that paragraph, Jefferson says that men, and it’s capital M, capital E, capital N, that men from a foreign country had been taken away against their will.

(34:23):

And so what we know textually is that when Jefferson says all men are created equal, he did not mean white men. He meant all men. He was including Africans in that. And so that I think just textually is so important. But again, and James, I’m being Pollyannish, but really can you imagine how different American history would be if we had gotten rid of slavery at that one moment? And slavery was already naturally decreasing. Our best estimates–David Brion Davis talks about this in his books on slavery–slavery may have been decreasing during the founding period by as much as 33 percent. Because you can’t say all men are created equal and then go whip somebody. You just can’t do that. It’s hypocritical. And so there are manumissions going around everywhere in the colonies, not in Georgia and South Carolina, but everywhere else in the colonies.

(35:24):

So when the Founders write the Declaration they are, and I think we can give them credit for this, even though they make a bad decision, an immoral and unethical decision, they are under the impression that God and nature is already destroying that institution. It’s on its way out. It still may be another hundred years, but it’s evolving its way out. So I think that’s important too.

James Patterson (35:48):
Kara Roger Stevens has a great book trying—

Bradley Birzer (35:51):
I love Kara.

James Patterson (35:52):
Yeah.

Bradley Birzer (35:53):
That book is amazing. That was my favorite book of two years ago. That was incredible.

James Patterson (35:58):
It was an incredible book sort of trying to parse out how Jefferson’s behavior and his ideas don’t quite align and really like a tour de force.

Bradley Birzer (36:08):
Yeah, Kara and she’s also the nicest person possible. When I think about what is she, early 30s, when I think about the future of the history profession, she gives me great hope.

James Patterson (36:23):
Oh, wow!

Bradley Birzer (36:23):
Yeah. Oh, she’s amazing. Have you met her, James?

James Patterson (36:27):
I have. She won the 2025 Storing Prize, so we interviewed her at the meeting, a Ciceronian Society meeting.

Bradley Birzer (36:34):
She’s a delight.

James Patterson (36:35):
Yeah. Speaking to the Ciceronian Society, of which I am president, so everyone should know that.

Bradley Birzer (36:39):
Yes, and I’m a member very proudly.

James Patterson (36:41):
Yes. You talk about Cicero. There are these figures that are in the background of the Declaration. We know John Locke. John Locke kind of gets a lot of attention, but Cicero’s there as well as people like Algernon Sydney, who people may not know about. So maybe talk about some of the more unsung heroes or influences on the Declaration.

Bradley Birzer (37:00):
Yeah, thanks, James. I always love talking about Cicero. He and Socrates and  St. Augustine. I’ll leave Jesus out of this because he’s obviously above all of these guys. But when I think of Western Civ, I just never get enough of Socrates or Cicero or Augustine. They are the foundations for me of what Western Civ is. And so anytime I can talk about them, I’m more than happy to. And I’m one of those, I’m sure you’re the same way, James. I mean, I’m a nerdy guy. If I have time and I’ve got On Duties, I pick it up and I read it.

(37:37):

They’re not at the level of scripture, but to read On Duties or to read On the Laws or On the Republic, I mean, these are just edifying works. And so there was this practice, we don’t do this anymore because we’re not as liberal in the best sense as the Founders were. They’re deeply classical and liberally educated. Jefferson had like every college student of his era, they kept what were called commonplace books. And these commonplace books are diaries, but they’re intellectual diaries. And what they would do, and all the Founders did this, the Founders who went to college, all the Founders who went to college, about 50 percent of them, they would keep these commonplace books. And so every time I came across a passage in Homer that I loved, you write it down. And you write it down in Greek. And then I’m reading Cicero and I love it.

(38:33):

I write it down in Latin. And of course these guys, we haven’t talked about this, James, and this isn’t common knowledge, but any school child at all who had had any education, even if you were only say eight, nine, and ten before you started doing serious farm work, all education in the colonies was only learning Greek and Latin. That’s all you did. Even as an eight-year-old, that’s all you did. So this is a deeply classical period. We don’t think about that, but it’s a very classical period. And so it was expected that someone like Jefferson would know Greek and Latin and then hopefully Hebrew and maybe Italian too, but certainly Greek and Latin. And so I’ve had a chance to go through these commonplace books and the person who is more represented than anyone else, and it’s not even a close race, is Cicero. Cicero just predominates Jefferson’s books.

(39:34):

He’s everywhere in them, all over the commonplace books. And it’s just clear that Jefferson loved him. And so in May of 1825, Jefferson’s a very old man. He’s 14 months away from death. He doesn’t know that, of course, but he’s a little over a year away from dying. And he’s asked by Robert E. Lee’s father, what was the inspiration of the Declaration? Jefferson responds brilliantly. Again, he’s an old man. It’s 49 years after the Declaration, so he may not be remembering perfectly, but it’s our best evidence. And what’s he saying? He says, number one, I did not say one original thing in the Declaration, not one thing. Everything I said was an expression of the American mind of that time, everything. So there’s nothing original. And he says, these were the common ideas of Aristotle, Cicero, Sidney, and Locke. And so I thought, okay, well, let’s go back and look.

(40:42):

Let’s figure it out. And so for me, and again, I could be wrong, I’m guessing on a lot of this and I did this in chapter six. Now, I had a blast guessing, but I’m guessing. And so I thought, all right, where do we see Aristotle in the Declaration? Well, it’s in the pursuit of happiness. If you look at Book 10 of the Ethics, Aristotle tells us what is the purpose of our life? It is to do excellent things. It is to be happy with our excellences. And when we are excellent, of course, Aristotle doesn’t talk about God very often. Plato talks about God every other page, but Aristotle doesn’t. God is pretty absent in Aristotelian philosophy, but God shows up. And in Book 10, Aristotle says, “What do we do? ” Well, we are excellent because we praise God for the gifts he’s given us.

(41:38):

And I thought, okay, when we’re thinking about pursuits of happiness, that makes sense. And Jefferson’s probably about as pro-God as Aristotle is. It’s not a going concern for him, but it’s there. He’s not doubting it. He’s just not into it. And so I thought, okay. But then I got to Cicero, and you start reading the opening, when in the course of human events and nature and nature’s God, and suddenly the language sounds exactly like Cicero. What does Cicero tell us? What do you and I have in common, James? Even though we’re distinct individuals, we share in the Logos, we share in reason, and who do we share that with? Not just you and me, we share it with the God, capital G in Cicero, the God. And what does that mean? Well, it means that right now I could walk into an immigrant neighborhood in the Twin Cities in Minnesota, encounter a Muslim Somali woman and what do I have to say?

(42:50):

I’m not a woman, I’m not Muslim, I’m not black, but she bears reason. And that I think is incredible for Cicero. Cicero is cutting to the chase and he’s saying, look, the accidents of birth do not matter. Every good person, every man, every woman, every child, black, white, male, female does not matter. They all share in reason. And so for me, when I read, and again, I’m making connections here that may not have been exactly the connections Jefferson was making, but when I look at the Declaration and it says “all men are created equal,” there’s no asterisk. It doesn’t say except for Africans or except for Missouri Synod Lutherans or except for Jews. There’s no asterisk. All men are created equal. And for me, that’s Cicero. And you go back, it’s also Heraclitus. You go back to the earliest Greek philosophers, Thales, Heraclitus when they’re debating, are we earth?

(43:58):

Are we water? Are we air? Are we fire? They’re asking the question. This is the heart of Western Civilization. We’re not racist. We are deeply universal. The whole Western project has been defined commonalities among human beings. And James, I know you didn’t ask this, but I’ll go off on a tangent for a second. Let’s go back. Let’s look at Horace. Let’s look at Cicero. Let’s look at Virgil. Let’s look at Livy. Let’s look at Homer. Is there ever once in any of the ancient texts a judgment about someone because of the color of their skin? No. The answer is no, you cannot find it. When they talk about the Ethiopians, they say, well, the Ethiopians are hilarious. Everybody wants to hang out with the Ethiopians. Even the gods want to drink with the Ethiopians, they’re a blast. Nobody says, “Oh my gosh, they’re dark-skinned and therefore inferior.” And to me, this is Western Civ.

(45:06):

And when I hear people, and I get really worked up about this, as you can probably tell James, but when someone says to me, Western Civ is racist and sexist and imperialist and colonialist, I think, who are you talking about? Yeah, that’s the modern West, but that’s not in the tradition of the West at all. It’s not rooted in Western Civilization. That’s a corruption of Western Civilization. And so one of the things I say in the book, and I mean this very seriously, though I’m throwing the gauntlet down. There are two truly great moments in humanity where we proclaim human dignity. One is Christianity. Nobody had proclaimed human dignity like Christianity. Think about St. Paul, neither Greek nor Jew, neither female nor male. It is absolutely universal all one in Christ. And then we get to Jefferson. We hold these truths to be self-evident. James, again, feel free to push back on this, but I would argue till I’m blue in the face that outside of Scripture, that sentence, “we hold these truths to be self-evident” is the most important sentence in human history, because I think it says something profound about who we are.

(46:32):

It says something deeply profound about what human nature is. And so you can have a great black man like Martin Luther King who loves Jefferson and loves the Declaration. He doesn’t see a contradiction there. What he says is the Declaration is a promissory note. Not everything’s perfect on July 5, but man, it’s going to be and it’s moving in that direction. And I’m no utopian. We’re all fallen. We love war. We love being discriminatory. It’s just the unfortunate side of who we are. But if you say something like all men are created equal, you can’t back down from that. You can only make it real. So all the direction is towards human progress in the best sense. And again, I’m not utopian. I’m not progressive by no means. I’m as conservative as they come, but that is an optimistic thing I think we can say about The American Project.

James Patterson (47:29):
Dr. Birzer, thank you so much for coming on the Law & Liberty Podcast.

Bradley Birzer (47:32):
James, it’s such an honor. And again, I’m so glad we connected with one another. What a treat!

James Patterson (47:37):
Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Related Links

Conspirator in Chief by Stephen F. Knoff
“Conspiracy in the White House” by David Head, Law & Liberty (book review)
Coming to Terms with John F. Kennedy by Stephen F. Knott
The Lost Soul of the American Presidency by Stephen F. Knott

Transcript

James Patterson (00:00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name’s James Patterson, contributing editor to Law & Liberty and associate professor of public affairs in the Institute of American Civics at the University of Tennessee. With me today is my guest, Stephen F. Knott. He’s the Thomas and Mabel Guy Professor of American History and Government at Ashland University and Professor Emeritus of National Security Affairs at the United States Naval War College. He’s the author of many books, including The Lost Soul of the American Presidency and Coming to Terms with John F. Kennedy.

(00:01:17):

These are both from the University Press of Kansas. Today we’ll be talking about his most recent entry, Conspirator-in-Chief: The Long Tradition of Conspiracy Theories in the American Presidency. Professor Knott, welcome to the podcast.

Stephen Knott (00:01:31):

Well, thank you, James. It’s always a pleasure to reconnect with you. You’re still looking youthful and vibrant and I’m very impressed.

James Patterson (00:01:42):

Let’s just start from the beginning. Are you tired of the chemicals they’re putting in the waters that make the presidents crazy?

Stephen Knott (00:01:53):

Yeah. Well, it’s interesting you should mention that because of course, if we were talking about this subject in the 1960s, even into the ’70s, fluoridation of the water supply was a big issue. And folks …

James Patterson (00:02:06):

Right.

Stephen Knott (00:02:06):

… in the John Birch Society were convinced that that is precisely what was going on, that our precious bodily fluids were being contaminated by some communist serum that was being injected into our drinking water. So yeah, James,

James Patterson (00:02:19):

That’s it. We needed to listen to General Turgidson.

Stephen Knott (00:02:24):

That’s right. Yeah, Buck Turgidson. Yep.

James Patterson (00:02:29):

So this book is about conspiracy theories not against presidents but held by presidents. What an incredible subject, first of all, but also how alarming is it that there are so many cases?

Stephen Knott (00:02:42):

Yeah, I think it is alarming, James. And I’ll tell you, I first sort of stumbled upon this when I was writing the previous book, you mentioned The Lost Soul of the American Presidency, where I talked about presidential use of demagoguery. And it was amazing how often conspiracy theories came up, whether it was Jefferson’s minions circulating rumors that Hamilton was a British agent or Woodrow Wilson attempting to portray anti-war opponents in World War I as agents of the Kaiser or whatever. So that’s what got me onto it. And yes, I do find it a disturbing feature, but I try to end on a positive note. We’ll talk about this later, I’m sure, but not every president has succumbed to the conspiratorial rumor-mongering temptation.

James Patterson (00:03:34):

We see at the beginning of the book, one of the most high-highs and low-low figures is Thomas Jefferson in American history. So he writes the Declaration of Independence. He’s a pivotal figure in starting the defense of religious liberty in the United States. But there’s another side to him that really comes out when he’s in the Washington administration and really flowers once he becomes president. So what are we looking at with him and conspiracy theories?

Stephen Knott (00:04:07):

Yeah, Jefferson’s fascinating because he was such a complex man. I know that’s kind of a cliche thing to say about him, but he did have this incredible capability of compartmentalizing certain aspects of his light. And the Jefferson, who was the great rhetorician, the poet of the American Revolution and whose poetry I greatly admire. When it came to street politics, if you will, the guy was very capable of playing down and dirty. And I’ve often said that Jefferson is kind of the founding father of the politics of personal destruction. And I’m talking particularly about Jefferson’s take down of Alexander Hamilton and some of the other Federalists. Instead of attempting to deal with their arguments, Jefferson always assumed that Hamilton was a closet monarchist, if not, as I said, an outright British agent. And I think Jefferson believed that as well about some of Hamilton’s allies like Rufus King and John Jay and some of the others.

(00:05:15):

So this portrayal of the Federalists as monarchists, as people who had betrayed the spirit of 1776, that’s what I’m sort of getting at primarily with Jefferson, that he had a tendency to view anyone who disagreed with him as somehow corrupt and ultimately treasonous. And that’s an aspect of Jefferson’s life that I don’t think a lot of Americans are aware of. And while I hate to rain on our 250th birthday party, again, I certainly admire Jefferson’s language in the Declaration of Independence. As a political figure, he was frequently taking the low road.

James Patterson (00:05:59):

The targets for Jefferson were many. I mean, Hamilton as a person, Adams to some degree, also Washington, which is a shocking thing that I think people have in mind, but also were institutions. So he has the First Bank being one. What was his concern with the bank?

Stephen Knott (00:06:16):

So with the Bank of the United States, on one level, he was concerned that the subject of the bank had come up at the Constitutional Convention and it was not included in that list of enumerated powers that one sees in Article 1. So in Jefferson’s view, I think constitutionally speaking, there was no authority given to the federal government to create a bank. Beyond that, however, Jefferson was always fearful of any sort of public and private mixing. And the way Hamilton conceived of the Bank of the United States, there would be precisely that. There would be some …

James Patterson (00:06:55):

Right.

Stephen Knott (00:06:55):

… East Coast bankers mixing with public servants of sorts on the Bank’s board that was in Jefferson’s view, that’s corrupt and the public should remain sacrosanct, should remain completely separate from private interests. And I should add to that, James, I think there’s just both in Jefferson and his party and the party that still to some extent views him as a founder, the Democratic Party of today. There’s just a skepticism directed towards East Coast banking interests in terms of what they see as a kind of disregard for the common man.

James Patterson (00:07:36):

Yeah. The Bank and Hamilton are really not separated in the minds of Jefferson. And so he sends Gallatin after the records here. And what evidence of conspiracy does he find in the records of the Department of Treasury?

Stephen Knott (00:07:50):

He finds none, James. He finds nothing. Much to his despair.

James Patterson (00:07:55):

So conspiracy is solved, right? He clearly drops the conspiratorial thinking at that point, right?

Stephen Knott (00:08:01):

Absolutely not, James. He now is more convinced than ever that Hamilton is so adept as a conspirator that he has successfully hidden any record of his malfeasance.

James Patterson (00:08:13):

And this gets to the problem with all of these cases, which is evidence that the conspiracy is false becomes evidence that the conspiracy is true. What on earth is going on with people that make their way all the way to the top of political authority in the United States that they believe they’re powerless?

Stephen Knott (00:08:32):

Yeah. Well, it’s an interesting theme, I think, in the book, James, in that all of these men, and they are all men that I discuss in the book, are convinced to some degree or another, some more than others, that there is the kind of inside ring, as I think Andrew Johnson put it, or a deep state as the current president puts it. They all do share that view that somewhere there is this secretive cabal that’s truly pulling the strings behind the scenes, that’s untouchable by public authorities or certainly by the general public. That is one of the consistent threads that exists, I think, in the minds of these conspiratorial-inclined presidents. And by the way, that is a view, I think, shared widely by many Americans that what you see on the surface is not the truth. It’s always something hidden, always something behind the curtain that you and I are just not privy to.

James Patterson (00:09:32):

When you look at the conspiracy theory of Jefferson, it’s really focused, as you said, on the monarchists that are in our midst, even by the 1810s and 1820s, the idea of betraying the country to the UK during the War of 1812 comes up. But the part that I really enjoyed from the book was a greater historical detail on something from Jefferson’s actual presidency, which is the Embargo Act. And it points to how even as far back as then there’s this also not just concern about banks, but of trade. What is it that connects Jefferson’s conspiracy theory to trade?

Stephen Knott (00:10:13):

Yeah, I think in Jefferson’s view, he really hoped for a new nation, a new order for the ages where you and I and every American citizen would basically be living almost something of a subsistence existence where we’d grow our own food, make our own clothing, et cetera. The more one becomes entangled with others and the more commerce and trade becomes the sort of centerpiece of our lives at that point we begin to drift away from our adherence to liberty, to the enlightenment principles that Jefferson hoped for this country. So cities are seen as corrupt, banks which are always located in cities are seen as corrupt influences. Those common folk who work in cities or later in factories, they are not truly free. They are subject to the whims of their corporate owners. They’re the people who employ them. So you are not truly free unless you live a kind of subsistence existence or you happen to own a plantation on top of Monticello.

James Patterson (00:11:26):

And the great talent that he recruits in the spreading of these conspiracies is a man named James Callender, who I believe, I was looking for the quote he has about John Adams as a “hermaphroditical character, neither the force and firmness of a man or the sensibilities of a woman.” And of course gave us “bastard brat of a Scottish pedler” for Hamilton. So the final part of conspiracy theories is always that they find their way into the press and that’s where they connect to that audience you were saying where people are generally suspicious to kind of share in this conspiracy theory. So what was Callender doing with Jefferson?

Stephen Knott (00:12:04):

Yeah, he’s an interesting character and he is one of Jefferson’s journalistic hatchet men. It’s Callender who reveals to the general public that Alexander Hamilton had an extramarital affair with Maria Reynolds.

(00:12:19):

Callender prints that in 1797. That story had first come to the attention of Jefferson’s insiders in 1792 when Hamilton was Treasury Secretary. Those insiders thought they were on to a financial scandal, some sort of insider trading in the Treasury Department. Instead, they had stumbled upon an extramarital affair that Hamilton was having and he was paying hush money to Maria Reynolds’ husband. It seems to be now the two Reynoldses were extorting Hamilton, but that’s a whole separate issue for another show.

James Patterson (00:12:55):

That’s your conspiracy theory.

Stephen Knott (00:12:56):

That’s right. That’s my conspiracy. You’re absolutely right. None of us are immune to these things.

James Patterson (00:13:02):

No.

Stephen Knott (00:13:03):

But Callender’s the guy who makes this public. I’m fairly convinced that happens at Jefferson’s behest. He had a fairly tight control over his political machine. In 1797, Jefferson is looking at the election of 1800 and the one man he truly feared was Alexander Hamilton. And this story was an attempt, as I said earlier, to destroy or to engage in the politics of personal destruction and blunt any Hamiltonian desire to become chief executive.

James Patterson (00:13:34):

Did he ever compensate the Reynoldses for losing the hush money?

Stephen Knott (00:13:40):

Not that I’m aware of. Now, James, let me add, please, I can’t with this pass. No. It’s Callender who will turn on Jefferson. I know you know this. Jefferson wins the presidency in 1800. Callender wants to become the postmaster of Richmond, Virginia. Postmasterships were prized patronage jobs at that time. Jefferson says, no. What does Callender do? He publishes the story about Jefferson and Sally Hemings. So, there was some sort of justice I think there in Callender terms.

James Patterson (00:14:10):

Yeah, a parallel kind of story here. Yes. And I believe Callender, doesn’t he just end up dead in a river somewhere?

Stephen Knott (00:14:18):

Yes. He does. He does. He ends up dead in a fairly small body of water, which if Oliver Stone were around back then, it would’ve made for a great movie about how this guy was done in by some of Jefferson’s minions. That’s not the case. I’m not saying that, but-

James Patterson (00:14:36):

My stock joke is that if he hadn’t been found in that body of water, he would’ve been found leaning his gun shot in the back of the head.

Stephen Knott (00:14:46):

That’s correct.

James Patterson (00:14:48):

So this is early in the Republic where we’ve got sex, intrigue, rifling through old files to find money trails, and the Bank enriching an elite that’s so capable that they can avoid accountability even from the president. And all of this is laid at the feet of a cadre of monarchists. And then the next case is King Jackson. So it’s this odd flip where the Whig party emerges in opposition to Jackson who styles himself as the heir to Washington but really governs much more like a king. And his justifications for all of these things is a conspiracy theory that is, I would say, more comprehensive even than Jefferson. So let’s get into Jackson here.

Stephen Knott (00:15:39):

So Jackson in a sense builds on the foundation that Jefferson has built, particularly in regards to skepticism towards a national bank and East Coast commercial interests, New York, Philadelphia, Boston. The perception that was widely shared in the South and in the West and Tennessee–Jackson’s Tennessee at that time was something of the West–was that these East Coast interests were constantly tucking it

(00:16:08):

to the common man, whether it was a farmer in Tennessee or a small merchant in New York City. Jackson really gives voice to that view, that fear that somewhere there is this secretive cabal that’s really calling the shots. It’s not your elected representatives, it’s these East Coast commercial interests. And Nicholas Biddle, who happens to be the president of the Bank of the United States, and even that name conjures up kind of Dickensian horrors of this elite guy who has nothing but contempt for the little man. Jackson will use his war against the Bank of the United States and his war against Nicholas Biddle, who runs the bank, as a kind of crusade to cleanse the nation’s capital of this excessive influence that this commercial/banking elite has on the American polity.

James Patterson (00:17:06):

So this bank, the Second Bank now, is responsible for essentially the monetary policy in the United States, just like the Federal Reserve is today. One of the things that I’m sort of picking up when reading this book is that Jackson doesn’t really understand any of that, doesn’t know anything about this. It’s almost like growing up the way that he did as a Scotch Irishman in the West and owning a plantation, your relationship to money is very different, especially banks. And so maybe what is something here that people don’t know about plantation farming and their relationship to banks?

Stephen Knott (00:17:42):

Well, these guys, there are few linkages between Jefferson and Jackson, but they were both large plantation owners, the largest slave owners in their respective states, one of one of the largest. And of course their profitability, their ability to stay in business, if you will, was dependent upon the various crops that were yielded that particular year. And they were always subjected, of course, to weather issues and insect infestation or whatever. The banks back east in New York or even in London in some cases, they didn’t care anything at all, of course, about that. When their loans were due, they wanted them repaid. And so that cudgel that these banks were able to hold over the head, even of these wealthy, powerful individuals like a Jackson or Jefferson, again, is one of the threads that exist between the two and contributes to their animosity towards these distant financial interests.

(00:18:46):

Who, by the way, I should add, James, they never did a hard day’s work in their life. I’m talking about the bankers, not that Jefferson and Jackson necessarily did either, but their attitude towards these bankers was these are money lenders. These are sinful people. They’re making money off of something where they’re not really engaged in any toil whatsoever and that automatically makes them suspect.

James Patterson (00:19:12):

And of course we have with Jackson a stolen election, right? Someone stole his election when he should have won fair and square.

Stephen Knott (00:19:23):

And of course that myth resonates to this day. It’s frequently cited, particularly in some of our close elections that we’ve had recently, but there’s some pretty good work that’s been done out there as an author by the name of Donald Ratcliff, who’s written a terrific book about the election of 1824. He makes a very compelling case that John Quincy Adams actually won the popular vote in 1824 despite what our conventional history books say. They usually say Jackson won the popular vote. And the basis for that argument is that New York state at that time, there was obviously no direct election of the president. You voted for your state representatives who in turn would select the electors. And according to Ratcliffe, that popular vote for those various pro John Quincy Adams state reps in New York was overwhelming. And he says, we need to calculate that into our assessment of who actually won in 1824.

(00:20:26):

But let me add, James, the fact is, of course, the election is thrown into the House because nobody wins an electoral college majority. That is the way the system was and is supposed to work. And the fact is politics, political activity is going to occur. It did occur. There were negotiations, if you will, between Adams and Henry Clay. They struck a deal. Adams was selected as the president. That’s the system working. It’s not evidence of a corrupt conspiracy despite what Andrew Jackson alleged and despite what his defenders to this day and your beloved state of Tennessee continue to argue. Sorry, James.

James Patterson (00:21:11):

No, a friend of a friend that actually works in the historical preservation of Hermitage. I will not let him listen to this.

Stephen Knott (00:21:19):

Wise move.

James Patterson (00:21:21):

Yeah. Actually, the Tennesseans get to roughen this book now that they think about it because the next case is Johnson, but we can’t skip Jackson and yet another one of these sort of palace intrigues. We had Maria Reynolds. Now we have Mrs. Eaton and her dubious marriage. So how does this play at all a role in the conspiracy theory of Andrew Jackson?

Stephen Knott (00:21:46):

Well, again, Jackson approached every issue, every crisis through the lens of conspiracy theories. And what happened with Peggy Eaton was, her husband was a naval officer. He had been killed in action somewhere overseas. Actually, I don’t think it was combat. It was some type of a death, but he was serving in the Navy. She quickly remarries the secretary of war, named Eaton. And because she married so quickly, that offended a lot of the society women in Washington, DC, including spouses of Jackson’s own cabinet members and in particular Floride Calhoun, speaking of fluoride again, the wife and the vice president was very offended at the abrupt nature of Peggy Eaton’s wedding to the secretary of war. And so this just becomes an incredible gossip scandal that Peggy Eaton was a fallen woman. Peggy Eaton was somebody who had a tendency to, as we would say, today, sleep around.

(00:22:49):

And Jackson latches onto this, sees this as evidence of these kind of stuffy East Coast women with their noses up in the air looking down on poor Peggy Eaton. And he spends months on this thing trying to get to the bottom of this and really going to war in a sense with some members of his own cabinet telling them basically to get their wives under control. It’s a remarkably trivial thing that this president elevates to a crisis of state. And again, it’s a reflection of a kind of conspiratorial mindset on Jackson’s part.

James Patterson (00:23:28):

Of course, there’s a kind of weirdly correct view of Jackson being victim of a conspiracy, but that’s not really where his theory goes. And that’s like the machinations of John C. Calhoun, who you just mentioned, who’s constantly trying to guide Jackson in Calhoun’s own direction. How does that end up working out for him?

Stephen Knott (00:23:50):

It doesn’t end up very well, James. Calhoun ends up resigning or leaving the vice presidency, and things get so bad that when there’s an attempted assassination on President Jackson, which failed remarkably considering that the assassin had two pistols with him, both of which misfired–more grounds for another conspiracy theory. But anyway-

James Patterson (00:24:14):

Oh my gosh.

Stephen Knott (00:24:17):

Jackson accuses Calhoun of being behind this plot to kill him. That’s how crazy things got. So John C. Calhoun is going to go on to having a career and a big make a name for himself, but the relationship between Jackson and Calhoun, it’s friendly for a time, but not for long.

James Patterson (00:24:37):

No, we end up with the Nullification Crisis, the Enforcement Act. Oh my gosh. I have to admit that just a little part of me when I was reading about Floride Calhoun, I suspected that maybe she was kind of insufferable. She’s a South Carolina Steel Magnolia, right? I grew up—

Stephen Knott (00:25:01):

She probably was, James. She probably was. Somebody needs to write a book about Floride Calhoun.

James Patterson (00:25:08):

Oh my God. Is that your next project, Steve?

Stephen Knott (00:25:12):

That’ll be my next project.

James Patterson (00:25:14):

That’s right. No more sympathetic biography of a South Carolinian Steel Magnolia than by a Yankee from the Northeast, right?

Stephen Knott (00:25:22):

That’s exactly right. Yeah.

James Patterson (00:25:24):

All right. So for one unhinged Tennessean to another, we get to Andrew Johnson, and here it’s a nation divided and under occupation and in the midst of a reconstruction that we don’t really know how Lincoln was going to institute. So my standard joke about Johnson is that he was talented in no way except at metabolizing brown liquor. So what were his talents, at least for conspiracy theory?

Stephen Knott (00:26:00):

They were off the chart, James. It’s a fascinating case of what might have been. I mean, Lincoln’s first vice president was Hannibal Hamlin from Maine who was kind of a dyed-in-the-wool abolitionist. And I think we can safely say the whole course of reconstruction would’ve been different had Hamlin been left on the ticket in 1864, but the Republican Party leadership wanted to make sure they could carry some of the border states. So they went with the one lone senator from the South, from the slave holding South, who remained loyal to the Union. And that was Senator Andrew Johnson. And interestingly, when Johnson first becomes president, a lot of his future enemies, Thad Stevens, Charles Sumner, et cetera, they had high hopes for Johnson, but very quickly it becomes apparent. Johnson is not the least bit interested in enforcing both the Civil War Amendments, the 13th, 14th, and 15th Amendments and the various Civil Rights Act passed by the United States Congress.

(00:27:08):

He’s not interested in enforcing them. He wishes they never happened. In fact, he uses his office in a way to try to kill the 14th and 15th Amendments. But what you have here is a clash between someone who saw the Civil War as an effort to preserve the Union and the Constitution and a group of so-called Radical Republicans viewed the Civil War as a way to eradicate slavery and saw the Civil War as in a way a new birth of freedom, to borrow from Lincoln. And so you have this clash that ends up with the impeachment of Andrew Johnson, a failed impeachment, but the first serious impeachment. But the point is that for Johnson, over time, he begins to see those radical Republicans, Thad Stevens, Charles Sumner, some of the others as conspiring to not only overthrow him, but perhaps kill him and overthrow the Constitution and establish what Johnson referred to as Negro supremacy.

(00:28:13):

Johnson is going to issue some of the most blatantly racist documents in American presidential history. I don’t use that term lightly. I don’t throw that race card around easily, but in Johnson’s case, it definitely applies. And his rhetoric, his public rhetoric, and this is important, James, this is the first president to really go out and publicly speak directly to the American public and he’s pointing the finger at a traitorous Congress and he’s accusing that Congress wanting to create Negro supremacy. It’s a foul presidency.

James Patterson (00:28:51):

Of course, Johnson is transitioning his conspiracy about the planters trying to start a war to defend their economic interests. How is it that that conspiracy maps on to the elites in the North?

Stephen Knott (00:29:09):

Yeah, it’s a terrific question and it’s an aspect of Johnson’s loyalty to the Union that’s I don’t think greatly appreciated in that he saw the South’s decision to secede as one directed plotted by wealthy plantation owners of which he was not one in the least. So Johnson views the Civil War very much through a kind of class lens. His loyalty is to the Union because he sees this as kind of a conspiracy on the part of Jefferson Davis and wealthy plantation owners. And I think it fits in an odd way in that a lot of the folks when he becomes president are from the Northeast, many are Harvard graduates or Ivy League graduates. He sees them as elitists of a different stripe, a but elitists who are, as I’ve said, committed to establishing Negro supremacy. So there is a tie there and the tie is that Johnson was always aware of class distinctions, always viewed himself as coming from common stock, which was true, but that he was consistent in defending that common stock from the plots of various elites, whether south or north of the Mason-Dixon line.

James Patterson (00:30:29):

Yeah, that populism that he’s doing is kind of consistent with the populism of Jackson and Jefferson. It’s just that in this case, it doesn’t really fit easily into a contemporary understanding of American politics. And one of the things I often tell my students is that we overlook that there was a north and south, but there was also a West and that the West was really a formative experience that shocked people when they moved from the West to go practice politics in the East. So Henry Clay could adapt, but maybe a lesser figure like Johnson, not so much.

Stephen Knott (00:31:09):

That is a terrific point, James, that I wish I’d included in the book.

James Patterson (00:31:13):

Oh, well. Second edition.

Stephen Knott (00:31:16):

Okay. But seriously, yeah, he is in a way a Westerner in addition to a Southerner and that’s a terrific angle.

James Patterson (00:31:24):

Yeah. Johnson actually gets really, really bad towards the end and it’s not a coincidence that he’s impeached. This seems to be a direct response to his own behavior. But what’s weird is that the impeachment itself, even if he regards it conspiratorially, it’s not like they’re hiding their motivations in the impeachment. They actually pass a law to set them up for impeachment, the radical Republicans that is.

Stephen Knott (00:31:52):

Yeah, they absolutely do set Johnson up with that Tenure of Office Act, which is what you’re alluding to, which was attempting to prohibit the president from removing Secretary of War Edwin Stanton without senatorial approval. And of course, the argument from the Senate was, “Look, we had confirmed this guy. We should have a hand in firing him.” That removal debate, again, another topic beyond the scope of this is a discussion, but that removal debate in a way is still being hashed out.

(00:32:24):

I agree with their assessment that that aspect of the impeachment was a setup. Now there were other articles of impeachment, one of which was in a sense defaming Congress with these public speeches that he was giving in which he was naming members of Congress and accusing them as being as treasonous as Jefferson Davis, that type of thing. So that was another article of impeachment. I do think this is an important point, James. I might be one of the few, well, I’m not certain of this, but I actually think that Johnson should have been impeached and convicted and removed in that the president takes an oath to take care of that the laws be faithfully executed. And this was the president who was doing nothing but trying to undermine the law, including undermining those Civil War Amendments that I just mentioned to you. That’s pretty serious stuff and certainly seems to me grounds for impeachment, conviction, removal.

James Patterson (00:33:31):

Yeah. We’re glossing over what you’re … I say we, I have not asked a question about this, what laws he’s not enforcing, but his refusal to enforce civil rights laws and to promote public order in occupied states leads to thousands of dead black Americans as well as white political opponents of Johnson in the South. I mean, it is this kind of neglect that leads to, we’re talking generational violence and disorder in some of these areas, like certain towns that have a black middle class building up that just get burnt to the ground.

Stephen Knott (00:34:11):

Absolutely true, James. I mean, this is the time period where the Ku Klux Klan comes into being, founded by Nathan Bedford Forrest, a retired Confederate General composed primarily of former Confederate soldiers. And this is truly a terrorist campaign that’s going to take place throughout the South during reconstruction. As you mentioned, thousands of casualties, both some white northerners who are down in the south, the so- called carpetbaggers, teachers, et cetera, trying to help the newly freed slave and not to mention, of course, thousands of black victims as well. So this is a horrific time period in our nation’s history. Again, in my view, Johnson was completely derelict as commander-in-chief. His successor, Ulysses S. Grant, will actually for a time anyways use the full force of the Department of Justice and to some extent the United States Army to go after the Ku Klux Klan and meets with some great success, particularly in South Carolina where the Klan at least for time is for all practical purposes destroyed.

James Patterson (00:35:22):

And you end up with elections that actually elect black senators and members of Congress, but that all disintegrates pretty quickly. And I think you’re right to say that the fault really begins with Johnson and his undermining of, what was it called? The Freedmen’s Bureau. What does he do to that?

Stephen Knott (00:35:43):

He shuts it down. He kills it. And that was an entity created by the so-called Radical Republicans. I hate that term by the way. It makes them seem like they’re extremists. All they were trying to do was deliver on the promises of the Declaration of Independence and yet they’re the radicals. Now, I understand, I guess, radical, you know this better than I, means sort of returning to the root. So they were, they were trying to bring the country back to the root of our founding principles. But I think throughout much of our history, Stephens, Sumner and some of the others have been portrayed as zealots and they were not. And they helped to create this entity called the Freedmen’s Bureau, which again was a unique federal initiative to try to help four million newly freed slaves just get on their feet as autonomous individuals through agricultural assistance, educational assistance, telling them how one can use the ballot box to participate in the franchise.

(00:36:51):

The Freedmen’s Bureau was a terrific institution and President Johnson did everything he could to undermine it.

James Patterson (00:36:58):

So we’re looking at a pampered hypocrite, then we’re looking at a xenophobic general and then we’re looking at a common rabble. So clearly the solution to this is to find a man of learning and expertise, a man who trusts the science, a progressive like Woodrow Wilson. This is a man who would be totally immune to any kind of conspiracy theory because he’s a man of learning. He knows the truth and apprehends it in his daily life as president of no populist institution I know of Princeton University. So am I wrong?

Stephen Knott (00:37:45):

Well, I hate to always contradict the host, but yes, you’re wrong. Yeah. One would think that our first and only PhD president-

James Patterson (00:37:57):

May it always be only. Learn our lesson.

Stephen Knott (00:38:02):

I agree with that, my friend. One would think that having lived the life of the mind and worshiping at the altar of reason, that Woodrow Wilson would’ve been rejecting these types of rumors or conspiracies that we’ve been talking about. But in fact, he definitely earns his place in this list of conspiratorial presidents we’re talking about, whether it’s Americans who had the audacity to oppose American entry into World War I and Wilson was quick to label them as un-American and if not outright agents of the Kaiser, or Wilson shared the same view of Reconstruction, I would argue that Andrew Johnson did.

(00:38:43):

Now, of course, Wilson was a child of the South. One of his earliest memories was of seeing Confederate soldiers return home from the war. But Wilson’s take on Reconstruction as something of a historian or political scientist was that it was an absolute disaster. And it’s no accident that one of his friends from Princeton University, Thomas Dixon was the author’s name, will write a book called The Clansman, which will in turn become a film known as The Birth of a Nation. And that film will premiere at the White House. And that is a portrayal of the Ku Klux Klan as the saviors of Southern white civilization. So both on racial matters and on matters of civil liberties, Woodrow Wilson’s record is pretty disturbing to say the least. And as a practicing politician, he was, as I said, very quick to portray any opponents as un-American, one should not speak out against the president,

(00:39:51):

we should all be moving in the same direction. And if you dare to speak out about Woodrow Wilson, you had a tendency to be targeted by him frequently in public forums.

James Patterson (00:40:03):

Yeah. We have here an estimated, this is on page 87 of the book, 38 lynchings occurred during 1917, 64 in 1918, and 83 in 1919. African-American leaders, including Ida B. Wells, W. E. B. Du Bois, and the National Association for the Advancement of Color People pressed for federal anti-lynching legislation. Nevertheless, Wilson was primarily concerned that these acts of terrorism would disrupt the American war effort–here talking about the First World War. He offered no solace to the families of victims, eventually issuing a bland proclamation, condemning the lynching, but making no reference to the racial animus behind the act. He was fighting this war you mentioned. So not only were Black Americans being severely persecuted, there was a group of Americans we don’t normally think about as being different because Germans in the United States have integrated to the point where all you get is maybe a slight Midwestern accent, but in large parts of the Midwest, as well as in Texas, you have German immigrants. And how are they doing during the First World War?

Stephen Knott (00:41:12):

Not well, James. In fact, there’s going to be a lynching of a German-American in the Midwest. I believe Illinois, if my memory serves. But again, this starts at the top. The president is publicly putting American citizens on notice that they better stay loyal. And it actually reaches the point where Wilson’s Justice Department creates this voluntary organization that’s encouraging private citizens to turn in their neighbors as they suspect that they’re not loyally supporting the war effort. And some quarter of a million Americans join this organization and report to the Justice Department. If you had the audacity to stand on your local street corner in 1918 and say that this war, our entry into the war in Europe was unfounded, you’d be targeted and you’d likely hear from the FBI and in some cases you might even be arrested and in some cases you might even be deported.

(00:42:18):

So there was an atmosphere of fear that Wilson, I was going to say tapped into, that’s not even the correct … I would say an atmosphere of fear that emanates from the White House. And again, it’s disturbing from someone whom you think would have an understanding of history and would appreciate the fact that there have been so many instances throughout the history of this country and the Western world where as I think to sort of loosely, loosely borrow from Churchill, fear becomes the sort of overriding the first thing that most citizens experience when a country goes to war and it seems to be very irresponsible for a president to exploit that.

James Patterson (00:42:59):

There’s an institutionalization of the conspiracy theory here, that there’s a threat against Wilson and progress. But who are the conspirators that he’s really talking about here? I’ve gotten into just blanket hatred of Woodrow Wilson, which is a vice of mine that I think is shared. But what was the theory itself?

Stephen Knott (00:43:21):

Yeah, the main sources Wilson was convinced, as you mentioned, is German Americans. It was socialist leaders like Eugene Debs who urged young American men not to register for the draft. Debs will be put in prison under the newly Espionage Act signed into law by Wilson. And Debs was an opponent. He ran against Wilson in 1912 and here he is doing time in a federal prison for speaking out against the war. And then James, perhaps most importantly, one of the key targets of Wilson and his Justice Department were various journalists who had the audacity to exercise their First Amendment rights and to publish anti-war editorials. These people were labeled again as agents of the Kaiser. Their loyalty was questioned. They were often harassed. It wasn’t just a matter of being publicly shamed. They were frequently harassed by the … Well, it’s not the FBI at this point, but by justice department agents who were sent at the behest of Wilson’s Attorney General. So those are the main targets of Wilson’s crackdown.

James Patterson (00:44:37):

One of the central linchpins to the First Amendment is often overlooked and that’s the idea that we don’t license the press, where there’s not a licensing arrangement behind owning a newspaper. And Wilson uses the presidency to try to reverse engineer a kind of licensing arrangement for newspapers and printers, right?

Stephen Knott (00:45:01):

Yeah, that’s absolutely right. One of the papers he was particularly irate about was the Kansas City Star for some reason. Actually, you did find a lot of isolationist sentiment. The further one got away from the Atlantic Coast, the further one got into the Midwest and in particular the Rocky Mountain States. It was not an overwhelming support for the war. But yes, Wilson was urging his attorney general to use whatever means necessary to shut these voices down, these dissenting voices, and to criminally prosecute them. And I know in the case of the Kansas City Star, that is exactly what they attempted to do, prosecute these editors and these publishers for publishing this so- called treasonous material. It’s a very dark period in our nation’s history.

James Patterson (00:45:52):

And we rebound from that. Wilson has a stroke, sort of debilitated in his ability to do his office. This is why people often say that Edith Wilson’s really the first female president because she took over the White House in a way that wasn’t understood then. And now we get to the case that surprised me. I had no idea that FDR had this … When I think of FDR, I think of this worldly, consensus building, friendly, happy guy and maybe those are the chats. Maybe it’s the fireside chats getting to me. So what’s actually going on with him?

Stephen Knott (00:46:36):

Yeah, it’s an interesting point. And I shared that view, James, as well. And until one actually looks at the transcripts of many of those fireside chats that FDR delivered, we assumed they were folks … And the guy had a way of speaking that made people feel like he was in their living rooms with them, which was an impressive tool for the president to be able to use. But if you actually read what he was saying frequently, either when it came to the Supreme Court, when it came to the media, certainly when it came to the Republican Party, FDR was more than willing to suggest that these people were, and again, I don’t think this is an overstatement, that these people were evil, that they hated the common man in the case of the Republican Party. In the case of the Supreme Court, those guys were living in, as he put it, in horse and buggy days and that as the third branch of government, it was sort of a three horse wagon.

(00:47:35):

All three branches had to pull in the same direction and these old guys were preventing the government from doing that. But the attacks were frequently personal as World War II approached if you were somebody, again, who took an isolationist position, your patriotism was going to be questioned by this president and publicly questioned and the FBI, which is now in existence at this point, you probably get a visit from the FBI whether you’re a newspaper publisher or just a sort of street agitator, if you will, chances are you are going to hear from the Justice Department during Franklin Roosevelt’s tenure in office. And then the final point, and I’m sure we’re going to get to this, but of course FDR’s attitude towards Japanese Americans, it’s going to lead to some very awful decisions–the internment of 120,000 Japanese and various concentration camps throughout the West. That’s based in part, I believe, in FDR’s view of the Japanese and somewhat conspiratorial, if not outright racist terms.

James Patterson (00:48:44):

Yeah. There’s an analogy between the kind of vigilante violence that Wilson alternately ignores or encourages during the First World War and the state capacity that FDR demonstrates in his ability just to sew up every Japanese American into camps, what does he imagine is going on with those populations? Did he imagine there spies?

Stephen Knott (00:49:10):

He does, James. He’s getting a lot of rumors from various American citizens. FDR loved to receive information from outside your typical bureaucratic channels, which has its merits, but on occasion he would be picking up material that was just off the wall. In one instance, he was told by someone who had traveled in Mexico just after Pearl Harbor that the Japanese had built an air base in the Baja Peninsula for which they would use to launch attacks on the continental United States. He actually said that in a cabinet meeting. And so there’s a suspicion that the Japanese are not only at our doorstep in Mexico, but that out on the West Coast, whether it’s Hawaii or California, Oregon, Washington, the relatively large Japanese-American population out there simply cannot be trusted. And I have to point this out, James. There is no doubt in my mind that that internment policy was driven by FDR.

(00:50:14):

J. Edgar Hoover, the FBI director, was opposed to it, believe it or not, he’s hardly a civil libertarian.

James Patterson (00:50:21):

No, he’s not.

Stephen Knott (00:50:23):

He’s not. And Francis Biddle, FDR’s own attorney general, also felt that the internment was sitting too wide of a net. And yes, we need to be worried about sedition, espionage, sabotage, but this is just casting such a broad net. They both discouraged FDR from this. He went ahead and did it anyways.

James Patterson (00:50:46):

Genuinely shocking to read that one of the major contributors to this was a rumor about a base that didn’t exist. My mouth was kind of wide open reading this section and it did not stop with him after passing on Truman picks up to a fair amount, right?

Stephen Knott (00:51:08):

That’s correct. And let me make it clear, James, there are aspects of FDR and Truman’s presidency that I admire, particularly their conduct in terms of FDR’s conduct of the Second World War, assembling a first rate national security team, Truman having to make an endless series of decisions having not been briefed at all by President Roosevelt before FDR passed. So there’s a lot about these two men I admire, but Truman, when it comes time to run on his own in 1948 in that famous whistle stop campaign, Truman pulls out all of the stops. He accuses Thomas Dewey and the Republican Party of being fascist. He flat out says there are people around Dewey who if they have their way, we’re going to end up like Hitler’s Germany. This rhetoric is so over the top and it’s one of these cases in American history. We have this real romanticized view of that whistle stop campaign.

(00:52:08):

But again, James, if you actually sort of sit down, read what the President was saying, it’s pretty scurrilous stuff. I think we can safely say that Thomas Dewey, whatever faults he may have had, was not a closet Nazi.

James Patterson (00:52:23):

So there’s some elements of this in FDR, and Truman, which is funny because now we have a kind of founder of the Democratic Party, the sort of consolidator of the Democratic Party, establishment of the progressive aspect of the Democratic party, the resuscitator of progressivism and the victor of the Pacific part of the Second World War. So we finally get to a Republican and in a way, Richard Nixon out does them all.

Stephen Knott (00:52:54):

I try to make an important distinction here between Nixon and the rest, and this is important. A lot of Nixon’s sort of conspiratorial musings were he kept them under wraps. He’s not as publicly willing to share some of the stuff, the types of stuff that we’ve talked about. But the reason I included Nixon in the book is I do think these conspiratorial musings in the Oval Office, which many of which of course are now on tape, influenced his White House staff, influenced the policy coming out of the Nixon administration. And for that reason, I chose to include him. So with that disclaimer upfront, one thing that on sees very much during the Nixon presidency is this just rampant anti-Semitism. Now it’s ironic because Nixon surrounded himself with a number of American Jews, Henry Kissinger, Len Garment, William Sapphire, the speechwriter of his. So again, another complex situation here, but Nixon’s anti-Semitic, anti-Kennedy, anti-Harvard, anti-media, elite media, as you like to call it, was just constant.

(00:54:13):

And as I said, while a lot of that, not all of it, but a lot of that was kept under wraps, it did influence the way that White House functioned. And I would argue it ultimately leads to his destruction of sorts becoming the first president to resign from the presidency. Now in terms of the public conspiracy mongering, most of that was left to Vice President Spiro Agnew who was being fed by Nixon speechwriters, particularly Pat Buchanan. And there you see the sort of public condemnations of Harvard, of the American media, of Hollywood, of all the sort of modern institutions that any good conservative loves to hate.

James Patterson (00:54:54):

Yeah. What you have here as a section, “It is Time for Positive Polarization.” What is positive polarization?

Stephen Knott (00:55:07):

Well, it means that the good God-fearing taxpaying supporters of President Nixon who are part of the silent majority, it’s time to point out those folks who are not God-fearing, who are not patriotic, who are not supporting the American military. It’s time for us to separate and for people to see who these un-American folks are and what we’re going to do to them, I’m not quite sure, but I guess the first step on the road to health is to at least point out who it is that’s causing us this distress.

James Patterson (00:55:47):

Spiro Agnew really does have a gift. He’s the James Callender of his time. “American colleges were in Agnew’s view circus tents and psychiatric centers for overprivileged, undisciplined, irresponsible children of the well-to-do blasé permissivists, and for campus protestors, they took their tactics from Castro and their money from daddy.” Look, you got to respect the demagoguery there. It’s top tier.

Stephen Knott (00:56:15):

Yeah, you do. You do. And I’m sure it’s Pat Buchanan’s pen at work there. But—

James Patterson (00:56:19):

Yeah, no.

Stephen Knott (00:56:20):

It’s very entertaining.

James Patterson (00:56:21):

It screams Pat Buchanan. It does. So explain to me how on earth can Nixon be an anti-Semitic conspiracy theorist and also have a bunch of very loyal Jews on his staff.

Stephen Knott (00:56:38):

James, I wish I could figure that out. I wish I could give you an answer. I think we’d have to put Nixon on the couch, so to speak, for a week or two of therapy in order to pull all this together. I’m incapable of doing that. I have to confess. It’s inexplicable. I mean, he’d be saying these kinds of things to HR Haldeman and 20 minutes later, Henry Kissinger would come into the Oval Office. So I can’t put it together, James. Nixon was clearly a very torn individual, a scarred individual, somebody who never forgot a slight, and that’s not a good job qualification to be president of the United States.

James Patterson (00:57:19):

I will say, and we will leave it to the reader to purchase the book to read the one, two, three, four pages of high level literary criticism of Philip Roth’s Our Gang, which is the funniest thing I’ve ever read that you wrote because you’re just playing this totally verbatim quotations, everything with you is just straight. And I was laughing hysterically through this entire section, but we will leave it to the reader. They must buy it.

Stephen Knott (00:57:54):

Thanks for that tease.

James Patterson (00:57:58):

So another thing that is part of Richard Nixon aside from being scarred, is I think he has this same kind of common man kind of irateness. And this comes out in his displeasure with, of all people, Ted Kennedy, who’s, I know he went to Harvard, but I mean, he’s hardly a Winthrop.

Stephen Knott (00:58:20):

Well, look, anybody associated with the Kennedys or having that Kennedy name was immediately on the forefront of Nixon’s radar. And despite the incident of Chappaquiddick in 1969, there was still a lot of talk that Kennedy was going to run against Nixon in 72. Nixon was convinced that the Kennedys would stop at nothing to win the White House, that the election of 1960 had been stolen from him and he did not want to see a repeat of that. And the fact is that Ted Kennedy, while he wasn’t an intellectual, he surrounded himself with a lot of Harvard advisors. So that coupled with just this fear that the Kennedys would beat him again, that was enough for Nixon to put Ted Kennedy on his radar.

James Patterson (00:59:12):

All right. Well, we have one final case and that is the man in office now. Donald Trump has developed a few of his own. There’s the stolen election and the swamp that needs to be drained. So in a way, building up to Trump, what it illustrates is that in some respects, is that Trump is not novel, but part of a long history of American executives trying to explain the limits of their own influence. So what is it that we see in Trump?

Stephen Knott (00:59:46):

Yeah, I think we see in Trump the sheer volume of conspiracy mongering is off the charts. Now, in fairness to him, none of these presidents that we’ve looked at had access to it with something called an Internet. Television wasn’t even what it is then as it is today. Trump has a twenty-four-seven media access that these guys didn’t have, but he plays it to the hilt in terms of circulating conspiracy theories that are very popular on the street. He’s got people around him who are constantly measuring the temperature of his base and he knows how to fire up that base. And one of the ways to do it is to say that there still exists a deep state, a state beyond his control that’s trying to undermine everything he’s doing. So look, I wrote this book in part because Trump’s conspiracy mongering gets under my skin.

(01:00:55):

I’ll admit that. I tried to be as scholarly as I could in this book, but the fact is as much as I have trouble with a lot of what he puts into the public square, he did not start this practice. I think he’s taken it to new levels. As I said, the output is unparalleled with some of these other presidents, but it didn’t start with Trump.

James Patterson (01:01:23):

And the fact that almost none of the things that he has conspiracies about, really none of the things are original to him. Stolen elections, his fight with the Fed, his real skepticism over trade, all this stuff, his dislike of elites and the need to drain the swamp, his appeal to … Remember when he is like, “I love my low information voters.” This is a man who reads the stage directions and gets applause. It’s amazing. So really Trump is just part of a tendency and as a result of his electoral success, maybe also pathing more opportunities for future conspiracy mongers to run for office.

Stephen Knott (01:02:12):

That’s one of the things I fear, James. I’m old enough now. I actually turn 69 next week. I have three young grandchildren. One is five, one is three, one is one. I’m really fearful about the trajectory of American politics and government. I would like to think that those three young grandchildren will inherit a country similar to the one I grew up with. I knew at the time we weren’t perfect and I know we’re not perfect now, but I would still posit that the kind of liberal democracy that we live in is preferable to the sort of authoritarian type, the Viktor Orbán Hungary-type situations. And I fear we may be heading in that direction. I would love to be wrong. I try to remain optimistic, but part of the reason I wrote that book was for these grandchildren of mine, and I hope they inherit a political order, at least somewhat similar to the one I grew up in. But I have to say I have my doubts, James.

James Patterson (01:03:14):

You do end the book on an attempted positive note by looking at presidents who did the opposite of conspiracy mongering. So who are they?

Stephen Knott (01:03:25):

Yeah. So I talk about George Washington who maintained for eight years despite being beat up by the Jeffersonian press. Never really fired back, certainly not publicly. John Quincy Adams, vis-a-vis Andrew Jackson, I see a somewhat similar situation. Abraham Lincoln is perhaps the best example of all. If there was ever a president who could have used the bully pulpit to engage in a kind of politics of personal destruction against, let’s say, Jefferson Davis. It was Lincoln, but he never did it. He never once personally criticized Jefferson Davis or any of the folks who threw in the lot with the Confederacy. In fact, he repeatedly said they’re still our brothers and sisters. They’re still our fellow citizens. So Lincoln to me is something of a role model of both reason and magnanimity. I talk about William Howard Taft who avoided the rhetorical excesses and the rumor-mongering of Woodrow Wilson.

(01:04:26):

Talk about Dwight Eisenhower, who again did pretty much the same, had a great relationship with the opposition party, was close to Senate majority leader Lyndon Johnson. Eisenhower would reprimand his speechwriters if they ever questioned the motives of his opponents. I include JFK, and I’ve taken a little bit of heat on this one. JFK, of course, won the election of 1960, talking about a missile gap, suggesting perhaps a conspiracy at the highest levels of the government to conceal that. But I try to explain in that at the time, both Republicans and Democrats did believe there was such a thing as a missile gap. But Kennedy as president I think was a champion of reason. He went after groups like the John Birch Society and their whole anti-fluoride campaign. And the final president I include, and this is not going to go down well with some of my liberal friends, was George W.

(01:05:23):

Bush who resisted the temptation to go after Islamic Americans. In the wake of nine eleven, there were some calls on the right for some type of internment camps for American Muslims. Bush flat out rejected that within a week of nine eleven, he visited a mosque in Washington, DC, put his arm around the imam there and said, “These are our fellow citizens and we’re going to treat them with respect.” He avoided the type of actions that FDR engaged in and it cost him politically. So those are presidents I look at, James, who I think for the most part, not always, but for the most part, resisted the conspiratorial temptation.

James Patterson (01:06:07):

Three of course served two terms in office, two were assassinated, and two lost in their reelection bid. So mixed bag. Taking the high road. Very true. I really appreciated that conclusion because you can’t responsibly end a book with just that sad …

Stephen Knott (01:06:35):

Agree.

James Patterson (01:06:36):

But the other thing, of course, is we know this as political scientists is you don’t want to just select along the dependent variable. You don’t want to just select a … You have to select against the thesis too to show that there are alternatives. That’s right. So learned that from you, Steven. So the book is A Conspirator in Chief: The Long Tradition of Conspiracy Theories in the American Presidency, the author Steven Knott. Professor Knnot, thank you for coming back on the Law & Liberty Podcast.

Stephen Knott (01:07:06):

Thank you, James. Always a pleasure.

James Patterson (01:07:08):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Related Links

John Witherspoon and the Founding of the American Republic: Catholicism in American Culture by Jeffry H. Morrison
“The Dominion of Providence Over the Passions of Men” by John Witherspoon
Political Sermons of the American Founding Era: 1730-1805 by Ellis Sandoz

Transcript

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. I’m James Patterson, contributing editor to Law & Liberty and Professor of Politics at the Institute of American Civics at the University of Tennessee. Today, my guest is Dr. Jeffry Morrison. He’s a professor of American studies at Christopher Newport University in Newport News, Virginia. And he’s also the Director of Academics at the Federal Government’s James Madison Foundation in Alexandria, Virginia. Usually when we have guests on our podcast, it is to discuss a new book, but in this case, we’re talking about one that’s a little older than 20 years and it’s Dr. Morrison’s John Witherspoon and the Founding of the American Republic.

(01:25):

It’s a great book to read, or if you’ve already read it, reread given that this is the 250th anniversary of the Declaration of Independence. Since Witherspoon was not only a signer, but also the only member of clergy to sign the Declaration. Dr. Morrison, welcome to the Law & Liberty Podcast.

Dr. Jeffry Morrison (01:42):

Well, Dr. Patterson, James, thank you very much. I am genuinely gratified to be joining you. I’m a big fan of Liberty Fund and its various institutional manifestations and have a long history with them and I’m a fan of this podcast and so very gratified to be joining you today and thank you for the interest in John Witherspoon. And I do actually have another book on Witherspoon that’s forthcoming with Cambridge University Press. And we’re hopeful to get that imprint in this semi-quincentennial year and it’s a volume of his political writings that’s a part of a relatively new series with Cambridge called “The Political Writings of American Statesmen.”

James Patterson (02:25):

Oh, that’s very exciting and very needed. If Witherspoon is so important, why is he so uncommon in the list of founders that people talk about? Why is he such a rare figure in the American imagination?

Dr. Jeffry Morrison (02:38):

Yes, it’s a great question and partly it’s his fault, actually. And we’ll begin with that. But in a sort of semi-jocular way, I like to say that he’s perhaps the most interesting founding father that you’ve never heard of. And if we were to ask persons of his generation, he’d have been noted as one of the most formidable of the founders and indeed members of the Transatlantic Enlightenment and he was seemingly everywhere and he was at the nexus of three of the most important avenues of political culture in the colonies and the new nation, namely education and religion and politics and was equally formidable in all three of those roles. Why don’t we know more about him? Well, I joke partly it’s his fault. He was maddeningly unconcerned about what our politicians call legacy. He just was not interested in the legacy question. So shortly before his death in 1794, he ordered all his correspondence burned.

(03:45):

Just terrible, terrible loss to biographers and historians and political theorists as you and I are. So in compiling this volume of his political writings, which I’ve done for Cambridge, I’ve had to go to various archival sources and other collections of the writings of founders. Alexander Hamilton, for example, with whom he corresponded when Hamilton was Secretary of the Treasury. Hamilton asked him for advice on public credit and Witherspoon wrote him a lengthy response, whose language Hamilton then incorporated into his statements on public credit, for example. So that’s maddening and we don’t quite understand why he did it, but he did. That’s the first reason. Second reason is that I think not to sound conspiratorial, but I think there certainly was at the time and there continues to this day to be a little skepticism about people who are overtly religious participating in politics, holding political office.

(04:49):

And so I think there’s been a slight bias in the academy over the decades and now over the centuries toward a man who by our lights, I think we would say was the most evangelical of the founders. So just to give a quick contemporary example, contemporary to his time, the new Georgia Constitution written as so many of those state constitutions were post-independence, 1776, forbade ministers from holding office in the Georgia legislature. That was not uncommon. So that’s just one example of a kind of bias. Jefferson, in fact, favored a similar prohibition in the new Virginia Constitution and Madison had to gently remind him that that was illiberal and that was actually punishing with a civil penalty someone for their religious beliefs and a violation of Jefferson’s wall of separation, though it’s anachronistic to use that phrase. And so anyway, that’s I think a second factor.

(05:55):

The first one is his own lack of interest in his own legacy and the burning of the correspondence. By the way, some of it also was burned and his papers were burned when the British sacked Nassau Hall at Princeton during the revolution. So we are lacking a lot of primary material and paper trail that the other more famous founders were so self-conscious in preserving. We’ve got roughly 20,000 letters of Jefferson’s and I know you’re a proud Cavalier yourself and UVA PhD and I had the privilege of being a visiting professor there last year myself in Jim Ceaser’s program on Constitutionalism and Democracy. But Jefferson left behind 20,000 and carefully preserved them with that letter press. Same with George Washington, roughly 20,000 letters in a quarter century shorter life than Jefferson’s. But Washington saves every scrap of paper he can. Witherspoon doesn’t. Some are burned by the British, he orders them burned.

(06:57):

So those are two, I think, principal reasons why. He’s understudied, I think, and somewhat forgotten. There does seem to be a kind of resurgence or renaissance in Witherspoon studies in recent decades and I’m very pleased to have a small part in helping to bring that about.

James Patterson (07:15):

The future statesmen that are listening to this podcast, please do not burn your letters or delete your emails.

Dr. Jeffry Morrison (07:23):

Or your texts or your truths or whatever that may be, tweets or Xs, whatever we have to call these things. James, maybe you share the same concern I do as a kind of political historian and political theorist. Future generations will not have the same kind of archives that you and I have had the privilege of working in because so much of this is ephemeral. Tweets, texts, and emails and things like that, we don’t tend to write physical letters anymore.

James Patterson (07:56):

Yeah. It’s a concern, especially when it comes to not even now but maybe like 10 or 15 years ago when it didn’t occur to people and there are entire inboxes that have just been deleted because somebody died and they wanted to use the identification. I first had this thought when I lost access to an email address and couldn’t find something I needed. And ever since then, I’ve been somewhat compulsively saving all my email in a more Washingtonian style than a Witherspoonian one. So I do like the idea of burning the hard drives though. It goes from just throwing them in the fireplace to like a chemical fire that needs to have a control burn. So who is John Witherspoon and where did he come from?

Dr. Jeffry Morrison (08:49):

He was a native Scotsman. So he was born and raised and educated in Scotland and was principally known as a pastor and was, again, to use a slightly anachronistic analogy: He was a pastor of a couple of mega churches in Scotland and he was prominent in the Scottish Kirk. He was the defender of the more conservative wing of the Scottish Church, conservative theologically and conservative in terms of, well, we might say what sort of public facing. His principal adversary was a man, I’m sure you know, Francis Hutcheson, right? One of the leaders of the Scottish Enlightenment, who himself was an ordained clergyman like Witherspoon, but Hutcheson was the head of the so-called moderate party who were slightly less conservative theologically and also more interested in the public appearance of the church. And so Witherspoon was the leader of the more conservative wing of the church.

(09:53):

And that frankly is one of the things that got him noticed in the colonies and particularly at the struggling little college of New Jersey, which is now Princeton University, who began whose trustees and alumni like Benjamin Rush, for example, began to court Witherspoon in the mid 1760s to come to Princeton and become the president of that struggling de facto Presbyterian college. So he’s a Scotsman, he’s a churchman. When he comes to America, he’s 45 years old, he becomes the sixth president of what’s now Princeton University and he completely reforms that college, revives it. And it’s not an exaggeration to say that he probably saved Princeton from going out of existence and helped to lay the foundation for the great university it has become and I had myself the privilege of teaching there for a year in the early 2000s as a visiting professor of politics.

(10:54):

And there’s a Witherspoon Street there in Princeton. There is a semi-heroic statue of him on the campus, which has been the subject of controversy. But in a nutshell, that’s who he is. But when he comes to America, he begins to wear more hats and a kind of latent genius for organization, for promotion, for fundraising, for education, for politics, comes out. He had never preached a genuinely political sermon in his life until he came to the colonies and very quickly became aligned with the Patriot Cause and then of course later so he serves in the New Jersey provincial assemblies, committees of correspondence, then preaches May 17 was the 250th anniversary of Witherspoon’s most famous sermon called “The Dominion of Providence Over the Passions of Men.” That is one of the, if not the most, one of the handful of most important political sermons of the entire revolutionary era.

(12:00):

It’s in Ellis Sandoz’ great collection, revolutionary sermons and the fame of that and it’s reprinted on both sides of the Atlantic and widely circulated, that catapults him into the Second Continental Congress and he arrives in late June in time 1776 to argue down the more conservative faction, conservative meaning people like John Dickinson, for example, who think it’s too early to be declaring independence. And Witherspoon takes part in those debates, argues down Dickinson, arrives in time to do that, and then sign the declaration. And in my view, it’s partly speculative, but I’m fairly convinced that it’s he who introduces the language of the protection of divine providence into the text, the final text of the declaration. And then he goes on in a 26-year career as the president of Princeton to, as I say, reform, revive that institution to make it the most truly national of the colonial colleges and then the early national colleges.

(13:07):

It is a factory of American patriots and then early national leaders at the state level as well state judges. I have a list in that book, which you may have seen in John Witherspoon and the Founding the American Republic. The list of his graduates and the influence that he had in politics in particular is it’s just astounding. Gary Wills has called him probably the most influential teacher in the entirety of American history. I would endorse that Pulitzer Prize winner in Gary Wills. So in very brief, that’s who he is. He’s a man at the nexus of these three most important avenues of political culture, education, religion and politics and they form a kind of seamless integrated whole in his life. In short, that’s who he is.

James Patterson (13:57):

One of the first things Witherspoon does when he gets to Princeton is he tries to shift a kind of metaphysical point of view that he sort of vigorously opposed Berkeley and idealism in favor of his own Scottish enlightenment, common sense philosophy. This is part of the influence that he has on this, as you call foundry of statesmen, right? That they learn something that’s a little less esoteric.

Dr. Jeffry Morrison (14:24):

Yes, you’re exactly right about that. And you’re right to bring up Bishop Berkeley, B-E-R-K-E-L-E-Y. That’s how the Brits say it. Bishop George Berkeley was an Anglican bishop, very Orthodox in his Christian theology, but held to idealism, which is to say that he believed as other European philosophers did as Jonathan Edwards actually seems to have believed, the American evangelist, that the external world is not independent of minds. And incidentally, University of California at Berkeley is named for Bishop Berkeley in the town of Berkeley, California, though we Americans say it Berkeley, is his legacy. Yeah, it’s his namesake, that town and that university.

James Patterson (15:15):

So we have him to blame.

Dr. Jeffry Morrison (15:20):

That’s right. He has sins to answer for. That’s right. But at any rate, you’re exactly right. One of the first things Witherspoon does is to root that out, go after that root and branch at Princeton. And he basically fires all of the tutors, including Jonathan Edwards Jr., who carry that philosophy and he replaces them and it—it being the idealism—with his own version, which is kind of an amalgam of Scottish sense, Scottish common sense philosophy and Scottish moral sense philosophy. And we needn’t get too far in the weeds and it’s easy for me to get out of my depth in that as well. But basically it is, as the name suggests, a belief, a philosophical belief that is held by people like Thomas Reid, R-E-I-D, in Scotland and others. It’s kind of a forerunner one might say of maybe American pragmatism, that the external world exists independent of our minds and perceptions, that what we perceive about the external world, everything from colors to secondary qualities and things are reliable.

(16:37):

It is a pushback against skepticism. The skepticism of that towering Scottish enlightenment philosopher, David Hume, H-U-M-E, who likewise called into question the existence, the independent existence of an external world and even things like cause and effect. So again, without getting too esoteric, this is a word you used rightly a few minutes ago, that’s Witherspoon’s contribution to bring Princeton back to a more common sensical view of the world and our perceptions and to root that out, that idealism and that stuck for a long, long time.

James Patterson (17:21):

As you say, Witherspoon’s training in the Scottish philosophy and moral sense, and especially in common sense epistemology, could hardly have been better preparation for his distinguished career in American politics. And then you quote him directly saying, this is a few pages later, this is him Witherspoon: “I do not refuse submission because the British are corrupt or profligate, although probably many of them are so, but because they are men and therefore liable to all the selfish bias inseparable from human nature, I call this claim unjust of making laws to bind us in all cases whatsoever because they are separated from us independent of us and have an interest in opposing us.

Dr. Jeffry Morrison (18:01):

My bigger point there is that this philosophical and epistemological, that’s just the philosopher’s fancy word for a theory of knowledge, it is literally commonsensical. That’s what the Scottish school is called and Americans are, I hope not painting with too broad a brush, but I’ve got Tocqueville that we can call into our ranks as proof of this or an argument for this Americans are, well, commonsensical. I mentioned pragmatism earlier. We Americans have come up with precisely one philosophical school and it’s pragmatism and reduced to one sentence, what is pragmatism? It’s the belief that if it works, it must be true. I mean, that’s as pragmatic as you can get. That’s as American as you can get. We Americans in general don’t go in for too much highfalutin esoteric, keep coming back to your good word there philosophy. We leave that to the French and the Germans.

(19:07):

Yes, even to Hume and others. Tocqueville has this great line somewhere in democracy in America where he says, “Americans are frightened by general ideas. They’re frightened by them.” He says, we’re much more interested in making money and the virtues that are associated with that sort of thing. And I think he’s right on the money as he is on so many things, Tocqueville. So as I say, it couldn’t have been better preparation for Witherspoon, but his mind is already formed. He’s 45 years old when he comes to the colonies. And so he is a mature intellect and just peaking in his powers. And so the next 26 years spent as president of that college are, I think some of the most dispositive in all of American history and it’s the perfect time, right? 1768 to 1794, those are the years of the American founding. The pot’s beginning to boil over in the sort of pre-revolutionary period there and he is involved. He’s right at the epicenter from Philadelphia to Princeton and you just draw a circle around that, that’s roughly 60 mile radius there.

(20:22):

He’s just at the right place at the right time and he has the right ideas and the right skills and they are latent and they come out as an educator, as a politician, as a preacher.

James Patterson (20:35):

One of the things that I learned from this book, I didn’t know this, was that … Well, I mean, we all should know that his greatest student was James Madison. That’s normally how people even know about Witherspoon is that he was Madison’s teacher. But what I did not know is that he was almost Alexander Hamilton’s teacher, which would’ve been insane.

Dr. Jeffry Morrison (20:54):

No kidding, no kidding. And it would’ve made a much better book, too, James. If I’d had two of the three primary authors of the Federalist as his star pupils. Yeah. And it’s an interesting story if you indulge me for a minute or two.

James Patterson (21:13):

Oh, sure. Yeah. I was about to ask you to tell that story.

Dr. Jeffry Morrison (21:15):

Yeah. Why Hamilton didn’t end up going there. So Hamilton comes his ship, he comes from the island of Nevis, I believe. So he’s born and raised in the Caribbean, comes, takes ship, lands in New York City and then spends some time in Elizabethtown, New Jersey, at a little college prep school. He has already manifested his brilliance and genius and he’s kind of in his late teens when he arrives. Hamilton didn’t know the year of his birth. We still don’t know for sure. You look him up on Wikipedia or some other scholarly website, you’ll see that there’s a range of dates for his births, but he’s in his late teens. And so having been in Elizabethtown, New Jersey, and having been sponsored by some Presbyterian elders in the Caribbean, he’s already predisposed to Presbyterianism. So he hears about the College of New Jersey. He’s interested in it.

(22:20):

He goes and has an audience with President Witherspoon. It’s a kind of informal application and Witherspoon examines him orally and concludes that he’s a brilliant young man already near total recall well educated for a youth, though he picked it up, Hamilton picked it up in the Caribbean then the short time at the academy. Witherspoon is inclined to recommend to the trustees of the college to admit Hamilton, but at the last moment, Hamilton says, “There’s just one condition. I want to be able to go through the curriculum as fast as I can.” And they had kind of a set curriculum and Witherspoon says in our lingo, “It’s a big ask. I’ll run it by the trustees, but I wouldn’t hold my breath on that.” So he does and the trustees reject that, that little rider that Hamilton puts on it. I had mentioned earlier that Witherspoon remade Princeton as the most national, the most patriotic during the revolutionary period, the most national and republican with a small “r” of the colonial and then early national colleges and Hamilton likes that.

(23:42):

He wants to go to a college that’s known for its small “r” republican virtues and orientation, but the trustees turn that little ask down. They say, “We’ll, admit him, but he has to go through the regular curriculum just like everybody else.” And so Hamilton decides to enroll at what was then King’s College, right? So it’s got that monarchical, it’s now Columbia University. And so it’s got that monarchical taint to it. He would have preferred to go to Princeton, but he just wants to tear through there as quick as his intellect will allow. And so that’s why he ends up Hamilton and ends up at Columbia, King’s College Columbia rather than at Princeton and makes my book not so weighty as it might have been. We would know. Maybe James, we would know more about what he’d be more famous than he is if he’d had that connection.

(24:34):

But I’ll quickly add, if you don’t mind, Hamilton and Witherspoon continued to stay in touch and Hamilton reached out to Witherspoon. I’ve already mentioned this when he was the new first Secretary of the Treasury in the first Washington administration. And he respected Witherspoon’s learning enough and especially his theories of political economy to reach out to Witherspoon to ask him for advice on the public credit, how to shore that up in this broke fledgling republic post revolution, post Articles of Confederation and Witherspoon wrote him back and Hamilton incorporated some of that language into his report on public credit. And the editors of the Hamilton papers note this in a footnote. So the association didn’t end, but sadly it was not as it was with Madison, a close relationship educationally. Madison readers may know or listeners may know, stayed on roughly an additional academic year following his graduation at Princeton to study under Witherspoon in a tutorial relationship.

(25:44):

So he took tutorials under Witherspoon’s guidance in at least two subjects. Law, that’s very important I think for the future of this country and Hebrew of all things, which tells us that Madison is thinking about the ministry as a vocation. So that’s the Hamilton story.

James Patterson (26:04):

So the thing with Madison is that he seems to carry a lot of Witherspoon’s political theology with him into his adult life. How much overlap is there really though between the two? Or maybe I’m seeing things.

Dr. Jeffry Morrison (26:21):

Oh, I think there’s quite a bit. So I think your eyesight’s accurate. It’s 2020 and that’s a good phrase, by the way, James, political theology. It’s political and it’s theological and they’re not necessarily contradictory. We Americans were very scrupulous about separating the two and especially today that most controversial of phrases, Christian nationalism. It’s a little mysterious to me. I’m not sure exactly what that thing is, but whatever it is, we sure seem to be scared of it. So we’re very scrupulous and my own view is rightly so in separating. We don’t ever want an established church. We don’t want there ever to be civil penalties or rewards for private religious beliefs and we want what the founders called freedom of conscience always to be guarded and protected. It’s a natural right. It’s an inalienable right, freedom of conscience. But political theology, it was almost its own sort of branch of study in the founding period.

(27:36):

Witherspoon is complex and nuanced and even though he is the lone clergyman to sign the Declaration of Independence, I believe he’s also the lone clergyman to sign the Articles of Confederation, what I consider to be our first national constitution. I know the doctors disagree about that, but it’s my own view that it is. And then on behalf of New Jersey, he ratifies the Constitution as part of the New Jersey Convention. So there’s three of those four organic laws of the United States right there in which he has a direct hand, but he always wore his clerical vocation literally on his sleeve. That’s called a Geneva collar. John Calvin would have worn and George Whitfield wore and Jonathan Edwards wore, but it also … So that’s the collar, but they also had cuffs, big cuffs that the clergy wore. Witherspoon intentionally wore that garb to the Continental Congress, to political gatherings in the New Jersey provincial and later state legislature to make a point, which was Georgia is wrong to forbid clergymen from serving in the legislature.

(28:57):

Virginia would be wrong to do it. Jefferson was wrong to support that separation. Madison, and since you mentioned it, Madison is kind of the recipient and carries much of Witherspoon’s political theology into his own career. I think you’re exactly right about that. That’s one of those articles of faith, if you will, of Witherspoon’s political theology, that religion has a seat at the table. It’s not forbidden, it’s not dangerous. As a matter of fact, he holds to an axiom, which I think every major and minor founder holds to from the most skeptical like Thomas Jefferson and Ben Franklin to the most Orthodox and evangelical like John Witherspoon, John Jay, for instance, very similar in his own deep Christian faith and everybody in between. They all agree about this, that there is an axiom that religion is necessary for healthy republican and small “r” government, democratic republican government.

(30:05):

Why? Because you can’t have a moral people without a religious people and you must have a moral people in order to have a healthy and stable republican government, democratic government. Because of all the forms of government, a democracy is supposed to have the lightest hand in the government. We don’t have a police state. We don’t have a cabinet position for theological orthodoxy like they do in some parts of our world today. So not having a police state, not having a real heavy government hand, we have to have citizens who are self-governing, who respect private property and who respect the natural and civil rights of their neighbors and fellow citizens. And that comes from inside since it doesn’t come from outside in a Republican government with a very heavy hand. So where does that come from? Comes from religion according to the founders. Now we might disagree with that today.

(31:13):

We might say that that’s been disproven today or something, but every one of them holds that and James Madison held it. So when Madison had his two terms as president, what does he do? He issues religious proclamations, which Thomas Jefferson had not done, right? His best friend and political colleague. Madison returned to the practice of George Washington in issuing those kinds of things because he carried John Witherspoon’s political theology into his own career. What was one of the articles of faith of that political theology, that civil society is best when there is a recognition of religion and when religion has a seat at the table, so to speak, when it is free from government penalties and rewards as well, but free to do its good work of producing moral self-governing citizens and how do you encourage that? Well, occasionally you can have a very kind of plain vanilla religious proclamation in which the country acknowledges its gratitude to the deity.

(32:24):

It’s not necessarily Christian, it’s not necessarily Judeo-Christian, but of course that’s the milieu of the time. But Madison, in fact, says that society has a duty, a duty to render a due reverence to the creator, to the deity without ever forcing that on people. We don’t force them to be Presbyterians or even Christians or Jews or any religion, but that there is a duty on the part of the government and civil society to acknowledge from time to time the benevolence of the creator and the deity. So those are the kinds of things that without, without establishment, Witherspoon was emphatic that no religion was to be established by the government, not New Jersey, not in the United States, not even his own religion of Presbyterianism. And so Madison carries some of those articles of faith, tenets of that political theology into his career. Now the interesting thing, James, if you’ll give me another minute or two on Madison is- It’s

James Patterson (33:32):

Your show, man. Of course.

Dr. Jeffry Morrison (33:34):

No, it’s your show. And I like to be it. Later in his life, Madison evidently repented of some of the things he did while president, like issuing religious proclamations and commissioning clergy who were chaplains in the armed forces. So there’s something that historians called the detached memoranda, which were undated, but we probably think were written in 1819. They’re detached in the sense that they weren’t part of any other document. They were never meant to be public. They’re probably just musings that Madison—kind of doodlings, almost that Madison wrote to himself—trying to work through some issues and looking back on his career as president, he had rather troubled two terms as president. And what does he write in there? That it was probably a mistake for him now, to looking back on it to have issued those religious proclamations and he questions whether he should have commissioned chaplains in the US armed forces.

(34:43):

He doesn’t have any qualms about states doing such things. So perhaps he did repent of that and sort of … But in the pressure of the moment, right during the war of 1812, he on behalf of the nation and encourages the nation to cry out to the Creator who had so signally, he thought, protected and guarded the United States in its infancy. So during this war, which, side note, Madison basically caused, kind of hectored the Congress into declaring. So he got the Capitol building burned to the ground, for example, and the White House on his watch. So yeah, maybe he did have some reason to repent of many things that he did during that presidency, but in the pressure of the moment, right, he reverts back to the practice of earlier presidents Washington and Adams and he reverses the course that had been taken by Thomas Jefferson, his close friend and co-founder of the Democratic Party.

(35:54):

And so I would agree with you that those are instances where Madison seems to, not only seems to, does in fact follow in Witherspoon’s footsteps and adopt Witherspoon’s again, good phrase of yours, political theology in his political career.

James Patterson (36:15):

So it’s been 23 years, maybe 24 years since the first publication of this book. So what’s changed? What have we learned maybe in the ensuing years that might show up in the forthcoming book, maybe in its introduction in our understanding of Witherspoon?

Dr. Jeffry Morrison (36:32):

Yeah. Well, there have been quite a few books that have come out that sort of a little cottage industry of Witherspoon studies and I think much-needed and some very good work has been done by historians, by … Well, just to take one quick example, the great Princeton historian, Sean Wilentz wrote a marvelous piece, journal article on the travail of John Witherspoon respecting slavery. So there is one aspect of Witherspoon’s life and career that has received more attention. It’s controversial. I alluded earlier to a controversy on the Princeton campus about whether the semi-heroic statue to him that was erected in the early 2000s should be torn down, should be moved to somewhere else, should have a plaque attached to it, which explains, qualifies Witherspoon’s place in Princeton history because he did own for a period of time first one and then two enslaved persons. But the story around that is very complex and Sean Wilentz has written, as I say, a marvelous piece, historical detective work, which I think was published in a journal called Theology Today.

(37:59):

I think that’s where that piece came out. In fact, I think there’s an entire edition of that number of that journal devoted to that very question, John Witherspoon and slavery, but book length studies, some by theologians, some by historians, some by political scientists and philosophers have come out. So the slavery issue, that’s one thing we’ve learned quite a bit about and turns out again, it’s very nuanced and complex. And one of the things I have tried to do in this forthcoming volume from Cambridge on Witherspoon’s political writings is to give a fuller sort of documentary record Witherspoon’s multifaceted career or careers plural. I have reconstructed a lot of his correspondence, which had to have been gathered from these various existing repositories and things and his political sermons and religious writings and his Princeton lectures. There’s another area that we’re learning more about. There’s an entire series of lectures that he gave lectures on chronology and history that have never been published.

(39:15):

And I’m working with a younger scholar who wrote his doctoral dissertation on and created an annotated edition of those lectures. And I sample some of them in the forthcoming volume. So there’s an entire little area of Witherspoon scholarship that’s being looked into now. His Princeton lectures, very influential. Some of them, his lectures on moral philosophy, for example, were the first of their kind ever given in an American university. So I think there’s still much to learn as David McCullough once said, the late David McCullough, we owe great debt to men of that generation and to quote McCullough directly, “We cannot learn too much about them.” So I think he was exactly right about that and Witherspoon, though not one of the famous six, one of the big six who left those enormous paper trails still has much to teach us, I think. And he literally is unique.

(40:14):

That’s a word that gets misused an awful lot, I think, because it means only one of a kind. You can’t modify the word unique. Can’t be sort of unique or very unique or kind of unique. Witherspoon was literally unique. There was only one of them. He’s the only one. He’s the only practicing clergyman to sign the Declaration, to sign the Articles of Confederation to help ratify the Constitution. And he wears all three of these hats with equal skill, college president, politician, preacher. I’m encouraged to see that there is, as I say, kind of a little cottage industry of Witherspoon Scholarship that’s grown up in the 23 years as you point out uncomfortably to me it’s been since that book came out.

James Patterson (40:59):

The book is John Witherspoon and the founding of the American Republic, the author, Dr. Jeffry H. Morrison. Thank you so much for coming onto the Law & Liberty Podcast.

Dr. Jeffry Morrison (41:09):

Well, Dr. Patterson, it’s been a real pleasure and a privilege for me. Thank you.

James Patterson (41:14):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Related Links

The Fabric of Civilization by Virginia Postrel
The Future and Its Enemies by Virginia Postrel
The Power of Glamour by Virginia Postrel
The Substance of Style by Virginia Postrel

Transcript

James Patterson (00:06):
Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring series commentary on law, policy, books, and culture and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Pat Lynch (00:39):
Welcome to the Law & Liberty Podcast. I’m Pat Lynch, a senior fellow at Liberty Fund, sitting in today for James Patterson. Today we’re talking with Virginia Postrel. Virginia Postrel is a well-known journalist, public intellectual, and author who has written four major books, was a previous editor at Reason, worked for The Wall Street Journal, is now affiliated with worksinprogress.co and the Abundance Institute. And today we’re going to talk about some of her work and some of the influences that she has seen throughout the development of progress and the development of abundance and this new agenda that’s very interesting. You wrote about this topic, sort of, in 1998 with your book, The Future and Its Enemies, and you make this distinction between stasis and dynamism and you argued at that time that that was a good way of thinking about the way that public intellectuals and politicians approach these sorts of questions.

(01:31):

It seems very, very relevant today. Can you inform our listeners a little bit about the distinction that you made in that book and whether you still think it can be useful today?

Virginia Postrel (01:38):
Right. Actually, I do think it could be useful today. Surprise! And the basic distinction is between dynamism, which is open-ended discovery and progress that is driven by bottom-up problem solving, bottom-up problem defining, innovation, and feedback, also. So not every new idea is a good idea, not every idea of how to solve a problem actually solves the problem. And there is this constant process of discontent also, because whatever you have, you see what could be better about it. And that’s one reason that this progress is open-ended, but it’s very much an idea of discovery, sort of a liberalism that centers discovery and curiosity and learning. “Learning” is what I say in the book. On the other side, you have what I call stasis and I talk about two different forms. One, which is the easier to understand, is people who really center stability. Their ideal society is one that doesn’t change and often they have an ideal located somewhere in the past.

(03:02):

It could be the Middle Ages, it could be the 1950s, it could be before the agricultural revolution. There are many different forms of that type of stasis, which I call reactionary in the book. The other form of stasis is more subtle, and much more pervasive, which is the idea of, no, we like change, we like progress, we like discovery, but we want it to look exactly the way we want it to look. And this is what I call technocracy. So this is a form of stasis that is about control. So it’s not about “nothing changes,” it’s about very directed change. And since at least the beginning of the twentieth century, technocracy has dominated liberal democracies. There was a rise of thinking that, “Wow, look at all these great things that railroads and steel mills, all these corporations that have to plan these giant enterprises, we should plan the economy the same way.”

(04:09):

And obviously looking back on it and especially through the lens of some of Hayek’s work, this seems obviously wrong, especially in the forms that you find it in the early twentieth century or late nineteenth century where it really is like every single bit of the economy would be planned, but it wasn’t stupid. It wasn’t stupid people saying this. It was people drawing the wrong lessons from the world that they were living in. And so I see this continuing struggle between ideals of an open-ended discovery-oriented society that is very bottom up also. So no one is in charge, no one is in control. It doesn’t mean you have no rules. You need rules, but they need to be very general and you need to be able to have nested levels of rules so that McDonald’s can say every menu has to be the same, and somebody’s one-off restaurant can have different food every night depending on what’s fresh in the market.

(05:18):

Just take a trivial example. So that’s the idea. And so when I was writing this in the mid to late 1990s, I was looking out at the political and cultural environment and I was seeing arguments around technology. Those days it was this new thing called the Internet. You had people on the left and the right who were saying the Internet is great and we need to let it develop. And you had people on the left and the right who were saying, “Smash the Internet!” Around immigration, people have forgotten, but there was a huge fight over immigration in the mid ’90s around the evolution of the workforce, around environmental issues, whether you should allow housing to be built in Los Angeles where I was living. Guess what? The anti-growth people won and we’re living with the consequences. So, you had all these distinctions and I argued at that time that going forward this would be a better way … Oh, international trade was another one.

(06:31):

Going forward, this would be a better way of understanding the political and cultural world. It turned out not to be immediately true because what intervened was 9/11 and foreign policy became much more dominant. And this was really an argument about domestic … In so far, it was about politics as opposed to the theory of how progress happens, which is another big element of the book, that sort of interfered, but we are now living in the world predicted by The Future and Its Enemies very much so.

Pat Lynch (07:03):
The economics, I think we can all agree that the free market approach, the bottom-up approach, Hayek’s been proven correct as compared to the planners, but the political piece I think was unanticipated. We didn’t realize what the political reaction was going to be to this sort of unplanned growth and that we crave that structure, we crave that direction. You said that this has been going on for quite a while. I mean, it goes back to Adam Smith, the man of systems. And so there’s this desire to sort of structure things out and make it more predictable.

Virginia Postrel (07:30):
Right. I mean, I said the early twentieth century, and I’m thinking about the actual use of the word technocracy and the idea of engineering society, but Colbert is … I don’t mean the talk show. France is the ultimate, it’s been this way since Louis the XIV, ultimate technocratic society for good and ill. They do certain things very well that lend themselves to technocracy like building certain types of infrastructure, but they cripple their economy in other ways.

Pat Lynch (08:03):
So, if AI is now the latest manifestation of this technological advance, whether it’s a manufacturer and the Industrial Revolution, the Internet, how is AI different from these previous manifestations of it and does it pose a greater challenge to those of us who support growth and support free markets? Or is it something that’s going to be difficult to predict?

Virginia Postrel (08:22):
Well, it’s definitely difficult to predict exactly how AI will be used, what its effects will be. I mean, that’s why we’re having such fights over it to some degree. But I would say that AI, getting it right is really important. I wish I could tell you exactly how to get it right, but I can’t because AI has the potential to be the ultimate technocrat, to be very dictatorial if we allow it to be. So part of the thing, I think it’s very good that we have competing AI systems, AI companies or whatever, people doing different models. I think a lot of the concerns around AI are really concerns about human nature. People pretend it’s really about technology, but the truth is it’s about the fact that every new technology, whether it’s a stone spear or AI is one that can be used for good or ill and some people are really bad.

(09:34):

So I think when we think about the potential problems with AI in big pictures, somebody has written, informed by my work, but not my work on AI, which is very little, that what we need to figure out is how do you protect dynamism in a world of AI? And one thing people look at is open source models, at least as being part of the infrastructure, part of the ecosystem (which doesn’t necessarily mean it can be the only kind) preserving competition, preserving entry, not letting one AI system sort of take over everything, which I don’t think despite the fact that people talk about tech monopolies and stuff, I don’t think that the system left to its own devices leads to a single system taking over the world. But I think there’s certain things that governments could do to make that more likely. Although even there, the competition among governments, China versus the US in particular might lead to more than one.

(10:42):

So I definitely think that the concerns about AI and job destruction are exactly the same as they always are. And my most recent book is called The Fabric of Civilization. It’s a history of technology and science and trade through the lens of textiles. And one thing that’s really obvious and people don’t know… people know about the Luddites. They’ve heard of the Luddites. Nowadays it’s used as a term for people who are sort of ideologically opposed to technology. The original Luddites were just well-paid hand weavers who didn’t want to lose their jobs, but what people don’t know is that those well-paid hand weavers who didn’t want to lose their jobs were benefiting from a previous round of technology innovation about a generation earlier, which was the original Industrial Revolution, which was about the production of particularly cotton yarn, spinning machines. Because having enough yarn or thread to weave was the bottleneck in cloth production and spinning machines broke that bottleneck.

(11:50):

And as a result, the weavers enjoyed what one historian called a “golden heyday.” A software engineer recently told me that everybody he knows who’s a software person is giddy about the potential of AI, but he is way upper tail and he and I suspect all his friends will do fine. There are routine programmers who may see the end of their golden heyday, and that is the process of creative destruction. I mean, you get productivity jumps in general, but there are people particularly if they’re at certain point in their lives who get left behind and that is a problem with the process. But if you stop the process, you stagnate and your economy and your society kind of dies. And I can speak about this. When I wrote The Future and Its Enemies, my profession, which is journalism, was great and now it’s terrible. So I have some personal familiarity with this process and I would say that things that have made the world very, very difficult for journalists have on the whole been good for the world if not for our individual bottom lines.

Pat Lynch (13:11):

So you’d say long-term, you see it as a cycle. You see it as an economic cycle driving a political outcome. But also you would consider yourself a long-term optimist about all these changes?

Virginia Postrel (13:20):
Yes. Long-term, I would say. Well, I’m a long-term optimist in the sense that I believe that if you pursue this, if you protect the really … We’re talking about liberal institutions. If you protect the liberal institutions and the process of discovery and this decentralized process of discovery, it is long-term good for people in general as well as having intrinsic value. Hayek kind of talks about it having intrinsic value. Progress is movement for movement’s sake, he says, but then he says it’s the way in which man enjoys the gift of his intelligence, this problem solving. I think it has more than just intrinsic. I do think it has intrinsic value, but I think it also has practical value in the way that people like Deirdre McCloskey write about. We enjoy this enormous—

Pat Lynch (14:19):
So from a utilitarian perspective—

Virginia Postrel (14:20):
From a utilitarian—

Pat Lynch (14:21):
Overall, we are better off as a Pareto frontier out there.

Virginia Postrel (14:22):
Exactly.

Pat Lynch (14:25):
Let’s talk a little bit about fashion or let’s talk about glamour. Let’s start with glamour. I think that before we move on to fabric. So you’ve written about glamour and I think I remember when that book came out and I thought, oh my goodness, what can this possibly be? But I found the book to be really, really compelling. Can you tell us a little bit about your book on glamour and what your view on it is?

Virginia Postrel (14:47):
So my book, The Power of Glamour, came out in 2013. And I always say it’s my least successful book, even though I think intellectually it’s very successful. But the reason it’s my least successful book is that people have no idea what I mean by glamour, just looking at the book and it’s not fashion, it’s not celebrity. The subtitle of the book is Longing and the Art of Visual Persuasion. So what I do is I analyze glamour as a form of rhetoric, a form of persuasion, a form of communication and I analogize it to humor. How do you know if something is funny? It could be spontaneous or it could be written by a comedy writer. You know because of the way the audience reacts.

(15:38):

You can’t write rules that will guarantee that something will be funny, although people have analyzed humor, written tomes about it. But I believe glamour is a word we can use to describe a similar process where the audience reacts with a sense of projection and longing. And just as humor takes many different forms depending on the culture, depending on the individual, so does glamour. What do you long for? What is it that you long to be? If only, if only I had that house, my life would be perfect. If only I had that car, if only I had that job, if only I could sit in a library surrounded by books pursuing the contemplative life, which is one of my versions of glamour, which knowing my personality has a major illusion in it, which is another element of glamour. Glamour, the word was originally a Scottish word that meant a literal magic spell.

(16:41):

You cast a glamour on someone and they saw things that were not there and particularly it transformed things that were bad into looking good. And so when the word came into English, first through writers like Sir Walter Scott, it was used in that way and it gradually transformed. But it always preserved that sense of magic and illusion and fantasy, if you will. And so my analysis of glamour starts with the idea that it arouses a sense of projection and longing, which is based on your unarticulated longings, the things you don’t necessarily express to yourself, but then when you perceive a glamourous idea, it crystallizes it. But then I also analyze elements that all of these many different forms of glamour have in common. One is a promise of escape and transformation. Another is an illusion. Glamour hides flaws, it hides difficulties, it hides boring things. And the third is mystery and mystery encourages projection and it also helps to hide flaws.

(18:11):

So whether you’re talking about old movie glamour or you’re talking about the glamour of aviation… aviators were one of in the early twentieth century were described as glamour boys. That was one of the first uses of the word and the way we use it today. Glamour is not female coded despite what people think. It is a human phenomenon whether you use the word or not.

Pat Lynch (18:41):
So, but it could be material or it could be—

Virginia Postrel (18:43):
It could be material. It could be spiritual. I talk about the glamour of nuns, the glamour of the contemplative life, it can be political and often has been political. When I was writing the book, I talked about Barack Obama’s glamour in 2008. Glamour is unusual in a political candidate because usually you have too much information for glamour. You have charisma, which is a different thing. And the way I distinguish between charisma and glamour is: charisma is a personal quality that the person kind of owns and it draws people to that person, to follow them. And then there’s a whole literature on the original spiritual sense or religious sense of charisma. Glamour is in the audience. It’s the audience projecting their desires onto the person, which is why you can have a … And I’m not saying that Obama was not also charismatic. You can’t get to be president unless it’s a lucky accident without a certain degree of charisma.

(19:54):

But he was very unusual because he was also glamourous as opposed to say a Bill Clinton who was highly charismatic, but people were not necessarily projecting all their longings onto Bill Clinton. He was more like a guy you might want to have a beer with or you trust him. Yeah.

Pat Lynch (20:16):
So it’s difficult. It is kind of difficult to define. It sounds a little bit like, you know, it when you see it sort of thing with glamour then. I mean, because you’re reacting to it and you are reacting to the audience, right?

Virginia Postrel (20:25):
Yes, yes. So the book, as I say, this is very intellectual book, even though it’s full of pictures and very pretty. And I do define, I create a definition of glamour, but it’s like creating a definition of humor. In order to perceive glamour, you have to be affected by it.

Pat Lynch (20:51):
So thinking about the world today and what we find glamourous today, what are the changes that you are seeing in terms of how glamour is, how we are reacting to different things? So this is not really style, this is something more than that.

Virginia Postrel (21:08):
No, it’s not style. Yeah. I mean, if you desire to be stylish, it could be. Okay. So one thing that changed between the time I wrote the book and the time the book came out (so that’s a very short period of time) was how people talked about celebrity and glamour. So, when I was writing the book, people would ask me things like, how can there be glamour when celebrities make sex tapes? I would say, well, not all celebrities make sex tapes. There are glamourous celebrities who keep some mystery. But when the book came out, they asked a different question, which was very perceptive and is not in the book because of the timing, which is that, oh, this is like what Instagram is about. Instagram is like we’re all curating a glamourous vision of our lives. And the joke is 10 years later … well, first of all, this causes people to look at their friend’s feed and go, “My friend’s life is so much better than mine.” But of course it’s leaving out the boring parts, the difficulties. And also 10 years later you look back at your memories and it’s like, wow, my life was so much better then.

(22:22):

Well, it’s because it’s a glamourous kind of ideal. And so I think that that’s one thing that’s changed and what exactly that expresses depends on the person. But taking pictures of all your restaurant meals, these perfectly plated, beautiful things. I mean, there’ve been whole developments in the restaurant industry because of Instagram.

(22:52):

Everybody creating an image of their life as interesting and exciting and beautiful and of themselves similarly–that is a form of glamour. So one thing, if you want to talk about downsides of this. When people were watching movies about rich people in the 1930s, it was glamourous, but they didn’t think that huge numbers of people were living that way. What we have now is a situation where there’s been–and this isn’t just about glamour–but there’s been a vast expansion of the upper middle class. So it’s not that the richer are getting richer and the poor are getting poorer. The poor are richer, the middle class is richer, but the upper middle class is significantly richer and much larger. And so people’s sense of what’s normal and to be expected is distorted in a sense. People who are middle class think that middle class lifestyle involves a lot of European travel and granite countertops and an island kitchen and all of these things.

(24:15):

And those are really things that once upon a time were only available to quite affluent people, very affluent people. And so there’s been a kind of democratization of a lot of luxury, but that has led to a kind of discontent among people who don’t have access to that luxury because they’re just regular, in the sense that somebody from 50 years ago would recognize as normal.

Pat Lynch (24:44):
That’s interesting because I think it’s an underappreciated aspect of the populist reaction that recent politics has brought about. And I like that term democratizing, because you’ve not only democratized the material piece of it, you’ve democratized the glamour piece of it because everyone’s got an Instagram and everyone’s got a Facebook and everyone’s … So you can display this stuff and it’s common and people think, “Well, why am I not like that? ” But in your view, it is better if glamour is more widespread, right? Or does glamour lose something if it has less or if it’s more widespread? Does that make it less important?

Virginia Postrel (25:15):
No, I think glamour is important. I don’t think it’s good or bad.

Pat Lynch:
It’s just a fact of life.

Virginia Postrel:
I think it’s a phenomenon that exists and that shapes people’s behavior and it shapes people’s mental states. It can be used deliberately for good or used deliberately for bad, and it can also be accidentally used for good or accidentally used for bad. And my message to avoid the problems of glamour is to remember that it always has an element of illusion. It can be very inspiring and positive. You can be inspired. Why do I have the career I have? Because I was raptured with a glamourous idea of the public intellectual life. I’m the only person in the world who read Making It and thought it was glamourous because I was naive and it was much later… I forgot that I don’t like New York and I don’t like dinner parties and there’s a lot of stuff that … But I was enamored of this book and I had this and I wanted to be a magazine editor and I wanted to edit Reason, which I did eventually.

(26:29):

That was just sheer luck. But I now know all the things that were hidden. So it was good, but it was an illusion at the same time. But there are also cases where people get into really bad things. I mean, I write in the book about the glamour of terrorism, the glamour of being a jihadi. I’ve written, I think this was for my Bloomberg column, not in the book, but about the Boston bombers and people criticized Rolling Stone for running a photo and said it was glamourizing, but really the whole story is a story about glamour. They had this idea of being this kind of Islamic hero and it was terrible.

Pat Lynch (27:13):
When you think about major like assassinations, the healthcare CEO who was killed and that his killer is now a hero for many people, right? There’s glamour associated with that. So there is a downside to these sorts of events.

Virginia Postrel (27:24):
And those are extreme cases. There’s also, you have a glamourous vision of moving to the big city and you move to the big city and you hate it.

Pat Lynch (27:36):
Let’s try to focus on the positives.

Virginia Postrel (27:38):
Right, right, right.

Pat Lynch (27:39):
So let’s turn to fabric and I’ve heard your presentation of your book, read it. I think it’s an awesome book. And I guess one of the questions I wanted to ask you is like, what’s your view of fast fashion?

Virginia Postrel (27:52):
This is actually a question I get asked a lot by people who are more industry oriented.

Pat Lynch (27:56):
Well, and the reason I ask about this is that I think there is a tendency among people, of a more conservative bent, to view a lot of the materialism and a lot of things that are coming out of this economic progress that we’ve seen over the past 20, 30 years, and to view it as wasteful, not productive, sort of not focusing people on the right sorts of moral questions or the right sorts of social questions or personal questions. And that is an example… I see it in my life because my daughter consumes it a lot, and there’s some very pretty stuff that comes out of it. So what’s your view on that development?

Virginia Postrel (28:28):
So my quick view is that fast fashion proves that, contrary to everything you may read, young people don’t care about the environment, at least in the way that environmentalists would like them to care about the environment. They care about other things a lot more and that’s probably true. There’s good fast fashion and bad fast fashion. Originally, fast fashion was used to describe companies like Benetton this is a long time ago where they would come out with a sweater in a bunch of different colors and because of the way they organized their manufacturing, they could see which colors were selling and then they’d make more of those, quick turnaround. The notion of speeding up the fashion cycle goes back at least to the ’90s. But, of course, nowadays when people think about it, they’re thinking about things like Shein, which really a lot of the quality is terrible.

(29:34):

It is literally disposable clothes. And I don’t have a huge problem with that because my view is if you’re really concerned about having too much crappy poly … Excuse my French, bad, poorly made polyester blouses in the waste stream, you should do what the Swedes do and incinerate them and use that for cogeneration. And it’s hard to even argue that it’s a waste of money because it’s so cheap compared to— I remember being a teenager in the ’70s when clothes were quite expensive, and really longing for clothes and having three outfits. So I sympathize with the … I don’t think fast fashion is a very adult thing. I think it really is for young people because they don’t have a lot of money, and because they are in a social environment with all the social pressures that once you get to be an adult are still there, but less dominant.

(30:49):

Now that is the really super cheap stuff. And you can divide it up. There’s also things like Zara, that are just lower price point fashionable clothes and they’re a little better made and a little higher quality, et cetera, and very important in countries that are not as rich as the US. They have a market in the US, too, but if you go to Spain or you go to Brazil or someplace like that, that’s actually a higher end product than we perceive it to be. So my message about fast fashion is if you really care about quality and you care about the environment and all these things that people say they do, shop at thrift stores because we have amazing thrift stores nowadays. And my buddy Adam Minter has a great book called Secondhand, which is about the secondhand market and the amazing … It’s a very sort of dynamist book and the amazing ecologies and markets and ingenuity, these systems that have developed around the world to make use of things that Americans in particular dispose of.

(32:03):

Everything from clothes to furniture to cars. And electronic waste, also.

Pat Lynch (32:12):
I spent a lot of time in Guatemala a few years ago, now a number of years ago. And if you want to know where American school buses end up, they end up in Latin America, and they look a lot prettier. They dress them up very nicely.

Virginia Postrel (32:26):
And I’ve seen those buses that you’re talking about, but I never realized where they came from.

Pat Lynch (32:31):
And if you take a look at the cars that are quote unquote totaled, they are rebuilt and then usually sent down there as well because the safety is not really as much of a component for it, not much of a care. Let’s turn to abundance and the abundance agenda. We had a conference on this recently—

Virginia Postrel (32:44):
Right.

Pat Lynch (32:44):
Do you feel like the abundance agenda is … I guess my reaction to it was that it is a new idea to the extent that there are these technological frontiers out there that seem very attainable. And we talked about some of those things and I’d love to hear your thoughts on those, but that ultimately it seems like another project where someone is trying to manage a market outcome and control the market in a way that is just not possible and to take that and create more large government planning instead of accepting the dynamism of markets and just sort of living with that.

Virginia Postrel (33:17):
So one of the differences between the world we live in now and the world in which I wrote The Future and Its Enemies is what has happened to the alliances between dynamism and technocrats, or between reactionaries and technocrats. So right now we’re in a period where reactionary thought, which was pretty dormant in the ’90s… well, it existed. People like me knew about it, but it’s now aligned with sort of technocracy in a way that it wasn’t then. I don’t talk about the abundance agenda. I talk about the progress and abundance movement, which is an intellectual movement which involves super technocrats like Ezra Klein, who actually said to me, “I read your book and I’m a technocrat.” Who wants to make the world exactly how Ezra Klein wants to make the world. It involves a lot of people that you might call “soft dynamists” for some regulation, but they think more like economists and they understand some of the problems of regulation, and hardcore market liberals. And not just market liberals.

(34:46):

And so it is a kind of broad ideological alliance. People disagree about how things should be accomplished. What they share in common is the idea that you can have a good future built on positive sum exchange, that we don’t live in a world where in order for there to be winners, there have to be losers or it has to be one and one. I was thinking about this interview and I was thinking about Donald Trump and I was thinking, Donald Trump doesn’t believe in trade. I don’t mean he doesn’t believe in international trade, he doesn’t, but he really doesn’t believe in gains from trade. He believes one side loses and one side wins. And that’s a fundamental difference in mentality and how you think about market exchange. And so what we have in the sort of progress and abundance movement is yes, there are a lot of super technocrats, but they are at least technocrats who have learned that you need supply as well as demand.

(36:02):

And that’s the fundamental insight of the book Abundance, is that people to the left of center have emphasized subsidizing demand, but that only makes sense in a world in which supply can respond to the increased demand. If you choke off the supply of housing, it doesn’t matter. If nobody can build apartments, it doesn’t matter if you give people housing vouchers. If nobody can build solar arrays, it doesn’t matter if you subsidize solar energy. Also, and they don’t play this up as much because it’s a very political book. It has an agenda. It’s trying to influence the Democratic Party and the Democratic Coalition in a very specific way, but implicitly it’s also a critique of sort of the hair shirt left. The people who say that the aspirations of ordinary people to comfortable lives are icky, which is a great departure from the sort of traditional left, whether it’s the sort of US center left or whatever you want to call it, or it’s the Marxist’s left, which was: It’s about getting people more!

(37:33):

And so I think that insofar as it’s a technocratic reaction, it’s a technocratic reaction that’s badly needed within the technocratic coalition. And one thing that I would change if I were writing The Future and Its Enemies today is, I anticipated that the environmental movement would entirely be for stasis in a reactionary way, because those ideas are deeply embedded in sort of green philosophy. But it turns out confronted with the prospect of climate change, there are enough sort of problem solvers, people who see it as a problem to be solved as opposed to an excuse to go back to the Middle Ages or something, to ignite, if not a dynamist approach, a dynamist-friendly technocratic approach. Which is sort of contradictory. But I draw these stark distinctions in the book, but really it’s a continuum.

Pat Lynch (38:45):
It’s interesting because I’m increasingly frustrated with the use of left and right because I don’t know what they mean anymore, and it’s very difficult. I think we sort of in our heads have a vision of what this was like 20 years ago. But I wanted to end with a question that I think is sort of relevant to what you just pointed out, which was: Where will the political home, if there is one, be for market liberals in the future? Where do you think those of us who believe in markets and defend markets, where will we eventually find support and find comfort? Because right now it’s difficult to see it anywhere.

Virginia Postrel (39:18):
I think, either in complete exile, which could happen— We’re getting there. Yeah, we’re getting there. Or in an abundance faction within the Democratic Party.

Pat Lynch (39:27):
Are you optimistic that that could happen, that latter outcome?

Virginia Postrel (39:31):
I would give it, my optimistic estimate would be a 40 percent chance.

Pat Lynch (39:36):
That’s pretty optimistic.

Virginia Postrel (39:37):
But that’s my most optimistic estimate.

Pat Lynch (39:41):
And would it involve compromising on the extent to which you’d have to have significant redistribution of that wealth that’s going to be created through that?

Virginia Postrel (39:48):
Yes, yes. And one of the important things about the dynamist/stasist distinction is that it doesn’t say anything about redistribution other than: Don’t screw up the price signals.

Pat Lynch (40:05):
And that’s difficult to do.

Virginia Postrel (40:06):
Which is hard to do, or: Seek to be as undisruptive as possible to price signals.

Pat Lynch (40:13):
Is it because Klein and Thompson have a very different view on that matter, right?

Virginia Postrel (40:17):
Yeah.

Pat Lynch (40:18):
And as I read that book, they do not have the same kind of subtle concern about these sorts of things. They just think markets are like, we’ll flip a switch and all of a sudden there’s wealth everywhere, right?

Virginia Postrel (40:26):
Okay. So my view is that Thompson understands markets better than Klein, but it’s a co-authored book and I can’t prove that. I base that on their other writing. Klein is a very smart guy, but he really wants to run the world. But if you look at somebody like Matt Yglesias, who is very close to them politically… he understands markets. I mean, he doesn’t understand markets maybe the way we do, but he does have a sophisticated understanding of markets. And one reason that many people on the Democratic Coalition hate him is that he has an understanding of markets.

Pat Lynch (41:11):
Virginia, thanks a lot for taking the time to be with us today.

Virginia Postrel (41:13):
Thank you.

James Patterson (41:14):
Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Related Links

“Malice Toward All, Defamation for None?” by Carson Holloway, Law & Liberty
No Liberty to Libel by Carson Hollway
“The Case Against New York Times v. Sullivan” by Carson Holloway, Law & Liberty
The Political Writings of Alexander Hamilton: Volume 1, eds. Carson Holloway and Bradford P. Wilson
The Political Writings of Alexander Hamilton: Volume 2, eds. Carson Holloway and Bradford P. Wilson
“Sullivan and the Right to Reputation” by Carson Holloway, Law & Liberty

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

(00:39)

Hello and welcome to the Law & Liberty Podcast. I am James Patterson, contributing editor to Law & Liberty and associate professor at the Institute of American Civics here at the University of Tennessee. With me today is Carson Holloway. Dr. Holloway is a professor of political science at the University of Nebraska, Omaha, where he has taught since 2002. Dr. Holloway is also a fellow in the Claremont Institute Center for the American Way of Life. Dr. Holloway has published and edited many books, including with Bradford P. Wilson, the two-volume collection of Political Writings of Alexander Hamilton.

(01:24):

That’s from Cambridge University Press. But today, we will be talking about his most recent book, No Liberty to Libel: The Constitutional Case Against New York Times v. Sullivan from Encounter Press. Dr. Holloway, welcome to the Law & Liberty Podcast.

Carson Holloway (01:39):

Thanks, James, for having me. It’s a great honor and privilege and pleasure to be on with you.

James Patterson (01:43):

Excellent. Well, I appreciate that. And this is a fun book, a book I never expected to read, really. The reason I say that is because what is the relevance of this book? People may not know about New York Times v. Sullivan. So what inspired you to write about this case and its effects?

Carson Holloway (02:04):

Well, yeah, it’s a great question. I can talk a little bit about how I got into it. I’m a proponent of originalism in constitutional jurisprudence. And so I’ve been thinking in recent years about the way the originalist majority on the Supreme Court has corrected what I regarded as some errors. And it got me thinking about other modern Supreme Court cases that I thought were erroneously decided in the first place that I wanted to write about and think about. Of course, there’s a difference between being a professor who’s a proponent of originalism versus being a judge or a justice on the Supreme Court because they have to move somewhat more pragmatically. And it’s not obvious to them anyway that they’ll undo every precedent that couldn’t be justified on originalist grounds. But I wanted to make my argument for more of a cleanup operation than has happened so far.

(02:59):

And so one of the cases I was aware of from my own teaching of, say, civil liberties courses was the Sullivan opinion from 1964. And having studied it somewhat, I didn’t think that it really passed muster in terms of the original meaning of the First Amendment. So I wrote a paper on this topic that was published by the Claremont Institute a few years ago in their “Provocations” series. And the more I thought about it and the more I studied some of the recent opinions, such as the Dobbs opinion in which the Court overturned a longstanding precedent on the basis of a renewed respect for the original and historical meaning of the Constitution, the more I thought about it, the more I thought it’d be possible to write a book length treatment of the question. So that’s how I got into it. You also asked me to talk a little bit about just what the opinion is and why it’s relevant now.

(03:51):

So should I go ahead and do that?

James Patterson (03:52):

Yeah. I mean, it’s a book not just against New York Times v. Sullivan, but also the standard of actual malice. I don’t think people necessarily know what a big break that is. So talk about the case.

Carson Holloway (04:03):

New York Times v. Sullivan was decided in 1964 as a result of a case, a libel case involving a public official in Alabama, L. B. Sullivan, and the court used it to revise the nation’s libel standards and to revise really the First Amendment standards of the country, I should say, the freedom of the press standards under the First Amendment. So the traditional approach to libel from basically the Founding up until this decision was issued, and I can talk about it in more detail later if we get into the older history, but the older standard was more along the lines of libel, which is defamatory publication, publication that injures a person’s reputation is just not protected by the First Amendment. It was thought to be outside the scope of the freedom of the press. Kind of a famous statement of that briefly is in the celebrated “fighting words” case, Chaplinski v. New Hampshire, in the early 1940s, where the justices said, “Well, there’s certain categories of thought or certain categories of expression rather that have traditionally been thought not to raise any constitutional problems when they’re regulated.” And these include fighting words or words that provoke a breach of the peace, obscenity, and libel.

(05:19):

So briefly, the older approach was that libel is just not protected by the freedom of the press. And so a libel case does not raise any First Amendment problems. And the court departed from that pretty seriously in the Sullivan opinion. First of all, by holding that they think a libel case does raise a First Amendment problem. So now they’re bringing defamatory false speech within the ambit of the First Amendment’s protection. And then they solve that problem by coming up with this actual malice standard, which you mentioned, James, which says that if you’re a public official, then later they apply this to public figures as well. If you’re a public official or a public figure, in order to prevail in a libel case, you’ll have to demonstrate not only that the publication was false and defamatory, which would’ve been enough under the old standards, and which is still enough under the modern standards if you’re not a public official or a public figure, just a regular person.

(06:22):

But if you fall into those categories, you’ll have to prove in addition that it was published with actual malice, which means, according to the court, either knowledge that it was false or with reckless disregard for its truth or falsity. It’s a very difficult standard to meet. And so that’s been the standard for the last couple of generations. This is, as I said before, now a longstanding precedent. But another reason that I wrote the book is because it has become a bit of a matter of public controversy. Some famous people have started calling the actual malice standard into question, both politicians and also jurists. So the politicians are President Trump who, to my knowledge, has not spoken explicitly about the Sullivan standard, but he said many times things like, “We need to open up our libel laws. The standards aren’t good enough.” So he’s gesturing at it there.

(07:17):

And then also Governor DeSantis of Florida has said some things that are more explicitly critical of the Sullivan opinion by name and the actual malice standard by name. And then on the side of jurists, two well-known people, justices of the Supreme Court, first, Justice Thomas, Clarence Thomas, who is well known as kind of a strict originalist in some of his concurring opinions in recent years, has called into question the legitimacy of the Sullivan standard and the original ruling, and then also Justice Gorsuch more recently, who’s written some things that were sympathetic to that, but also kind of pragmatically critical of the standard based upon newer developments. So I think part of the reason the book is timely is because even as recently as 10 years ago, I believe that from the standpoint of the general public discourse, most people would not even think about a challenge to New York Times v. Sullivan.

(08:16):

It would’ve been considered a landmark First Amendment ruling that’s settled, and no one really questions it. But in more recent years, it has become more controversial. It has its defenders, too, of course, but I really thought it was time to explore the originalist critique of it at length, and that’s what I tried to do in the book.

James Patterson (08:35):

Yeah. And as someone who’s taught a media and politics course for many years, this is one of the things that comes up. It’s just when I teach the course, never in my wildest dreams did I imagine someone would write an originalist critique of … It just seems so like it’s almost part of a kind of mythology of the American twentieth century. It’s emblematic of America opening itself up to greater civil liberties.

Carson Holloway (09:00):

That’s right. And certainly from my conversations with people with whom I’ve been on panels, the journalists and the free speech lawyers and First Amendment lawyers, they all really venerate this opinion. For them, it’s the fountainhead of modern First Amendment doctrine in the realm of freedom of speech and of the press, and it’s almost sacrosanct. And certainly if you’re a journalist, it makes your position safer and easier in some respects, but it’s not consistent with the older tradition, which I try to demonstrate through several chapters in the book. It is an innovation. I find that even the people who defend it will admit that it’s an innovation, that it does depart from the older standards. They think it’s a good thing and they think it’s part of the court’s job to update these standards according to more modern expectations of freedom of speech and of the press.

(09:53):

But the Founders also believed in freedom of speech and of the press and thought it was essential to self-government and to a free society, but they believed in certain limits, and libel was outside those limits.

James Patterson (10:04):

So let’s start with this work you’ve done, really just going as far back as English jurisprudence in common law. You talk about libel through figures like Blackstone, English jurisprudence really continues up until Sullivan.

Carson Holloway (10:23):

Yeah. And it’s very important to talk about these sources, both I think because they really did inform the way the Founders thought about freedom of speech and of the press or freedom of the press. We’re talking about libel. It’s publication. I should just leave it at freedom of the press.

James Patterson (10:39):

Not expression.

Carson Holloway (10:40):

Yeah. Not only the way the founders thought about it, but the way the modern Supreme Court has talked about it, because certainly if you consider the text of the First Amendment, it is not dispositive on this question. It doesn’t really tell you anything about libel, and it doesn’t tell you under what standards libel cases should be contested. So you really have to think about what is the background to the language of the First Amendment, what was informing it. And the modern court has said, and it’s almost, I think fair to say, common sense to conclude that it was informed by the common law background to the American Founding. The Founders did not just invent all of these rights that are protected in the Constitution; they had an experience of English liberty that shaped their thinking, and that thinking is summarized in Blackstone’s Commentaries on the Laws of England.

(11:33):

And I find that he was very influential with many of the early American jurists who I discuss, and maybe we’ll talk about them as well. They have a pretty close to a Blackstonian understanding of this question. So what does Blackstone say in the Commentaries on the Laws of England? He first of all affirms that freedom of the press is essential to a free society. So that’s always worth keeping in view because related to what we were saying a few minutes ago, modern people who find you criticizing New York Times v. Sullivan think that you are rejecting freedom of the press. We are not. It is an essential principle. The question is, what is the scope of it, and what are the proper limits? Because everybody admits that there are some limits. So I mean, Blackstone defends freedom of the press, says it’s necessary to a free state, but he also says that it’s primarily to be understood as a freedom from prior restraints.

(12:27):

You can’t be stopped from publishing what you want to if you’re a free person, but that’s not to say, he says, that you can’t be held accountable legally for publishing something that is mischievous or illegal in its tendency, including libels or publications that damage reputation. And so he famously says, where libels are punished under English law, there is no infringement upon liberty of the press. And he’s also essential, I think, and at least I lay a lot of reliance on him for this elementary moral, political, philosophical distinction between liberty and license or liberty and licentiousness. The liberty of the press is the freedom to publish what you wish within certain decent limits. And going beyond those limits is no longer liberty. It’s a form of license or licentiousness that is just not protected. And so that’s how he viewed libel. It’s outside the scope. It’s beyond the pale, so to speak. And so as he says, there is no infringement on liberty of the press where a libel is punished under law.

James Patterson (13:35):

We see this with a lot of treatments of liberty, that there’s the use and the abuse, and that there would be no constitutional protection of an abuse, given that there is no right to protect. An abuse would be something that is without right. But the thing that I find, and this is a question, I don’t mean to lead you too much. The problem that the abuse with the press comes to is the right to reputation. And does this concept of a right to reputation have any cachet any longer? Is this something people even think about?

Carson Holloway (14:07):

That’s a very good point. I’m glad you mentioned that, and I’m glad you’re leading me on that. Very important to talk about. And it comes later in my argument in the book, I come back to that at the end, but I do think that that is an important distortion in our thinking. And what I mean by that is our failure to consider seriously enough that reputation should be thought about as a right. I mean, some of the modern opinions do go there, but for the most part, I think it’s pretty common to speak about reputational interests in the legal materials we have. And that already sets up a kind of weighting of the scales that’s not favorable to reputation because many people start to think along these lines that, well, there’s a right to freedom of the press, but then there’s reputational interests. You don’t have to be an expert moral philosopher to kind of be drawn along by the vibe that rights are more important than interests.

(15:04):

They’re more morally weighted than interests. And so it is important to recover the original understanding that reputation is a right and even a natural right. Now that’s in Blackstone, too. Of course, one could think hypothetically they’d be wrong that this is just a social construct or a legal construct, reputation, but the founders didn’t think that way, and Blackstone didn’t either. And I don’t think any sensible person would. What Blackstone says in the Commentaries on the Laws of England is that it’s a matter of natural justice to be able to protect your reputation. That’s pretty much saying there’s a natural right. The early American commentators that I looked at carefully for the book include people like James Wilson, James Kent, Chancellor Kent of New York, and then also Joseph Story, author of the famous Commentaries on the Constitution of the United States. They don’t use the term natural right, but they come so close that it’s very clear that they think reputation is a natural right.

(16:08):

I think Wilson is critical of the common law heritage in some ways, but part of his criticism is that it almost doesn’t take seriously enough the idea that reputation deserves to be protected in its own right. And then say somebody like Kent in his Commentaries on American Law refers to reputation as part of the inviolable rights of the person, language like that. And I think as somebody who’s interested in political philosophy, it makes a lot of sense to think about reputation as a natural right because it is rooted in our human nature. I mean, it’s directly humiliating to have your reputation tarnished without any further injury. In other words, you could disaggregate. This is actually pretty helpful to think about this. You could be harmed in your reputation in such a way that there are economic costs that are calculable. If you lose all your business and you can’t keep the lights on anymore, that can be demonstrated to a court.

(17:07):

But it’s also the case that it just hurts you to have a false and defamatory story out about you. And that’s recognized, I think, in the tradition of American libel law. I mean, that’s why there are often damages accorded even without having to demonstrate economic harm. It’s the idea that there’s an intrinsic harm to the person from the damage to their reputation. By the way, also on the topic of political philosophy, I find this whole line of argument fascinating because I, like a lot of people who study what we study are very familiar with Locke and the rights to life, liberty and property, and we might be tempted to think of the founding as drifting along a kind of individualist or in an individualistic direction and not taking human beings seriously enough as sociable animals. But when you look at the libel jurisprudence, you see that that’s not really the case.

(17:59):

The Founders were aware that humans are sociable by nature and that injuries to their reputation are just injuries to them. It’s part of our nature not to want to be disgraced before the community, certainly not unjustly. And so that’s part of what libel law protects.

James Patterson (18:16):

Yeah. I was listening to the Commentary podcast earlier today, and Eliana Johnson and John Podhoretz were describing how there are a lot of people who just come up in the Epstein files who have nothing to do with any of those things. They’re just in there. And the fact that they’re in these files is already a problem for them reputationally. So that’s part of when I was preparing the questions for this, the reputational right crossed my mind because it’s like, “Oh, well, it’s not a dead issue. We’re not fighting duels anymore, but maybe we should consider why they were fighting them.”

Carson Holloway (18:53):

And actually, just as an aside on that, I’m not an expert on these kinds of things, but I will say that’s part of the reason that the executive branch or prosecutors generally don’t release these reports because there’s a lot of unconfirmed alleged information in them that’s never been tested in court that could damage someone’s reputation. And then also in relation to that, though, you did provoke me to remember that the older libel standards were so protective of reputation that the privilege, privilege is like a legal term for exceptions to the ordinary liable rules, and there are some of them in the tradition. One of them was to publish about legal proceedings, so court proceedings. The older rules were so protective of reputation that that privilege was understood very narrowly. In other words, it was understood that you have a right to publish about legal proceedings that are in process, that are ongoing, but without any extraneous commentary of your own.

(19:51):

So in other words, if you’re publishing a news story about some guy who’s on trial for murder and you then editorialize on the evidence and say something like, “Yeah, well, it seems to me that any idiot would see that that guy’s guilty,” you’re opening yourself up not supposed to comment beyond the proceedings themselves. I mean, it’s a way of protecting reputation even of people who are accused of serious crimes. And the older school thinking on this, too, was that when it’s something really disgraceful and harmful to reputation, the person who’s the target of that deserves a chance to contest it in a court setting where there are rules of evidence and a chance really to prevail, which is not really the case usually in newspapers. People read it and it’s out there and then it’s too late.

James Patterson (20:37):

Yeah. If that had been the standard during the O. J. Simpson trial, I think Norm Macdonald would’ve been in a supermax prison by the end.

Carson Holloway (20:44):

He would be in trouble. Yeah, that’s right.

James Patterson (20:48):

No, so not only is this book attacking New York Times v. Sullivan, it does something even more shocking. So it even shocked me, which is, you defend the Sedition Act of 1798. What is going on with this defense? What is it that makes you think that maybe it wasn’t so bad?

Carson Holloway (21:10):

Well, I would maybe clarify a little bit there. There is a paragraph at the end of that chapter where I say this is not necessarily to defend the Sedition Act because it is reasonable to think that abusive things were done under it. But what I’m objecting to is, and this is a really interesting part of the book, so I’m glad you brought it up. What I’m objecting to is the use of the Sedition Act by the court in New York Times v. Sullivan. Now, we haven’t mentioned it yet, but it’s worth mentioning in passing or maybe more than in passing. It will help me to refer to him more. Very famous and highly regarded person, at least in some ways, is the author of that opinion, William Brennan. I mean, certainly a highly consequential American and one of the great liberal justices of his era, not someone of whom I’m a fan in terms of the results of jurisprudence a lot of the time, but he’s a famous American and a consequential one.

(22:06):

So he does deal with the Sedition Act. Let me try to explain why it’s important to his argument and why I dispute that argument, and that’ll show what I’m doing with the Sedition Act. Brennan has a few steps in the court’s opinion in New York Times v. Sullivan, in which he tries to get to the point, which is, I think, a departure from the tradition, but a point at which he can say that just because something is false and defamatory doesn’t mean it’s not protected by the First Amendment. And he tries to say that this is the lesson of the Sedition Act controversy of 1798 and the years after that, that’s when the Sedition Act was enacted by the Federalist Congress, because the Sedition Act did include a truth defense, right? The Sedition Act punished as seditious libel any publication that tended to maliciously, falsely defame the government of the United States or its officers, but by using the term falsely, it implicitly includes a truth defense.

(23:13):

And then explicitly in a subsequent section of the act, it says, “Truth can be pleaded as a defense against a charge of seditious libel.” Now, that’s a liberalization of the English common law standards. So that’s why I said earlier that I thought the founders were in the ballpark with Blackstone or words to that effect. They’re not exactly like him and in a way that we would probably approve because according to Blackstone, criminal libel doesn’t even have to be false. A thing could be criminally libelous even if it were true because he says the criminal libel law contemplates the threat to the peace, not the truth or falsity, and not the individual reputation. The Americans, and especially Alexander Hamilton, and I can talk more about him if you want me to later on, come around to the idea that truth really should be a defense even against a criminal libel charge, and that’s reflected in the Sedition Act, and that’s why the ones who defended it, including some prominent Federalists, could regard it as not a problem and a liberalization of the prevailing standard because it does include that truth defense.

(24:22):

Now, however, going back to something that is true and something that Brennan makes a lot of in the Sullivan opinion, despite including the truth defense, the Sedition Act was highly controversial and hated by some highly important and much to be revered Americans, namely Thomas Jefferson and James Madison, who argued strenuously that it was unconstitutional despite that. So what Brennan does is to say that he thinks that this shows. I mean, he thinks basically that the Sedition Act controversy crystallizes the meaning of the First Amendment as it was understood at the time of the Founding. I think that’s what he’s trying to do there and provide a kind of originalist … He doesn’t talk about originalism in explicit terms, but I think this is his effort to find a kind of Founding-era anchor for what he’s doing.

(25:15):

So my response to that is to say in my chapter on the Sedition Act controversy that I don’t think it’s so obvious that the Sedition Act was unconstitutional, whether or not it was a good idea. And there were some people like Chief Justice Marshall who, judging from their letters, thought that it was constitutional, even though it was a bad idea. He was pretty clearly a political critic of it, but let me explain that just a little bit more. What Brennan says is that the Sedition Act was found unconstitutional in the court of history because of this movement against it that seems to have settled the public mind against it in the early nineteenth century. And what my chapter is basically saying, not so fast there, Brennan. First of all, it’s easy to say, or it’s helpful to say for him that it was found unconstitutional in the court of history because no real court found it unconstitutional.

(26:10):

I mean, there were prosecutions successfully under the Sedition Act precisely because some federal courts found it to be constitutional, including highly capable and reputable people who I cite like Justice Iredell, who was involved in one of the cases, the Fries case, and in his instructions to the grand jury in that case, took on the whole argument about the unconstitutionality of it and gave a defense of its constitutionality, both in terms of the unamended constitution, but also in terms of the First Amendment. I could talk a little bit more about that if you want me to, but I’ll wait until you seek further detail on that. But to come back to the big picture, all I want to say in that chapter is that whether the Sedition Act is unconstitutional according to an originalist understanding is really a murky question because the quality and kind of stature of the people defending it and the people attacking it are about equal.

(27:08):

And so I find that it’s not a sufficiently clear case for the Court to come along a century and a half later and say, “Well, this proves that this is the right way and the other way was wrong.” There’s no ruling from the time on which they can hang their hat. Brennan kind of relies on a practical construction argument, you might say by saying, “Well, as President Jefferson pardoned everybody and Congress later paid back the fines.” I go, “Well, that’s all true, but it’s also true that Adams signed it into law as president and Congress enacted it.” And the judiciary at the time imposed the fines because they thought it was constitutional. So it’s sort of a mixed record of argument at the time of the Founding. And whatever you think about it, I guess I’m implicitly operating from a standpoint of judicial restraint that I don’t think the Court should, in the 1960s, be inventing a new rule based upon a mixed record like that.

(28:09):

And of course, the rule itself doesn’t even come from the Sedition Act controversy. That’s something else entirely that they’re deriving from other sources.

James Patterson (28:18):

So you anticipated a question I had about how truth became a defense of libel cases. So maybe give a summary of case law prior to Sullivan you examine and maybe how these judges and justices conclude very differently from the way Brendan does in Sullivan.

Carson Holloway (28:33):

Yeah. Of course, just as an aside, Blackstone does say that truth should be a defense in a civil case. If it’s a criminal, he says, if the thing is true, there’s really no injury to your reputation that’s cognizable in the civil law. If it’s a criminal case, then it is a problem because they’re worried about breach of the peace.

James Patterson (28:51):

But seditious libel is a problem in the United States because it’s a republic and there needs to be some degree of criticism because in order for there to be public deliberation at all.

Carson Holloway (29:02):

That’s another argument too that’s interesting. And there’s division of opinion on that. I mean, what you just said is a great statement of the way somebody like Madison talks about it.

James Patterson (29:11):

I’m giving away my biases.

Carson Holloway (29:12):

Yeah, yeah. And that’s a very powerful argument, although I think it’s fascinating that there’s an argument on the other side. Justice Iredell in that instruction to the grand jury that I mentioned says just about the opposite. He says that in a republic, the government depends upon the good opinion of the people, and therefore, it’s okay to have a seditious libel law. Of course, this is abstracting from the other thing you asked me about, which is the truth defense. I think it does make a lot of sense to say that in a monarchy where they try to foster veneration for the government, then maybe you would have a … I mean, it’s intelligible within that kind of regime to have a law even against true libelous remarks. It would never make sense in a regime like ours where people need to know the truth to make judgments about whether the government’s doing its job.

James Patterson (29:59):

Yeah. So seditious libel makes sense in North Korea, but not in the United States.

Carson Holloway (30:03):

Yeah, yeah. Seditious libel is a specific … It’s a specific subcategory of criminal libel. And so let’s talk about how this changed. Well, it does involve a, well, not exactly a seditious libel case, but it involves a criminal libel case. The most famous one is People v. Croswell, which is a New York libel case in the early nineteenth century in which Alexander Hamilton was involved. And in the initial stages of it, it’s pretty murky too, but it ends up that Hamilton wins. So he argues strenuously in that case as the lawyer for the defendant that truth should be a defense against a libel charge in a criminal proceeding. And he argues that famous sentence, he says, “Truth is an essential ingredient in the moral order of things,” or something like that. I don’t remember exactly how it is, but he thinks that on general moral principles of justice, somebody who has published something that’s true and is in danger of being prosecuted for that ought to be able to plead the truth of it.

(31:11):

And another famous American who’s involved in that case, someone I’ve already mentioned, is James Kent. Kent was a judge in that case. So Kent agrees with Hamilton on that. And then there was another opinion by one of the judges who defends the older common law standard. So opinion’s mixed. What ends up happening? Here’s why I said it’s murky, but then it becomes clear. It’s a split decision, so they’re not able to overturn the original conviction. To that extent, no new ground is broken. However, later, New York passes a new law that adopts the Hamiltonian standard and then later changes its constitution to adopt the Hamiltonian standard. And then much later, in a not as well-known libel case from the nineteenth … Well, whether it’s a libel case or not, I’m not going to say, but it’s a Supreme Court case. Beauharnais v. Illinois, I think, deals with a kind of group libel law.

(32:06):

And in that, one of the concurrences in that case, Justice Robert Jackson says that Hamilton’s view in the Croswell case became the common sense of American criminal libel law. So the drift after that is in the direction of a truth defense, a qualified truth defense, but I think the Croswell case is the kind of turning point and Hamilton is credited for that. But as I wind up here, let me say why I said a qualified truth defense. What Hamilton says and what ends up being reflected in the law in many jurisdictions in these criminal libel cases is truth published with good motives and for justifiable ends. So on that kind of founding era, American understanding, there’s still some sense that a true publication could be libelous and injurious if it were just say purely malicious or purely for the sake of trashing somebody’s reputation. They still got, and this also is interesting because it shows how protective they were of reputation.

(33:08):

They think that there needs to be some good justification for dredging up something disgraceful about somebody, even if it is true. So that’s the Hamiltonian formulation, truth published with good motives and for justifiable ends.

James Patterson (33:24):

Yeah. And the thing about the development of American case law on this, as you demonstrate in the middle of the book, is that not only does the sort of American revised version of Blackstone on libel persist, the rationale that Brennan raises for his version is raised and dismissed. They don’t like the actual malice standard. They don’t think the burden of proof should be distributed that way. So maybe talk about some of those cases to sort of strengthen the position you’re in.

Carson Holloway (33:58):

Yeah, there’s two chapters on the history. And in a way, I mentioned the Dobbs ruling earlier, that ruling, that opinion by Justice Alito frames itself as an inquiry into the text, original understanding, and historical understanding. Justice Thomas does that, too, and some of the opinions on the Second Amendment. So I’m kind of taking that framework and there’s not a lot on the text because as I said, it’s not really dispositive. It’s underdetermined on this question. So then I turn to the original, what I think is the original public meaning as you can discern it from sources like Blackstone, Kent, Story, Wilson, and others. And then I turn to the history and there’s two chapters on history, one of which deals with Supreme Court cases, but the first one deals with state cases. And it doesn’t claim, and I’m not making any pretense that this is like an exhaustive survey of American state libel cases. That would be a really long book.

James Patterson (34:52):

This is the book, No Liberty to Libel, and it is a tight, what, 200 pages?

Carson Holloway (34:59):

It’s about 200 pages.

James Patterson (35:01):

No tome for sale at Encounter Books. People should buy this and bring it with them.

Carson Holloway (35:06):

Right. Yes. It’s easy to transport and hopefully easy to understand. So that chapter on state cases, like I say, is not meant to be exhaustive, but it’s illustrative. I wanted cases that illustrate the traditional standard. And again, even the defenders of New York Times v. Sullivan admit that it’s a departure from the traditional standard and that even Brennan admits, I believe in the opinion that the older majority rule in most of the states was a lot more restrictive. So that’s what I’m illustrating is what scholars have called the majority rule. Yeah, there’s a case in the early nineteenth century, a New York case, King v. Root, which involved a libelous publication about, I think the lieutenant governor or the attorney general. I’m not sure right now which one he was.

James Patterson (35:53):

And the lines from the journalistic story you provide are fun. The eyes are bloodshot. It’s like rum flex spittle, just like, oh, it’s like, why don’t we get yellow press stuff like this anymore? This is fantastic.

Carson Holloway (36:12):

I have to admit, I do quote some of that stuff for the entertainment value, pretty florid. That’s one that’s important. And then later in the nineteenth century, there’s Post Publishing Company v. Hallam, which involves an opinion by another great and important American, William Howard Taft, who of course went on to be president and then chief justice of the Supreme Court. But at this point, he was an appellate court judge, and he dealt with this case. And like you say, there’s something like a special privilege for the press that’s asserting itself in these cases, but is being repudiated by these judges. Now, it’s not exactly the actual malice doctrine because that’s sort of distinct, but it’s in that direction.

(36:57):

They’re saying things like, “Well, we’re newspapermen, and it’s part of our job to provide information to the public. And so we should be treated more leniently than other people who might’ve libeled somebody even if what we said was false.” And basically, the judges are not having any of that. Over and over again, they get these arguments made in defensive claims that are libelous and that seek to shelter the press from the kind of ordinary scrutiny that you would get under the standards at that time. And the judges just push back and say, “Well, those are not the legal standards that exist in the United States. And you don’t get any special protection. And basically, if what you said was false and defamatory, you’re going to lose. And there’s nothing like any kind of actual malice extra step for you to justify what you’re doing and to protect you.: So yeah, that happens. And I try to show that in that part of the book.

James Patterson (37:52):

Another feature of these historical decisions, and it comes up at the end in the afterword, is that there are harms to the actual malice standard. And the one that I kept seeing coming up and that you later referred to in the afterword is that allowing for the actual malice standard actually creates incentives for people not to want to run for office, right? Because they’re going to be smeared. And the people who will run for office are people who don’t care about being smeared, who aren’t necessarily who you want.

Carson Holloway (38:28):

Yeah, that’s a great point. And I thought of that when I first started thinking through criticisms of New York Times v. Sullivan. In other words, that, if you think kind of pragmatically, which is a distinct kind of argument from the originalist argument, which is concerned with what was the original public meaning of the First Amendment? How did that relate to libel? But you start thinking about what would be the reasons for a stricter standard? What would be the reasons for finding fault with the consequences of the actual malice standard? This would be one of them, that you’re going to have to surrender the protections to your reputation that you would have if you remained a private person. And so yeah, one consequence of that is that people who are particularly sensitive to their reputation may be deterred from public service, and people like that may be highly honorable people and it’s not good for your political community.

(39:23):

So I thought of that argument when I wrote the article that was the first basis for my argument. But the other thing I want to emphasize here, James, is that I was pleased to see that I am far from the first person to have thought of that consequence because just along the lines of what we were just talking about a minute ago, those older judges who defend the stricter libel standards in the early nineteenth century, in the later nineteenth century, even into the twentieth century will point this out. They’ll say that if you don’t protect the reputation of public men, then the best men are not going to want to go into public life. And the people who will go in won’t be as good. I think the appellate judges in that King versus Rip case that I mentioned make that very point that no honest man could go into public life if this were the standard because the newspapers could just trash your reputation and you’d have really no effective remedy for that.

(40:18):

And Taft says it, too. So I think it’s worth thinking about that. And it’s just part of what the modern court has done. They’ve done it quite consciously. Yeah, my book talks a lot about New York Times v. Sullivan, but it also talks a bit about the follow-up case, Gertz v. Welch, in the middle part of the 1970s, 1974, which is a case that kind of solidifies the status of the doctrine. And in that case, Justice Powell wrote the opinion, and he flat out says that the court doesn’t think that the reputations of public people deserve as much protection because they’ve kind of tacitly consented to these higher risks to their reputation. And it’s not a great deal as far as I’m concerned, at least to be rethought. And certainly my other point would be whatever you think about the substance of that kind of normative judgment, it is a normative judgment that the court came up with in 1974 to further prop up the actual malice doctrine. It’s not a normative judgment that you find being made by the Founders to justify that standard because they didn’t defend that standard.

James Patterson (41:26):

Do you think a lot of the details behind Sullivan and its passage have to do with the case itself? I mean, of a racist Alabama sheriff and the civil rights organization that publishes an ad in the New York Times is on the side of the light. It makes some mistakes and some overstatements. So this is a case of maybe weighing the scales a little bit to protect the civil rights movement.

Carson Holloway (41:56):

It is a case arising out of the civil rights movement. It is a civil liberties case because it has to do with freedom of the press, but it clearly arises out of the civil rights movement for the reasons you mentioned that the occasion for the case is the ad in the New York Times, “Heed Their Rising Voices,” which was a defense of Martin Luther King and a criticism of the officials of Alabama. Sullivan was the city commissioner in charge of the Montgomery Police, and he felt like his reputation was tarnished by that ad because of its criticisms of the police department, some of which were erroneous, as you said, and that was the opening for the case. And so yeah, I think the court at the time was worried about some other considerations besides just getting the case right according to traditional legal standards. Now, it might have been the case that they could have ruled against Sullivan anyway. Justice Thomas says that in his criticism that he thought that it wasn’t even clear from the factual record that the publication was of and concerning L. B. Sullivan because he wasn’t even mentioned by name. And other people have made the point, too, that being presented as a kind of strenuous segregationist wouldn’t even have hurt his reputation in Alabama at the time. And also in the record—

James Patterson (43:14):

That’s my favorite one. It’s like, oh no, this is what they want. They want you to be like this.

Carson Holloway (43:20):

It’d help to get reelected probably. It’s also the case that I think in the original trial when they asked some of his witnesses, “Did you believe this stuff?” They said, “No, we didn’t believe that. We knew that stuff wasn’t correct.” So it’s not really a great—

James Patterson (43:34):

Right.

Carson Holloway (43:34):

Case of injury to his reputation, certainly to justify the large value of the damages that were awarded. So I think the justices were concerned about that. And not only that, but there were a number of other libel cases coming out of the state that were similar in its character that perhaps that would’ve come out much differently unless you change the standards to actual malice. I think that’s part of what they’re thinking. They’re worried about abusive state-level libel cases being used to shut down coverage of the civil rights movement, some of the most important things going on in the country at the time. So they had a kind of political, I think a high-level, serious prudential political reason for wanting this to go the way it did. And I don’t entirely fault them for that, but I stand by my argument that they’ve revised … You may see one of … Another good part of the book, which is not me, is the quotations at the very, very beginning, one of which is from Justice Scalia in an interview where he says they were revising the Constitution. That’s my contention, too. They might’ve had a good reason in their own minds to think it was necessary, but they were revising, not interpreting.

James Patterson (44:53):

Do you think that Sullivan as a case is also a bit of a relic of its times? And I mean this, especially in the sense that it’s coming out at a time when mass media, right? Print, paperbacks, radio, movies, television, this is a kind of media environment that’s very different from today. And so a revision is also necessary that even if it was wrong then, it feels even wrong-er now in a world of cancel culture and searchable PDFs with Epstein files. And it seems like it’s even more difficult to sustain.

Carson Holloway (45:29):

Yeah. I mean, certainly things have changed a great deal since then. The media … Well, first of all, yeah, everybody can publish who wants to now because of social—

James Patterson (45:39):

Right.

Carson Holloway (45:39):

media, things like that. And so there’s a lot of … Well, it’s the case that the First Amendment protects everybody, not just the credentialed press. And at that time, the credentialed press was pretty much the whole ballgame as far as communicating with the whole country, and that’s not the case anymore. So there’s just all kinds of defamatory stuff going on uncontrolled because as long as it’s said about public figures or public officials, very hard to do anything about it. That’s one important change. I think it’s also a relic of its time going back to the whole originalist argument because to me, and I know there are people who would maybe want to contend with me on this, but I’m telling you what I think. It seems to me that if you—

James Patterson (46:22):

It’s your podcast, Carson. You do that. All right. We can interview other people if they want to come on in.

Carson Holloway (46:29):

Okay. Yeah. Thank you.

(46:31):

Obviously, there’s been a kind of restoration of originalism as a method of constitutional interpretation. I think from reading the early efforts of the court and what some of the founders said that they expected an originalist interpretation of the Constitution. But with that mid-twentieth-century court, they just are almost completely untethered. I mean, they don’t care. It’s pretty shocking actually. And it’s even more true, I think, of the court as it moves forward, like the Gertz v. Welch Court. I mean, there’s a couple of references to Jefferson for window dressing, but other than that, Justice Powell is not rooting his opinion in the original understanding of the First Amendment. So this kind of generation of constitutional lawyers at the time just was not interested and they had a whole other approach. And you can tell that from Brennan’s opinion and everybody else’s opinion in the case for that matter, because Times v. Sullivan was a unanimous verdict.

(47:28):

Not everybody agreed on the reasoning. Some of them were more radical than Brennan, like Black and Douglas who thought that there just should be no libel cases at all under the First Amendment. But there’s not a lot of careful principle attention to the original meaning. And I think that’s been recovered, and that’s part of the reason why I’m trying to make this argument at this time. If you really believe in that, I think you have to rethink this case as well as the others.

James Patterson (47:53):

The Roberts Court seems to be going through a kind of great repealing of cases that the justices regard as just simply wrongly decided. And it’s not just the Dobbs decision. It’s also Kennedy v. Bremerton. We’re just seeing this. And is there some irony to conservatives on the court jettisoning stare decisis?

Carson Holloway (48:18):

Well, I mean, it is an obvious kind of facial tension. There’s a justification you can give for it, which is if the precedent in question was a departure from the original meaning, then if you really believe in that as the proper approach, then you would feel duty-bound to reverse and to go back and rethink these things. Now, I said at the beginning that they’re more pragmatic than that, and that’s why I have a whole chapter at the end arguing that even if you want … Well, the chapter at the end is saying, I understand that the originalist deficiencies of the Sullivan opinion are not enough for practicing justices to necessarily overturn it. They also need to be shown that it’s harmful in its tendencies and that its reasoning is so poor that it deserves to be junked the way these other ones have.

(49:09):

And so I tried to spend some 20 or more pages on that in that last or second to last chapter, trying to show that. I think it’s just an act of judicial policymaking untethered from any kind of objective source of law. It’s basically the standard they wanted, and they created that standard because they wanted it and thought that it was the best balancing of the interests without trying to figure out what was the balancing of the interests or principles or rights that would’ve informed the way the founders thought about it. But yeah, there are limits to what you expect them to do. And overturning every erroneous precedent is a lot to expect, and I don’t know if they’ll do that. And I don’t know if they’ll do it in this case even, but I thought it was worth making the argument.

James Patterson (49:53):

So I’ve got five questions I’m just not going to be able to ask because we’re running out of time. So I’m going to ask the most important one that I have left, which is, what hope is there that Sullivan will be overturned?

Carson Holloway (50:07):

I don’t know. I couldn’t assign a percentage, but I wouldn’t have spent the time I did on the book if I thought there was no hope at all.

James Patterson (50:15):

I guess that’s true.

Carson Holloway (50:15):

I would say, however, that I’ve given some talks on the book, and I feel like even if there were no hope at all, it’s still an instructive exercise because for purposes of civic education and even philosophic education, if you want to call it that, it is very interesting to think through the older standards and the moral principles that informed the older standards, including a strict protection for reputation and the sense that every man or woman is presumed to have a good reputation and the burden of proof falls upon the people attacking the reputation to show that what they’re saying is true if they get hauled into court. That’s all been jettisoned in modern culture. And the prejudice today is to think that if it’s true, you definitely have a right to say it, or even if you happen to think it’s probably true, you have a right to say it without confirming it.

(51:07):

So it’s a very interesting exercise and helpful, I think, to recover the older standards regardless of what the Court does. However, I would say that I don’t think it’s a zero chance that they would return or revisit this question because there’s clearly a majority that thinks that originalism is the correct approach. And if you think that, then I believe you have to rethink this case as well. And that’s the reason I wrote the book.

James Patterson (51:37):

Yeah.

Carson Holloway (51:37):

If we try to go into numbers, we know there are two who have said that they’re willing to think this through. One is Justice Thomas, the other is Justice Gorsuch. We don’t know much beyond that. You would need three more votes. I tend to think that Justice Alito is somebody who might rethink it because of his dissent in Snyder v. Phelps, the Westboro Baptist Church case, which showed a certain independence of mind and unwillingness to go with the crowd there. It’s a tough case though or a tough question because on the one hand, there is a majority that seems to be interested in a principled approach to originalism. On the other hand, it is also the case, and you still see evidence of this, that for the last two generations, almost all of the justices on the Supreme Court, conservative and liberal, have bought into something leaning in the direction of free speech absolutism, which is just not what the First Amendment stood for because there were understood to be limits to what was permissible, intelligible limits that still maintained a robust realm for public discourse, but protected the rights of individuals, and interests of the community.

(52:48):

So it would be a big change for them and they would think hard about whether they’re going to do that. So I don’t know, we’ll see. A lot hangs on if anybody pays attention to my book.

James Patterson (52:59):

Yeah. Well, first of all, obviously everyone’s going to pay attention to No Liberty to Libel by Carson Holloway, available on Encounter Books. But also, I mean, think about the reputation of the press in the ’60s and ’70s versus today. I mean, there’s considerably less, I think, good feelings, right? There’s less trust in their ability to exercise this great charge than there used to be.

Carson Holloway (53:25):

That’s true. Their reputation is not as good as it used to be, which suggests that they’re not living up to the proper standards.

James Patterson (53:32):

Yeah. So you’re just doing them a favor and restoring a standard so that they can get their reputation up, too.

Carson Holloway (53:40):

I’d like to think of it that way. Yeah.

James Patterson (53:42):

Dr. Carson Holloway, thank you for coming on to the Law & Liberty Podcast.

Carson Holloway (53:47):

Well, thanks for having me.

James Patterson (53:49):

Thanks for listening to this episode of Law & Liberty. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts, and visit us online at www.lawliberty.org.

Related Links

“A Quiet Refusal to Compromise,” by Elizabeth Corey, Law & Liberty
“Beautiful Losers,” by Elizabeth Corey, Public Discourse
“Interpreting the New Right,” by John Grove, Law & Liberty

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring series commentary on law, policy, books, and culture, informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. Today, my guest is Elizabeth Corey. She is a professor of political science at Baylor University, where she’s also the director of their honors program. Her area of specialization is conservative political philosophy, especially the work of Michael Oakeshott. She has published widely, and today we will be talking about two of her more recent essays. The first is “A Quiet Refusal to Compromise,” for us here at Law & Liberty that she published this past February, and more recently a piece named “Beautiful Losers” for Public Discourse.

(01:18):

Dr. Corey, welcome to the Law & Liberty Podcast.

Elizabeth Corey (01:21):

Thank you, James. It’s great to be here.

James Patterson (01:23):

So let’s start with the slightly older essay, “A Quiet Refusal to Compromise.” You describe in its opening paragraph a sense of amazement and dismay when beholding the changes of American conservatism this past decade. And you also describe how you had a particular point of view or a privileged vantage point. So tell me about this experience and why amazement and dismay.

Elizabeth Corey (01:50):

Well, I think let me start with the other part of your question, which is the privileged vantage point, which is that I’ve been around this world for a really long time, more and less engaged. My dad has been involved in intellectual conservatism since the 1950s. And so it’s been in the water really for me for these last 50 years. And so I would go to Philadelphia Society meetings and work at Heritage. And so I’ve had a lot of experience in these institutions and understood them to be more or less a kind of unified front. And what I’ve seen in the last 10 years or so is a real change there from a kind of intellectually focused conservatism toward a much more activist conservatism, which as an Oakeshottian, as I proudly claim to be, is not at all what I understand conservatism as consisting in.

(02:44):

So there was this turn, obviously in the Trump years, you will know this very well. And the first Trump term and then the rise of these new institutions. And I just thought this is a very different vision of conservatism than the one I’ve grown up with. And it is, in a way, I think a certain kind of betrayal of the essence of what conservatism was prior to say about 2015.

James Patterson (03:07):

You mentioned at the beginning of the essay, a book I don’t think we’ve talked about on the podcast, but we reviewed, John Grove wrote the review of Furious Minds by Laura Field. I wrote a review for Civitas. I think I was more favorably inclined. What is it that you noted about what Field described? What is it that she observed? And maybe what were your disagreements or agreements with her?

Elizabeth Corey (03:31):

Field’s book is interesting. I actually didn’t read it. I listened to her read it on an Audible.

James Patterson (03:36):

Wow. She did the audio?

Elizabeth Corey (03:38):

She did do the audio.

James Patterson (03:39):

Oh, that’s a lot of work.

Elizabeth Corey (03:40):

It’s a lot of work. But it was interesting to me because what was conveyed in the Audible book was a lot of tone that didn’t maybe necessarily come through in the book itself. I mean, it was very clear to me that she was disdainful toward the people she was talking about. She had a lot of sort of political differences with them from the very beginning. She’s quite progressive. She thought the conservatives … She was interested in the conservative world. Obviously, she went to UT Austin and was around the Straussian conservative world. So she had a privileged place to look at that world, but nevertheless, it was clear to me that she was critical from the outset. So I was interested in that, and I noticed the tone, but it didn’t make me think everything she was saying was wrong. So took it with a grain of salt.

(04:31):

I mean, a lot of the things she described were things that did happen over the past 10 years. And so it was a kind of report with an agenda. And John Grove did a great job of laying that out in a much more careful way than I can here. But it was a way of bringing to the fore, okay, here’s what’s happened over these past 10 years. And that’s what got me thinking, okay, well, most of what she reported did happen. And it’s why I and many other traditional conservatives feel ourselves a bit alienated from the contemporary conservative movement.

James Patterson (05:07):

Yeah. I suppose I appreciated it just for the creation of a sense of network and bringing together different groups that people maybe didn’t understand to be so affiliated, but it definitely has a point of view. That is definitely true. There’s a passage in the essay that I was not prepared for. And it is a passage you quote from William Hazlitt’s “On the Pleasure of Hating.” So you already know from that it’s going to be good. And this is the passage: “There is a secret affinity, a hankering after evil in the human mind,” he writes. “Which takes a perverse, but a fortunate delight in mischief since it is a never failing source of satisfaction. Life would turn to a stagnant pool where it not ruffled by the jarring interests, the unruly passions of men, the white streak and our own fortunes is brightened or just rendered visible by making all around it as dark as possible.” How do you see this passage playing a role in understanding contemporary conservative changes?

Elizabeth Corey (06:16):

That passage spoke to me because it seems to me what I often read in contemporary conservatives now is a kind of anger, a kind of willingness to call out enemies, really just an adversarial posture that Hazlitt names. And let’s be clear, there’s something absolutely right about what he says. It’s wonderful to be on the right side of something with a tribe who agrees with you. And so to have somebody or to have a set of institutions that you can say, “Well, these are worthy of hate or worthy of disdain,” is a kind of bonding in a strange way for the people who are on the right side. So when I especially read things written by a lot of people from Claremont, I just think there is such a vitriol there. And that was what got me thinking about the Hazlitt essay, that there’s a kind of energy that this vitriol gives, this being on the right side of the culture wars.

(07:18):

And I think that does explain some of the energy on the right, that it’s not so much about this constructive vision of conservatism, which I would like to put forward, but it’s hating the right people in the right way. And I get that. I mean, I understand there are things that we ought to oppose and to resist for sure, but I don’t think that is the essence or the core of a conservative disposition. Or if it is, that’s not a conservatism that I want to be part of.

James Patterson (07:45):

A friend of mine who is admittedly on the left summed it up as “To own the libs shall be the whole of the law.”

Elizabeth Corey (07:52):

Exactly.

James Patterson (07:53):

Yeah. So what is this participating in the permanent and stable, intrinsic goods you described? This is the conservatism you believe in. So what does that look like?

Elizabeth Corey (08:02):

Well, for me as a university professor, it’s pretty clear. It is a kind of cultural transmission of all that’s good to the young. I mean, in a way, I know that sounds a little bit idealistic, but there’s a wonderful book I’ve recently read by Roger Scruton. It’s called Culture Counts. And he’s essentially making an argument that our job as conservatives is to preserve and to share a cultural tradition that consists in things like literature, art, poetry, philosophy, music. I mean, all of these things which are in danger of being overlooked by contemporary culture. And that to me is the essence of this conservative disposition. I mean, I could say more about that with respect to Oakeshott, who’s also very good on these things, but this kind of Scruton-Oakeshott vision of culture is at the center of conservatism is really a vision I think needs to be expressed and also put into practice.

James Patterson (09:02):

You actually make reference also to the great Josef Pieper on the idea of leisure. So actually, please do go into detail about what you think this looks like. What is it that’s outside of the world of friends and enemies that we can engage in a form of a leisurely development of traditions or even of the perfection of the human intellect?

Elizabeth Corey (09:26):

Yeah. I mean, it’s absolutely outside the world of friends and enemies, but it’s also outside the world of work and practical achievement. I mean, this is perhaps the Oakeshottian in me, but there’s this notion, especially with people like Oakeshott and Scruton, that there’s a realm of experience that doesn’t fall into the friends and enemies dichotomy, that it is somehow outside of all the practical things we ordinarily do. I mean, Oakeshott’s great on this in particular in so far as he has this idea that experience takes place in certain modes. So most of the time we’re involved in the practical mode of getting things done, doing things that need to be taken care of, doing politics—politics falls into practice. But I think Pieper, Oakeshott, and Scruton would all say, well, there’s this other realm of, as Pieper would call it, leisure, which is where culture takes place, which is where reading and philosophy and thinking and conversation and friendship and all these intrinsically good activities take place.

(10:27):

And that is not the world of friends and enemies, and that’s also not the world of total work. So these men are sort of charting out an area of life that escapes the practical and the political. And that’s actually, I think, the job of the university to preserve, although even the universities are dragged into this in all kinds of ways that we’ve seen over the past 20 years.

James Patterson (10:50):

Yeah. The conservatism that was regnant before this kind of fighting, bristling, frothing kind of conservatism was the conservatism of Mitt Romney firing people, everyone an entrepreneur, and a lot of green eyeshade talk. And that was as much of a problem as the kind that we’re dealing with now because leisure looks like a waste, no?

Elizabeth Corey (11:18):

Exactly. Yeah. I mean, there are lots of ways I think conservatism can go wrong. I mean, one is focusing solely on economics, although we can never ignore economics, but the other is focusing solely on war and friends and enemies and culture war. Part of this, James, comes from my own family experience of realizing that if I am to go forward in life as a happy person, I’m going to have to deal with people who are very different from me and have very different visions of a flourishing life. And as conservative as I may be, I’ve got to be frankly pluralist in understanding that not everyone is like me. And that’s where I think a lot of contemporary conservatism goes wrong, that you need to be like me and know if you’re not, I will also force you to be. So that’s where, I mean, Laura Field takes that to an extreme vision, but I think she’s not wrong in saying there’s a lack of understanding of what pluralism means in this new conservatism.

James Patterson (12:21):

Yeah. In fact, your account of amazement and dismay has been pretty much my own. That’s actually how I opened my review of her book was that what made me so sympathetic to the voice in which she gave the book was my own feeling over the last 10 years of what is going on. I can’t believe this is happening. But for me, and this is an interview of Elizabeth Corey, not of me, so I will not carry on about post-liberalism too much. But for me, that strikes me as not even really conservativism anymore. It’s a kind of like right-wing social engineering to quote … What was that? Who said that in the presidential nomination? Was that a …

Elizabeth Corey (13:02):

I can’t remember, but …

James Patterson (13:03):

It was Newt Gingrich.

Elizabeth Corey (13:04):

Yeah.

James Patterson (13:05):

And so can we even call some of this conservatism anymore?

Elizabeth Corey (13:10):

Well, it seems to me to be something more like … I mean, it has new names now. I mean, it is post-liberalism. It is national conservatism. And I’ll be completely straight with you, James. I don’t follow the details and the intricacies of all those movements. I do to some extent, but I couldn’t have an interview with you about them. I assure you know them much better than I do, but I do know …

James Patterson (13:34):

It’s good for your mental health that you preoccupy yourself with the better things in life.

Elizabeth Corey (13:39):

Well, I mean, I think again, that the essence of … And then this is where the piece ends up in the “Quiet Refusal to Compromise” peace ends up, which is to say that the truly important things in life are these kind of conservative activities of love and friendship and family and civic institutions. And that’s something I think that’s being overlooked in the contemporary talk about conservatives. Everything is national. Everything is about President Trump and do we like what he’s doing or do we not like what he’s doing? But I mean, I would turn our eyes back to the local and to say, look, there’s a ton of stuff to be done here in our own little platoon, I mean, to use a familiar phrase. I mean, there are church vestries and civic institutions and school boards, all this sort of thing that if we get caught up in the national vision of politics as the most important, then we’re not going to be thinking about those things and those things need attending to.

James Patterson (14:34):

A big part of, I think what contributes to the demand for the national is to direct attention constantly to the content that these people are generating. So it’s like and subscribe, hit the bell icon, here’s a link to my Patreon, please purchase my Patriot merch. It’s elements to all of this that I think a lot of people overlook that there’s a certain degree of mercenary quality to this where it’s a business too.

Elizabeth Corey (15:04):

Absolutely. It’s interesting to me because that has infiltrated not only the political realm, but also the academic realm. There’s this sense, and I’ve talked about this a little bit before, that what our job is now as university professors is to make a name for ourselves and to put ourselves out there and to brand ourselves in a certain way, which to me is really repellent. I mean, not that you don’t want to be out saying things and doing things and writing things, but this notion that you yourself are the focus is a kind of weird perversion of the academic life. It’s like if you imagine a priest doing that, you would think that’s not the nature of the priesthood to do this kind of self-promotion and this branding. But increasingly, it does look to me like that’s what we’re supposed to be doing or that somehow the social media ecosystem pushes us toward that.

James Patterson (15:56):

I’ve actually not thought of that, but it is true, right? The development of a personal brand in academia and it really runs crosswise with the calling to form students and civic virtue and intellectual virtue. What has it done to education that we have to live that way?

Elizabeth Corey (16:16):

Well, I think it’s a terrible tragedy in a certain way. I mean, in so far as university incentives now are to, as I’ve just been saying, to brand yourself, make a name for yourself, put yourself out there when actually, what are we supposed to be doing? We’re supposed to be teaching students. I mean, yes, we are supposed to be publishing and doing our own writing, but really the enterprise is about the care and nurture and development of these young people. And increasingly, it seems like that is almost a side activity of a lot of universities. I mean, when you hear about professors coming in and saying, “Well, I want to teach one-one,” or, “I don’t want to have a teaching load. I just want to do my research.” And I just think that’s, “why did you get into this?”

James Patterson (17:00):

It’s a shame. And one of the funny developments that I’ve seen, especially people who do more quantitative work, is that the potential for artificial intelligence to do that work much more effectively might mean that their research value goes down because the rate of research goes up. And so now they’re going to be stuck with all these students to teach, and that’s not why they got into this business.

Elizabeth Corey (17:24):

I know. I mean, I’ve actually heard people say all this AI stuff could be really, really good for the humanities, because that’s the one thing that AI can’t do, which is to read, to think, and to speak in a seminar. You can write a paper with AI for sure in the humanities, but if I’m sitting around with a classroom of young people and we’re talking about a text, it’s very clear to me whether they’ve read and whether they have anything to say, and AI can’t help them there.

James Patterson (17:53):

Yeah. And even when it comes to research, AI can’t go into the archives, right?

Elizabeth Corey (17:59):

Yeah, absolutely not.

James Patterson (18:01):

We need to upload it to one of those scary robots, but even then, I’m not sure if they know what to look for.

Elizabeth Corey (18:05):

Yes.

James Patterson (18:07):

Let’s turn to your piece in Public Discourse, which very provocatively titled “Beautiful Losers.” So this raises the first question, which is what makes a beautiful loser beautiful and what makes them a loser?

Elizabeth Corey (18:20):

Yeah. Well, you can thank RJ Snell for pointing me to this because I actually didn’t know, as I say in the first line, I didn’t know what that meant. And he said, “Well, I was accused the other day, RJ said, of being a beautiful loser.” And I said, “Well, I don’t know what that means.” And he explained it to me. And of course, what is meant by it is somebody who is not interested in fighting the culture wars and nevertheless has a kind of beautiful vision of what human life can be. You can imagine the philosopher who is interested in just in pure philosophy or the literature scholar who’s interested in expounding Shakespeare. Those people are not necessarily engaged in political battles and hopefully they’re not actually. And so from the perspective of the culture warrior, they’re losing or they’re not even engaging. And there’s something from the … I use this other ideal type, the scrappy warrior perspective that says, “Well, you’re not doing what is responsible and necessary in our age.”

(19:18):

You’re just opting out and you’re teaching your philosophy or your literature or whatever it is you’re doing that’s not political. And it’s seen as a kind of abdication of responsibility. And I want to say no, actually those people I think are doing what is most necessary, which is to rejuvenate and preserve culture and to share it with students. And now for me, I always talk about students because I’m in a university, but there are other ways of doing it. I think a lot of the priesthood could be a kind of beautiful losing. I think parents who are taking care of children in a sense would be seen as this simply because they’re not engaged in battle. And that to me is better placed to be than the warriors. Not to say that there aren’t fights to be fought, but I think we overestimate the times in which we need to be engaged in battle.

James Patterson (20:07):

Yeah. You say warrior, the term that you use for the critics of beautiful losers such as, I suppose us, is the scrappy warrior. There’s just a kind of respect in the word scrappy, and you say that his or almost always his vision is so dark. So why is it so dark and why is it so often his and very rarely a her?

Elizabeth Corey (20:34):

Well, I don’t know. I don’t have an answer for the question of sex. I mean, why is it more male to be this way? Except that in my experience of men and women, that men are often more spirited. They want to get out there and do something, especially young men. It’s interesting. I have some young men students who say they’re involved in a world of sort of political activism that just valorizes a kind of doing things and doing things and even fighting. And so women aren’t inclined to fight usually, or if we do, it’s not the kind of fighting men do. It’s much more insidious. I feel like there is a gender difference here, and I’m not sure quite what it is. I mean, there are a few women I can think of who like to be out there battling. Helen Andrews is one.

(21:24):

She doesn’t pull her punches. Maybe somebody like a Candace Owens is willing to do this, but most women are involved in other things and not the kind of scrappy warriors that say Christopher Rufo is.

James Patterson (21:38):

So despite the emphasis on action or fighting, I guess I said action, I thought of the distinction that Hannah Arendt makes between the active life and the contemplative life and the human condition. I mean, it’s not her originating it, but I think her discussion here is really useful, but we can leave that to the side. This isn’t an Arendt question. There is something very weak about the scrappy warrior. They’re very regularly victims and they’re always being wronged by others and events. So does that not make them beautiful losers?

Elizabeth Corey (22:13):

Well, maybe, except that I think they think they’re in a righteous crusade. I mean, certainly the Chris Rufo stuff with DEI, I mean, I have to admit that there are aspects of that, of his anti-DEI crusade that I’m grateful he succeeded in. I mean, these last few years in a university have been utterly different in terms of DEI than they were say in the late teens. I mean, even at a place that is as conservative as Baylor, we were regularly given trainings and told about diversity and this sort of thing. That stuff is gone. That is absolutely gone. So was it necessary for him to stamp it out in this kind of activist really loud way? I’m not sure. I mean, to be fair to him, it may be that that was the only way forward, which was to try to ruin it. I mean, what I guess I would say is on the DEI stuff, I mean, there was a middle position.

(23:13):

I mean, that’s one nobody really, really takes up. I mean, it’s either you’re pro-diversity, equity, and inclusion, or you’re against it. And I actually want to say there’s some good in that movement, and that’s what the warriors don’t seem to understand, that there was a reason that that movement became so prominent and that it was so much supported by so many people. Did it go too far? A hundred percent it did. But now in saying we can’t even really use the word diversity in a university, that seems to me to be too far in the other direction. So there’s this tendency, I think, to kind of ricochet from one extreme to the other. It’s either you’re a leftist activist or you’re a new right activist. And as a professor, and you are one too, you cannot be in that position. You have to be in some kind of position where you’re taking the full measure of possible opinions into account.

James Patterson (24:04):

And that’s perhaps what makes a sort of non-political conservatism so hard for someone on the new right to comprehend where occasionally you need to hang up the arms and think about why you’re doing what you’re doing and maybe consider how best to talk to the people across from you about that subject matter. And what’s so important about the teaching element is that it breaks down these assumptions people have about each other, especially I’m sort of known as a conservative being at the University of Tennessee, but I make it a point not to fight the students in the classroom. I mean, the last thing that I think would be useful for bringing these students the education they deserve.

Elizabeth Corey (25:00):

I quite agree. And it’s not just students. It’s also, I think what offends me about the strident tone of somebody like Rufo is that I guess I wonder, have you ever known people who are not like you that you must work with anyway? If you’re in a university, it’s very likely as a conservative that you’re in the minority. And so you have to learn to get along with people who have very different political views from yours. I was talking a little bit earlier about this notion of pluralism. The world is not like you. And if you’re going to be at an institution that is not strictly speaking conservative, then you’ve got to be able to understand these other perspectives. And I think that’s where a lot of the new right tends to go wrong. They are surrounded by people who think the way they do, certainly in a think tank, that’s easy to have happen, but they never need to encounter the very different visions of the world that other people hold.

(25:52):

And I can’t afford to do that because my colleagues are not all conservative. In fact, a lot of them are not at all. So I think it’s a sort of, how to put it, constrained, constricted view of what the world really is.

James Patterson (26:07):

It’s partly a technological story too, right? Where it’s become easier for people to close off from their immediate physical community and concentrate on developing a kind of ideological community that then engages in endless forms of purification. And just recently, there’s been a dust up among what we would consider Christian nationalists. Stephen Wolfe, of all people, is now considered insufficiently Christian nationalist because of a rejection of Hitler, which is an odd, not exactly the best proponent of any version of Christianity, Hitler. And so that’s one thing to watch, but then there’s an entire other world on Blue Sky where the distinctions that people on the left are making boggle the mind of most like Bernie Sanders voters. So is this perhaps that people are dedicating too much time to a way of life that drives them crazy?

Elizabeth Corey (27:12):

Yeah. It’s funny that you bring up this problem because I’m teaching a small Witherspoon class through the Witherspoon Institute at Princeton of high school students. And the topic of our conversation is what does it mean to be part of a community? How does community and civil society contribute to a kind of authentic conservatism? And we’re reading Robert Nisbet who wrote The Quest for Community in 1953, as you will know, and he lamented the loss of community back then. And I asked my students, I said, “Well, why do you think it is that it is so hard to find community now?” And they said, “Well, it’s because we look for community on the Internet and we look for people who have views that are like ours.” But what our conversation went on to reveal was that when you find community of that sort, you’re only finding a tiny little slice of the person.

(28:04):

I mean, you’re showing your face on a screen and then you’re sharing certain views that have to do with things that other people are interested in that forum, but it has nothing to do with you as a whole person. And that’s a real contraction of human life to imagine that our so-called friends who ideologically agree with us on the Internet are real community. That’s just the barest sort of most scanty vision of what community can be.

James Patterson (28:33):

You said prior to us recording that one thing that’s contributed to you sort of disengaging from the minutia of these online fights, which are now half my research area now, is that you were writing a book. So this is the first I’ve heard of a new Elizabeth Corey book. So why don’t you tell the listeners what it is that you’ve been up to?

Elizabeth Corey (28:57):

Well, I, in a way, retreated from the world for a little while to write a book. It was nice. About 12 years ago, I wrote something for First Things and it was a little essay called “Learning in Love,” which was more or less my explanation of how I got into academia and what it was to learn that the intellectual life wasn’t simply this kind of thing you did and took tests and were graded on, but it was actually this kind of intense conversation with mentors and peers. And I said that had been absolutely formative for me in terms of why I’m in a university now. And I wrote that 12 years ago and I just kind of thought about it ever since. And I decided that I wanted to write a book about the sort of effective aspect of education by which I mean affections and care and love and friendship.

(29:52):

And so I wrote a book about what it was to pursue an intellectual life with other people and the importance of that. I mean, I think there are a lot of ways you could criticize contemporary academia, but one thing that hasn’t been said is that what students are looking for, I think, is a kind of knowing each other and being known in classes where you talk about serious and important things together, and it’s almost a kind of intellectual friendship. So the book is about that. It’s also about a lot more than that. It’s about the educational philosophy of Oakeshott. I used Gabriel Marcel and some other sort of interesting philosophers to talk about my vision of education, but basically it’s about why do we do this and why do we do it not alone?

James Patterson (30:40):

Yeah. And so I guess some of the targets here would be the things that we mentioned a little earlier, like the over-professionalization of curriculum, but also these sort of ideological tests to ensure that curriculum or faculty match a kind of vision of the administration and diversity, equity, and inclusion. So does this mean no more 500-person gen ed courses?

Elizabeth Corey (31:10):

Well, ideally it would. I mean, I’ve been fortunate to teach for the last 20 years in an honors college, which I’d explain it to parents as a small liberal arts college within a big university, which is essentially what it is. We’re about 1,400- and a 20,000-person university. And so what that allows us to do is to have small classes, small seminars where we know those students and they know us and they know each other and we get to know them as people. And we have intense conversations about not just the texts we’re reading, but about their lives. And that to me is a very small, it’s almost a boutique understanding of education, but it is the best model for liberal education that I know of. And there’s really no other. I mean, and especially with respect to teaching students how to write, how can you teach them in large classes?

(32:03):

You have to read their work and talk through it with them and talk to them about their ideas. I mean, it is a deeply personal endeavor which can’t be accomplished on the Internet or in a 500-person class. So yes, is it my ideal? Is it always possible? No, but it is what I think we ought to try to aim for.

James Patterson (32:25):

Well, the trouble with teaching students like this is of course that sometimes the students don’t know how to learn. They’ve been sort of squeezed through a lot of institutional testing or they’ve had stressed to them a sense of “if you don’t take a certain curricular path, then you’re going to end up poor.” And I always tell the students that if you want to get a job after college, show up sober and on time.

Elizabeth Corey (32:59):

That’s very good.

James Patterson (33:02):

So one thing that I think really helps the students is to learn what it is to even be at leisure. They’ve never been allowed to experience it.

Elizabeth Corey (33:11):

They haven’t. And there’s so much that’s corrupting, such that by the time they arrive in college, it’s almost as if you have to rescue them from the habits they’ve acquired. And so much of it has to do with this compulsive focus on achievement. I mean, I can’t tell you how many—in the book, I talk about this—how many students said that “I used to love reading. I would read for pleasure. I would read multiple novels. Nobody had to ask me to read. And around middle school, it became something that I just didn’t enjoy anymore because I was always asked to regurgitate on a worksheet what I had just read.” I mean, it took all the joy out of reading. My own 11-year-old is in a class where she’s reading a novel, but she said, “I love the novel, but the problem is the worksheet is asking me for all these stupid little niggly details and I can’t even enjoy the reading of it anymore because I have to report some answer to a question on a worksheet.” And I don’t know how to get around that.

(34:13):

I mean, it’s sort of like you have to have quizzes, you have to have objective tests of are the students doing the work, but there’s something about that that also squeezes the enjoyment out of the reading and the thinking and the talking. And then students just sort of are doing it to please the teachers and to do well and get into the next phase of life, whether that’s college or graduate school or the internship or the job.

James Patterson (34:38):

Another problem with the way that we want to do this, and because I very much sign on to the way that you’re describing this kind of education, is that whereas the worksheet has what you might consider an ROI, like a return on investment. The student has produced evidence of learning. And so you can put that as a metric for assessment on the accreditation file. And if you don’t know what we’re talking about listening to this, believe me, you don’t want to know. It’s the behind the scenes work that so many faculty have to do. But what is actually the thing that you’re shooting for teaching this way is that in 10 years, that student will also still be reading and you will never see that and that will never be on the accreditation file.

Elizabeth Corey (35:29):

That’s right. No, I mean, the kinds of things that I think a real liberal education aims at are not quantifiable. I mean, I can’t tell you how many times I’ve been in rooms where people say, “Well, we’ve got to get our learning objectives set out here.” And I just think I don’t even know what you mean there. I mean, I do, of course, know what they mean, but to engage a class so that you can get them to this place where the proper learning objectives have been achieved is to me to really reduce the experience. I mean, we have no idea what the learning objectives are for reading Dante or for Plato. We hope that we’re giving them … I mean, now here I’ll sound like Scruton, we’re passing on this culture to them such that it becomes theirs and they can enjoy it. It’s a kind of practice in feeling and thinking.

(36:16):

And I’m sad if university education overlooks that or often overlooks that. And I know it does because there’s the enormous pressure of getting students through and out and then into well-paying jobs.

James Patterson (36:30):

And it’s a criteria that you don’t see the humanities criteria exported from economics and to economics and sciences where it’s like, did you transcend subjectivity in your chemistry labs?

Elizabeth Corey (36:47):

I know. I know.

James Patterson (36:49):

Well, this has been a delight and I cannot wait to have you on again, but unfortunately we need to end here. The guest is Dr. Elizabeth Corey. The essays are “Beautiful Losers” at Public Discourse and “A Quiet Refusal to Compromise” at Law & Liberty. Dr. Corey, thank you so much for coming onto the Law & Liberty Podcast.

Elizabeth Corey (37:12):

Thanks, James. I really enjoyed it.

James Patterson (37:14):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Related Links

The Presidential Pardon by Sai Prakash
“The Personal Pardon Power” by Philip Hamburger, Law & Liberty
“Is It Too Late to Recover the Founders’ Presidency?” by Gary L. Gregg II, Law & Liberty

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello, and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty. With me today is Sai Prakash. He is the James Monroe Distinguished Professor of Law at the University of Virginia, where he teaches Constitutional law, foreign relations law, and presidential powers. Today, we will be talking about The Presidential Pardon: The Short Clause with a Long Troubled History. It’s a recent publication on Harvard University Press, just came out. And when I was speaking to John Grove about possible subjects, this is the one that reached right to the top for me.

(01:21):

So Professor Prakash, welcome to the Law & Liberty Podcast.

Sai Prakash (01:24):

It’s great to be here with you and your listeners, James.

James Patterson (01:28):

All right. Well, where did the pardoning power for the president come from? What’s its origins for presidential use?

Sai Prakash (01:38):

James, every society has some method of mitigating punishments, either by forgiving the punishment or commuting the sentence. And so, you know, this goes back to Israel and India and Islam, but the immediate precursor is obviously Great Britain. The Crown and Great Britain had a pardon power that had exercised quite vigorously in response to many different stimuli. And then the colonial governors had it in America and then state executives had some authority in Revolutionary America. And so this was just something that they expected to be part of the system, either to be exercised by the executive or the legislature or the executive subject to some check.

James Patterson (02:23):

So is the pardoning power as unconstrained as it appears to be in the Constitution? There’s no advised consent constraint. There’s no judicial review of it. It’s really just out and out an executive prerogative, isn’t it?

Sai Prakash (02:39):

Yes. The Constitution does implicitly limit the pardon power in several respects. It can’t be for state offenses. It’s got to be an offense against the United States, and that’s always been understood to be a federal offense passed by Congress. It doesn’t cover impeachment, so the president can’t protect people from being impeached by the House or removed by the Senate. It doesn’t permit the president to pardon people in advance of the offense. That is to say, the president can’t say to you, James, “I’m giving you a pardon and it means that you can’t be prosecuted for any offense that you commit going forward after the pardon.” That’s a constraint. And it can’t be used for continuing offenses. If you are continually polluting contrary to federal law, the president can’t give you a right to continually pollute by virtue of the pardon power. So those are constraints, but within the pardon power, as you said, it’s very broad.

(03:30):

It covers all federal offenses and there’s no Senate check, there’s no House check, there’s no court check, and it’s all within the discretion of the president. And so unlike some of the other important powers, it is unchecked in that sense.

James Patterson (03:46):

You mentioned, and one of the ways that the pardon can’t function is that you can’t give someone a pardon for an ongoing offense. So at what point does a pardon become the refusal to enforce a law?

Sai Prakash (04:00):

Well, I think this is a deeply interesting question. I think there’s a sense in which, unless you’re pardoning people that you think are actually innocent, there is a sense in which a pardon always undoes a law, at least as applied to the person. So suppose I’m the president and I pardon someone who’s facing a 10-year sentence and I give them a two-month sentence. Well, the law provides a punishment. The judge has imposed the punishment. I am changing the punishment. It might well be that the statute that Congress wrote provided an 8 to 10-year punishment, I’m now making it two months. That is, in a sense, not carrying out the law. So unless you think the pardon is only there for innocent people, which no one thinks, the pardon is essentially undoing what the statute provides in some sense. So I think it’s one of the interesting questions about the pardon power.

(04:54):

How does it fit with the Take Care Clause obligation? The president has a power to issue reprieves and pardons against offenses against United States. That’s the pardon clause. And then it also says later in the Constitution that the president shall take care that the laws be faithfully executed. How do you square those two clauses? And the way we do for the most part is to say, well, the president doesn’t have to faithfully execute the law when he issues a pardon. The person has been convicted of a crime and has been sentenced to a punishment and the president doesn’t have to execute the punishment, even if the president admits that the person’s guilty. So there’s a fundamental tension there that the Constitution doesn’t resolve, but it’s a fundamental tension that goes back to Great Britain, that the Crown had a duty to execute the law, but it also had this pardon power.

James Patterson (05:40):

This might be a little historical, more than legal or constitutional, but were there Anti-Federalist critics of the pardoning power during the debate over ratification?

Sai Prakash (05:50):

Of course. The pardon power was contested at the Philadelphia Convention. The Philadelphia Convention is the convention of delegates from the states that drafts the Constitution. And there were people there saying we shouldn’t be giving this broad power to the president. They’re not Anti-Federalists at this stage, they’re just people who don’t like this particular feature of it. There are even proponents of a strong president that want to limit it. Alexander Hamilton does not want the pardon power to cover treason, but the clause that makes its way into the Constitution is not restrained in these ways because I think the majority of the convention believes that it’s more useful to have a broad pardon power, one not constrained by the Senate or by other limitations because they think it’s sometimes necessary for there to be quick, broad pardons and only the president they think is structurally capable of doing that.

(06:39):

Congress can’t issue broad pardons quickly. It’s not always in session and it’s a big ponderous and lumbering body. It’s just hard for them to act quickly. The president is constituted to do that. So they decide not to put constraints on it. When it gets sent to the states, plenty of Anti-Federalists say there’s a problem with this. They say that there’s no constraint on the pardon power. The president might try to subvert the Constitution, might get people to help him. He then might pardon them, and we might not ever know that he was involved in this conspiracy. So they have dark ideas of what a president might do with the pardon power, and they voice these over and over again. And the Federalists, the folks who support the Constitution, don’t say that this is all nonsense and we have nothing to worry about. They know that a pardon power can be abused because they have a sense that all powers can be abused.

(07:28):

But their view is that on balance, it’s better the way it is than with restraints. And so that they’re not denying that there are issues with it. They’re just denying that they should be corrected because the pluses outweigh the minuses, so to speak, of a pardon power. And because the Constitution, as your readers, your listeners know, is an all or nothing proposition, it’s treated that way by conventions. States aren’t allowed to say, “We’ll adopt the Constitution only if you change the pardon power.” They adopt the Constitution and just propose amendments, many states propose amendments, but their ratification of the Constitution is not premised on the adoption of those amendments. And so there are some amendments proposed, but they never make it into our Constitution. Neither James Madison nor the Congress proposes amendments limiting the pardon power in the Bill of Rights that go to the states.

James Patterson (08:20):

So early in the history of the United States, we find use of the pardon power pretty liberally by George Washington, who essentially, like so many other things that he does while president sets up a kind of expectation or a custom. And so what was this major event that led him to use the pardon power so liberally?

Sai Prakash (08:40):

So he’s president for eight years. He’s issued pardons for some of those years, and he’s very careful and very deliberate about using it. He always seeks the advice of many people. And he always publicly declares what his reasons are for the pardon. And he means for the public to know that it’s not just arbitrary power. There’s always a reason behind it. The event that you’re talking about is the Whiskey Rebellion in Western Pennsylvania, where Congress has enacted an excise tax on whiskey. Western farmers are rather upset about it. They don’t want to pay the tax. Obviously, it’s going to make it more difficult to sell the whiskey if there’s an excise tax on it. And so they start obstructing the enforcement of the whiskey excise tax and they kind of interfere with the marshal and they interfere with the tax collector. And the administration decides to send the militia to quell this incipient rebellion or this rebellion.

(09:37):

And Washington heads out with the militia to a certain point in Pennsylvania, and then he hands over a command to Henry Lee, the governor of Virginia, who’s been summoned, and he tells Henry Lee the issue to make promises of pardons as a means of conciliating those rebels. Every government faces rebellions from time to time, and one way to quell them is to offer them a pardon if they lay down their arms. And so this is commonly done in England. It was done in Shays’ Rebellion, and it’s done now in the Whiskey Rebellion, of course, will be done in the Civil War as well. So he offers pardons, Lee grants pardons, Washington grants further pardons. And it’s all … The idea is, look, let’s make up with each other. You reconcile yourself to federal authority. We don’t prosecute you, and we go back to a peaceable, loving relationship with you.

(10:30):

And we know that if we don’t do that, your option is all or nothing. You’re just going to fight to the death because if we don’t give you a pardon, you might well be executed if we catch you. So the pardon is a powerful tool meant in part to end rebellions, and it serves something like that function in the Whiskey Rebellion. And it is a broad pardon to all those people who participated in those tumults and disturbances.

James Patterson (10:55):

And then on a scale that’s really even beyond the Whiskey Rebellion or the conditional amnesties of Abraham Lincoln. I mean, this is the kind of thing that was in the nightmares with the most paranoid Anti-Federalist, right?

Sai Prakash (11:07):

It’s hard to figure out how many people were benefited by the pardon because no one at the time is going around to people asking them, “Did you do this? And therefore, did you benefit from the pardon?” It’s possible that some people are benefiting from the pardon whom the authorities don’t know participated in these activities, but if you’re not prosecuted, you don’t even need the pardon, right? It’s only if you’re about to be prosecutor, you’ve been convicted that you need to pull out the pardon. But it’s certainly a broad thing and it sets the stage for the pardons that follow. I think probably the pardons by Lincoln and Johnson are broader because there’s more people by the time of the Civil War. And there’s certainly lots of officers who are participating in the Civil War, both civil and military in the South, and obviously some people involved in rebellion who are in the military who are involved. So I don’t know what the largest amnesty was, but I would suspect it’s the combined effects of the Lincoln and Johnson pardons.

James Patterson (12:04):

But I mean, what other choice did they have? As you point out in the case of Washington, otherwise you would’ve been forced to have to deal with maybe guerrilla war or mass executions. As bad as it seems, this is really the least bad option.

Sai Prakash (12:19):

I agree with that completely, James. I will say that during the next rebellion in the Adams administration, the Fries’s Rebellion, which is another rebellion over tax. Americans don’t like taxes, right? There’s the Tea Party and then there’s these two rebellions about taxes. John Adams says that George Washington shouldn’t have pardoned those people. And his thought at the time is, “Well, if you keep on pardoning rebels, there’ll be more rebellions because they win either way. If they prevail in the rebellion, they get what they want. And if they fail, they get pardoned.” So there are people who are saying that you can’t pardon everybody in a rebellion. It’s a function of whether you think you can militarily subdue them and whether you want to. So I think in the context of the Whiskey Rebellion, Washington could have militarily subdued the folks who were engaged in it, but he thought it was better not to. He had some mercy in him, and that’s why he did it.

(13:16):

But from the perspective of John Adams four years later, he’s thinking not of that moment. He’s thinking, well, what signal does this send to rebels that they always might think they would get a pardon and therefore they’re more willing to engage in a rebellion because they expect a pardon. And I’m not saying he’s right, but you could see why there would be critics of a mass pardon. There were a lot of critics of Lincoln and Johnson in the Civil War because some people wanted the rebels to be hanged and they weren’t going to be hanged if they got a pardon from the president.

James Patterson (13:49):

Yeah. It’s hard to read newspapers with fatalities in them and then want to give the people that caused these fatalities clemency.

Sai Prakash (13:57):

Oh, of course. Yes. And so many Americans died in that conflict. And if you’re from the North, you might think it’s because these guys were traitors to the Constitution and they should be punished, not merely legislatively, but criminally in some way.

James Patterson (14:12):

At the end of Chapter Five titled “A Tale of Two Clemencies,” you refer to the, I think it’s the Biden and Trump pardons. You say that one set of pardons would block future prosecutions, the other set overturned existing convictions. Each side pointed a finger at the other. Truth be told, both sides had a point. What point is that?

Sai Prakash (14:32):

Maybe it’s too subtle because you’re asking the question, but I do think that both sides are weaponizing prosecutions and are being perceived as doing so. So I think the Biden folks think that they prevented Trump from prosecuting these folks because they were fearful that Trump would weaponize prosecutions. I think that there’s some reason to think that is what’s going on. It’s a bad look for the president to talk about going after your enemies and I am your retribution and I am your vengeance. It sounds more like Batman than it does a president. It just sounds kind of dark and I think sends the wrong signal to people. So I think they were worried about those prosecutions. I think those have come to fruition in many respects. I think that some of the prosecutions against the presidents, many people think that they reflected some kind of politicization of the prosecution process, both at the state and federal level.

(15:30):

And obviously people will disagree about the perception that the other side has, but I think they both are right in the sense that I think both parties are indulging in prosecutions that reflect partisanship or personal advancement more than they reflect the dispassionate analysis of the law and facts.

James Patterson (15:50):

And this really does point to a broader change in the perception that people have of executive power, that it’s more discretionary. I mean, here we are speaking today. The Court has ruled against emergency measure tariffs, right? And in this respect, kind of running contrary to, I think, a lot of the feelings of dedicated partisans for Donald Trump, is perhaps the pardon power sort of latched up to this notion of a more prerogatively driven presidency.

Sai Prakash (16:20):

Yeah. I mean, as I discussed in the book, James, I think we’re entering into something called pardon dystopia where pardons are used primarily as instruments of partisan or personal politics and not instruments of mercy. Of course, pardons could still be issued for mercy, but more often people are going to view the pardon as a measure designed to advance the partisan interest of the president or the president’s personal interest in some way. And that’s very corrosive, but unfortunately I think it’s true. Why do I think it’s true? I think there are four elements to this pardon dystopia. First, presidents are now running for office promising pardons, and they’re doing so for electoral purposes. Why does Joe Biden promise pardons for marijuana users? He believes it’s electorally useful to get the youth vote. He waits two years to issue the pardon after making the promise. It’s right before the midterm election on the same day he issues student debt relief.

(17:17):

It’s just designed to get the youth vote because he could have issued that pardon much earlier. But the point is he’s making this promise to get votes. I think Donald Trump makes a similar sort of promise with respect to January 6 folks, and I think he’s appealing to his base to show you, I’m going to fight fire with fire by pardoning these people. I think it’s bad for presidents to run on a promise of pardons. I don’t think that’s a political thing that you should be wielding and promising to your base because I could see it having all kinds of issues. Vote for me and I will pardon your uncle, vote for me and I’ll pardon your cousin or your friend. And I think the president has the authority, but I think it’s misuse of authority to do so for political purposes. The second thing is what I call policy pardons, where there’s no promise of a pardon, but the president just doesn’t like the statute.

(18:09):

Joe Biden evidently doesn’t like the death penalty. He commuted lots of sentences from death to life. And that’s fine that Joe Biden has that policy or has that view, he’s entitled to it, but the statutes of the United States have a death penalty. And I don’t think it’s the president’s place to just change the punishment to a different punishment because he doesn’t like the penalty. So imagine that you have a president, say, John Smith, who thinks that the tax fines are too high. He thinks people shouldn’t pay penalties if they don’t file their taxes. And he just says, anybody who doesn’t file their taxes should pay them, but I don’t think any of them should be fined. I’m going to pardon all those things. He’s just basically changing the law as to the fines that accompany taxes. And presidents have lots of policy views about the appropriate sanctions that ought to attach for violating the law, but I don’t think the pardon power is an instrument of just changing all those statutes to reflect their wisdom in a downward way.

(19:09):

That’s the second element. The third element is shielding your political allies—your allies from the consequences of their actions. And so the pardon by Joe Biden on January 19 of January 6 committee members and Mark Milley and the former head of the CDC, Anthony Fauci, and others, was obviously designed to protect them from Trump prosecutions. And of course, you could tell a story that was needful in some way. On the other hand, you could see why a president might want to pardon all his ideological allies as he goes out the door because he wants to prevent the next administration from prosecuting them when they’ve done something wrong. And I do fear that we’re going to have situations where presidents tell people, “Do what I tell you to do, and I will pardon you at the end, and you will not be prosecuted for doing what I tell you to do.

(20:00):

Now, what I’m telling you to do is legal, right?” The president will say that, but they won’t necessarily think so, and that’s why I’m going to pardon you. That’s corrosive, I think, and it creates bad incentives. And then the final thing I think is the presidents are now … I think the doors opened now to pardon the folks who contribute or do business with the president, and I think that’s problematic. There was a severe adverse reaction to the pardons by Bill Clinton of Marc Rich and people who would be helpful to Hillary Clinton’s Senate campaign. And I think the reaction was a healthy one. It’s wrong for the president to try to help either himself or his spouse secure election or reelection through issuing pardons. That’s what was going on. These people are in New York, right? There’s a New York Hasidic Jew vote.

(20:51):

There’s a New York Puerto Rican vote. It’s all about her campaign. And the Marc Rich pardon is about rewarding a donor. And now Trump’s doing similar things, and I think it’s corrosive of public trust and institutions to think that people who donate are more likely to get a pardon. And of course, if you are someone who seeks a pardon and you have means, why wouldn’t you donate? You do think, I think correctly, that donating will get the attention of the president, it may not get you a pardon, but you can’t get a pardon from the president unless he sees your application and donating or doing business with the president makes it infinitely more likely that the president will think about whether to give you a pardon than if you don’t. You or me, Joe Schmoes, who don’t have millions of dollars, if we’ve committed an offense, it’s going to be much harder for us to get the president’s attention.

(21:45):

Because as we all know, the president’s got a very busy agenda and pardons are only one tiny part of that. They just don’t have the time to consider all the pardon applications that are sent to them.

James Patterson (21:58):

Yeah. You actually have a whole chapter on the pardoning industry. Of the things that I read, it was the one that I knew the least about, right down to the fact that I didn’t know it existed. And then as I started to read, it’s like, “Oh, of course this exists. Why wouldn’t this exist?” And so what is this 2-tiered pardoning system that you describe?

Sai Prakash (22:19):

Sure, James, that’s a great question. So there’s an ordinary process of applying for a pardon from the Department of Justice, and they have all kinds of restrictions on who can apply. And they’re actually quite restrictive. You usually have to serve a couple of years before you apply, which technically means you can’t apply if you’re innocent according to their rules. You can apply, but it’s like you need special circumstances. And that’s a very arduous and laborious process because the Department of Justice, the Office of Pardon Attorney, then seeks the opinion of the prosecuting attorney and other people about whether they should grant the pardon. Eventually, a decision is made after a long and laborious process, careful process. That recommendation is made to the Deputy Attorney General. The Deputy Attorney General then reviews all the recommendations by the pardon attorney. They make their own recommendations to the White House, and then the White House somehow structures these applications and gives them to the president because they don’t give them all to the president.

(23:17):

And then the president makes a decision. That’s a process that takes years, right? Ordinarily, it takes years. That’s one process. The other process is you know someone in the White House, you know the president, you have connections to the White House, you know someone who knows someone in the White House, you apply directly to the White House, right? You pay a lobbyist who has connections to the White House. They give the application to someone who’s their connection in the White House and that person hopefully sees it to the president’s desk. And you short circuit that entire process at DOJ and you make it more likely you’re going to get a pardon because you have some advocate in the White House who’s connected to your lobbyist. And so that’s the 2-tiered process, right? And it’s not unlike other things in life, if you have connections, it’s just going to be easier for you to get a pardon.

(24:08):

And lobbyists, as you know, have connections. That’s what they’re selling to their clients. And so the book describes lobbyists charging millions of dollars to help secure a pardon. And sometimes there’s a payment just for lobbying. Other times there’s a payment for lobbying and a success fee. So maybe you pay someone a million dollars and if they succeed, you pay them two million more. But in all events, you pay them a million dollars. We don’t know what people are being paid, but newspaper accounts are quoting a million or two or more. Someone asked for $30 million, they didn’t get it. The other thing that you have to realize is that people are avoiding fines of hundreds of millions of dollars. So suppose, James, you’re looking at a hundred million dollar fine. It might make a lot of sense to hire a lobbyist for 20 million to avoid that fine.

(25:00):

Because if you get a pardon and you’ve only paid $20 million, that’s a bargain compared to a hundred million. And so given some of the fines that people are facing, and the jail time, they’re happy to spend four or five million dollars. It’s a sound investment given the expected value of the pardon process. They may not get it, but it’s still worth the chance. So $20 million, if you owe $500 million is totally worth it, if there’s a good enough chance of you succeeding. So that’s why there’s eye popping figures being thrown about. Obviously you and I would never pay that much because we don’t have it, but we’re not facing $100 million fines and we don’t have a wealth of $200 or $300 or $400 million. I’m assuming you don’t. I know I don’t.

James Patterson (25:48):

No, I definitely do not. It doubles the injustice, right? Because on the one hand, you have the person who should be prosecuted and isn’t. And then you have the nation increasingly responding to wealth as a source for justice rather than to law.

Sai Prakash (26:07):

It does. And you’re right that the wealth matters on the front end for whether you’re indicted or whether… Your lawyer, if you’re wealthy enough, can try to convince the prosecutor not to go forward. If you’re wealthy, you hire a good lawyer who then defends you and then increases the chances you’re not convicted. And if you’re wealthy, you hire a lobbyist who then tries to get you a pardon. So wealth does matter across all these things. And this lobbying for pardons makes the situation worse. I will say this lobbying for pardons goes back to Great Britain. It’s not an American phenomenon. People close to the king often sold access to the king. And so it’s not just an American phenomenon. It existed in Great Britain. And there are stories of pardons or lobbyists for pardons going back to the Lincoln administration. I don’t know if there were earlier stories, but they definitely go back to the Lincoln administration in this country.

James Patterson (26:59):

Yeah. Now that you say that, I have a question for later, but I’ll ask it now. Do other nations employ the same kind of pardoning power like France or Poland in modern constitutional states? Or you mentioned at the beginning, that there are these multitude of traditions from Indian to Islamic to Jewish to Christian. Do contemporary nations have similar ones or is that something you’re not really working on?

Sai Prakash (27:22):

I didn’t really look at that too much, but there’s going to be variation across nations and across the United States, right? Every state has some kind of pardon authority, but sometimes it’s given to the governor, constrained by the legislature. Sometimes it’s given to a pardon board where the governor may appoint but doesn’t actually make the decision. And so I think the federal constitution is fairly unique and different in giving the president rather broad authority, unilateral authority. I think the states fracture the pardon power and limit it far more than the federal level. And I’m just not as familiar with what states are doing, but as many of your listeners may know, obviously other states have pardon powers. President Trump asked the president of Israel to pardon Benjamin Netanyahu, which I took to mean that the president of Israel has a pardon power and can exercise it to benefit Netanyahu.

(28:17):

I don’t know if there are criteria that he has to satisfy first, but people get clemency elsewhere. It’s a feature of the system that nations and substate units believe that there has to be some way to eliminate or mitigate the punishment, eliminated if the person’s innocent, eliminated if it’s necessary to reconcile them to the nation, mitigate it if it just proves that this person doesn’t merit the punishment that we thought they merited upon reflection because they’ve been exemplary in prison or otherwise.

James Patterson (28:50):

So you mentioned the officer of pardoning attorney and the Department of Justice. So what is the size of that office? How many people work there? I ask because you also mentioned that, of course, pardoning is a very small part of a president’s day. So I must imagine budget outlays for such an office are relatively small, right?

Sai Prakash (29:09):

I don’t know the number. I think the number is far lower than it was before because a lot of the … So I think today, the locus of pardoning authority, it’s fair to say is in the White House under this administration. There still is a pardon attorney, but there’s also something called a pardon czar in the White House, and that’s because President Trump is acutely interested in issuing pardons, and so he wants to have a greater control over it and less control in the bureaucracy. And so more pardoning decisions are just being run through the White House rather than the Department of Justice. As a result, I think the Department of Pardon Attorney is far smaller now than it was a year and a half ago when President Biden was in office because some of those people don’t want to work for the president and that just reflects their views, but I think there’s just a sense that the pardon attorney has less of a say in who gets pardoned if more people are directly lobbying the White House and they’re issuing more pardons.

(30:08):

To make another point, I don’t think a portion of the day is spent reviewing pardons. For most presidencies, they’re not thinking about pardons at all. It’s episodic. Occasionally they think about pardons. In the past, it was, “Let’s issue pardons on days of thanks like Thanksgiving or days of celebration like Christmas.” And that would require them to think about who to pardon before those days. But it wasn’t as if there’s an hour every day devoted to pardons. I don’t think there’s anything like that. It takes a very small part of the president’s day. A presidency, very little of it is spent on clemency decisions by the president, I would venture to say. Some amount of time is being spent, but a lot of it’s tied to these holidays, a lot of it’s episodic. And then quite frankly, a lot of it’s at the end of the administration.

(30:55):

Before they leave, they often act on a backlog of pardons and they make the more controversial decisions that they didn’t want to make earlier because they didn’t want to be criticized about it. It’s easier to pardon someone as you’re leaving the door or leaving the White House because now the attention’s all on the new president and not on what you did.

James Patterson (31:14):

There’s a Nicaraguan president who was pardoned on December 1, 2025. I thought that was remarkably early because it was a pretty controversial one, too. This was a person we actually sought after to place in jail. And now we’re just letting them go?

Sai Prakash (31:38):

Yeah. I don’t understand why the president did that. One of the interesting features, James, of some of the people who’ve been pardoned by President Trump is a claim that they were persecuted by prosecutors and persecuted by the Biden Justice Department. And so a lot of pardon applications to the president now claim that the person was persecuted in some way because I think they think that will resonate with the president. And of course, if you believe some injustice has been visited upon you, you’re more likely to sympathize with other people who claim the same injustice. And my recollection is this ex- leader claimed to be persecuted, and I guess that resonated with the president. I don’t otherwise know why the president did it.

James Patterson (32:17):

What are some possible reforms, if any, possible for the pardon power? I mean, certainly such reforms would require a constitutional amendment, right?

Sai Prakash (32:26):

Yeah. The court has said that Congress can’t regulate the effect of a pardon. I think it follows that they think that Congress can’t limit the pardon to certain offenses, like say, exclude out murder or treason from the pardon power, which means Congress can’t pass the statute saying the president can no longer pardon murder or treason. So, they’ve kind of said, I think for good reasons, that Congress just can’t regulate how the president issues a pardon, which means that if you want to constrain the presidential pardon power, you kind of have to pass an amendment to the Constitution. I propose several amendments. I think you could imagine that a pardon doesn’t take effect until both chambers agree to the pardon. That would have the effect of making it very hard to get a pardon because it’s very hard to get Congress to agree on anything, especially given the Senate filibuster.

(33:17):

So I think that would mean that the pardon power is radically circumscribed if you required the president to get the consent of Congress first. Maybe a better approach would be to say the president can provisionally pardon someone. If neither chamber disapproves of the pardon within 60 days, it takes effect, which is effectively giving each chamber a veto over the pardon that’s exercisable within 60 days. I think that’s a way of getting at the sense that maybe particular pardons are inappropriate in some way and giving one House the ability to stop them. I think that’s a useful restriction because if one chamber disagrees, that perhaps suggests that it is inappropriate what the president did. Now, of course, it might reflect partisan considerations. And so this power could be abused, but of course we’re also talking about a power that could itself be abused by the president.

(34:11):

And so we’re not going to escape from politics by having the House or Senate check these things, but I think it still might be useful to say we know that Congress can be partisan just like the president, but it’s meaningful when one chamber says that this pardon shouldn’t stand and then it wouldn’t stand.

James Patterson (34:30):

The book, The Presidential Pardon: The Short Clause with a Long, Troubled History, the author, Sai Prakash, thank you so much for coming onto the Law & Liberty Podcast.

Sai Prakash:

Thank you, James. Thank you to all your listeners, too.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts, and visit us online at www.lawliberty.org.

Related Links

Why Democracy Needs the Rich by John O. McGinnis
“Blessed Are the Rich,” book review by James E. Hartley, Law & Liberty
“Liquidate the Rich?” by John O. McGinnis
“Mother’s Milk of the Revolution” by John O. McGinnis

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund. Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, senior editor to Law & Liberty. With me today is John O. McGinnis. He is the George C. Dix professor in Constitutional Law at the Pritzker School of Law at Northwestern University, also a contributing editor to Law & Liberty. And we will be discussing his book, Why Democracy Needs the Rich, recently published at Encounter Books. Professor McGinnis, welcome to the Law & Liberty Podcast.

John O. McGinnis (01:10):

Delighted to be here with you again.

James Patterson (01:14):

This is quite a provocative title and the title is also the book’s thesis. So tell me, why does democracy need the rich?

John O. McGinnis (01:22):

The argument is that the rich play a very important sort of Madisonian counterbalance role. That’s the first important role they play in democracy. So the complaint, you have to understand the premise of attacks on the rich in democracy have been that they have more influence than the average citizen. And I can see that, but note that there are a lot of groups that have more influence than the average citizen, the media, entertainers, academics, bureaucrats. They all are very important in shaping our public policy much more than the average citizen. And this was recognized from very early on. In fact, the name was given by Samuel Coleridge to this group called “the clerisy.” And their views all move in essentially one direction today. For reasons we can explain to the left, the rich have a much wider range of views. And so they actually act as a kind of counterbalance in a representative democracy.

(02:27):

It’s hopeless in a representative democracy to think that everyone’s going to have equal influence because many people aren’t interested and representatives have the opportunity to choose whose views they’re going to take seriously between elections. So we’re going to have differential influence, and what’s important is to have a plurality of views, and the rich really contribute to that. So that’s one of their important roles in democracy. There are others, but maybe we should begin with that one.

James Patterson (02:57):

Yeah. So you do talk about the clerisy at the beginning of the book, and they’re really like a combination, as you say, of bureaucrats, journalists, and academics. They have a major advantage in an American democracy that the rich don’t have. So why don’t you tell me about what you just assessed that advantage to be and how the rich counteract?

John O. McGinnis (03:17):

Well, their advantage is it’s their job to influence public opinion. That’s what they do. And that’s not what the rich do. What the rich have that the average citizen does not, they have both the resources and the independence to have some influence. So the independence is that many of them, most of them really aren’t very dependent on anyone else for their next dollar, except maybe consumers who aren’t that interested in their views, so long as they’re getting something for their money. And they also then have the resources and networks to shape views. And we see that in a variety of ways, both in their spending at election time, but also they’re setting up counter-infrastructures at universities through groups like the Federalist Society that inject a greater plurality of opinion because anyone like me who’s within a university recognizes how very strikingly homogeneous are the views.

(04:24):

And they’re all to the left. And in the law school world, which is what I know best, that actually leads to a lot of distortion. I mean, we want to have all views represented to get the best public policy. And organizations like the Federalist Society funded almost entirely by wealthy foundations and wealthy individuals are essential to ensuring the plurality of opinions that’s necessary for a democratically functioning society. So the rich turn out not to distort democracy as so much to correct distortions because it’s always been understood. The clerisy was thought to be a group that was necessary to lead democracy, but it’s always been understood by well-informed observers of democracy, that there are going to be some people who are going to have more power to shape it because the average citizen isn’t going to participate at least and think deeply about the issues before society.

(05:26):

They may vote and that will have an influence as well, but they’re not going to come up with the infrastructure of policy. And that’s one of the things that the rich help do by funding alternative centers of power.

James Patterson (05:40):

So not only do the chattering classes have a disproportionate influence on American democracy, so do interest groups. And the reason is that these organizations are especially mobilized to secure advantages from the government, such as subsidies or regulatory carve-outs. Are these not bastions of the rich? And if not, how do the rich differ from them in trying to pursue these efforts?

John O. McGinnis (06:05):

Well, the rich do. So I’m clear in the book that there are corporate interests that are special interests. So let me begin with the proposition that you began with, which I think is one of the most accepted propositions of political scientists that concentrated interest groups like unions, corporations, have differential power in the political process because they’re very focused on a few issues. They can raise money to get representatives interested in these issues and bring information to the fore. And the diffuse people, consumers, taxpayers, they have a collective action problem in combating these issues because often the special interests are against the interest of the diffuse interests. They like subsidies, they like regulations that will harm taxpayers and consumers. So the rich are able to counteract that again by their independence. They are not dependent on these interest groups. Moreover, they have the resources and then they have a kind of ideological interest.

(07:14):

They have perspectives on the world that are against some of the perspectives that the interest groups come up with. And we see that today. You might say the most important issue always for democracy is educating the next generation. And there, there are interest groups, the bureaucracies within K-12 education, the teachers, unions. I’m not saying that they don’t have some public spiritedness, but they obviously are shaped by their own interests. And that what the rich do is they offer a broad range of opportunities and perspectives, and they put their money behind it. So they’ve been behind charter schools, school vouchers. But interestingly, they’ve also, some of the more liberal-leaning rich people have tried to improve public schools from within. So they’re given a menu of options that we don’t see coming out of the interest group world, and that’s the way democracy can improve.

(08:14):

One point I make is that democracy improves by trial and error. Special interest groups are not actually so interested in trial and error because, of course, sometimes the trials are going to lead to results that aren’t congruent with their interest. They can’t predict exactly what’s going to happen, but the rich are able to do that. And one other thing they do, I think that comes from their entrepreneurial background today, is they’re very interested in funding professors and other social scientists to evaluate the results of these experiments, to see what happens with vouchers or extra money for smaller class size at public schools. And we have some results from them. And that’s again, the way democracy improves. And it wouldn’t improve as quickly if we just had the menus served up by, or at least shaped very heavily by the special interests in an area like education.

James Patterson (09:08):

Yeah. I just was flipping through trying to find, but I couldn’t, but, the section where you talk about Mark Zuckerberg donating a just eye-popping amount of money to a public school system with the impact being the sort of rearing back of declining test scores. And in this way, he’s operating kind of contrary to the instincts of, say, the teacher’s union, which is more about protecting teacher benefits.

John O. McGinnis (09:36):

Right. He’s doing that and he does it through public schools. And it does seem to help with math a bit. It just doesn’t seem to help that much with reading. And you then can compare it with other ideas of creating charter schools. He did it within New Jersey. I think it was like $200 million. It was a very large amount. I’m not sure how successful that turned out to be. I think it had some success, but one of the points I make in the book is not every intervention by the rich in public policy will be wise or will be successful, but that’s not the real point. The real point is they give a greater variety of interventions. And then particularly in our more empirically oriented world, and often funded by the rich themselves, we can evaluate the results of the experiments. And that’s one way democracy moves forward.

(10:28):

So even if Mark Zuckerberg didn’t completely succeed, the idea of putting different ideas on the table is an important one, and the rich are able to do that.

James Patterson (10:39):

So you describe in Why Democracy Needs the Rich the United States as a commercial republic, both in its founding and its operation after the founding. So how did the founders incorporate the rich into the regime and what role do you think they play in preserving a commercial republic?

John O. McGinnis (10:56):

Well, the rich were important. And one of the points I make, which I really hadn’t thought about is they’re important to the existence of the United States. I don’t think it’s sufficiently understood how the American Revolution depended in many ways on the wealthy John Hancock. We know, of course, from a signature on the Declaration…

James Patterson (11:17):

Haym Salomon. Yeah, there were tons of them.

John O. McGinnis (11:19):

They were crucial. We didn’t really have a Navy. It was really the rich people who actually created vessels as essentially entrepreneurship trying to capture British ships. So they’ve been very important since the beginning of the Republic. And moreover, it was the thought at the time, commerce was understood to have wide advantages over just actually creating wealth, which was also thought to be obviously advantageous in shaping the manners and making the manners of people better when they don’t have to worry putting about food on the table every day. That was thought to be an important way of improving society. But also by creating commerce, people are put in relations with one another of markets, so they really realize they have to do things for one another. And that’s a unifying aspect of society. And then even there was thought that we have commercial relations with other nations that created opportunities for peace and lessen the opportunity for war.

(12:28):

So commerce was thought to be an extremely valuable aspect of any society. And if you look at the US Constitution, a lot of it is about making a commercial Republic. Of course, the Commerce Clause allows Congress to get rid of state restrictions on commerce. And that’s really the concern. One of the greatest concerns about the Constitution was to do that. So at the very beginning, commerce was thought to be an ideal, was actually thought to promote some of the virtues of democracy, the manners of the people, the connections of the people in democracy, and the Constitution was structured to promote Congress. So very early on, commerce has been important. And it remains, I think, a mainstay of America today. It’s why America continues to be the innovator in the world. If you look, for instance, at issues of AI or the internet, it’s been essentially the United States that has created all of these essential enterprises that other nations in some sense free ride on our innovations.

(13:46):

It’s also true that in healthcare, the United States through its biomedical infrastructure is by far the leader in innovation and other countries help themselves to our discovery. So the idea of commerce was important to the Early Republic, and it continues to have benefits not only to the United States, but to the world as a whole. And so that’s the essential aspect of the United States as a commercial republic.

James Patterson (14:15):

I find that students are often unaware of some of those passages in the Constitution because they’re just so routinely followed. And one of them being the free trade among the states. This is something that was maybe not as obvious at the time of framing the Constitution, and we sort of reaped those benefits without thinking much about them.

John O. McGinnis (14:36):

That’s right. There’s no doubt that that was one of the motivations for the Constitution. And sometimes we don’t think that it’s the non-controversial aspects of the Constitution that really are our foundation. It’s not what we’re debating about the hard issues in the Constitution, but the consensus that everyone accepts on which our society is founded and is prospered. And the Commerce Clause is certainly, I think, foremost among those provisions.

James Patterson (15:08):

So the common view, this is maybe not the prevailing view, but it is a common view that the rich primarily used their wealth to engage in elaborate forms of consumption, like enormous yachts docked at Monaco or flying private jets to avoid a traffic jam. It’s sort of like the Taylor Swift, sort of … she takes a 20-minute flight to Burbank instead of driving. What do the rich do in markets that do not only satisfy their own needs, but improve the lives of everyone? We sort of already touched on this a little bit.

John O. McGinnis (15:41):

Well, it’s no doubt that some rich people spend a lot of money on conspicuous consumption. There’s absolutely no doubt about that, but there are two points I would make about that. First of all, it’s a very small proportion of the benefits they give every one of us. I mean, Jeff Bezos has a big yacht, but almost everyone today has the benefit of his daily deliveries that he experimented with. He created this economy that allowed people to get all sorts of goods delivered to their door, and that’s a huge benefit to people. So that’s one point I would make. Another one I would make is as well, the long-term trend of the rich, even despite their continuous conspicuous consumption, I think has been to equalize the actual living experience of middle-class people and the rich. Now, I leave the poor out of it for a moment.

(16:40):

We can come back to that, who I think is a problem of lack of skills and participation in the economy. But I compare myself, for instance, a professor to Peter Thiel and compare the closeness of experience, our relative closeness of experience to some duke in the seventeenth century and some don at Oxford. The world that Thiel and I inhabit is a much more similar world. We do many more of the same things. One reason is that one of the things that rich have done with their innovations and entrepreneurship, they’ve kind of dematerialized the world. I have access to the same information that Thiel does. I can get essentially a chauffeur by my phone to get me to wherever I want to go. These are innovations that have come from people who are now wealthy, and they actually, I think, mean that our experience is much more similar.

(17:42):

And I think this is going to continue, actually. I think we’re going to see a dematerialization in a way that people, well, I can imagine 20, 30 years from now, have almost the experience of being on a huge yacht that isn’t all that different from Jeff Bezos’. So I certainly acknowledge there’s conspicuous consumption as there always has been with the rich, but I think it’s less actually different than the middle class than it once was and that they give tremendous benefits. Another thing they do, which I talk about in the book is that they kind of are prospectors. They go out and do things that no one else would imagine doing. This one fellow who tries to optimize his health with all sorts of resources that he has and then publishes all the data on that. That’s something that an ordinary individual of ordinary wealth could not do, and yet that’s a benefit.

(18:44):

So some ways to think about rich people are kind of prospectors. Some of their ideas turn out to be crazy and maybe actually make their lives shorter and less pleasant, but other ideas redound to our benefit. So I think you have to think of the whole ecosystem of the rich and not just focus on their conspicuous consumption, which is a shiny thing that maybe get people excited. Of course, envy is a fact of life. It’s a part of the human condition. But I think when you think through things, there’s less reason to be envious than ever before, even a very rich people.

James Patterson (19:24):

So in Why Democracy Needs the Rich You explain how the rich are central to the formation of associations that Alexis de Tocqueville thought was vital to the preservation of political liberty and modern democracies. So this is not a function that people normally assume the rich really participate in. So why don’t you explain to the listener how they do that?

John O. McGinnis (19:44):

Well, the rich people, again, so setting up an association is itself a risky enterprise, and the rich people bring their social capital and their real capital to that. And throughout American history, they’ve been important to setting up associations, the YMCA or organizations like that, which the rich still contribute. We go from rich people in the nineteenth century to doing that, to Bezos’ divorced wife contributing to enterprises like that. And so they’re always important in that respect to get the seed capital, to sometimes bring in capital to refurbish these organizations when some of them fall on hard times. And then we also have a real problem in the modern world is actually affluence has made it harder to get other people to volunteer for organizations. And the reason I think basically for that is there’s just a lot more opportunities. You can look at cable TV, you can do all sorts of entertainment activities.

(20:54):

And that means that sometimes associations are not as attractive to people, and the rich actually make them more attractive by actually not paying people, but paying people in kind to associate. So if you join some environmental organizations, you get a big payoff from

(21:16):

organized trips, which sometimes the organization helps fund, funded by wealthy people. So those are ways that they actually use their money to substitute or to encourage more associations than would happen in our rather individualistic world, in our world where people have so many opportunities today to do other things than Tocqueville saw on the frontier, when of course, reading groups and groups of self-improvement associations of the kind that are talked about in the Little House on the Prairie by Laura Ingalls Wilder  that dominated towns in the nineteenth century have fallen into harder times. The rich provide some substitutes for that in the modern world.

James Patterson (22:08):

Yeah. And they also, in that same chapter you talk about how … And this was kind of counterintuitive for me, so I wanted to ask you about it. They also buck a kind of conformity that democracies fall into. What do you think accounts for that?

John O. McGinnis (22:26):

Well, Tocqueville was really worried about conformity. So one thing I’m honest about in this book is democracy has its virtues. It certainly is the worst system but for all the others, which Churchill praised it with, but it has weaknesses. And Tocqueville, who is our greatest theorist of democracy, saw those. And one thing he worried about was conformity. That what democracy does is it gives the majority the opportunity to sort of worship itself. What their preferences are, are really God’s preferences. And it turns out obviously enough that some of their preferences turn out, at least in retrospect, to be sort of terrible. And the rich have a kind of independence because one reason that even you don’t want to be too far from the majority is that curtails your opportunities and gets the majority angry at you, particularly if it’s something that’s kind of the core of their beliefs.

(23:29):

But the rich, again, have independence, networks, and resources that make them less likely to be conformist. And we’ve seen that. I think one of the greatest examples of that is, well, the Founding itself was an example as I noted of that, but one of the greatest examples is the abolitionist movement. That is funded very heavily by the rich. I talk about the Tappan Brothers at that time who paid a great deal of price. They were burned in effigy. Some of their houses were burned down. That’s something that they could endure because they had a lot of resources. Of course, some people just wanted to continue to associate with them because they themselves gave opportunities, and they were very important voices in that. And that’s true in the women’s rights movement as well, even to some extent in the civil rights movement. Now, I don’t want to say that one of the things I want to be careful of is saying that the rich are the only group that’s necessary to democracy.

(24:36):

They were catalysts to other movements. They were catalysts to other people. It was crucial that politicians, that African Americans themselves, played very important roles. So I don’t want to be understood as saying that the rich themselves created were the abolitionist movement, but they were important catalysts for it and other movements for justice that went against majority views because abolitionism, even if slavery was not very popular, abolitionism wasn’t very popular either for a long time in the United States. And so these abolitionist societies were catalysts of a movement that, of course, ultimately resulted in the Thirteenth and Fourteenth and Fifteenth Amendments to the Constitution. Of course, amendments that I think are correctly understood to be a new birth of freedom in the United States. And people like the Tappan Brothers played a very important role, and it’s hard to believe they would’ve played that role, but for their independence and wealth.

James Patterson (25:41):

So we are both academics, and so I think we see up close a little bit more the work that rich people do in philanthropy, and I don’t think it gets a lot of popular attention. So why don’t you speak a little bit about philanthropy and the way that it influences the lives of so many people?

John O. McGinnis (26:03):

Well, so philanthropy happens at a variety of levels. Some happens again at the level of experimenting with ways of trying to help poor individuals. So Gates Foundation has been very, had a lot of efforts to help homeless people in a different way from most governments, in a way that tries to follow them and I think tries to get them up on their feet in a way they hope is going to be much more effective. So there is a lot of what I would call social welfare spending by the rich. I think even more important is the way that they create different centers within universities because we see, I think, firsthand, and this goes back again to the homogeneous views problem of universities, that we’re educating the next generation and of course the elite of the next generation in universities. And yet, unfortunately at many, if not most elite universities, there’s really not a diversity of views on social matters.

(27:17):

And it’s the rich who are really very important in creating that diversity with their philanthropy. So it’s a remarkable to look at the Federalist Society at law schools, but let’s take a look at what I would call the civic center movement in the United States.

James Patterson (27:38):

Tread carefully, John, that’s my job!

John O. McGinnis (27:41):

No, I’m delighted to give a plug for it. But let’s think about how I think one of the crucial ways, again, the catalyst to that movement.

(27:52):

Many of the current civic institutes within universities that have create different and more diverse and diverse perspectives even within them are funded by the states. But I think it is fair to say that the original civic center was a private center and that became in some ways the model. And that is Robbie George’s Madison Institute at Princeton University, and that did not depend on any state money. It depended on foundations, wealthy foundations, nationals like the Bradley Foundations. And because of that and because of Robbie’s great entrepreneurial skills, this became a model that, again, had influenced throughout the country. And so what’s one of the most interesting aspects of the wealthy is not focusing just on their general philanthropy, but again, the way that they offer a lot of different kinds of philanthropic enterprises. And some of the enterprises don’t really catch fire, but what’s important, and that’s true, a lot of companies don’t catch fire.

(29:07):

There are a lot of bankruptcies, there are a lot of things that are unproductive, but the ones that do catch fire, those change society, and it’s worth having the rich being these prospectors. And I think the civic education movement within universities is a very important one, and I do not think would’ve come to its certainly the same kind of fruition without, again, the catalyst of wealthy philanthropy in the form of the Madison Institute.

James Patterson (29:41):

Between me being a James Madison postdoc and the civic center I work for here at the Institute of American Civics at University of Tennessee, I basically owe my entire career to Robbie George.

John O. McGinnis (29:53):

And Robbie, I think I would acknowledge that he couldn’t have done it without the resources of wealthy foundations. I’m sure he would acknowledge that. I mean, he’s, again, I think an amazing academic entrepreneur, but unless he was individually wealthy, he could not have set up the infrastructure that he has without help.

James Patterson (30:14):

Exactly right. So the argument against the influence of the rich in politics, less true today, but it’s primarily from the left. But what’s strange is that there are a lot of wealthy people on the left who fund foundations to propagate this view. So is the argument really that the wrong rich people have a voice and that really only the rich on the left should be the ones influencing democracy? Is that what’s really going on here?

John O. McGinnis (30:43):

Well, sometimes I think that’s what’s going on, but another time I think there may be a more insidious and yet an argument that’s more likely to actually help the left more, which is if you get rid of the rich influence entirely, whose influence are you left with? You’re left with the clerisy’s influence. And so it’s not that the rich, and this is some arguments I get as an attack on my perspective from the right is, well, they point out there are a lot of left wing rich people. And that’s absolutely true and that they spend money on politics, Soros, Tom Steyer, high school classmate of mine as it happened.

James Patterson (31:31):

No way. Really?

John O. McGinnis (31:32):

But a lot of rich people spend money on that. That’s absolutely true. And they have philanthropic enterprises that conservatives don’t like. All absolutely true. But the question is, in the absence of that, we actually see academics as heterogeneous as has happened because of the resources the conservatives have put in. And this is a basic economic point. At the margin, the dollars of rich conservatives make a lot more difference than the dollars of rich left-wing people because the left-wing people already have the infrastructure of the clerisy. And if you believe, as I do, that one of the great virtues of democracy is that once ideas are able to circulate, even ordinary people get the idea, well, maybe this idea is better than the other idea. So the real danger to the right is to have their ideas not substantially participate in the public sphere.

(32:41):

The wealthy conservatives are much more important in assuring that that doesn’t happen. The wealthy liberals, they’re not necessary for that to be assured. And so that’s the basic difference between the role that … So I might’ve been able, at least at our time, to entitle the book, Why the Conservative Wealthy Are Needed to Democracy, but you can’t choose. You can’t choose. The government can’t make ideological distinctions like that. It’s the entire class of wealthy despite their, and maybe because of their heterogeneous views, help democracy because they make sure that views that aren’t what the clerisy are interested in have a voice.

James Patterson (33:33):

So at the end of the book, you actually take aim at some of the New Right critics of democracy. You describe Patrick Deneen’s conception of aristo-populism, kind of creation of a political class that’s supposed to be aligned with ordinary Americans’ interests. So is the problem with aristo-populist in your view that the rich can’t be them, or is Deneen simply wrong about what kind of people should serve in office?

John O. McGinnis (33:56):

Well, I think the problem with Deneen is he has no idea of who this group is going to be. So I don’t think it’s going to be the clerisy, right? I don’t think that’s where he’s going to get his shock troop for his regime change. So the point I just make in the book is if his vision succeeds, and I’m not necessarily a great fan of it, he needs the wealthy as well. And there are actually wealthy individuals, the founder of Dominio’s Pizza, for instance, who’ve tried to create worlds like his around Ava Maria and a town that is sympathetic to, I would call very traditional conservative values. They’re going to depend on the wealthy as well. So my argument is that they really shouldn’t be as down on the wealthy as some of them are because they really don’t have another group. So many of them, I think, are hoping that they’re in a different world.

(34:59):

The first attack on liberalism was from people like Joseph de Maistre who thought, well, we can revive the throne and altar. And that was a potential. You could imagine maybe at that time that is an elite group that would counter liberalism with a small-L, but that’s completely implausible today. And so I think they’re dependent for any hopes they have, even on the wealthy. Now, whether they succeed or not, I don’t know. And again, I’m not tremendously enthusiastic about their movement, but I think my point is they depend on the wealthy as well. There’s no other elite for them, and they’ve got some members of that who are going to put forward some of their ideas, and that’s fine with me.

James Patterson (35:50):

So just to conclude, something that I found to be a surprise in the book, something I didn’t expect in the least, was the attention that you pay to the potential for technological change, especially in the form of AI. So lingering in the background is this issue of AI. What does this have to do with the relationship between rich democracy?

John O. McGinnis (36:13):

Well, I ended this on the idea was, I thought I should not just talk about the past, but the future. And I think that for better or for worse, AI is going to be our future. We could maybe have another podcast on that. And I don’t think it’s possible for the United States to give up the leadership in AI because AI is so close to military and national security power. So it’s absolutely essential that the United States be the leader in AI. And again, I think the rich play a very important role in keeping us as the leader with their entrepreneurship or entrepreneurial culture, investing in risky matters. So they do that. But I also think AI is risky. I think AI does pose risk to maybe humanity. I’m not sure about that, but I think there’s some possibility of that. And I don’t think it’s going to be the government is going to figure out a way to get around these risks.

(37:20):

They don’t have the information, the talent. And one of the things I’m impressed by is how many of the wealthy are setting up institutes that are just devoted to thinking about how are we going to align AI with human flourishing? How are we going to keep it safe? And they played an essential role in that as well. And again, almost all of these institutes are coming from American, very wealthy Americans in the United States. So it’s both that they push ahead AI, which is the alternative is not to have AI, but they have AI developed by the Chinese or even worse actors on the international scene, but they’re also aware of some of the risks and they’re with their philanthropy trying to meet them. Whether they’ll be successful, I’m not sure. I think AI is by far the most important issue when we’re talking about things like affordability.

(38:22):

My prediction is by 2032, at least, maybe even before, the biggest issue in politics will be AI.

James Patterson (38:31):

The book is Why Democracy Needs the Rich. The guest John O. McGinnis. Thank you so much for appearing on the Law & Liberty Podcast.

John O. McGinnis (38:40):

Delighted to be here. Thanks so much.

James Patterson (38:43):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Related Links

“What Is Total Boomer Luxury Communism?” by Russ Greene (The American Mind)
“Debt Politics” with Mitch Daniels (Law & Liberty Podcast)
“What Social Security Should Do—and What It Shouldn’t” by Sita Slavov (Law & Liberty)
“Slashing Tax Rates and Cutting Loopholes” by Adam N. Michel (Cato Institute)

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture,  informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson. I’m contributing editor to Law & Liberty, as well as associate professor of Public Affairs at the Institute for American Civics at the University of Tennessee. With us today as a guest is Russ Greene. He is the executive director of the Prime Mover Institute and the author of “What Is Total Boomer Luxury Communism?” I guess Russ, we should start with the answer to your question, so go ahead and hit us with it. Welcome to the Law & Liberty Podcast.

Russ Greene (01:16):

Yes, thank you, James. I’m glad to be here. “Total boomer luxury communism” refers to a suite of government policies at the local, state, and federal level that has the effect of transferring wealth at a massive multi-trillion dollar scale each year from younger people to older people. And I can break down each word in that phrase. It has a particular meaning. The luxury part though is probably the one that’s most important because Boomer, that’s pretty obvious. We’re mainly talking about senior citizens. That’s Baby Boomers right now for the most part. The luxury part though, really denotes how these programs are not just about keeping seniors out of poverty. They’re often justified that way, but if you actually look at how they work, they far exceed that level. So Social Security benefits reach past $60,000 a year per individual. So for a couple maxing them out. You could be looking at up to $125,000 a year.

(02:28):

That’s pretty significant. And then Medicare Advantage programs, at least as of last year, some of them were covering greens fees at golf courses, golf balls, tennis lessons, horseback riding lessons, ski trips, et cetera. Again, all funded by the taxpayer. So total boomer luxury communism is just a way to sort of label this massive wealth transfer scheme from younger people to older people, which also, as I mentioned, has local and state policy elements, which really is mainly about how a lot of taxation schemes are designed to lower the tax burden on older people and concentrate more of it on younger people.

James Patterson (03:15):

How did we get here? Originally, the idea was to provide retirement and medical benefits to seniors when they may not even have the resources to stay in the homes they already own. How do you move from the Social Security of the New Deal to paying one’s golf course fees?

Russ Greene (03:37):

Yeah, many different things happened at once. Obviously America changed a lot during that time period in about 90 years. One is life expectancy. So even though life expectancy actually declined for several consecutive years over the past decade, it’s still much higher now. I think it’s around 80, right? I mean, when Social Security was passed into law, it was around 64. The other thing is just demographics. So the dependency ratio, so the ratio of people working and therefore contributing payroll taxes to fund these programs relative to the beneficiaries, it’s just plummeted, right? So in 1950 it was about 16 workers for every beneficiary, every one beneficiary, 16.5 to one. Now it’s below three to one. It’s heading towards 2.3 to one by 2035. So in other words, we have way fewer workers to support every retiree. And the other significant change is these benefits, due to actions, first actions by Congress and then due to inaction by Congress, have just become much more generous over time.

(04:54):

Initially, for example, Social Security benefits had to be adjusted directly by Congress in the 1970s through a series of laws. They basically put them on autopilot. As a result, Social Security benefits, especially for high income people have rapidly risen since then. So the median benefit that she’ll get in 2025 is about 30 to 35% more than it would’ve been in the year 2000, for example. And then on the Medicare side, in the healthcare side, there’s a series of changes. One of them is there’s just an epidemic of overpayments in the Medicare Advantage Program, which these are the privately administered programs, so that’s Medicare part C, and that is what enables all these excesses like Medicare Advantage covering meals and transportation and country clubs and such. And then also Medicaid also has been so means testing for Medicaid programs such as the long-term care, it often overlooks the major assets that seniors do have, such as overlooking up to nearly 1.1 million in home equity. So you can be impoverished as a senior and be a millionaire in the government’s eyes.

James Patterson (06:18):

So when I lived in South Florida, I had this experience of getting a haircut at a joint barber salon sort of thing, and the woman across business was getting her hair done and was talking about taking her Social Security check to the casino and gambling it away. And I told the story—somewhat scandalized—to my parents, and one of my parents said, well, it’s her money, right? She paid into Social Security when she worked. Is that true? Is that how Social Security works? You pay in and then you receive benefits that match what you paid in?

Russ Greene (06:58):

No. Was this a setup question? So a lot of times when I propose reforming Social Security, someone will say, you just want to turn it into a welfare program. And the response to that is, “It already is a welfare program.” Social Security beneficiaries in the bottom four quintiles get back from Social Security benefits far more than they contributed through payroll taxes into the program over their lifetimes. It’s true that for the top quintile, they generally get matching benefits in part because they paid in so much more. So there is a progressive benefit formula already. It’s 90%, 32%, and then 15%. So essentially what that means is you get 90% back of the first chunk of your average income over your lifetime, but then past that threshold—I think it’s about $2,000, I forget where exactly it is—you only get 32% back and then past another threshold, you only get 15% back. So there already is a progressive formula for this, but in Medicare, it’s even worse. People are getting back in terms of Medicare benefits many times what they ever contributed in the form of payroll taxes.

James Patterson (08:22):

So does this have a distortion effect on the American budget in terms of mandatory versus discretionary spending? I, of course, had to teach this class to my students, and I mentioned that I was interviewing you and brought you up in class, so hopefully if they’re listening, they’ll get to hear you tell me how right I was. I’m guessing that these expenditures, they eat up most of the budget.

Russ Greene (08:45):

Yeah. So-called mandatory programs, or I prefer the term autopilot, because they’re not mandatory. Congress if it chose to could change them at any time.

James Patterson (08:57):

Mandatory for them for reasons we might talk about …

Russ Greene (09:00):

Right. I think the preferred framing, like the technical language, is direct versus indirect expenditures. I prefer colloquially to call it autopilot spending. So that’s basically the major entitlement programs, Social Security, Medicare, Medicaid, plus interest payments on the debt because that’s not really optional, that is kind of mandatory. You got to pay that. You add all that together, the entitlement programs and the interest payments, that’s 74% of the federal budget.

James Patterson (09:29):

Not good.

Russ Greene (09:30):

So if you look at recent CBO projections, that’s just going up, up, up, up and up. For example, Medicare is going to double over the next 10 years. Just think about that. Social Security, according to the latest CBO projections, it’s looking like 74% increase during that time. Social Security already costs us about 1.6 trillion a year. It’s the largest single category of expenditures. And there’s also sort of a more political or constitutional issue with this, which is that pretty simple. What is Congress’s job? Why does it have authority? It has the power of the purse, right? It’s supposed to review and approve spending and revenue, right? It doesn’t do that mainly because of these autopilot entitlement spending programs. So if once something becomes an autopilot program, Congress doesn’t review and approve it every year the way it does, for example, for defense spending, that has to be negotiated and approved by Congress every single year.

(10:38):

And that’s a good thing. If we are going to spend a trillion dollars on something like we do on defense, there should be a robust debate and discussion about it in Congress. That does not happen for these entitlement programs. And I think that that’s really distorted our politics at the national level, but also there’s a downstream consequence of it, which is the lack of political debate in DC means that the general public has no idea what’s going on with these programs. There are a few politicians who are brave enough to talk about it like Representative David Schweikert, but no one really knows some very salient facts about these programs. One is very few Americans, according to polling from Cato, are able to identify how high Social Security benefits can go. They don’t realize that they can exceed for single individual $60,000 a year. And another thing is there’s almost no discussion, or at least at the popular level about the fact that the trust funds for these programs, the Medicare Hospital Insurance Trust Fund and the Social Security Trust Fund, they’re running out in six to seven years. So people don’t know that. And as a result, there’s no real public awareness of the need to reform these programs.

James Patterson (12:03):

The populist insurgency we’ve seen both on the left and the right often would complain about the uniparty, right? The uniparty about, say, interventions abroad or open borders when it comes to immigration, but these were their targets. But in the process of targeting these ideas, they formed their own uniparty, and it appears to be on these benefits that the Republicans used to have a lot more people that talked about this. And the outcome was Paul Ryan running as vice president under Mitt Romney, the depiction of him hurling an old woman off of a cliff from a wheelchair in a campaign ad. And the lesson that a lot of Republicans learn from that is accept total boomer luxury communism and even campaign to preserve it. So isn’t this partly a response to the pressures that the elderly put on elected officials given they vote in their interests, and the last time the Republicans tried to run against this, they got their clocks clean?

Russ Greene (13:13):

Yes, all that. I mean, Matt Yglesias has a fairly provocative take on Donald Trump, which I think has some truth to it, which is that he’s the great moderator. He forced the Republican party establishment to move closer to the median voter. The issues where it was furthest away from them, one of them would be normal social conservative issues like abortion, for example. Obviously, yes, he appointed the Supreme Court justices that overturn Roe to his credit, in my opinion. But also if you look since then on IVF or on funding of Planned Parenthood or on FDA approval of abortion drugs, the Republican or on gay marriage for that matter, the Republican party is really moderated on traditional social conservative issues under Donald Trump. For better or for worse, it’s gained politically due to that, but it’s also had to make some sacrifices on issues that were very important to traditional social conservatives.

(14:17):

A similar change happened on federal spending and on entitlement programs where the party has really moved to the center unfortunately on spending and on Social Security and Medicare, where you’re right, Romney and Ryan really wanted to do something about these programs. I think they were going about it kind of in the wrong way, both rhetorically and practically, but nonetheless, it was something that they were talking about and planning to act on and George W. Bush before them, but now that’s almost completely gone, but not for long because these trust funds are running out. I will say to Donald Trump’s credit, and I’m really excited about this, it does look like they’re going to do something about Medicare Advantage, which is the program that I identified in my piece in December, just these egregious examples of horseback riding lessons and tennis and golf, all due to over a trillion dollars in Medicare Advantage overpayments by taxpayers.

(15:17):

Over 10 years, the CMS has put out a proposal to really tackle this issue, and as a result in January, I was very happy to see that stocks of major insurance companies, such as UnitedHealth Group, plummeted on the news. So that was very encouraging because a lot of people will say what you said, that they’ll be doomers about this because we’ll say you can’t do anything. Seniors are too powerful. And I’m not sure that’s true for a number of reasons. One is that things are happening right now. That was a politically bold move by the Trump administration to do, but they were willing to do it. I’m not sure exactly what the calculus was there, but it was the right decision. And the other thing is that this is really about cost and benefits. It’s absolutely true that there’s a political cost to doing anything about an entitlement program that will cut the amount of money that taxpayers are sending out every month.

(16:13):

On the other hand, the costs of inaction are high as well. So the cost of inaction are a higher risk of inflation. The national debt goes up, higher risk of a debt crisis, higher interest payments, and ultimately, most likely pretty significant tax hikes, which are both politically unpopular and economically harmful. So at some point, my prediction is that basically the cost of inaction are going to significantly outweigh the cost of action on these programs. The other thing I’d say, and this is one of the things that I’m most excited about with this total boomer luxury communism stuff, is that the younger generation of MAGA people actually cares about these issues, at least when I’ve been able to speak to them about this. In part because I’m not explaining it using the normal libertarian talking points. I’m speaking to it in terms of like, this is bad for workers, it’s bad for families, it’s unjust, it harms the common good using that language, all of which is true by the way, and not purely economic or financial or quantitative language that speaks to them. And it also sort of addresses the issues they care about most, which is why is living a dignified life in America, why is starting a family as a younger person in America, why is that so difficult? Apparently more difficult now than it would’ve been 20, 30, or 40 years ago? Total boomer luxury communism might not be the only reason, but it’s certainly a very significant reason for lot of the problems that the new right sees in America, and in my opinion correctly.

James Patterson (17:54):

One of the sort of memes or slogans used by younger people on the new right is “this is what they took from you.” And normally it’ll have an image of a kind of fifties style family with a two car garage and all that, and in a way that’s kind of melodramatic, but what are the distortionary, if that’s the word or distortionate, it effects on the economy that harms young people with total boomer luxury communism? What is it that it does to them?

Russ Greene (18:29):

Yeah, first and foremost, it displaces the family and weakens ties between people. So very often conservatives talk about how this happens with welfare programs like Thomas Sowell and others have talked about how you’re basically breaking up nuclear families because the woman now can depend on the government instead of on her husband, which has negative impacts both for the family itself and for their children. A similar thing happens across generations with total boomer luxury communism where parents, instead of maintaining tighter bonds, both in terms of where they live, but even emotionally with their children, they’re encouraged more to depend on the government and their old age, and they live under this delusion of independence where they think, “oh, I’m not dependent. I live off of Social Security and I paid into that. Therefore I am an atomic individual.”

(19:36):

And it’s really, we always talk about welfare harming the morality of younger people like in their twenties, thirties, and forties. In a very similar way, total boomer luxury communism has harmed the morals of the baby boomer generation because they’ve grown up under its assumptions, they’ve become dependent on the government for their lifestyle, and they’re committing grave injustices to younger generations, but they’re not able to see it because their judgment is clouded by self-interest. So that’s very harmful. So there’s a familial and moral dimension to this that it can’t be emphasized enough. Economically, though, there’s very concrete harms that are undeniable. I mentioned earlier that Romney-Ryan somewhat misunderstood this issue. Chris Pope has written about this in City Journal for the Manhattan Institute. He gets into better detail, more detail than I can hear, but one of the biggest ways that Romney and Ryan misunderstood what’s going on with the federal government is they really focused on income taxes, which it’s true are basically almost entirely born by higher-income people.

(20:43):

What they missed is payroll taxes as opposed to income taxes are a disproportionate burden on working and middle class people, and they’re funding benefits for a generation that is on average much wealthier than they are. So this is actually a very populist-friendly issue because when you think about payroll taxes, funding benefits for retired millionaires, that’s profoundly, socially unjust. There is no philosophical or moral justification for that. That also means that we are making life more unaffordable for younger people in a very concrete way because they have to pay, it’s several steps here, they have to pay the taxes that fund these programs, but those taxes don’t fully fund these programs, so the government has to borrow. That borrowing then leads to inflation, so the cost of the grocery store at the gas pump or higher, it also leads eventually to higher interest rates. So it’s harder to get a car loan, it’s harder to buy a house.

(21:44):

It eventually slows economic growth because when the debt to GDP ratio surpasses 80%, that’s a drag on economic growth. We’re way above that already. We’re going to be about double the economy if we stay on our current trajectory by 2050. And then also they’re going to be paying for this their entire lives in the sense of they’re the ones who are going to have to pay, or we are really, are the ones who are going to have to pay interest on this debt forever. So these programs that seniors are benefiting from now are going to be paid for by us our entire lives, and because they’re financially unsustainable, it’s not like, oh, just be patient, right? You’ll get it one day. It’s like, no, these programs can’t go on in their current form. So boomers are benefiting from things that we know cannot continue while at the same time making younger generations pay for all of the burden.

James Patterson (22:44):

So younger people are poorer than they should be, and when they’re old, they will not get Social Security or Medicare as it exists today under any circumstances.

Russ Greene (22:55):

I don’t want to be an absolutist about this because look, if some of the more optimistic AI scenarios happen, who knows what can happen, but I think the most likely situation, if you look at the Congressional Budget Office projections and any of the credible projections from think tanks on the right or left around DC, I mean there’s just no way that these programs can continue in their current format. So what does that mean? There’s going to have to be most likely, this is not what I want, but just projecting empirically, most likely there’s going to be some combination of benefit cuts and tax hikes. I would like to see more benefit cuts relative to tax hikes, and I would also like to see benefit cuts concentrated on higher income and higher net worth people. That would be my preference, but functionally what that means, less benefits in the future, higher taxes is the ratio of benefits to taxes paid that boomers enjoyed, cannot keep going. There’s going to have to be higher taxes and lower benefits, and that fundamentally means oftentimes people will say, if you adjust these programs, you’re breaking the social contract. Social contract was broken a long time ago when they decided to put these programs on an unsustainable fiscal footing.

James Patterson (24:22):

The politics of this sounds really hard and I can’t imagine what they’ll look like. I mean, you’ve mentioned a few leaders on these issues. Do you think that they might be able to forge a path that doesn’t lead to almost a generational civil war, meaning younger voters will attack older voters and older voters will attack younger voters? How do you solve this?

Russ Greene (24:54):

I do think there actually does need to be more generational conflict. And I say that because Gen X, Millennials, and Gen Z, our current strategy has been unilateral disarmament. The booomers are organized, they know what their interests are, and they’re fighting to defend them at our expense. Who’s representing us? So you project that forward. What does that look like? That looks like if it continues to be true that seniors are mobilized and no one else is to defend their interests, then in 2032 and 2033, when these Social Security and Medicare trust funds run out, who’s going to foot the bill? The burden is going to be entirely placed on younger generations, unless that is, there is a broader political awakening among younger generations, and really at this point, gen X will be so close to retirement that might be hopeless. So really it’s going to have to be Gen Z and Millennials. There’s going to have to be some sort of political awakening among them, and they’re going to have to have some equivalent of an AARP or something. It’s going to have to be organized and funded to advocate for their interests in the new settlement that’s going to have to occur at least by the early 2030s.

James Patterson (26:22):

Last year, we had Governor Mitch Daniels on the Law & Liberty Podcast, and we talked about this use of debt to finance peacetime, social programs and how this is historically the craziest thing, right? Historically, debt financed wars and people got very worried about this because it meant that there would be this hangover from a war you might possibly lose, and now we’re largely at peace. I mean, even when we’re at war, it doesn’t feel like it if you lived through the occupations of Afghanistan and Iraq. So why did we resort to this degree of debt for peacetime social welfare benefits?

Russ Greene (27:10):

Yeah, due to two illusions. One is the illusion that debt was free. It was a ZIRP phenomenon, right? The zero interest rate phenomenon.

James Patterson (27:18):

Oh, yeah. Say a little bit more about ZIRP. That’s really important I think.

Russ Greene (27:22):

Yeah, I mean just that’s actually, I was just looking at some economics research indicating that’s actually part of total boomer luxury communism, but from 1983 to 1984 over the next 40 or so years, interest rates were historically low for the most part, and that led a lot of politicians, it should be said on the right and the left (the Republicans weren’t much better than this on this than the Democrats) to basically decide that deficits and debt didn’t matter because they weren’t paying an immediate price for it. They sort of assumed also that inflation was not going to be a serious problem, and that was sort of part of the illusion. The other illusion was that, it was the illusion of inaction or the illusion of passivity, like, oh, we’re not actually choosing to do this because Congress isn’t debating it. It’s just sort of set on autopilot.

(28:17):

So it didn’t register as a decision that we were even making, I don’t think. And also there’s a third illusion, which is that if you ask the average American right or left, what’s driving the debt? Why do we have such high deficit spending? Nobody can identify the right target, right? They’ll pick something like foreign aid or defense spending or tax cuts or something else that they want to blame, something convenient to scapegoat, but almost no one is going to accurately identify, oh, no, it’s Social Security and Medicare. That’s the primary reason, and I want to be clear too, we can have discussions about foreign aid and a lot of the USAID stuff was really appalling to me, and I’m glad it’s under scrutiny. A lot of military spending doesn’t seem to be getting what we’re paying for, so let’s have a discussion about that. But let’s be clear, what’s driving the deficit spending and debt problem is Social Security, Medicare and Medicaid, and that’s largely been overlooked due to the end of ZIRP. Interest rates are first inflation happened. Then March, 2022 was the first rate hike by the Federal Reserve. Even if the Federal Reserve tries to lower rates now as soon as inflation comes back, they’re going to have to raise ’em again. So the era of really zero interest rates, but also zero inflation that is over in addition due to the trust funds about to be depleted. The era of just ignoring Medicare and Social Security is coming to an end as well.

James Patterson (29:53):

When I was teaching the class the other day, I talked about there’s this kind of defying of gravity or the laws of physics that you feel when you’re falling and it all comes to an end when you hit the ground. What’s a parachute we could pull open? What does that look like? You mentioned earlier some of the things that you wanted a sort of tax hike and rate decreases. What would the tax policy be?

Russ Greene (30:23):

To be clear, I was not saying I advocate for tax hikes. I was saying that I think the most likely way this is going to resolve if you just project current trends forward is there will be tax hikes. Cato put out a really good piece on all of the ways that you could actually cut tax loopholes because the tax code has become incredibly complicated, and there’s all sorts of special tax breaks that you can only get under certain conditions. Even if you’re a strict libertarian, you should object to that because that is a form of central planning. It is a form of tax expenditure. It’s really more akin to a subsidy than a tax cut. One of the things that total boomer luxury communism has sort of been activated against recently was in the One Big Beautiful Bill Act under the headline of the working family’s tax cut.

(31:16):

There was a large increase in the standardized deduction for senior citizens and only for senior citizens. I think it was an increase of about $6,000. So things like that, let’s just get rid of ’em. I would say the same for most if not all forms of tax credits for green energy, for example, which have been partially repealed, thankfully, by President Trump and the One Big Beautiful Bill Act, but should be totally repealed. Yeah, the Cato article I found it is it’s by Adam Michelle. It’s called “Slashing Tax Rates and Cutting Loopholes.” They found hundreds of billions of dollars in savings each year just from closing these tax loopholes. That’s at the federal level. I would do a similar thing at the local and state level where most states have either an explicit or implicit as in California lower tax rate, especially on property taxes for senior citizens. I think every case that’s unjustifiable, senior citizens should pay the same tax rates as everyone else. If that means they have to sell their homes, oh, well.

James Patterson (32:29):

That’s kind of what they should do. Why do they live in a five bedroom home?

Russ Greene (32:34):

Right, exactly. On the housing discussion, we don’t talk enough about how housing is inefficiently distributed. So it’s not just about the sheer quantity of housing, but there’s specific locations and types of homes that should be inhabited by working families, and they are in instead inhabited by non-working retirees, empty nesters. And that’s economically inefficient, and it happens because of total boomer luxury communism. So because these people are getting so many thousands of dollars a month from the government and because they pay lower tax rates than everyone else, they’re incentivized to stay in homes that are closer to major metropolitan areas, more expensive, and have more bedrooms, three, four, five bedrooms, than they really need. They disproportionately own the larger homes in America. Senior citizens do. It should not be like that. Right? That is crazy.

James Patterson (33:30):

Well, at the same time, the average age of a first mortgage is in the forties now, which is crazy.

Russ Greene (33:39):

Yes. Connor O’Brien, who’s an economist I respect, has somewhat question that statistic, but even if it’s wrong, it’s more like 35 than 40. Yeah, I mean, there’s no question that senior citizens of the highest ownership rates, they have the highest rate of paid off homes and they get their home equity exempted from means testing frequently. So they’re favored in all sorts of ways. So mostly what we’ve been talking about is revenue side. On the spending side, you just have to cut benefits for however we make this happen, and there’s a variety of proposals of how to do it. Andrew Biggs at AEI has proposed something, Mark Warshawsky, I think is his name, also at AEI, put out a competing proposal, but we have to give less money away to retired millionaires, period. So you could do that. What Biggs says is let’s just flatten Social Security benefits.

(34:41):

So in 2032, when there have to be, by law, when there has to be, by law, 24% cut to Social Security, instead of making lower income people bear the same amount of burden as higher income people, let’s just concentrate most of that pain on the top quintile. Currently right now, you can get Social Security benefits in the United States that are three to four times what you would get in other comparable nations like Australia, New Zealand, Canada, or the UK, right? Again, over $60,000. Other countries, you’re looking at $20,000 at the most, right? So we need to flatten max benefits for higher income people and Warshawsky’s proposed doing that through means testing as opposed through just based on what your lifetime income was. That has some advantages, also some disadvantages. But however we get there, what we need to do is cut government spending on the wealthiest retirees.

James Patterson (35:43):

It is incredible how many times I’m seeing people on social media. The Senate, for example, actually sort of touted this savings for seniors on housing that was in the One Big Beautiful Bill, and I knew that there was something happening because I saw that first of all, they experienced it for people who aren’t on social media, good for you, you shouldn’t be. But second of all, they got what’s called ratio, which means that the number of replies exceeded the number of likes. And if you went to the replies to this announcement on Twitter, you were constantly being referred to. It was about how, what are you doing giving these rich people money? And it has ballooned, this term. It’s really taken on as a brand, and it’s coming into the faces of the communications teams that these politicians are using to sort of tell people how they’re helping seniors. So maybe this isn’t a winning message anymore.

Russ Greene (36:43):

Yeah, no, I want to destroy these people. I want to be very clear. There needs to be a higher political price if you’re going to give a special tax break or any sort of special new benefit or even continue an existing one to senior citizens. And I don’t just mean that for Republicans. We did the same thing to Gretchen Whitmer. I don’t know if you saw that.

James Patterson (37:03):

Oh, yes. 355,000 seniors saving households average. This was a tax relief, right, on property taxes. Yeah, I’m seeing that right now.

Russ Greene (37:13):

Yeah, yeah, exactly. So governor of Michigan, Democrat, and I’m pretty sure I got this going. I think I was the first major account to quote tweet her, and I forget exactly what I said, but it was something about total boomer luxury communism and she got totally ratioed, right? And it was pretty, these are significant numbers. I think it was over a million views. Rightly or wrongly, comms teams and policy teams are going to respond to stuff like that. That doesn’t feel good, right? It’s hard to say at what point it becomes an electoral problem for them, but it’s already a comms problem for them. You also had Dan Patrick in Texas, he was proposing an additional special property tax break for I think it was people, I think there was one for 65 and up another for 55 and up. He’s lieutenant governor in Texas. He got ratioed as well for the same reason. And what’s interesting about it too is the people who are pushing back against this stuff, they run the gamut. They’re not just libertarians. They’re not just on the right. You’ve got NatCon, New Right people. You’ve more free market oriented people, but you’ve also got progressives and pretty far left people all coming together saying, this is unjustifiable because it really doesn’t, if you’re a younger person, it really doesn’t matter what your political priors are. You should be upset about people selling you out. It doesn’t matter what your ideology is. There’s no ideology that justifies our current system.

James Patterson (38:56):

And that’s the thing about social media is that even if it’s a kind of subset of a lot of things, it’s where more young people are than older people and things don’t stay in containment on Twitter, they escape to people who are less online, and then they’ll become more cognizant of these sorts of issues. So it seems to me that you’ve really started pushing something that’s gained its own momentum. And I have to say that I’m pretty excited about it as a person who has really had to come to grips with what I was dealing with myself, I think we’re roughly the same age, and I didn’t understand why things were so difficult, and it was financially for so many people I knew, and for me, and I think this is a kind of political awakening that people need, but I’m just concerned that this is going to become a source for overcorrection and genuinely needy seniors might get harmed in the process. Is that something that bothers you?

Russ Greene (39:54):

Well, as I was saying earlier, I don’t want to see that outcome, but I actually think without this mobilization, it would’ve been more likely because if you have the money’s running out in these programs, default setting is going to be just cut across the board everyone, which means that’s going to harm the most, the lower quintiles of socioeconomic status. What I’m advocating for is to protect poor seniors as much as possible. Ideally, we could even raise benefits for them while focusing most of the cuts in tax equalization on the higher quintile. That’s what I want to see, that I’ve been very clear about that and all my messaging around this. The other thing I would say is I wouldn’t have been successful if I had been trying to persuade younger people to get mad. I’m not the reason they’re mad at older people. They just didn’t know why.

(41:01):

And I actually think it’s healthier politically to not just have vague anger, but to have specific anger that leads to action, that leads to deliberation, that leads to policy change as opposed to people just young men mostly sitting in their basements being mad about America, but not knowing exactly what went wrong. So maybe it was the Jews, maybe it was the capitalists, I don’t know. So people have a sense something’s gone wrong, and I think too often people like you and me who are more on the side of pro-American founding on net, pro Constitutionally limited government, our response to this youthful anger was basically line goes up, like per capita, GDP has gone up. What the hell are you complaining about? More appreciative of the fact that you have a smartphone in your pocket and TVs are a lot cheaper than they used to be. There’re some truths to that argument, and people should listen to the economists who are trying to correct them or at least take them seriously. On the other hand, man does not live by bread alone, A, and then, B, is, there are significant economic grievances that younger people do have, and I think total boomer luxury communism is part of explaining to them what’s gone wrong and what to do about it.

James Patterson (42:31):

Yeah, TVs and phones getting cheaper, but mortgages and college debt being a very significant amount of monthly paycheck for people like our age and younger, that’s going to put a pretty significant damper on the enthusiasm. One other thing is, like, if you ever say to students that are now in college, well, you’ve got this supercomputer in your pocket, they’re going to not necessarily be happy about that. Right? There’s something that I think is really interesting, is that that pitch really weak now because of how much these younger students have an ambivalent relationship to social media, and they see phones as a source for surveillance as much as for communication.

Russ Greene (43:15):

Yeah, absolutely. And now there’s concerns about AI. I’m pretty pro-AI. Obviously, people have some concerns around protecting children and pornography and all that, and that’s all legitimate. But on net, I’m pretty pro-AI, I think it’s very important that we find ways to make labor more productive, especially given our demographic challenges. In other words, if we’re going to have fewer and fewer workers for each retiree, our workers had better be really empowered by technology if we want to make that economically work, but that also means there’s going to be a lot of technologically driven disruption in the lives of people who are in their twenties right now or in their teens, and that’s going to be difficult. There are probably some things that government can do to make it a little easier for them to deal with, but on the other hand, for them to have to go through what we all know is going to happen over the next painful transition period we know is going to happen over the next five or 10 years will be even more difficult and more gut-wrenching if it happens. While we also maintain a commitment insulating the people 65 and older who are most responsible for these problems from any consequences, that just compounds the injustice and it’s going to compound the anger.

James Patterson (44:44):

Again, the article is “What Is Total Boomer Luxury Communism”? I believe at the beginning, I forgot to mention that. This is at the American Mind website put up by Claremont, so everyone please go read it. I imagine that we might get some pushback from older listeners, but that’s part of the fun of all of this. Russ Greene, thank you so much for joining us here at the Law & Liberty Podcast.

Russ Greene:

Thanks for having me on.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts, and visit us online at www.lawliberty.org.

Related Links

“The West’s Quest,” Law & Liberty Podcast with Luke Sheahan
“The Failure of Political Community” by Luke Sheahan
Twilight of Authority by Robert Nisbet
The University Bookman
Why Associations Matter by Luke Sheahan
Freedom of Association, Vol. I: In Theory, ed. by Luke C. Sheahan and Kenneth B. McIntyre
Freedom of Association, Vol . II: Applied, ed. by Luke C. Sheahan and Kenneth B. McIntyre

Transcript

James M. Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund.

John Grove (00:39):

Hello and welcome to the Law & Liberty Podcast. I’m John Grove, the editor of Law & Liberty. I’m filling in this episode for our regular host, James Patterson. I’m pleased today to be joined by a familiar guest, Professor Luke Sheahan. Professor Sheahan is an associate professor of political science at Duquesne University. He’s a senior affiliate in the program for research on religion and urban civil society at the University of Pennsylvania, and he is the editor of the University Bookman, published by the Russell Kirk Center. He’s also the author and editor of several books, including Why Associations Matter, and recently edited a new edition of Robert Nisbet, The Social Philosophers, which we had the pleasure of speaking about six months ago here on the Law & Liberty Podcast. And I am particularly excited to have Luke on today because we are going to be welcoming him as a new contributing editor to Law & Liberty. So we look forward to being able to hear more from Luke on a regular basis over the next coming months and years. So Luke, thanks for joining us.

Luke Sheahan (01:40):

Thank you for having me.

John Grove (01:42):

Well, we spoke a few months ago about Robert Nisbet. That episode is called “The West’s Quest,” if anybody wants to look that up, where we talked about the social philosophers and that book in particular. But I thought we might start with Nisbet again for this episode because Nisbet has been an important influence for you, an inspiration for you, and also an inspiration for me. And Nisbet is a sort of distinct voice in American conservatism, and particularly for the moment we find ourselves in right now, I think what Nisbet has to say is getting lost in the mayhem of political conservatism in America. So why don’t you say a little bit about how Nisbet has inspired your work, what you find valuable in him and maybe what he has to say to the present moment in American conservatives.

Luke Sheahan (02:31):

My introduction to Nisbet was through one of those lists where you’re supposed to … [a] list of conservative books you’re supposed to read. So I read Quest for Community and it was great, but it didn’t quite resonate with me what Nisbet was actually getting at. So I read it again while reading Supreme Court case law on freedom of association, and I wondered why freedom of association had risen the way that it did and Supreme Court case law and then been sidelined in recent decades. And I thought Nisbet was the key there. So Nisbet’s thesis and quest is that the decline of intermediate associations is caused by the rise of the political state. He says this is the most significant thing in recent centuries in terms of understanding economic and social change and development. And I thought, well, in the microcosm that might be true and Supreme Court case law and wrote a book about it.

(03:34):

And I think Nisbet gave this incredible insight of when you look at civil society associations construed broadly, their struggle, their existence, their rise and fall might have to do with the interactions with political power in important ways. And so Nisbet really hones in on that and gives us tools to identify that. And he does so in a way that very few others do with his clarity and historical breadth and theoretical penetration. And so reading Nisbet gives this perspective on the social realm that is distinct from what Libertarians contribute with their focus on the individual and their concern over state power and more conventional conservatives who might be a little more prone to recognize the legitimacy of some exercise of political power, but not recognizing that even when political power seems to be working at the behest of or on behalf of social institutions, they in fact undermine them. So there’s something unique about the exercise of political power that might work always in everywhere to the detriment of these social groups.

John Grove (04:52):

You and I were talking about this a few days ago as we were discussing this podcast and we talked about how nobody really knows how to categorize Nisbet today if they go back and read him. And it’s sort of interesting, I was thinking about this later, that today, right now, the fault line of conservatism seems to be presented as national conservatism versus fusion Reagan’s conservatism. And when you go back and read Nisbet in the eighties about fusion Reagan conservatism, his critiques basically sound like the critiques that they make against national conservatism today. So it struck me that Nisbet would be sort of surprised to hear that however many years after his death now that fusionist Reagan conservatism is being pitted against something called national conservatism, because he thought they were already pretty nationalist at that time. So what is it about nationalism and national populism, I guess that Nisbet saw as uniquely dangerous, especially in the United States context, where sort of nationalist sentiments is this sort of centralizing force over and against localities and state governments and constitutional limits? What was so dangerous for him about that when it comes its relationship to civil society, relationship between government and civil society.

Luke Sheahan (06:16):

So he saw nationalism as dangerous because had been fused with the nation-state. So the idea being that the real locus where the action’s at is at the national state level. So your local affiliations and loyalties and relationships are simply unimportant in comparison to national politics. The problem is, is that it’s impossible to have the sort of relationships and affinities and loyalties that are concrete and even limited by in the local sense. So at the national level, it really is an abstraction and there’s a lot to defend. We will get into it of the place of the nation-state and all the and Nisbet’s conception, and I think he has a place for it and an important one, but to place your primary loyalty there or to make it the overriding force in society and politics is dangerous because it inherently undermines those more local authorities.

(07:13):

And the problem is individuals need those local authorities just in terms of fundamental identity and relationships. And so one of his big insights is that when you see a growth of political power at the national level and the decrease of local authorities and civil society authorities, individuals don’t just shift allegiances and loyalties and kind of finds the meaning in their life from the nation-state in front of the local instead of the local community or religion or whatever else it had before. Rather the individual becomes alienated. So you’ll see a rise of ideological fanaticism, for example. If you don’t have a local loyalty that grounds you end up leaping into the individual leaps into abstractions, into ideological fanaticism. He’s explaining the rise of right wing and left wing fanaticism, mostly fanaticism coming out of that alienation. So he said it’s dangerous because you end up alienating your whole populace and it lays the groundwork for a rise of even ever stronger, more authoritarian or even totalitarian political state. And the trajectory is one that’s hard to reverse. Once you undermine those local authorities and affiliations, it’s really hard to get ’em back. So he’s worried about kind of a one-way ratchet and that the political state isn’t just an exchange. We’re not Pennsylvanians and Virginians anymore and Somerset, that’s okay, we’re just Americans and that’s what we are. Well, the problem is that doesn’t really work in the same way.

John Grove (08:52):

What do you see as his understanding of the legitimate purpose and the legitimate function of the nation-state? Because you brought that up a minute ago there, and sometimes when you read him, it does kind of come across as almost heavy, especially when he’s talking about the centralized state. It comes across as very libertarian sounding, just this is just something, it comes out of military society, it comes from domination, it’s all force and power. But he is in this tradition of conservatism of people who see a legitimate role for the state. But that also warn you to be highly skeptical about the stories that the state tells about itself and don’t buy into the sort of mythologies of the state. But what do you see as his, or I should say, what did Nisbet see as the legitimate role of the nation-state?

Luke Sheahan (09:49):

Yeah, so the way to understand it, he’s highly critical of the nation-state and what he’s getting at is exactly what you said, the story the state is told about itself. It is the great liberator and the great protector. And so it came in and freed all of the individuals from the terrible oppressions of society and offered them all sorts of rights that he never would’ve had otherwise. We can talk about the expansion of rights and that sort of thing. What you should be suspicious of is that it was, that’s actually how it played out. So he has this dichotomy between monism and pluralism and a monistic understanding of politics and a pluralistic understanding of politics. So a monist nation-state would be one that sees itself as precisely as the center of authority and patriotism in all of that. And so it’s there to undermine and suppress local authorities, whether it’s the states, towns, religious parishes, all these sorts of things, or to be undermined and suppressed on behalf of the primary identity of the nation-state.

(10:47):

But there’s a conception of the nation-state, and one could argue this is precisely what the American conception is, that it is the overall complete community, an Aristotle sense. So it’s the complete community. So it’s going to cover national security and most economic exchange and kind of contain all the other communities within it. But precisely in the very nature and conception of his existence is those other associations. So if there’s to be a utilitarian understanding of any of these communities, it’s the political state that’s the utilitarian one. So the monist conception even sometimes is drawn by some conservatives is that why do we need the family? Well, the family does a very good job of making productive economic actors who are good citizens, and it does, but is that all the family exists for or is it the other way around? The state takes as the plural state takes as its core to its existence that the families exist, that they are at the core and foundation of it, not that we’ll let them exist insofar as they produce good citizens.

(11:46):

For us, the state says we exist insofar as we make the complete community possible. So these families and local communities and states and religious associations can thrive. So the very core, when he’s listing off the values of the plural community, the very first value or the very first element of it is plurality. It’s based precisely on their being plural, a plurality of communities. So our constitutional order, for example, our constitution mentioned states something like 50 times. But the idea there are states, there are real things and those legislatures are there, they’re not going away. We have provisions that say the states cannot lose their senators, the states will sit as equals in the Senate, and that is a given. They will not lose their territory either by being combined with other states or being split up. That is core to the foundation. It’s in the document, the nation-state, the United States only exists insofar as the states exist.

(12:37):

And I take that a little further, and I say in my work, I’m trying to kind of delineate how it goes further than that. It’s not just the states that’s focused on because of the very nature of the United States Constitution is a document, but the First Amendment is getting at this plural community and extending it or insinuating that it extends out just what we call civil society. Now that language doesn’t really get going and really differentiated into the nineteenth century, but that it’s implicit and sometimes maybe even more than implicit and much of what is said in the Bill of Rights and taken for granted among the founders when they’re thinking about the state constitutional order and the federal constitutional order and what religion is and what families are. And in some ways they’re not articulating it fully, that full articulation comes later. But you get John Quincy Adams, for example, giving us as famous Lyceum address on the family in the Constitution of Massachusetts. But he says, we never said anything about the family, but that’s what we meant. In fact, nothing we did even made sense unless you realize that we were thinking in terms of the family’s legal unit.

John Grove (13:46):

So that transitions as well to, I think the next topic we want to talk about, which is how the freedom of association has fit in the American constitutional order and free association is an important, and it’s kind of a difficult concept too, if you’re following you, and I did a conference a few years ago where we were looking at some eighteenth, nineteenth century writings that Nisbet was influenced by. And one of the themes that I continue to recall from that conference was Nisbet, he liked the medieval world, he liked certain elements of the medieval world because you had this sort of social pluralism, but he also seemed to recognize that that was gone for what it was. And he also at times acknowledges too, there were severe limits to that where you have these guilds and other powers that exercised extreme amount of authority over people maybe too much.

(14:45):

So as you mentioned, the nation-state rises in part as sort of the liberator from all those things, but then it goes too far. And so one of the themes I remember thinking about a lot from that conference was how in this modern world where those authorities are still around, but they’re certainly not the same type of authority as they were in the medieval world. Things like church and family and things like that. And is that in the modern world, the sort of pluralism that Nisbet has in mind is coming about through free association. Right? So Tocqueville, what Tocqueville is describing isn’t exactly the medieval world, but it’s sort of the closest thing that the modern world has to offer. And so that makes the freedom of association essential to this vision in the sort of modern constitutional state. And so in the United States, we don’t have the phrase freedom of association in the Constitution. Exactly. But you were hinting at I think the ways in which our entire political order maybe just takes for granted the freedom of association. I know you have at least one thesis on the idea that the people sort of means associations in a certain way. Why don’t you elaborate on that idea?

Luke Sheahan (16:04):

Yeah. So I published a paper in American Political Thought 2024, and I argue there that the term, “the people,” as it’s used in the Bill of Rights seems to be in reference to the people as distinct from the states and distinct from the federal government, of course, but especially in reference to our institutions. So what I mean by that is we have, well, it appears five times in the Bill of Rights. The first time is in the First Amendment and it’s in reference to the Assembly Clause. So “the right of the people peaceably to assemble.” Now there’s a little debate over this Akhil Lamar says, well, this, when you hear the people, it means everyone. And so this must be a reference to a constitutional convention. The people can assemble a constitutional convention and redo the Constitution if we want to. The problem is it seems like the Assembly Clause was a reference to basically civil society groups.

(16:59):

That seems to be what they were after there. So the people and the singular is used as a reference to basically free associations. That’s what it’s whether Quaker groups, and there’s an interesting exchange and the first congress over the wording of the Assembly Clause, and it seems like there’s a reference made to Quaker groups, which would be non-political. So it wasn’t even a political advocacy group of any sort, but people who are assembling as a civil society group, they’re going to do something different and in their particularity. So yes, it’s all of us, but it’s all of us in our particularity. And then it appears in the Second Amendment, “the right of the people to keep in bear arms.” So maybe this is reference to all individuals being able to bear arms, but then it quickly moves into reference to militias, which were local institutions.

(17:45):

They were attached to townships in the northeast. So then it seems like, so the people we’ve got to reference to local community, people are referenced to voluntary associations, and then the Fourth Amendment, it’s the right of the people to be secure in their house’s, papers, and effects from unreasonable searches and seizures. So that is a reference to households. So we get “the people” appearing three times prior to the Ninth Amendment each time. One could argue, and I certainly point out in reference to households, our existence ensconced as we all are in households, ensconced as we all are in voluntary associations and ensconced as we all are in local communities. And so it doesn’t say that explicitly, but it’s the context in which that term arises. And then I point out in that paper, even when you think about the ratification of the constitution, it was by state convention, so the people ratified it, but they do it through state conventions, not state legislature, state conventions.

(18:33):

And the representatives, the delegates arriving at those conventions come from localities, depending on your state, how it was organized, but it was either county or town. So when the people voted to ratify the constitution, they do so by locality. Each locality gets a vote and then the majority in each state. But it’s an interesting dynamic there that we say the people ratified through these special conventions, not legislatures. When the people do something, it’s through their kind of special constitutional moments. But they were organized by locality to do so. And some of these localities were explicitly their own communities, especially in northeast the townships with the option of binding their vote so they could vote for the delegate and then they could further vote as a locality to bind the vote. I don’t know how common this was. I’m not sure. Any of us anybody knows, we do know eight towns in Connecticut bounds their vote to vote no.

(19:26):

So when we use the people instead of thinking it purely in terms of a collection of an aggregate of individuals or a majority of individuals, we might think of it as civil society. It seems to be that’s what they’re intimating at. Civil society is the real core of our existence that then can create governments both at the state and federal level and be a check on them. And my hook in that paper as I talk about the Tenth Amendment. So the Tenth Amendment use a negative conjunction between the reserve powers to the states and the people, so distinguishing between them. So federal government with powers, states with reserved powers and people with reserved powers. That’s why I say, well, if we think of the people as voluntary associations, local communities and households, it implies reserved powers in those institutions. Now, I don’t think that’s a slam dunk in terms of litigating in federal court, but it does contribute, I think to our understanding of constitutional theory and what role civil society plays in our constitutional theory.

John Grove (20:30):

Yeah, that’s interesting. Sometimes you’ll hear about, people will note that the ratification, it took place by state, by state rather than by national majority, but you don’t often hear it broken down even further. But that’s a good point that at those state conventions, the representation was coming from localities and not necessarily equal population representation across the whole state. That’s interesting. I’m also interested in that Second Amendment interpretation too, going down a little bit of a rabbit hole here, but because in DC v. Heller, so of course you had the big distinction, is it an individual, right, or is it a government? Right. Because the people who focused on militia were saying, oh, see, this is when the government is in control. But that’s interesting. You picked up this middle ground that militia doesn’t for them didn’t mean government control, it meant local association. Did anybody even remotely consider that in the big gun control cases?

Luke Sheahan (21:28):

Yeah, it doesn’t seem like, it doesn’t seem like that was really coming up. They were thinking. Yeah, exactly. You said in terms of as Nisbet would be the first to note that dichotomy, and I think one point about the gun control cases, it seems to me that what they were getting at, admittedly it’s a little vague in the language, but you have an individual right to carry a gun and defend yourself, but you have then a communal right to join with your neighbors and defend your community. I mean that’s what militias were. And then of course the state could call it the militias and defend itself. So this is why I think Nisbet’s plural community applies so well to the American order is they were conceiving of all these different levels that were interlocking. They weren’t necessarily virtually exclusive. So where does this right reside well in multiple levels?

(22:14):

I mean, how could it not? We aren’t just individuals, but we are individuals and we aren’t just members of local communities, but we are members of local communities. And so it seems to me that while not fully articulating and distinguishing between these things, it seems to me that the language and the bill of rights is kind of taking it for granted. And it will be later that you get Tocqueville and people really kind of laying out what they see as these contours. And we get a lot of the great work on civil society in the nineteenth century, but that it’s implicit earlier while not being fully articulated. And maybe another way to kind of get at that is through the idea of George Carey and Willmoore Kendall’s idea of the basic symbols of the American political orders. They talk about differentiation. The symbol comes first and then differentiation comes later as you really start to understand what’s going on. And it seems to me that we got a lot of that going on even in the 1600s, but it’s nineteenth century that we start to really lay it out and make these theoretical distinctions.

John Grove (23:12):

So I mentioned earlier that the constitution doesn’t say the freedom of association, but it does say the freedom of assembly. It doesn’t say that exactly either, but it says the right of the people too to freely assemble. How has the Supreme Court understood that, right? I know you would certainly argue that the freedom of association is implicit in that, right? But how has the court understood that and how has the court done when it comes to protecting freedom of assembly or freedom of association?

Luke Sheahan (23:42):

So the court has been mixed on this, so it’s not done a particularly good job. So for one thing in the nineteenth century, it links the Assembly Clause to the petition clause. So your right under the federal Constitution, according to the Supreme Court in the nineteenth century to assemble is if you’re petitioning the government, apparently you don’t have a federal right to assembly outside of that. That’s a highly dubious reading of that clause. The reason they do it is they look at the commas and the semicolons and I think make way too big of a deal. If you look at the drafts of the First Amendment and the first Congress, they’re swapping things in and out and it doesn’t seem like they’re really paying attention to the punctuation. I think that regularization of semicolons and colons, it just comes later. It’s just not what they’re thinking about.

(24:24):

So when they’re linking, as some people think they do, the Assembly Clause and the petition clause, they were swapping in a bunch of other phrases in and out. They just didn’t seem to think they were linked. You could only assemble if you’re petitioning. They seemed to think you could assemble for any reason. And also we better put in the petition clause because that’s something important that you’d be able to petition. And the history of the right to petition, of course is very, very important. And it’s why it shows up so much. And it continues to be important up until at least the 1840s. But the court in the twentieth century ends up dropping it. It doesn’t do a lot with it. It kind of gets it wrong In the nineteenth century, I’d say in the twentieth century, it just starts ignoring it. And I don’t think a majority opinion has even mentioned it since in any substantive way since like 1983 or something like that.

(25:12):

We get Justice Thomas in 2021 in a concurrence saying, we really need to bring it back because it’s in the text and we need to start dealing with it. But it was a concurrence in the Bonta case in 2021, which is good. I mean, that might be how it’s wiggling its way back in. But the Supreme Court instead lands on a nontextual right, the right of association problem with its origin is it ends up being really ambiguous. So 1958, it defends the NAACP (9-0) the right of the NAACP, but it says, well, they have a right to associate and it links it to democratic government, it locates it in the Fourteenth Amendment, the liberty of the Fourteenth Amendment, not the First Amendment in 1961, it does say that it’s in the First Amendment. Of course the wording isn’t there, but it says it’s implied because how can you speak unless you can assemble with others?

(25:59):

That’s usually the case. In fact, that was actually part of the debates and the first Congress was assembly must be applied because you can’t speak to somebody unless you can assemble with them. You can’t worship as you can assemble it. So it’s implied and we don’t even need to include it, and then they decide they better include it or else you could undermine all the rights without including it. But anyways, the court focuses on association and ends up linking it to speech. So it says the NAACP has the right because of democratic government. How do you bring about democratic change unless you can assemble or associate to do so? Eventually in 1984, it calls this expressive association you can associate to express views. And then it says, of course the makeup of your group matters because that’s part of your expression. But it very much hones in on linking it to expression. You have a right to associate if you’re expressing a view and implies that you must be participating in democratic government in some broad sense. And then 2010 and the infamous CLS v. Martinez case, the court says, well actually this Christian group can’t discriminate in membership based upon its religious purpose because hey, look, everyone has free speech, so you can still engage in free speech. You can do all the things you can do. Why would you need to only associate with others that agree with your group?

John Grove (27:23):

So that’s a very, just going back to Nisbet very briefly, that’s a very political centric understanding, right? It’s only valuable, it’s only protected if you are participating in the activity of the centralized nation-state. That’s an interesting connection. You mentioned Clarence Thomas’s concurrence. Do you see a path towards a broader recovery of the freedom of association through the Assembly Clause, or do you think it’s pretty entrenched in that thinking about it in terms of First Amendment?

Luke Sheahan (27:58):

Yeah, so I think it could be through the Assembly Clause. So I think we could, it’s in the text. You have originalists on the Court. So they very well could say, we’ve got this right. And John Inazu, it’s Washington University in St. Louis Law school. It’s pointed out, if we sue under the Assembly Clause, the court can just sidestep all its expressive association jurisprudence. So it won’t have to make say, well, this group is fraternal, it’s not expressive and try to, well, it’s expressing a fraternal view that doesn’t have to play those language games. It just says we haven’t textual, we haven’t referenced it. But that means we started got to start unpacking it. And so he was on the panel, we’re on a panel together for the Notre Dame law Review. And kind of part of the premise of what we’re approaching is we have a textual and we can kind of sidestep and start doing an historical analysis. The court right now is very interested in text and tradition. So what is the historical background of the Assembly Clause? So this might open a way on which we can think about the Assembly Clause. So the court’s jus prudentially open to that approach. And then we have it in the text so we don’t have to necessarily lock ourselves into some kind of narrow doctrines. The courts developed.

John Grove (29:13):

So I know you’re working on that, right? The text and history and tradition of the Assembly Clause. So can you sort of limb the outlines of that for us? How do you understand the basic trajectory of that tradition and history?

Luke Sheahan (29:24):

The Assembly Clause is there in the text. So that’s it. And if you think about what the text means, so we can look at some dictionary definitions at the time Johnson’s dictionary and Webster’s dictionary, it just means people associating for a purpose could be spontaneous. So this can of it in terms of protests or something like that. But it also can be referenced to organizations. And it says that in those dictionary definitions, you can’t make too much of dictionary definitions. Of course, constitutional principles can go beyond them naturally, but it’s a good place to start. And so in my article, I start there, so look at the dictionary definitions, at least gives us a place to start. And it looks like it protects organizations, associations as we would call them. So we got the text down, I think that’s fair. And then the history and tradition, the right to assemble has clearly been very important.

(30:13):

So Tocqueville, he observing, man, these Americans, they assemble all of the time, they assemble all the time, they do all sorts of things through these associations freely, voluntarily. So that is free assemblies, free associations. And the other wrinkle here is Kevin Butterfield’s 2015 published a great book on the rise of associations in the legal sense. So what are these things that Tocqueville is looking at in the 1830s, but how did they come about and what were the debates about? And there was a big debate, should we actually have official associations or are they kind of dangerous to undermining our republic? So you can think of the whole fiasco over the Society of Cincinnati, but as the debate plays out and as the legal recognition plays out clearly the idea that we should have associations that are legally recognized and that that’s a completely legitimate way to go about having friendships, think of all the fraternal organizations that are formed and all these sorts of things, that’s what wins out.

(31:12):

That’s our tradition. That’s what we do. And so I say we have a long tradition of having these, and it goes back actually much deeper than you’d think into the eighteenth century. And so I actually link the rise of the free assemblies and free associations that really start to come about throughout the eighteenth century and the really in the nineteenth century into the townships. So you have all these almost geographic free associations is what’s kind of what they are. So why did these new towns spring up all over Massachusetts and Connecticut? Because people started them. They just went out and started a new town. Usually they had a theological disagreement with their pastor in their old town, but it kind of looks like a voluntary association. There’d be, I don’t know, 120, 150 people in each of these towns. But then as you get into the eighteenth century, they start to grow.

(32:02):

These towns get bigger, especially as you get into the 1790s and early 1800s. And then you see crop up all of these voluntary associations. So I say, well, listen, town’s really important. They each had a covenant and then they were bound up connected to the state or to the colonial order in this complicated way. I say the plural constitutional community, that’s my term for what the United States Constitutional order is. You see it back in the 1600s. So you see these colonies that are a compact among compacts. So think of the fundamental orders of Connecticut. There’s these towns with their compacts. Then there’s this colonial compact, and there would be colonial compacts would arise as well. And they were interlocking in complicated ways, and they recognized the legitimacy of each level of the compact. Each of those compacts at the town level, they were legitimate.

(32:50):

The colonial level compacts were legitimate. And then the pan colonial compacts were legitimate and they just saw them as interlocking. They’d have kind of multiple meetings to try to sort things out when they didn’t quite get it right the first time, but they just saw that this is what you do. You meet and you form a compact and it’s limited to certain matters. And there’s another compact that’s bigger limited to other matters. And I say, and that’s what each of these, Butterfield makes this point, that’s what all of these early nineteenth century associations do. They start, they form a constitution, a compact, and they talk about what they’re going to do. They’re just like the towns. That’s what the towns did. They’re just like the churches have been doing for hundreds of years by that point for 200 years by that point, just what the towns have been doing for 200 years, just what the colonies have been doing, just what the states did, what their constitution, this is the form. And they take the same constitutional form that we see elsewhere. And what we recognize is our constitutional tradition. So I say the court has said, when we talk about constitutional issues in terms of history and tradition, we’re looking for does it fit into our system of ordered liberty? I say, this is our system of ordered liberty is having these interlocking compacts. And you see it all the way we recognize it in terms of state and federal constitutions. We need to take seriously the constitutional status of free associations under the Assembly Clause.

John Grove (34:07):

So that links back to what you were saying earlier about the constitution’s meaning of the people you think of, think two of the Tenth Amendment two and it says reserved to the states or to the people. A lot of times we see that as read that as individuals, but it could also just be the people as associating people, right? People who are forming all sorts of associations. It could mean localities and so forth. You’ve also been hard at work editing a two volume collection of essays on this theme, freedom of association in Theory and freedom of association applied. This is with Kenneth McIntyre. Tell us a little bit about those two volumes and how they’re advancing this sort of work.

Luke Sheahan (34:44):

So freedom of association has not been treated particularly well in academic work. So the last time we had a volume on freedom of association I think was Amy Gutmann’s from 1997. And that volume is good in certain ways. She has an all-star lineup of scholars, but many of them are not particularly sympathetic to freedom of association with a few notable exceptions. So we wanted to put together some edited volumes from the perspective of really appreciating what freedom of association brings to the table and seeing that we can kind of suss out from various thinkers. Adam Smith, Michael Polanyi, I write on Tocqueville and Nisbet treatments of freedom of association and its variety and how really important it’s in theory thinking through what it means. And we have various thinkers who have done that, but they don’t seem to have really made a splash in the wider world, or at least they don’t continue to today.

(35:35):

So von Gierke, for example, thinking about the corporate personhood and very seriously, what would that would mean? He makes a splash with Maitland. And I’m not sure though that anyone quite appreciates the profundity of what he was saying, even though I quibble over certainly some of what he’s saying. But I don’t think it’s necessarily the best way to describe associations. But he’s understanding them is something that’s important and that we have to somehow figure out how to appropriately legally recognize. And he’s trying to wrestle with that, their reality. And so we wanted to put together these volumes that could explore a number of thinkers who have treated associations either good or bad. So we have a chapter on Rousseau in there who did, not associations at all, but thinking seriously about what it means and how we can bring it back into our understanding of well, constitutional order and political order.

John Grove (36:29):

Well, that’s great. And on that note, then, hopefully all this work you’re doing on bringing back this and reviving our understanding of this essential but often overlooked and forgotten right. You will be featured in the pages of Law & Liberty a little bit more regularly. You’ve been here plenty of times and on the podcast a couple of times, but welcoming you as a contributing editor at Law & Liberty and in large part because we are all about this sort of thing, right? All about this sort of liberty in community regulated by law, and I think it’s a great fit for our pages. So those of you who are intrigued by this conversation, hopefully we’ll be seeing a lot more of these themes from Luke over the next few months and years. So welcome officially to the team.

Luke Sheahan (37:16):

Thank you. I’m glad to be here.

John Grove (37:18):

Alright, well thanks a lot. Make sure to check out those two edited volumes with Kenneth B. McIntyre on the Freedom of Association and Luke’s previous book, one of his other books, Why Associations Matter. And keep an eye out for the new work he’s going to be doing here at Law & Liberty. Thanks for joining us.

Luke Sheahan (37:33):

Thank you.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

Related Links

The Man Who Invented Conservatism by Daniel J. Flynn
“A Soldier for Synthesis” by Rachel Lu (Law & Liberty book review)
“Fusionism: The Only Game in Town” by Alexander William Salter
“Conservative Fusion,” a Law & Liberty Podcast episode featuring Charles C. W. Cooke, Samuel Goldman, and Stephanie Slade, hosted by James Patterson

Transcript

James Patterson:

Hello and welcome to the Law and Liberty Podcast. My name is James Patterson, Contributing Editor to Law & Liberty and Associate Professor of Public Affairs at the Institute of American Civics at the University of Tennessee. Today with me is our guest, Daniel J. Flynn. He’s an author and columnist, Senior Editor at the American Spectator, and he’s written for the Los Angeles Times, Chicago Tribune, Boston Globe, New York Post, City Journal, and National Review. He lives in Massachusetts and is a former US Marine Reservist, and has recently launched a new YouTube channel called Right-Wing Wilderness. So once you have completely listened to this podcast, go subscribe to his YouTube channel and like all of the videos that are up there. So Mr. Flynn, thank you for coming onto the Law & Liberty Podcast.

Daniel J. Flynn:

Appreciate you having me.

James Patterson:

Okay, so this is about your book, The Man Who Invented Conservatism, and that man is Frank Meyer. Mr. Flynn, why is it not Edmund Burke?

Daniel J. Flynn:

Well, I don’t think anyone invented conservatism, and the title is sort of a joke. I think a lot of the reviewers sort of miss that “don’t judge a book by its cover” admonition. And I guess I’m to blame for that because I did put that on the cover, so I can’t complain too much. What I explained in the book is that Frank Meyer was coming over from communism, being sort of a heavy hitter in the Communist Party. When he came over to conservatism, he thought, well, it takes a system to beat a system. Why don’t these people on the right have their act together, and why don’t they have a system? And that missed the point, sort of a category mistake. Conservatism is sort of an anti-system. It’s something that developed organically; it didn’t spin out of some theorist’s mind.

And so, when there are reviewers and others saying, “Well, he’s wrong. It wasn’t Meyer who invented conservatism, it was Edmund Burke or Bill Buckley.” I think all those people miss something, and that conservatism is not something that was invented. It’s something that develops. And I think that’s what Meyer figured out over the course of the last 20 or so years of his life in pursuing what he’s known for, which is fusionism. In pursuing fusionism, rooting that in the American tradition, in the American founding, he realized that conservatism wasn’t a system. It was something had to be rooted to something. And in America, the natural place to root conservatism would be the American founding

James Patterson:

Yeah, the Law & Liberty audience is probably more familiar with the Frank Meyer of the second half of the book. So before we get to that, let’s talk about the first half of the book. So what was Frank Meyer’s childhood like, and what accounts for this rather dramatic shift once he becomes a young man and becomes interested in Marxism?

Daniel J. Flynn:

Frank Meyer was born in 1909 in Newark, New Jersey to a very wealthy family. The father was an industrialist. The mother was sort of a Jewish do-gooder. So he had these two poles on him, one was the temple and the other was his father’s capitalism. He goes to the Newark Academy, and the earliest writing I have of him was when he’s 14. And it’s a real spirited defense of Judaism and saying, how does anyone say that Judaism is sort of losing its followers? Come into the temple on the holy days. You’ll see for yourself there’s a lot of enthusiasm there. Well, that was when he was 14, and that’s for the temple newspaper. And when he’s 16, he’s writing an article, an award-winning article, for the Newark Academy, defending Bolsheviks and toying with atheism. Something happens to him in his early years, like I think a lot of things happen to people in those years.

When he goes to Princeton, initially, he’s denied entry to Princeton, and I have the letters from the director of admissions there. He says, Frank Meyer doesn’t strike me even as a Hebrew of the better type. Can’t we steer him to some other college? There are plenty of fine, clean-cut Christians that we should have a place for, and Frank Meyer will just take a place from one of those people away. Now Frank didn’t see that, he stayed at it, he wins admission to Princeton in his next year, and when he is at Princeton, he encounters a student body of those fine clean-cut Christian Americans that the director of admissions was talking about, and he’s left out. Psychologically, he’s in a bad spot and he finds an attraction to Milton’s Satan. He starts writing poems about Satan, poems about young women. There was a woman in Newark, Dorothy Canning Miller, who later becomes a huge figure in American art, the curator at the Museum of Modern Art. When Frank is about 20 years old, he loses his virginity to Dorothy Canning Miller, an older woman.

And here goes a pattern. Frank is pursuing these pleasurable aspects of life, particularly women. He starts writing poetry about women. He starts writing poetry about Satan. And it’s not too much of a jump in the alphabet from Satan to Stalin, and I don’t think it’s too much of a jump otherwise. And so Frank starts toying with the idea of communism. By the time he gets to Oxford (he drops out of Princeton and he goes to Oxford), in his later time at Oxford where it’s a much more welcoming environment than Princeton was for him, he found something called the October Club, which is still around, which is a Marxist, explicitly Marxist, organization. And he marches his friends to the Communist Party of Great Britain’s headquarters in London, with a guy named Prince Mirsky (who in a few years dies in the Gulag) and they all join the Communist Party of Great Britain. Frank becomes a board member of the party. He’s the leader of the student bureau. And in fact, if you look at the MI five and MI six files of Frank Meyer, they call him the founder of the Student Communist Movement in Great Britain. So it’s unlikely that you’d have an American be the founder of something like this, but that’s what Frank Meyer found himself in the early 1930s.

James Patterson:

It’s an incredible story because on the one hand, it really does speak to the time where the Ivy Leagues are very concerned about preserving a very specific identity for admissions, when they would place caps on admissions to Jews for example. But on the other hand, it’s a familiar story even now, where you have well-to-do Americans sort of almost rejecting the lives that they’d lived before in favor of some kind of imagined superior alternative. It’s almost like a rejection of his Jewish upper-middle-class upbringing, which is repeated endlessly in not just Jewish but other religious backgrounds. But the young vigor that typifies Frank Meyer is not exclusively limited to Dorothy Canon Miller, is it?

Daniel J. Flynn:

No, it’s not. And when he’s in Great Britain, he is getting a lot of attention from MI5 in MI6 when he goes abroad and they’re taking notes on him, they take 160 pages of notes, they talk about what tweed he wears, whether he shaved that day, what bars he drinks at. They do a black bag job on his apartment. They put a mail cover on his correspondence. So they note all sorts of very obscure things about him, which is very helpful to a biographer. They leave out, and for reasons that you could probably imagine why they left it out, but they leave out the one glaring aspect of Frank Meyer’s time in Great Britain, and that is this. All that time, he’s calling for the violent overthrow of the government of Prime Minister Ramsey McDonald. And during that time, he is surreptitiously dating Ramsey McDonald’s youngest daughter.

I have a letter from Sheila McDonald to Frank Meyer saying, come on over to 10 Downing. The coast is clear. My dad’s gone. We’ll have dinner. Seven o’clock sound good for you? So you pick the person in the history of communism, the romantic figure, Che Guevara, Jack Reed, whoever you want to pick—none of them had the guts to pull off a caper like that. And it shows you Frank Meyer’s confidence, his charisma, but it also shows you his recklessness. The idea that he would be out there, such an upfront figure saying we need to overthrow the government of Great Britain, and at the same time he was secretly dating the Prime Minister’s daughter. I mean that to me, that’s just a wild story and one that I think until this book came out was completely overlooked.

James Patterson:

So Frank Meyer was a true believer in this stuff, not just a cynical agent, right? Both when he came here, went to Britain, and then came back.

Daniel J. Flynn:

Correct. He’s an ideologue, he’s a Marxist fanatic, he’s a firebrand. And his dating of Sheila McDonald leads rather predictably to deportation hearings against him. And at that point, he becomes a cause celeb. And even though he’s a Marxist, I think he really liked being sort of the first amongst equals, if you will. All the attention that he was getting in Great Britain, you had Bertrand Russell, the philosopher, and E.M. Forster, who wrote A Passage to India and Howard’s End, signing a petition saying, keep Frank Meyer in the country. Clement Attlee, who would later become the Prime Minister of England, defends Meyer on the floor of the House of Commons. Michael Straight, who later was the publisher of the New Republic, got caught up in Meyer’s charisma and joined the Communist Party, became an agent. Meyer was never an agent, but he became a Soviet agent. He remembers at the time marching around London with the whole mobs of students chanting, “Free Frank Meyer, free Frank Meyer.”

So he became really like one of these “free Angela Davis,” “free Mumia” figures in Great Britain. But you know, you can date the Prime Minister’s daughter, or you can call for the Prime Minister’s overthrow. If you do both, you’re not going to last there if you’re not an Englishman. And so he gets deported on June 1st, 1934. And in keeping with the ironies and paradoxes of his life, he immediately goes to work in Paris for a guy named Walter Ulbricht. And Ulbricht was the guy who constructed the Berlin Wall later. At that point, he was sort of an unknown Marxist on the run from Germany because he had killed two policemen. Meyer goes to work for him as a peace activist. They’re engaging in peace activism for Stalin. So here’s a guy like Ulbrich, who is a very stern, rigid figure. I mean, he later becomes the longest-serving dictator of that short-lived country known as East Germany. And there’s Meyer working for him in the summer of 1934, gets kicked back to the United States, and it takes him about 10 years, but he finally regains his spot. He’s at the highest levels of the British Communist Party, and in the American Party, he’s more like a mid-level manager. He’s the director of the Chicago Workers School, but it takes him about 10 years to get back to that level that he was at in Great Britain. And for his final year or so in the party, he’s at that highest level of the party.

James Patterson:

And probably not dating a member of the Roosevelt family.

Daniel J. Flynn:

No, he married one of his students at the Chicago Worker School, Elsie Meyer. And when they met, she was married to some other communist, but with the communist morality being what it was, they weren’t going to let that get in the way of the red-hot attraction that they had. And so she dumped him and same week she gets a divorce, she marries Frank Meyer, and they lived happily ever after for the rest of their lives.

James Patterson:

You have this true believer. And you know what? With true believers, you go one of two ways. Either they self-destruct within their own ideologies, or something about communism starts to bother them, right? Especially when it’s managed by Soviet influence, which is very calculating, very non-ideological in its approach. And this has something to do with Meyer’s experience with the Second World War.

Daniel J. Flynn:

A lot of it does, definitely. He had a friend in England, his understudy, who was a guy by the name of John Cornford. Meyer later names his son “John Cornford Meyer”; he had that much of an influence on Meyer’s life. Cornford was the great grandson of Charles Darwin, and Meyer ropes him into communism as a teenager, as like a 16, 17-year-old kid. And when Meyer leaves, Cornford takes Meyer’s spot over there. He’s the head of the student bureau. He goes over to Spain and he dies the day after his 21st birthday. And I have to think that Meyer felt great guilt for this. Meyer had also sent men to their deaths as a recruiter for the Spanish Civil War in the United States. So Meyer tries to join up to fight Hitler in World War II. And the Communist Party says, no, I’m sorry, we need you here.

And he thinks, this is odd. They’re exhorting everyone else to go and join the fight against Nazism, but they won’t let me go. This goes on for about eight months. And finally in frustration they say, okay, you want to go? Go. He goes, and it’s revelatory. In the squad bay that he’s in, he finally meets the proletariat that he’s been talking about all these years. And they’re not the same people that Marx had described. These are not people that are itching to overthrow the government. They’re just looking to make their lives better. And he’s stunned by this because he had lived a very socially insulated life. He grew up in a hotel, he went to Oxford and Princeton, his family was wealthy. So this is revelatory. He gets injured in Officer Candidate School in Fort Benning, Georgia and it takes him over a year to recoup. He gets surgeries on both of his feet.

James Patterson:

Yeah, he had some sort of problem with his feet, they had very high arches? I was trying to understand what this is. It was pretty bad-sounding.

Daniel J. Flynn:

Yeah, something like that. And he’s 33 when he joins the military, so he’s …

James Patterson:

He’s in trouble.

Daniel J. Flynn:

Yeah. You’re breaking down. And so he doesn’t go and fight, but he sort of washes out of the military. But that year of recuperation, he’s thinking, and he’s questioning, and questioning and communism do not go together. And in desperation, him and a guy named Louis Budenz, they’re talking in Chicago. Budenz was the editor of a communist paper out there; Meyer had been the head of the Chicago Worker School. And they think, back in the thirties, the heyday of communism, was when they were touting these slogans, like “Communism is 20th century Americanism.” We need to get back to that. And so he writes this letter to Earl Browder that has a dramatic effect, not just on communism but on conservatism. And Meyer couldn’t have foreseen this when he tells Browder that the Communist Party needs to fuse Marxism with the American tradition, and that they need to do this not just on the 4th of July, but every day of the year.

And he repeatedly uses a variant of this word “fusion.” So that comes much later. But that idea—Meyer comes to realize, well, Marxism doesn’t fit with the American tradition. He’s a fanatic, but he’s not such a fanatic as to lose his sense or his intelligence. And so that eats away at him. But the question remains, what does fuse with the American tradition? And in the long run, after Meyer leaves the party, what he comes to recognize is that the American tradition means the founding. And what does the founding mean? It means freedom. So if you’re an American, that’s what you’re conserving. If you’re a British conservative, maybe you’re conserving the monarchy, the aristocracy. If you’re an Italian conservative, maybe it’s the Catholic church. But the thing that’s significant about us, that’s important about the United States of America, is our founding. And so that is what Meyer set out on the last half of his life to preserve: the ideas of the American founding. And to Frank Meyer, that meant freedom.

James Patterson:

A lot of the people around Meyer during the latter days of his American communism are people who are peeling away too. I mean, you mentioned Louis Budenz, whose name I first learned when I was in graduate school during research on Fulton Sheen.

Daniel J. Flynn:

Sure, yeah.

James Patterson:

Fulton Sheen converts them to Catholicism.

Daniel J. Flynn:

That’s one of the most amazing stories, and I’m sure you’re probably familiar with it, but Meyer uncharacteristically leaves the Communist Party in a whimper. He just sort of sneaks away.

And people kind of shun him because he had spoken out about things. He had given a positive review of Hayek’s The Road to Serfdom. So he was already sort of cracking up. Budenz went in a more Meyerite way. And so in October of 1945, and I have some letters from Budenz to Meyer covering this in real time, really fascinating stuff. And so, on this particular morning, whatever it was, October 13th or something like that, 1945, Budenz is the managing editor of the Daily Worker. He’s the guy, I think the editor at that point’s Earl Browder. So Earl Browder is not editing the paper, Budenz is the editor of the paper. That morning he’s the editor of the paper; that night he is converted in St. Patrick’s Cathedral in New York to Catholicism. He renounces communism. So you have probably the most flamboyant, high-profile charismatic priest in American history, converting the editor of the Daily Worker in the most famous cathedral in the United States, St. Patrick’s Cathedral, and all of the newspapers cover it, and the communists are just sort of dumbstruck at this. How did this happen? Meyer, around the same tim,e kind of worms away, but Meyer and Budenz’s paths continue to intersect, but it’s with Budenz that Meyer comes up with this idea of fusionism.

James Patterson:

The intellectual ferment that communism loses as a result of its hard line is actually to the gain of the United States, with people like Budenz. He dies shortly after that, I think?

Daniel J. Flynn:

No, he dies the same year as Meyer. He might’ve died the same month, month as Meyer. He died the same month as Meyer. He was quite older than Meyer. Whereas Meyer went into conservatism, Budenz became more of a Catholic. They both became witnesses, Budenz a bit of a professional witness. So Meyer gets convinced by Budenz to testify against his former comrades. And in 1947, he gets a visit which he dreads from the FBI, and they visit every month or so, and Budenz is encouraging him to testify against his former comrades. And he said, it was at that moment that I first understood what grace was, because there was no good decision I could make. There was no decision I could make without sinning. I would either have to turn on my old friends, my comrades, or I’d have to turn on my country.

There was no good decision. There was no decision I could make without committing a sin. He ultimately decides that he’s going to go the Budenz route and he’s going to testify against his former comrades. And in 1949, he testifies as a mystery witness, as a surprise witness, in the longest, most expensive trial in US history. That’s the Smith Act trial of 1949 and it lasts a couple of years. And Meyer is one of five witnesses along with Budenz who were actually members of the Communist Party. A lot of the other witnesses who were, well, remember the program, “I Was a Communist for the FBI”? There were a lot of people back then who were FBI agents who had infiltrated the Communist Party. They had testified against the party, naturally, but Meyer was one of a few people who were actually earnest members of the party who said, this is what happened. And he sends 11 of his former comrades, including Eugene Dennis and Gus Hall, to jail. They go to jail for five years or so.

James Patterson:

Yeah, I am forgetting who it is. I’m frantically trying to look this up, who some of these converts were. He converts Fritz Chrysler and Clare Boothe Lewis, but they are not the ones who I was thinking of. But yeah, there are a lot of high-profile conversions that Sheen makes, and Budenz is certainly one of them. So I’m sorry for misremembering. So how do we go from the sort of heretical communism of Meyer to the National Review? There’s this period of you call Woodstock, and it’s not the fun one. He’s already had all that.

Daniel J. Flynn:

Yes. Meyer in 1944 moves to Woodstock, New York. When he was convalescing, he went up there for awhile, and he has a son, John Cornford Meyer. And during his period there, his income is essentially passive income from money that he had inherited. They own a building in Newark, New Jersey, and he’s really making no income. So he’s married, he has a kid, but he has no really no means of supporting them. He starts speaking with his best friend, who’s Eugene O’Neill Jr. That story is probably too intricate to get into here, but Eugene O’Neill is his other dead friend that he names a son after. After drinking Frank Meyer’s whiskey (and to me this is sort of the seminal point of Meyer’s Life), O’Neill commits suicide, finishing that bottle of whiskey, saying: never let it be said of an O’Neill that he couldn’t finish a bottle.

And that next morning or that afternoon, Elsie Meyer finds his body. He slit his wrists and his ankles—he was a classicist—so in Seneca style. So this period, it’s not a great period for Frank. He’s shunned by a lot of the folks in Woodstock because it’s an artist colony, there’s a lot of left-wingers up there. And he starts writing for The Freeman. He starts writing for American Mercury. So people kind of start to know him within conservative circles. By 1950, his language in these debates he has with Eugene O’Neill are characteristically the language of a right-winger. You would know this sort of language. So after 45, he’s sort of a Truman Democrat. By 1950, he’s a right-winger. Within a few years, he’s too pure for Eisenhower. And at 1955, he’s present at the creation of National Review.

And this is sort of like the biggest little magazine of the twentieth century. Bill Buckley’s the prime mover, he’s the main founder, and there’s another guy who comes up with the idea named Willi Schlamm. So Schlamm is a founder. Schlamm said when he founded it, he wanted to start a veritable conspiracy of friendship where the outs could finally take on the ins. And Schlamm thought of himself as the out, and he knew himself in that way. He was sort of the consummate out. Unfortunately, Schlamm was ill-equipped to be the master of ceremonies of his conspiracy of friendship. He annoys Buckley; he annoys Jim Burnham. He gets sort of kicked out. And immediately, three things happen upon Schlamm’s defenestration to Vermont. The first thing is that Frank Meyer is sort of elevated to the leader of the anti-James Burnham faction with the National Review.

Meyer is sort of the purest. Meyer is the right wing. Burnham is more moderate, more pragmatic, we could say within that continuum of National Review. He’s the more moderate end of things. So Meyer carries on a 17-year battle for the soul of National Review with James Burnham. I think Meyer probably loses that battle on a lot of fronts, but he wins the larger battle for the soul of the conservative movement. We can get into that a little later. The second thing that happens is that Meyer becomes the editor of Books, Arts & Manners. He’s the literary editor of National Review. He takes over from Willi Schlamm, and this is really where he shines in the magazine. Although he’s the purist in his column, Principles and Heresies, he’s sort of this strange ideologue when it comes to being the literary editor because someone’s politics don’t matter to him, what matters is: Can they write a good book review? Which is probably what should matter if you’re running a book review section. People miss that.

And so he’s the editor who runs the first freelance article by Joan Didion in the United States, and Didion credit him with that. He takes Gary Wills under his wing, and Gary Wills is later a Pulitzer Prize winner, writing in history. Wills said that he spent more time with Meyer than he did with anyone outside of his family in the late fifties, early sixties. He has a neighbor in Woodstock, Theodore Sturgeon, who’s a science fiction writer. And Meyer was unlike a lot of people at the time who thought of science fiction as culturally maybe a step above professional wrestling, but a step below cowboy fiction. He said, no, there’s some great stuff going on. And there really was a lot of great stuff going on in the fifties and sixties.

He has this guy Sturgeon review over about a hundred science fiction titles for National Review. And during that time, Sturgeon is writing scripts for Star Trek. He comes up with “Live Long and Prosper,” probably the most famous line in the history of Star Trek. He comes up with the prime directive. He writes that episode in which Spock (Leonard Nimoy) comes up with that Vulcan hand salute. I can’t do it but some people can, where you split the fingers down the middle. So Meyer had a lot of very interesting and eclectic people writing book reviews that made National Review the place to be in the 1960s. If you wanted literary criticism, there was nowhere better in the 1960s, and Frank Meyer is the guy running that show. The third thing that happens, this cascading effect from Schlamm leaving, is that Meyer becomes the master of ceremonies of this veritable conspiracy of friendship.

He does this in part by staying connected through the telephone. He spent more on his phone bills in the mid 1960s; in fact, it was double the amount that he spent on his son’s Yale education. That’s how much he was spending on phone bills. So people were getting calls from Frank Meyer, longer calls than they might want. The other thing he does is he turns his Woodstock farmhouse into this unlikely agora of the postwar right, where people like Didion and Wills would come up and spend the weekend. Or I just wrote a piece in the Boston Globe about David Brudnoy, the great talk show host in Massachusetts, who died about 20 years ago. Brudnoy said, I never spent a more mentally taxing, yet relaxing weekend as I did with you. And what they would do is they would drink, and they would smoke, and they would debate.

And if Gary Wills was there, they might go back and forth proclaiming a Shakespeare play in full. They would debate about Goldwater, they would sit by the fire if it were cold, and they would have dinner, they’d just have a great weekend and they would keep Meyer’s hours. After Meyer leaves the Communist Party he basically goes to sleep at seven in the morning and wakes up in the afternoon. And if you were going up for that weekend to debate and talk with Frank Meyer, you would keep Frank Meyer’s hours or something close to it. And so in the 1960s this became a passage rite. If you said in the sixties you were going to Woodstock, it meant something very different for conservatives than it meant for everyone else. And of course, Woodstock for Meyer, the last few years of his life, he’s living next door to Bob Dylan.

So there’s all of these figures that, almost like in Forrest Gump or Zelig-like Fashion, Meyer ends up with Eugene O’Neill, TS Elliot, in Britain he confronts HG Wells and has this big sort of standoff with him at a public lecture that gets a lot of attention. Gertrude Stein, obviously Joan Didion, J Edgar Hoover, Barry Goldwater, Henry Kissinger, it’s almost like a Who’s Who of the twentieth century that Meyer is weaving in and out, of course, having this next-door neighbor, Bob Dylan. And he meets him, and he says, the guy had reasonably good sense. He was surprised. Dylan had reasonably good sense. And if you read Dylan’s autobiography, you can see that he hated hippies more than Meyer did. As strange as that sounds, he said, I wanted to set fire to these people.

James Patterson:

The guy I was trying to remember was Heywood Broun, by the way. And he dies of pneumonia at I think 39. But this is an incredible array of people you’re describing, and one of perhaps the most insane relationships that he has is with a man named L. Brent Bozell. So who was that, and in what way is he kind of like the creative opposition to Meyer? I feel like I’m kind of skipping over Kendall here, but we’ll maybe get into that in a second.

Daniel J. Flynn:

Kendall, Meyer, and Bozell were kind of like the Three Musketeers at National Review, and to one degree or another they generally stood against James Burnham with Meyer being kind of the captain of that ship, and Meyer sort of having more, I don’t know if venom’s the right word, but he certainly disliked Burnham. And Burnham I think had contempt for Meyer as well. It softens over the years. But Bozell, in the United States, he is kind of a Meyerite, he’s a fusionist. Meyer’s idea of fusionism is essentially that for people who love freedom, the libertarians and the traditionalists are not in conflict. They’re in cooperation. For a freedom to prosper, it rests on thousands of years of tradition, of Western heritage, you take away that heritage and freedom’s going to collapse. For the traditionalist people, something like virtue is important to them.

You can’t have virtue without freedom. You can’t have coerced virtue, at least for adults. And so he said, you guys shouldn’t be fighting, you should be together. And initially Bozell is all for that. But Bozell is one of these guys, like a lot of people in the sixties, who had a long strange trip. In the forties, he was a world federalist, he was a McCarthyite in the fifties, and he’s sort of a fusionist at the end of the fifties, early sixties. And then he goes to Spain, and Spain takes away another of Frank Meyer’s friends. In Spain, Bozell becomes, I gues,s kind of what you would call a Theo Con or someone for whom religion is sort of infusing all of their politics. Prior to going to Spain, he didn’t write about religion at all in National Review, or not much at all. And afterwards, almost everything that he was writing, or most of what he was writing, had some connection to Catholicism.

And so he changes overnight, and they have this debate in National Review, which I think is really the height of the magazine. And this is in 1962 where Bozell in the seven page article kind of mocks Meyer’s idea of fusionism and his idea of the Holy Trinity of government. Meyer, he thought the federal government (and you get this more in Defense of Freedom, which Meyer wrote that year, that’s sort of his magnum opus) but Meyer says in that book: there are basically three functions of the federal government. It’s for the common defense, to adjudicate disputes through courts, and to police crime and things like that within the country. Everything else beyond that is mission creep. And Bozell wanted a bigger, more robust government to push his moral ideas. And Meyer thought that politics was not something where you pushed morality. In other words, that his libertarianism, his fusionism, was a philosophy for government.

It wasn’t a philosophy for how you conduct yourself in your life. You need other stuff for that. But what Bozell was saying, Meyer would say that that’s an overreach, putting government into functions which it’s ill-equipped to partake in. And so they had this big debate in National Review, and both of them scored points. I will say that, unlike some of the other people that Meyer debated, Bozell and Meyer remained friends. I mean I have found the correspondence between Bozell and Meyer and they’re laughing about this. They’re saying, “if Bill Buckley doesn’t let us put this in the magazine I’m going to resign” or “let’s do it when he is over in Switzerland, we’ll sneak it in.” And they do that and they’re still friends. But Bozell has gone in a very different direction ideologically and philosophically. And I don’t think people noticed it at the time, but the real tragedy of all this is that over time people come to see that Bozell had developed a mental illness. And so a lot of the people that Meyer surrounded himself with at National Review didn’t ultimately last there. Meyer did. He was sort of the hero or the last of the Mohicans. He was sort of the guy that was keeping up that fight, the good fight against James Burnham. But all of his soldiers in battle, or his lieutenants, they all sort of wash out of the magazine, and Bozell starts washing out of the magazine around that time.

James Patterson:

And you end up with a choice between a kind of fusionism of Barry Goldwater, a West State, Jewish Episcopalian and libertarian, or Francisco Franco, right? These are like: Which way, conservative man?

Daniel J. Flynn:

There’s a point at which Bozell, in these letters that I have, there’s a point at which Bozell writes Meyer and says, I no longer want to be president of the United States. I want to be caudillo of Spain. And it’s tough to see whether he’s being serious. You know, Bozell had a bit of a sense of humor. So maybe he’s sort of tongue in cheek, but at the same time he’s urging Meyer to come to visit him or maybe even emigrate to Spain. And he says to Meyer, the United States is no longer the country that’s going to save the West. It’s not suited to save the West. Why keep working on an ungrateful people? Come to Spain! Spain is the country that’s going to save the West. Meyer regards this as kind of a dubious proposition, does not go to Spain. He’s sort of open to visiting, but he doesn’t go over there and he is not caught up in Spain the way Bozell is or their other component of the Three Musketeers, Willmore Kendall is. And so these guys, Bozell and Meyer, remain friends. Kendall and Meyer are friends for about 10 years. And then that tempestuous relationship really kind of goes off the rails.

James Patterson:

And that’s what’s so interesting about National Review is that as a reader, reading the article, reading this great stuff, you would have no idea that what you’re reading is the outcome of these incredibly tempestuous personalities fighting each other tooth and nail behind the scenes.

Daniel J. Flynn:

What a credit to Bill Buckley to keep all that together. I mean, you’re telling me the idea that Buckley has to run a magazine with all of these guys and a lot of them at each other’s throats, and they’re all incredibly talented, and he’s got to squeeze product out of them. He’s got to squeeze the talent out of them and not have them strangle each other. They all, including Meyer, Bozell, certainly Kendall, they all had aspects of their personality that made them sort of ill-suited for a group enterprise. When Jim Burnham, who I think could do no wrong in Buckley’s eyes, when he was a Trotskyite, people would say, “Jim Burnham, he was one of us, but he wasn’t of us.” If that makes any sense. His is a guy who went to the opera, one of his fellow Trotskyites said. In other words, they thought of him as a snob.

And at National Review, a lot of the people there thought of him as a snob. There were certainly people who liked him and admired him. And I think for Buckley, because he was in the office, he was an actual editor who was editing things and getting magazines out, Buckley appreciated him. Not just because he was a person who influenced Trotsky and Orwell, he was a massive intellect, but he was also a person who in the practical function of putting on a magazine was more valuable than those other guys were. So Buckley loved the guy, but Burnham had a snobbishness about him, had a condescension that would really upset Meyer and others in that National Review circle. So a lot of these guys didn’t really like each other all that much, but yet Bill Buckley’s talent, as Neal Freeman told me, was as the band leader, getting all these guys to sort of play their instruments, not always in harmony, but getting them all to play their instruments. And Bill Buckley had a lot of talents, but that may be one of his most overlooked talents.

James Patterson:

Just thinking about it gives me the hives. I can’t imagine having to keep Burnham, Meyer, Kendall, and Bozell from killing each other. It just sounds like an impossible task. No wonder he smoked so much. So let’s talk a little bit bigger picture now and Meyer’s contribution to conservatism. The book almost claims this in the title, but you’ve explained what’s actually going on there. He kind of gives us what we consider conservatism.

Daniel J. Flynn:

He has kind of the default outlook of the American right in fusionism, let’s say between from the 1960s, and you can pick your date when it sort of started to wane. I mean, I think fusionism is certainly not the default outlook of conservatives now. When that started to die down, whether that was the nineties or sometime later, I don’t know. But people like Barry Goldwater and William F. Buckley and Ronald Reagan, whether they called themselves fusionists or not, they were certainly fusionists. And so Meyer’s idea won the day within the conservative movement, and partly it wins the day because whereas Burnham has Buckley’s ear at National Review, Meyer is doing all sorts of stuff outside of the magazine. He’s a founder of the American Conservative Union along with people like Bob Bauman and Buckley and others. He’s a founder of the Conservative Party of New York. He’s at the founding meeting in Queens, New York of that organization.

He’s a founder of the Philadelphia Society. He’s present at the creation of Young Americans of Freedom. And if you read the Sharon statement, a lot of that is Frank Meyer distilled through the pen of maybe his greatest acolyte, M. Stanton Evans. And so Meyer had his fingerprints all over the conservative movement in part because he had such an interest in mentoring young people, in getting young people involved. And I think a guy like Burnham didn’t have time for that. And I heard some kind of bad stories about Burnham sort of ignoring young people and sort of treating them poorly. I also heard some great stories. David Franke, the late David Franke, said Burnham took him aside at National Review and said, you remind me of me when I was your age. And Frankie thought that was the biggest compliment he had ever received in his life and in his eighties, shortly before his death, he told me that.

And so Burnham could have different effect on different people. Meyer was much more aggressive and evangelistic and I think took some of those ideas that he learned in the Communist Party and applied them within the conservative movement. He of course wrote a book called The Molding of Communists. People don’t read The Molding of Communists now, and I’m not advising them that they should. It’s sort of part training manual, part anthropological study of the Communist Party. It doesn’t have a lot of application for 2026. In Defense of Freedom, I think, certainly does. But in that book, you get a sense of where Meyer got some of his ideas to put his influence not only on the movement, but on future generations of the conservative movement.

James Patterson:

And it doesn’t sell. That was the thing when I was reading that section, I was like, it didn’t sell? I was shocked.

Daniel J. Flynn:

Yeah, In Defense of Freedom didn’t sell very well. It sold well later, and the Liberty Fund is a big reason why it sold well later. So in 1972, Frank dies, he had lung cancer, and dies in April of 1972, converts to Catholicism six hours before his death. His wife, Elsie Meyer, is so disgusted with Regnery Publishing that when they send her a measly check of under a dollar of the royalties that he’s getting, she rips it up, sends it back to them, and says, why don’t you just send me a stamp next time? It would’ve saved me the trouble. And so she’s upset at them. It sold a little over 3000 copies, In Defense of Freedom, which is a respectable number, but not what you would say is a success.

I mean, everyone says if you sell 5,000 copies, you’re a success. I think now it’s changed because people don’t really read books anymore. But Frank’s book did poorly and then Regnery came out with kind of a Gateway Edition, and it started to sell, and started to sell pretty well. In the nineties, the Liberty Fund came out with this beautiful blue and yellow edition, that’s the one I have, of In Defense of Freedom. And I think those, I don’t know what the numbers are. I know the numbers up until about Frank’s death, which were about 3,100. After that, I don’t have the numbers, but it’s a safe bet that the book sold many more copies after Frank’s death than he did during his life. And some reviewers took me to task for this, but at least for me coming up in the conservative movement, it was one of a dozen or so books that let’s say you’d have to read eight of them to gain entry to serious conversations with other conservatives, other books being The Road to Serfdom by Hayek or The Conservative Mind by Kirk, or maybe Ideas Have Consequences by Weaver. Pick whatever 12.

Meyer’s was in that camp, and I think people had forgotten him to such a degree that when I made that statement that this was a book that serious conservatives, I think I make the comparison in the book that it was a lot like The Velvet Underground & Nico, where Brian Eno said, well, it may have only sold 30,000 copies, but everyone who listened to that album started a band. And I think everyone who read In Defense of Freedom, they may have launched a magazine, my editor, R. Emmett Tyrrell, he launched The American Spectator. He had Frank Meyer speak in Indiana. He went up to make that obligatory pilgrimage up to Woodstock with Bill Kristol. So a lot of the people that Meyer was influencing, they might’ve started a political club or a magazine, they might’ve run for office. A number of federal judges went to visit him.

Of course, they weren’t federal judges then, but they are now. And so he had an impact that the numbers kind of hide. And Liberty Fund is a reason for that, and the Regnery Gateway Edition. But I do think Meyer, he was forgotten. Two things happened. In the 1940s, when he testified against the Communist Party, the communists are caught on a wiretap saying, we have to erase this guy from our history. We’re rewriting the history, going to rewrite the history of the student movement in Great Britain. So Meyer is completely erased from that history. There’s a different censorship that happens on the right, and maybe the censorship’s too strong a word, but he becomes erased on the right, too. Because if you are going to write a book about Bill Buckley, where do you go? You go to Sterling Library at Yale, look at his papers.

You write a book about James Burnham, you go to the Hoover Institution and look at his papers there. Where would you go for Frank Meyer? There was no place to go. Where were his papers? And so I went on a journey to find where his papers were, and it took me two years, but I finally found the couple that had bought his property in Woodstock and they bought all the contents. They insisted initially that they had donated it to the Hoover Institution. And I said, no, you kept some of it. And they said, no, no, no, we donated. I said, no, you kept some of it. You may not know it, but you have some of it. And finally, they said, well, we have a warehouse. And in the summer of 2022, I go to this warehouse in Altoona, Pennsylvania, and there’s 663 boxes. I go through all of them.

And in those boxes, 15 of them have the life’s work of Frank Meyer, probably a hundred thousand of his letters or something like that. And I couldn’t have written this book without that desperation because at the time, COVID had closed everything. The federal government essentially told me there’d be a 10 year wait for my Freedom of Information Act request. I made that in 2021. Here we are in 2026, still nothing from the federal government, but I was able through persistence to find this warehouse in Altoona, Pennsylvania. And in that warehouse, I don’t know, I probably have a quarter million pieces of paper in my house. I have homemade Christmas cards from Joan Didion, a thousand letters between Meyer and Willmoore Kendall that nobody’s ever seen, hundreds of letters from Buckley that nobody’s ever seen. Probably a thousand letters involving Brent Bozell.

There’s one-off letters from C. S. Lewis, Tolkien, Evelyn Waugh, and all sorts of people. So it’s a quite valuable, in a historical sense, in a scholarly sense, a quite valuable collection. And for readers, there’s a lot of conservative books out there for you to read. The reason I would say “read mine” is because it’s not recycled. It’s not incestuous. It’s not borrowing from some other book. It is a book that—well, one of the reviewers counted and said, 43 percent of the source citations stem from this warehouse in Altoona. So nobody’s ever seen this stuff before. So it gives you a fresh look at some old stuff. And then on top of that, there’s about 54 archives of archival collections both in the UK, Canada, the United States that I got material from, and there’s about 80 people I interviewed.

So it’s a lot of fresh stuff, not just on Meyer, but you get a sense of the conservative movement, the personalities involved. A lot of these books on conservatives, if I were to criticize them, a lot of the times it’s sort of hagiography, it’s a kind of biography of the saints. And I wanted to get into the personality of these guys. A lot of these books are intellectual biographies. I didn’t want to write an intellectual biography. I wanted to write a biography about a guy’s life. And if you want to write about a guy’s life, you got to write about his loves. You got to write about his vices. You got to write about his friends, his rivalries, all the good things he did. And that’s what I try to do. This is a very human story, and it’s also a story that if you want to understand the conservative movement, I would say you have to read this book.

James Patterson:

I got to say, I’m an academic. I don’t do quantitative stuff that much. I do a lot of stuff that’s in archives, and I am so grateful that you pushed on this to find this archive because it’s so easy for stuff like that just to vanish, and then people not to know it vanished.

Daniel J. Flynn:

Correct. I mean, this would’ve ended up in a landfill or an incinerator within a few years. The couple was getting on in age. They’re pretty healthy people, I think. But what would’ve happened to that material? I don’t know. I got to think probably no one’s going to go through 663 boxes and say, is there anything valuable here if that couple had passed on or if something had happened to them. So I’m grateful that I found this, and I’m grateful it’s all going to go to the Hoover Institution very shortly. So there’s going to be other scholars that are going to be able to look at it. And I’m already sending some stuff out to some other scholars that’s a little bit too much of a task, but when it gets to Hoover, they can all look at it.

James Patterson:

Yeah. Well, thank you so much for that service just to the discipline as it were.

Daniel J. Flynn:

Desperation. Desperation.

James Patterson:

That’s one of the other mothers of invention. Just to close, does Frank Meyer really have any bearing today? You mentioned that fusionism is in decline, but the funny thing is that when I was reading the Goldwater section, Bozell kind of has a point, right? Like everyone’s losing, but then you get Reagan in a few years. So this despair that besets the conservative movement after Goldwater. Do you think sort of conservatives unhappy with the state of the right today might just simply need to keep plugging away the way Meyer did?

Daniel J. Flynn:

I think so. Meyer was indefatigable in 1960. He wrote a memo urging National Review, successfully urging them not to endorse Richard Nixon, who he thought it was the prime opportunist of the twentieth century. And he said, we have to support local candidates, congressional candidates, and it may take until 1980 until our movement is able to elect one of our own presidents. Of course, that’s what happened. Meyer was an early adopter of Ronald Reagan. Almost the moment that Goldwater loses, he reorients, and says, this is the guy. This is the guy that we should have nominated or we should nominate in the future. I think right now where there is a personality, and Meyer warned about this too, about a big personality. Both Meyer and Bozell worried about a big personality co-opting the conservative movement and taking it in their own direction.

I think Donald Trump’s done a lot of really great things. I admire a lot of things that he’s done, but there’s no rhyme or reason to a lot of it. And he certainly hasn’t read the same books that we’ve read. He’s coming at it instinctually, and some of his instincts are good. Some of his instincts are bad. I think until he leaves the scene—and I don’t know that he’s going to leave the scene when he leaves the scene, he’ll probably stick around, hover around—but I think until 2028, conservatism for most conservatives is whatever Donald Trump says it is. And so when there is this soul searching, and I think the soul searching is already happening, you can see the sort of fights between Ben Shapiro and Tucker Carlson. These are the people that Matthew Continetti calls the very online right, so I don’t know if a lot of people are looking to them for intellectual guidance, but a lot of people do look for them, look to them.

And these fights that are going on now, even Marjorie Taylor Greene sort of stepping out and saying, I disagree with all this. It’s showing little cracks in the armor. And I think when people start to reevaluate and say, what is conservatism? It’s going to be very difficult to avoid fusionism because we are Americans, and what is it that Americans are conserving? There’s a big obvious answer. And the fact that it’s 2026, the 250th anniversary of the Declaration of Independence, gives us that obvious answer. It shouts out to us that the American founding is the big thing that conservatives should conserve. And I think Meyer was right that the founding meant freedom. And so I do think American conservatism will always have something to do with freedom because that’s the significant thing about the American founding. There are all sorts of people that set up governments at all different times in the history of the world. But what was unique about our founding was the freedoms that it unleashed and that it recognized that we had. And so I think that is something that moving forward, when people are not as hypnotized as they are now, inevitably fusionism is going to be part of that conversation.

James Patterson:

The book is The Man Who Invented Conservatism, the Unlikely Life of Frank Meyer. The author Daniel J. Flynn. The YouTube channel is …

Daniel J. Flynn:

Oh, RightWingWilderness, all but you have to do it all compressed, like capital, right, capital wing, capital wilderness. And it’s just me talking about conservative stuff and the wilderness, and feeling a little bit like I’m out and alone in the wilderness, because the world has changed so dramatically. We always feel like we’re out in the wilderness as conservatives vis-à-vis the regular society. But I think a lot of people who are on the right now feel like they’re alone. Everything’s changed. It’s sort of a wild world. And that’s kind of why I titled it that way. But I post something up every week and, hey, just because now I’m a YouTuber, I have to say it. Please like and subscribe.

James Patterson:

That’s right. The irritants needed one errand in the wilderness. Daniel’s given himself so many, he can follow a YouTube channel. Alright, well, thank you so much for coming on our podcast.

Daniel J. Flynn:

I appreciate it. Thank you so much.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

Related Links

Religious Freedom: A Conservative Primer by John Wilsey

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund. Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, associate professor of public affairs at the Institute of American Civics here at the University of Tennessee and contributing editor to Law & Liberty. My guest today is John D. Wilsey, professor of church history and philosophy, as well as chair of the Department of Church History and Historical Theology at the Southern Baptist Theological Seminary. Dr. Wilsey has a lengthy bio in which he has many, many accolades and many different books published, but we’re going to be talking about the most important one, which is the most recent, the one that we’re trying to sell today, namely Religious Freedom: A Conservative Primer.

(01:33):

John, welcome to the podcast.

John Wilsey (01:36):

Well, thank you so much, James. It’s great to be with you, man.

James Patterson (01:40):

So what is important about religious freedom and why do we need a conservative primer?

John Wilsey (01:45):

Well, religious freedom is a longstanding American tradition. Religious freedom goes back a long way in the American tradition. It goes back to the colonial period. It’s a central conviction of our founding, our national founding, I should say, our constitutional founding. And it has been consistently a core tenet of American constitutionalism and the American concept of rights and liberties for the entire life of our nation. Have Americans always thought about it rightly? No. Have we always applied it rightly? No. But it’s always been a key American tradition. So it’s important from that perspective. It’s also important because it’s true. The state has no jurisdiction over the religious conscience of its citizens.

(02:57):

As the very first English Baptist, Thomas Helwys said to King James I in 1607, I believe, in his treatise that he addressed to James. And I’m paraphrasing here. “You’re the king in matters of the state. In temporal matters, you are my sovereign. But with regard to our standing before God, you and I stand on even ground and you have no jurisdiction over me.” That’s an American tradition and it’s also the truth. So it’s important for those two reasons, at least. We could probably talk about a lot of other important reasons why religious freedom is a necessary conviction in American constitutional and civic tradition. And why we need a conservative primer is because, well, there are a couple reasons for that too. I guess we’re going to spend the whole time talking about that, but in short, conservatives conserve. We get the question as conservatives often, what are you conserving?

(04:03):

We conserve tradition and religious freedom is a core tradition. And we have the blessing of enjoying religious freedom as citizens today. And thus we also have the responsibility to steward that tradition and guard it and hand it down unsullied to the younger generations.

James Patterson (04:26):

What is it about alternative forms of conservatism that make it so hostile to religious freedom? We have a kind of resurgence of a more continental European vision in which the state operates as a kind of guarantor of the church, and as a result, imposes that church in some way on the public. We see this as in your book with reference to Peter Viereck’s “ottentots.” So maybe move us through that concept to explain how that’s not what we’re conserving in this book and why Americans would regard this not as a conservation, but of a kind of revolutionary act.

John Wilsey (05:13):

Yeah. Yeah. In the book, I spend a lot of time talking about Peter Viereck and I did a podcast with John Grove on Peter Viereck several months ago. I’m very interested in him. He had a distinction that he made, a very helpful distinction between the Burkean tradition of conservativism and as you said, the European tradition of conservativism. The European tradition he referred to follows Joseph de Maistre, a counter-revolutionary, counter-French revolutionary thinker, ultraroyalist tendency, a reactionary impulse, and also an authoritarian impulse that’s on the right, but not really conservative, but reactionary. Reactionary would be a better description. Conservatism seeks to conserve. It seeks to guard and protect and steward. Reactionary refers to pursuing a rightist political agenda because you’re mad at something, you’re reacting against something. And that’s what I see now.

(06:26):

That’s what I see from those on the right who are anti-Semitic, who are authoritarian, who want to see establishment, an established church in America and so forth. They’re reacting against revolutionary Marxist and radical leftist agendas and thinking. And to be clear, James, I mean, I think I can speak for you too. I get it. I understand this displeasure at revolutionary leftism. I hate it. I hate it thoroughly. And I’m a dad, and so I want to teach my children how to think critically about a leftist cultural agenda. I get it. But my argument would be that the way to address revolutionary leftism is not to just be aggrieved, to not seek some sort of counter-revolution to overthrow, to not be authoritarian, to not be anti-Semitic, because all those things are right out of the playbook of the left. If we want to fight the left and if we want to come against the left and oppose the left, then why would we want to take a page out of their playbook?

(07:52):

And that’s exactly what the hard right wants to do. So it seems that the answer forward is to retrieve federalism, retrieve tradition, reinvigorate what it means to be an American, what it’s historically meant to be an American. And that’s the project of the book.

James Patterson (08:13):

You might get, let’s say, a good faith response from magisterial Protestants or forms of Catholic postliberals that’ll say, “Well, we used to have established religions in the colonies and for a time after the revolution in places like Connecticut and Massachusetts. How are these not as traditional as religious freedom?”

John Wilsey (08:39):

Yeah. Well, that’s an interesting observation about conservatism. Conservative ideas and positions on various things all started out as being new at some point. So you’re my Catholic friend. In my Protestant and Baptist tradition, we’ve departed from the hymnal and we’ve turned to more contemporary styles. And my joke is to my friends is that I’m not in favor of singing anything in church that is newer than the First Great Awakening.

James Patterson (09:25):

So if it’s from the- The reformation breaks away from Rome. It always seems to creep back. So you guys dumped the censor with the incense, but you brought it back in the smoke machine.

John Wilsey (09:42):

That’s a good one. I hadn’t thought of that one. So people always respond to me by saying, “Well, even old hymns were new at some point.” That’s actually the point I’m getting at.

(09:53):

Capitalism was new at one point and religious freedom or disestablishment, I should say. Religious freedom is not necessarily a new idea. You can trace it all the way back to the New Testament. But disestablishment was new at one point. And just because something is new at one point doesn’t make it not conservative. At this point, it’s old. And the point about tradition is not that it’s eternal, that its sources are an eternity past. The point about tradition is that you have practices and perspectives and mores that have been around long enough to be tested by a whole range of different challenges, and they have emerged stronger than before. And that’s the point. So the last state church to be disestablished was in Massachusetts, in 1832. And for you kids out there, that’s almost 200 years ago. So I think that disestablishment has proven itself and stood the test of time.

(11:00):

Now, that’s going to be a red flag in the face of those who favor establishment, but we can talk about that at that point. But the point that I’m making here is that tradition doesn’t have to emerge from the dawn of creation in order for it to be real tradition to be conserved.

James Patterson (11:19):

Yeah. You start to look at those periods at the end of establishments occurred during the early Republic. And it’s a funny thing where the establishment in Massachusetts broke down because most of the officials that were enshrined in major religious centers in Massachusetts, the congregationalists, had all become Unitarians. And the joke was the fatherhood of God, the brotherhood of man-hood of man and the neighborhood of Cambridge, right? That’s all the religion belonged to. And so in a way, Madison’s vindicated, his Memorial Remonstrance, that the only thing that establishment did was ensure heterodoxy would emerge by sponsoring one institution over others within one denomination, in this case, Harvard.

John Wilsey (12:23):

Well, we’ve also always struggled with the challenge of religious diversity in America’s career, both as colonies and as a nation, which is another thing that the far right reacts against. Well, they say, “Oh, well, we need to have a homogenous nation. We need to have a homogenous culture and go back to that. ” And that’s where a lot of the “kinism” and things like that come through. But what they miss is that Americans have always had a very diverse civic life going all the way back. So in the revolutionary period, the 13 states represented that the most culturally diverse, or excuse me, the most religiously diverse polity, if you will, in the West, by far. Now one could say that, well, that diversity was all Christian, and for the most part that would be true. But how did Presbyterians look at Episcopalians and Baptists and Quakers?

(13:34):

How did they look at Catholics? They saw them as not … I mean, they saw them, they didn’t see them in the same way that Presbyterians see them now. I can have this conversation with you. I’m a Baptist, you’re a Catholic. We wouldn’t be able to sit and have a civil conversation if this were the eighteenth century, James.

James Patterson (13:52):

No, no. I’d be running for my life, and so would you.

John Wilsey (13:57):

That’s right. Yeah. If we were in Massachusetts, you’d be running for your life. And if we were in France, I’d be running for my life. So we have to think historically about that period of time, the way that they saw each other was as different faiths. One was right and one was wrong. And so Americans have always dealt with diversity and have always dealt with pluralism in some form, in some sense. It’s true, of course, they didn’t have the diversity and pluralism we have now, but their perspective on pluralism was unique in the West. So this is not something new since 1965. This is something that we’ve always dealt with as Americans.

James Patterson (14:49):

One of the most notorious Catholic forces in American history was Tammany Hall in New York City, and at its peak was Boss Tweed, who was a descendant of Scottish Quakers and had an Episcopalian funeral.

(15:10):

So that’s actually something about the “Ottentot” persuasion, which is that what they’re trying to conserve is not a tradition, but a kind of imaginary. Even in the earliest days of colonization, you had Native Americans, of course you had the importation of enslaved Africans, but you also, like in places like New York, you had the Dutch that were already here. There was never really a period of a universal, I guess for some of these people, kind of like Southern English pastoral. And the concern over foreigners not being integrated actually once applied to the Germans, right? Franklin’s nervous that they’re not going to be sufficiently republican in their habits.

John Wilsey (16:02):

Yeah. That lasted all the way well into the twentieth century, suspicion against the Germans. So yeah, all those things are right.

James Patterson (16:13):

So the thing about religious freedom is that it’s also very hard. It’s an element of the United States that Tocqueville comes and observes with astonishment that it’s a complimentary institution both in the constitution, but also in the habits of Americans notices that regardless of religious sector denomination, people adhere to it and that this also facilitates greater political liberty. So how does religious freedom and political freedom work together?

John Wilsey (16:54):

Yeah. Tocqueville has that famous statement where he … I’m going to have to paraphrase it again. You probably have it memorized, but where religion is the first of all political principles in America, that’s not what he said, but I’m talking about that line that he has. He acknowledges the reality of disestablishment and of religious freedom free exercise. But despite that, religion is the first political principle or the first political institution or whatever term that he is. I have to look it up. And from there, he makes the argument that a free people can’t maintain their freedom without religion and without especially the free expression of religion. It’s impossible to do it. And it’s all part of his critique of egalitarianism, the omnipotence of the majority and so forth. All these things that threaten liberty. One of the things that threatens liberty, all forms of liberty in a society is a turn of one’s attention to selfish pursuits, turning away from a civic-mindedness or a care for your neighbors, a care for your locality, your township, and a turn towards just your own personal circle, that is your family or your closest friends.

(18:36):

You become completely obsessed with your material desires and your own personal pleasure and your own personal agendas, and you don’t care about anybody else. That’s a great threat to liberty because you let go of concern or problems of your town. You let go of concern of what stands in the way of the flourishing of your neighbors, which means that you’re more than happy for the government to come in and take over those things, and that’s how tyranny unfolds. And religion does the same thing. Religion takes your mind off of things that are bigger than you, things that are bigger than your own self and your own interests and your own perspective, things that outlast you. Religion points us to the world to which we are going. Religion reminds us that we’re accountable for our conduct and what we say and what we believe. We’re accountable for those things.

(19:42):

Those things don’t just concern us. They concern things bigger than us. Religion reminds us of all those things. And so when we have a more eternal perspective and we look to things that are greater than ourselves, then it causes us to think about other people. It sets us on a trajectory towards the true, the good, and the beautiful, the great transcendentals when we’re thinking about that, which is greater than our own concern. And those things contribute to freedom, but materialism, selfishness, turning away from one’s fellows, those things are short-term gains, but long-term losses. So the necessity for religion to freedom is all part of what Tocqueville is saying about problems with equality. Equality has some good things about it, but equality when set against liberty, equality is always going to lose and liberty is always … Or excuse me, equality is always going to win, and liberty’s always going to lose in that battle.

James Patterson (20:50):

Yeah. It’s an acquired taste, liberty, whereas equality is something that it’s like every child loves sugar. They rush to it. And the idea of the two spirits, the spirit of liberty and the spirit of religion being friends in the United States, we often are aware of how the spirit of liberty, that’s what we would consider the left-wing republican, not the party, but the sort of French revolutionary republicans. And we often overlook that the spirit of religion that opposes liberty is that “Ottentot” opposition. And so when a person who’s maybe younger or more populist in inflection reads this book, they might be like, oh, this guy probably is like a boomer with these high-flying ideas when he doesn’t know what it’s like out there for the rest of us. Is it just more of a personal experience or motivation? Is it an emotional problem where this kind of argument doesn’t land with people of maybe a certain generation or a certain affect?

(22:03):

Yeah,

John Wilsey (22:04):

I’ve thought a lot about that. And I’m going to say something controversial again.

James Patterson (22:10):

Yes. But in this pastoral tone, and so it’s hard to know-

John Wilsey (22:17):

I’m going to try to be very pastoral. Yes. I’m going to try to be very pastoral and try to be very sensitive. A criticism like that is simply an ad hominem critique. I’m just going to write you off because I don’t like you and I’m going to find something about you that I don’t like because I don’t like what you’re saying. I’ve already have my mind made up that I don’t like what you’re going to say, so I’m going to write you off because I’m going to find something about you I don’t like. And so they’re going to say, this charge would be, okay, you don’t know what time it is. I don’t know how many times I’ve been told this that I don’t know what time it is. It’s funny that people say that to me because I have two daughters. One is in college and one’s going to go to college next year or two years from now because she’s a junior.

(23:02):

I’m very concerned about their life

(23:06):

And the world that they’re going to. I am not experiencing it. I already did that. I already transitioned from college to a career, but I have two children that I have a first order interest in that transition that they’re going to make, and I’m going to be actively engaged and involved in their transition to help them along. And that’s going to require time. It’s also going to require financial resources. It’s going to require work on my part. So to say that I know nothing about that, if someone were to say that to me is simply just ad hominem. And ad hominem arguments in general are easy to make because they stem from an immaturity, a childishness, the wrong assumption that if I throw a rock at you, that I have the upper hand, that I actually have the better part of the argument if I can throw a rock at you because you’re not worthy to even be an interlocutor, to even be a discussant. You’re a subhuman.

(24:31):

You’re an idiot. You don’t even know what you’re talking about. We shouldn’t even have this discussion with you because you’re a cretin. That just stems from immaturity. And our culture as a whole is an immature culture. The culture is an adolescent culture. It’s a culture that values feelings and experience above reason, evidence, and patient deliberation. It’s a culture that values instant gratification over long-term, hardware gains that you might not even see in your own lifetime, but you don’t do it for yourself. You don’t struggle and strive for good things for yourself. You do so for your children and your grandchildren, knowing that you may not even see the promise fulfilled. And one other thing about our culture is that our culture is an aggrieved culture, both on the left and on the right. Grievances and obsession with grievances is something that stems from self-hatred. We don’t like ourselves, so we’re going to try to find a way to make everybody miserable along with ourselves instead of seeking to deal with whatever it is that ails us, whatever the problem is that standing in our way.

(25:59):

So critiques like that, I have no use. They’re useless critiques. I have no use for a critique like that. And as soon as a person makes the critique that I don’t know what time it is or someone doesn’t know what time it is, well, the conversation now is over. I can’t have a conversation with a person like that.

James Patterson (26:13):

There’s a peculiarity to that line that you’re describing where the sense of grievance is often linked to a sense of powerlessness that liberalism is doing this to us and we cannot stop it. We have to wait for it to collapse on its own contradictions and then we’ll be able to create a kind of post-liberal or a Christian nationalist kind of-

John Wilsey (26:41):

That’s when our time has come.

James Patterson (26:43):

Yeah, that’s right.

John Wilsey (26:44):

And they want that. They hope for that. They hope that that will happen.

James Patterson (26:48):

But it doesn’t, and so they just do nothing.

John Wilsey (26:51):

Yeah, except throw rocks at everybody.

James Patterson (26:54):

Yeah. And so they don’t get policy outcomes that they want because they’ve abdicated their role in participating in politics because they talk themselves into abdicating such a position. And it’s very strange because you’ll get a lot of discussion on this Ottentot position about limiting the rights of women. You mentioned kinism, this sort of softer version of racialism that often is hiding a harder one. And there’s not a lot of talk about what used to be the preoccupation of churches when they were more confident, politically participating institutions like opposition to gambling, which is like proliferated, right?

John Wilsey (27:47):

Yeah, right.

James Patterson (27:49):

What happened in church opposition to gambling?

John Wilsey (27:51):

Getting back to Peter Viereck.

(27:55):

He wrote a book in 1956. It’s called Unadjusted Man in the Age of Overadjustment. And I talked about this in the book, and I remember talking with John Grove about this in my interview with him. He talked about overadjustment to the culture as opposed to being unadjusted to the culture. He begins the book by quoting Henry David Thoreau. Henry David Thoreau said, “We don’t ride on the railroad. The railroad rides on us.” And the point of that was, of course, this inordinate confidence that we’ve placed on technology and on technological wonders to solve all our problems, and that’s overadjustment to the culture. That’s an example, I should say, of overadjustment to the culture. It takes many different forms. Veireck is advocating for an unadjustment to the culture. Christians might call it counterculturalism to be counter to the culture. And when we place inordinate confidence in politics to solve all our problems, we’re being overadjusted to the culture.

(29:11):

When we place all our confidence in AI or in the wonders of modern technology to solve our problems, what we’re doing is we’re placing all the value on efficiency. Efficiency is the end goal of all of life. And is that really true or is pursuing a virtuous life, is that maybe a better goal than the pursuit of efficiency, for example, or the pursuit of political power? Is there anything more worthy for us to pursue than political power? What if we don’t ever have political power? Is that the end of life for us? Is there nothing left for us if we don’t have political power or cultural power? I’m sure there’s something else out there and surely there’s examples in the past that we can look to of people that didn’t have political or cultural power, but still had a wonderful life and still had a life that was worth living.

(30:11):

Surely there’s some example out there, but when we place that inordinate confidence in those things, we’re overadjusted to the culture and the church is most certainly as a rule, as a general statement. There are exceptions to this, but the church is definitely, I think, overadjusted to the culture.

James Patterson (30:30):

The overadjustment you’re describing here does make sense of maybe the adoption of a kind of weird version of identity politics, right? A kind of Protestant or Catholic identity politics almost to emulate what they see the left doing. You were earlier describing just a minute ago you were describing the counterculture. In this case, it’s more of an echo than a choice. I mean, how do you combat this? It’s almost as if so much of this is the result of a kind of social media-based approach. Do you escape social media or do you try to baptize it?

John Wilsey (31:13):

I think it would help. I think social media is not a completely bad thing, but social media does have the tendency to cause us to be overadjusted to the culture. Social media is not real life. And when we consider it to be real life, we are now overadjusted to the culture. If we can recognize that social media is not real, then I think it can be useful. But if we think that it’s real, and in other words, that is to say that when I make a statement on social media to my followers, I’m assuming a number of things. One, that everyone of my followers is reading what I’m saying, which they are not. That number two, that every one of my followers cares about what I’m saying, which that’s not true. That number three, that what I’m saying is going to make a difference in the lives of my hundred followers, that they’re all going to do what I tell them to do.

(32:21):

And lastly, that what I say on social media is going to attract more followers and build a platform. All those are wrong assumptions. And when we assume all those things, we assume that social media is real. But actually, here’s what’s really the case. When you post something on social media, first of all, nobody cares. Nobody’s reading it. Remember when social media first came on the pike? Did you have a MySpace account?

James Patterson (32:50):

I tried and could not. I didn’t adopt a social media. Somebody tried to give me a Friendster account once too, and I was like, oh wow. Wow. That really makes me. I don’t remember Friendster, but I only fully achieved-

John Wilsey (33:01):

You must be like 150 years old …

James Patterson (33:09):

You’re older than me! Oh my gosh. No, I started on Facebook.

John Wilsey (33:12):

Yeah. I started on Facebook too because my eighth graders that I was teaching at the time set up a Facebook account for me, and I didn’t even know I had it until two years after they had done it. And what was it? Remember what it was for? It was for fun. It was just for fun. You put together a little profile, you put some silly pictures up there, you tag your friends. You remember poking your friends? I mean, it was all for fun. And it’s turned into this thing that is now real, and it’s not real. So we could start with that to recognize this isn’t real. Now it can become real when you get fired from your job because you said something on X. It’s pretty real at that point. But even that, how many people’s lives have been destroyed because of a moment of weakness or an indiscreet moment?

(34:10):

I mean, we all have that. We all have indiscretions from time to time in what we say. And then social media amplifies those things and will destroy your life. That’s not how real life works. If I say something indiscreet in a public setting, people might gasp and be shocked, but I’m not going to lose my job necessarily because of it. I say the same thing on Twitter, and I really am getting fired, and I’m really getting canceled all over the country because things have a tendency to work their way through the cycles of social media. So social media is a terrible thing for our country. It’s a terrible thing for our civic life because it’s not real and people acknowledge it as being real and it’s not.

(35:01):

Another thing too is that we just need to learn how to listen to people and to have dialogue. These people on the far right, they’re not just abstract like Stephen Wolfe. I mean, I’ll bring his name up. I personally like him. He’s always been very kind to me. I was at a roundtable conference with him a couple years ago. It was four days. I got to know him. He’s a nice guy. I like him and I think he likes me. I’ve seen him. I’ve run into him since at various things. We always have friendly conversations. We’ve never had a cross word between us. He’s a really nice guy. Some of those guys at American Reformer are like Timon Cline. I would consider Timon a friend, but Timon and I don’t see eye to eye on everything. But the thing about with Timon, Timon and I can disagree and do so recognizing that at the end of the day, we’re going to be friends.

(36:00):

We’re committed to a friendship here, even though we disagree. And instead of just throwing ad hominem arguments at each other. And it’s often said that civility is a lost art and civility is a sign of weakness and you’re a beta male if all you do is talk about civility. But the Bible describes … I mean, the Lord Jesus describes … I mean, He has a word for that: “Blessed are the meek,” where your strength, your intellectual and even physical power are under control. The Greeks had a word for that. Cicero had a word for that. Decorum, temperance. A little exercise of virtue goes a long way, James. And we just don’t have that ability when we’re overadjusted to the culture.

James Patterson (36:46):

On a personal podcast I do with Tom Howes, we had a woman who does a lot of engagement with the Catholic postliberals, and she made sure her name’s Victoria Holmes. She’s at The Dispatch. And she said something that’s always stuck in my head, which is that it’s not just an ideology, it’s a content strategy. And in a way, like sitting with your book, Religious Freedom: A Conservative Primer from Eerdmans. It’s a contemplative act, right? It requires … You have a really lovely chapter that opens with the discussion of Dante. So it requires thinking about those things as well, these kinds of eternal poetic issues and content strategy on social media is designed to capture attention. And the best way to do that is to adopt increasingly extreme positions that exceed what we’re supposed to believe if we’re serious about being good American Republicans with little art.

(37:58):

Right. Well, the book is Religious Freedom: A Conservative Primer. The author is Dr. John Wilsey. Thank you so much for coming on the Law & Liberty Podcast.

John Wilsey (38:12):

Thank you, James. I sure am honored to be with you today.

James Patterson (38:16):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Related Links

October forum: “A New Environmentalism?” by Steven F. Hayward

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

James Patterson (00:39):

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty and associate professor of public affairs at the Institute for American Civics at the University of Tennessee. With us today is the one and only Steven Hayward. He is a visiting professor at Pepperdine University, School of Public Policy where he runs a new energy and environmental policy lab and as a man in that capacity, a scholar in that capacity, we are going to talk about his forum that he did for Law & Liberty, the first being “A New Environmentalism?” which he published on October 1, and it poses a very provocative series of arguments that I’ll let him explain. Welcome to the podcast, Dr. Hayward.

Steven Hayward (01:34):

It’s going to be with you. I’ve been on the Law & Liberty Podcast a few times some years ago, but it’s good to be coming back.

James Patterson (01:40):

Wonderful. So this article may surprise people, right, since when have classical liberals or broadly understood conservatives taken much of an interest in environmentalism, and one of the points you opened with is that they always were.

Steven Hayward (01:57):

Yeah, I think that’s right. I mean, I went into the history of this once quite a while ago, but it’s always fascinated me. If you go back to the first Earth Day, and really you do sometimes hear people say, well, gosh, conservation is a tradition in America that goes back to Teddy Roosevelt and Gifford Pinchot and more than a hundred years ago. And there’s a progressive impulse there, but there’s also a basic “conservation” impulse. And so if you want to just take conservation and conservative and just use conservative broadly, generically speaking, you can see that there’s a harmony there etymologically, if nothing else. And the first Earth Day, I was in the sixth grade, I think growing up in LA where the smog was really bad. I mean lung burning bad, to the point where you couldn’t play outside in the summer afternoon. Anyway, that was an initiative really, it was bipartisan, but Nixon fully embraced it.

Steven Hayward (02:45):

You saw a lot of conservatives embrace it, including I think most famously in the early ‘70s, James Buckley, Bill Buckley’s brother, who was the senator for New York for one term. He was quite enthusiastic about the major legislation, and we started seeing some major gains. So we could talk about the technical aspects later if you want, because the problem has always been, A, too much bureaucracy that was needlessly expensive early on, and B, a kind of extremism crept in and let’s in the activists behind that. But the bureaucrats are happy to have that kind of backup. They get bigger budgets and more power, and that’s soured the whole project such that by the end of the ‘70s, within a decade, you had a lot of the original sponsors of the early landmark legislation saying, “Hey, wait a minute, we’re having second thoughts. This isn’t quite what we meant with things like NEPA—National Environmental Policy Act—and Clean Air Act, Clean Water Act, and so forth.” And we’ve then kind of in this gridlock ever since. Anyway, breaking out. That’s not easy though I think we’re seeing signs that we are now turning the page on it.

James Patterson (03:44):

So we’re not going to see Steve Hayward throwing soup at any works of art, are we?

Steven Hayward (03:50):

No. My joke is that you know we’re turning the page when people are now stealing from museums like the Louvre instead of throwing soup on the paintings. Yes.

James Patterson (04:01):

So, okay, there’s a lot of directions to go with this in the essay because of how rich it is and what it details. But maybe let’s start with what the good intentions were behind some of the reforms, especially around the idea of permitting and what the unintended consequences were. I especially like the comments you made about how it actually undermined common law solutions.

Steven Hayward (04:23):

Yeah, yeah. Let me hold that for the second part. I think because a very important point because it’s larger than just that. I think the first thing that ought to be understood, and actually one of the commenters made the point that what really started modern environmentalism in the ‘60s and early ‘70s was what we now know as the Environmental Kuznets Curve. In other words, the richer a country gets, the more they’re going to demand and have the ability to afford measures to improve environmental quality. So the Kuznets Curve, after Simon Kuznets from the ‘50s, and his original curve was about income inequality and growth, and the Environmental Kuznets Curve, its again is just an inverted “U”: as you get richer, you will pollute more for a time. And that’s the story of every industrial country. Then at a certain point that turns around and income and economies keep growing, but we start devoting resources and having laws and have the technology to reduce air pollution, water pollution, and so forth.

Steven Hayward (05:21):

So a lot of environmentalists are stuck in the past. I mean, they remind me of the Civil Rights Movement in some respects, or it’s always the Selma Bridge in Alabama from 1963 and the Cuyahoga River in Cleveland is always catching fire like it did in 1969 for something like the eighth time in its history, by the way, that wasn’t a one-off when that happened, but that doesn’t happen anymore. Yeah. Well, that’s actually Jonathan Adler, one of the commenters, wrote a fabulous history of that whole story. We didn’t have time to get into it in our exchange, but he went back and talked about how that river and others had been a muck for a long time. There’s a great passage in Upton Sinclair’s The Jungle about how foul the Chicago River was in downtown Chicago. It had so much, for lack of a better word, crap in it, that you could almost walk across it he said.

Steven Hayward (06:10):

And, you know, these days people swim in it. We put green food coloring for St. Patrick’s Day and so forth. So there’s a lot of low hanging fruit, which we grabbed, and nowadays we go after more and more marginal threats, but we centralize things. And that’s what leads to the question of common law. It used to be, and back in the nineteenth century, in both here and in England where we had common law traditions, especially on the state level in this country, you could bring a successful nuisance suit against industrial polluter, against somebody who is fouling a stream if you’re downstream in a farming area and so forth. And we preempted all that, starting with the major landmark legislation in the 1970s. And there’s a whole lot of cases about this that were thrown out of court when you suddenly were preempted. And the odd thing is, is that actually in some cases, delayed cleaning up and delayed progress.

Steven Hayward (07:01):

Again, that’s a long, complicated story. But I think Jonathan Adler agrees with me, and a lot of people do that we ought get back to something like that because what does that involve? It involves, well, to invoke another term that many listeners will know, it involves Coasian bargaining, right? If you have common lawsuits between private parties or even between one public party and a private party, you may settle it in a trial or you may negotiate and you’ll negotiate an optimal settlement between the two that is likely going to be superior and much less costly than something that bureaucrats in Washington will ponder for years before they impose it on you.

James Patterson (07:36):

Yeah. The problem with the more bureaucratic approach is that it also, where there’s a permit granted, it puts the ordinary citizen not just against the company, but the government.

Steven Hayward:

Yes. Exactly.

James Patterson:

And so you end up with problems like with the pollution in Flint, Michigan, right? Where the EPA is standing with the polluter.

Steven Hayward (07:57):

Right? Because the polluter says, Hey, they waived their permit that they’ve gotten and they’ve done the permit properly and something went wrong. And then they sit around twiddling their fingers, figuring out what to do about it.

James Patterson (08:07):

And the people working at the EPA, I don’t think they live in Flint, Michigan, so they don’t experience the downside of all of this. So a little bit of the story here that creeps in is that some of the biggest beneficiaries to this legislation during the 1960s are trial lawyers. And so maybe one of the reasons why people are so stuck in the past is that it pays to be stuck in the past.

Steven Hayward (08:35):

Oh, very much so. Well, so the National Environmental Policy Act, NEPA its called, and then Yellow State Level Ones most famously in California, CEQA—the California Environmental Quality Act. And those, and many other statutes have a provision really borrowed from civil rights law of a private attorney general. Virtually any one of us have standing to bring an environmental lawsuit in court. So in other words, broader standing grounds. And that has simply made it possible to file endless lawsuits against anything involving a permit. So whether it’s to build a house or a housing development to cut down some trees, if you’re a forester, even on private land in many cases, you can tie it up in court for a long, long time. And that’s become a favorite tool of environmentalists. I often joke that I won’t name any particular environmental organizations, but about half their staff is usually lawyers.

Steven Hayward (09:29):

Some of these are very big organizations that spend a couple hundred million dollars a year in their budget, and so that’s their most prominent tool and their loath to give that up. But as I say this, originally, the original idea both at the federal and state level was the environmental review process was going to be for the federal agency in acts that it was doing, like building a dam, building a highway and so forth, would do an environmental impact review and come up with mitigation for damages they caused. Well, some very early court decisions all over the country said, “well, that applies to anybody applying for a building permit with any state or federal agency.” And we were off to the races after that. So one of the ironies of the present moment is that the California Environmental Quality Act passed in 1970, I think unanimously in the lower house, and with only one no vote in the California State Senate from the last remaining John Birch Society of the Legislature, a guy named H. L. … Yeah, that’s right. Not many listeners remember the name, but it was the guy known as Wild Bill H. L. Richardson.

James Patterson (10:34):

That sounds like someone who would vote against anything.

Steven Hayward (10:38):

And he did vote against most everything. Anyway, but then signed into law happily by Governor Ronald Reagan. And Reagan gave all these speeches about the—and Reagan was actually a very pro-environment governor, which even many of his critics will grudgingly acknowledge. Well, here we are four or five months ago, and Gavin Newsom of all people held a gun to the head of the Democratic super majority in the legislature and saying, we have to reform CEQA and reduce the bureaucracy, and he wouldn’t sign the budget until they did and there was lots of resistance. And I thought, that’s an irony. Ronald Reagan signs into this law that everyone agrees. Jerry Brown wanted to fix this 10 years ago and got nowhere. And Gavin Newsom is, I mean, I just savor the phrase, is undoing the environmental legacy of Ronald Reagan and that shows you what a weird world we’re in.

James Patterson (11:28):

Yeah. I’m looking here at the November 2025, projected electricity rates in California exceeded only by Hawaii at 30.45 cents per kilowatt/hour. Why is it so high?

Steven Hayward (11:44):

Well, it’s the problem with renewable energy in most states. I say most states, this study came out from some very smart people I know at UC–Berkeley, about three weeks ago. So it was too late for me to put in the articles, and I wasn’t getting electricity rates. But they did one of those fancy deep dive regression analysis of electricity rates all over the country. And one of their conclusions, which they put in typical turgid academic writing, is that wind and solar power don’t necessarily drive up electricity rates except in states that have a mandate to use them. So let that sink in for a minute. So California has had a very aggressive mandate for years, and about 30 other states do too. And essentially they have a gun to the head of the utilities forcing them to install and buy more wind and solar power. And all the things you hear about how wind is cheaper and the sun is free is basically a lie because the sun doesn’t shine at night, the wind doesn’t always blow right, and that’s when you have to have backup ready.

Steven Hayward (12:45):

You either have to buy it on the market at high marginal prices, or you have to have what’s known as a spinning reserve. So in California, we have a lot of natural gas plants that run all day long but are not connected to the grid because our solar power in the middle of the day just generates a ton of electricity so much that we sometimes pay other states to take it from us. That’s how crazy this is. And so California has been a leader in this madness of mandating an imbalance, electrical energy supply. So I would say all the other states who have these called renewable portfolio standards, if you’re following California, look at California’s electricity rates and you’ll see where you’re headed.

James Patterson (13:21):

So the reasonable thing to do would be to do what Gavin Newsom did. And in a way, Newsom is kind of well positioned to be able to do that in a way that I guess Jerry Brown wasn’t. But outside of these rather extreme cases, the attempt to do this sort of thing brings about not just a kind of organized resistance you might have among the lawyers and their lobbyists, but also people that lie down in the middle of the road. And so maybe talk a little bit about the movement on the fringes of the environmentalist movement.

Steven Hayward (13:53):

Yeah, they’re not going away, although I hope we’ll come around to some of the broad currents changing right now. But to stick with California for a minute, Jerry Brown, well, it was announced while Brown was governor that we were going to close down our last nuclear power plant in California, Diablo Canyon. It was at the end of its 40 year, first licensing period. I live near it, by the way. I like to say I get clean electricity because I live near a nuclear power plant. And I remember the protests led by Jane Fonda and others in the ‘70s against completing—they tried to stop it from being completed and it wasn’t. And it finally went online in 1985, I think, and okay, they’re going to close it, and Pacific Gas and Electric, which was the utility that owned it, and they’re a bunch of corporate socialists—that’s another story for another day.

Steven Hayward (14:35):

They said, “fine, we’ll replace it with wind and solar.” Well, Diablo Canyon produces 10% of California’s total electricity, and if you care about carbon emissions, that’s a lot. And everybody who was serious about this understood, we weren’t going to replace it with wind and solar. It was actually going to make net emissions go up. And I actually know one of Newsom’s top energy advisors, a very sensible guy, and he was telling me that, and he’s a longtime environmentalist, but he said, the biggest mistake I’ve made in my life was opposing nuclear power 40 years ago. You’re hearing that from a lot of the smarter environmentalists. And he and others, I think, persuaded Newsom to change course. And so Newsom again, forced the legislature. There’s a lot of funding problems, and I won’t get into that abyss right now, but the legislature to change their mind and to keep the Diablo Canyon open, well, you got to go through the licensing, the relicensing period with the NRC and all the rest of that. The local nuts are still filing lawsuits. They’re still showing up at local meetings with the county board of supervisors to yell and scream and complain about it. But the numbers are much diminished and a little bit like the No Kings rallies, mostly a lot of really older hippies. So it’s going to go through, it’s going to get relicensed, but I think that turnaround, and this is even before the AI question and the soaring demand for electricity everywhere.

James Patterson (15:52):

Oh, that’s right. Yeah.

Steven Hayward (15:53):

Many people say, “Gee, right, we ought to keep these nuclear power plants or reopen the ones we just closed.” So that’s an interesting thing that’s going on.

James Patterson (16:00):

One of the pieces of legislation that comes out of that original push in the ‘60s and ‘70s was the desire to protect endangered species. This is the spotted owl was the one that I was raised with and as a great concern. So the thing that happens, or there are two things that I was thinking about. One, that one you bring up very, was it entertaining? Was it shoot, shovel, and …

Steven Hayward (16:28):

Shoot, shovel, and shut up.

James Patterson (16:29):

Yeah. What is this policy response? I mean that you have among the people who actually own the land.

Steven Hayward (16:39):

Right. Yeah, I didn’t think of that phrase. It’s been around a while from some of our friends in Montana.

James Patterson:

It’s new to me, so I’m giving you credit.

Steven Hayward (16:45):

Oh, well, it was a plot point in the Yellowstone TV series, and that phrase, well, here’s the point. The incentives of it are quite perverse. Think of it this way. If you find a rare mineral on your land, your land gets what? It gets more valuable. If you find a rare species on your land, your land very likely will get less valuable because it will get swept into a habitat conservation area that’s very rigid and supervised by Washington, DC, bureaucrats. And I’ve long thought that if the Endangered Species Act were enforced to the maximum extent of the law, Congress would repeal it tomorrow. The environmentalists are actually very selective, and I say that because an awful lot of the listings, as it’s called formally, are generated by lawsuits. And there are a lot of endangered species specialist lawyers who are strategic about where and what species they want to bring litigation over. And it’s really just a proxy to control land. And it’s wrecked the water markets in California. It’s threatened grazing in Colorado. You can go down a lot of examples. And of course, the spotted owl you mentioned essentially destroyed the timber industry in Oregon and Washington and northern California 30 years ago now. And so those incentives are completely wrong. We ought to have a system, by the way, and all the costs are offloaded onto private landowners.

Steven Hayward (18:01):

I think something like 70% of the endangered species on the endangered species lists have their habitats on private land. It’s one thing if it was a national forest or something, but no. And there ought to be a system that rewards people for conserving species. But no, we don’t do it that way. It’s punitive, it’s adversarial. And I think even a lot of environmentalists will agree it has not been very successful in saving species. I don’t think that ambulance going by right now, I dunno if you can hear it or not, is on its way to save a spotted owl or something. But that’s urban living for you. Anyway, so people of long thought, we need to reform all that. And environmentalists who are very defensive, even the ones who know better, are reluctant to allow the legislation to be reopened because they’re afraid. We have a tool now that’s powerful and we don’t know what we might get in return. So we’re in gridlock on that issue too.

James Patterson (18:54):

One of the things about environmentalists and endangered species is they like the photogenic ones, right? You’ll see the pandas and the owls and the manatees.

Steven Hayward (19:05):

Yeah, there’s a term for that. We call those charismatic megafauna.

James Patterson (19:09):

Yeah, that’s right. That’s not normally what you’re actually protecting. It’s normally like a subspecies of a lizard. And one other feature I was going to mention of the policy consequences, you mentioned some of them was in terms of industry, but also of housing. This is often used as a pretext for protecting housing home values among incumbent homeowners, right?

Steven Hayward (19:32):

Yes.

James Patterson (19:32):

And so that’s not normally a problem in California, which is well known for its abundant housing. Oh, man, this stuff produces enormous amount of costs on growth, but that’s part of the point, right? You talk about the degrowth movement and Malthusianism, so maybe explain how this isn’t a bug, but a feature.

Steven Hayward (19:53):

Oh, yes. So I mean, this is a very old story. This will be an amazing factoid for listeners is San Francisco up until the mid-1970s actually had median housing costs at the national average. In other words, a home in Louisville, Kentucky, and a home in San Francisco are about the same or relative to income certainly. And that started changing in the mid to late ‘70s when California discovered the glories of anti-growth litigation and regulations. And it only spread from there. I mean, there’s a classic book I wrote about this actually for our friends at the Civitas Outlook page down at UT Austin. And there’s a classic book from 1980–81 called The Environmental Protection Hustle, and it was a case study by Bernard Frieden, an urban planner from MIT, who was shocked to see how fast this was spreading and how much it was reducing housing development.

Steven Hayward (20:42):

Typically what you got is someone would propose to build, let’s say 500 houses at medium costs. By the time you went through all the agony of lawsuits and planning process, you were going to be allowed to build 200 houses. And at that point, you’re going to build larger and more expensive ones. Well add all those up. And the net loss of affordable housing and housing in general becomes enormous. And what happened is, is the California model slowly but surely crept across the entire country. So nowadays, even Louisville, Kentucky, or pick any Midwestern area probably has a fair bit of this kind of problem. And the interesting thing is there’s the so-called abundance liberals of Ezra Klein and the rest, and they’re all saying, “gosh, you know what? Regulation’s gone too far, zoning’s too restrictive.” And the right, and I’m sort of hopeful like Gavin Newsom, they’re going to follow this a little bit, try and do something from their point of view. I am a little annoyed. You and me and readers of Law & Liberty and other sensible places have known this problem for 40 years; Ezra Klein and all these people act like they’ve discovered this for the first time. And I always want to raise my hand and throw Robert Ellickson and William Fischel and other great scholars of land use regulation at them and say, do some homework please and give credit where credit is due, and then maybe we’ll be more enthusiastic about you guys.

James Patterson (21:59):

The thing is that land use regulations been the subject of studies for as long as political philosophy has been around. We’ve known this as hundreds of years old, right? We have Locke on enclosure and the second treatise, right? I don’t understand how this is news to anyone, but I think a big reason for it is because the salience of housing costs is so great, and people have discovered that you have secondary and tertiary effects. In fact, some people even posit that this original desire to protect endangered species has over the series of the dominoes falling led to the decline of American birth rates. Because if you can’t buy a house and you feel like you can’t get married, and if you can’t get married, you can’t have kids as well. At least you can, but not usually and not at high numbers.

Steven Hayward (22:46):

Well, that, yeah, no, there’s actually, I think the data is just out in the last two weeks that the age of first time home ownership is now up around 40, up from 30, just 25, 30 years ago. And then of course, the other thing I say about fertility is that, and this is actually a serious point, but it sounds funny is car seat mandates for kids. Because in most cars, you can’t wedge in a third car seat for a kid in the backseat. So I mean, I don’t know how true that is, but you could work out at least a basic correlation, statistical correlation there. And a lot of people are going to say, I guess we have to stop at two.

James Patterson (23:20):

That’s right. We have five in my family, and every time I’ve gone to pick up the child and my wife, there’s always one person there who did not realize that they had to bring the car seat up because the hospital becomes this enforcement mechanism. But this is an environmental thing. We’re not going to talk about that. But I do like that position that I can afford this one car, and I can only put two car seats in it.

Steven Hayward (23:48):

Well, except it’s not entirely unrelated. I mean, again, I’m older than you are, but for a long time, one of the original issues was The Population Bomb, Paul Ehrlich and all that. And you had critics early on, especially the late Julian Simon who said, this is all wrong, et cetera. And they have not only been vindicated, but now even in the elite media and in the chattering classes, it’s the population decline is now the hazard we’re looking at going forward. You would’ve never predicted that. Well, Julian Simon would’ve, but he was regarded as this crazy outlier 40 years ago. And now we’re worried about the birth rate’s too low, not just here, but everywhere. And I actually looked this up once. So the UN Population Agency does, every year or two, population forecast out about a hundred years, and they have a high, medium and low forecast for population growth. And I think it goes something like this. Their high end forecast today is lower than their low-end, low-range forecast from 15 years ago. That’s how fast fertility rates and population growth curves are falling right now. So I hate to make long-term projections. That’s what environmentalists do, and they’re always wrong, but we could see falling world population fast, falling world population within the lifetime of your children probably.

James Patterson (25:05):

I don’t know if you’re going to answer this. This just occurred to me when you were talking about Malthusianism. It occurred to me that we had both Prince William and King Charles III both very preoccupied with this sort of thing. What on earth makes the royal family so interested in environmental costs? Do you happen to know?

Steven Hayward (25:28):

Well, I’m laughing because I periodically pick on them because I say, this shows you the hazards of royal family inbreeding over centuries.

Steven Hayward (25:38):

No, I shouldn’t say that, but no, they’re are a couple of dolts. I’ve always thought King Charles was a dolt except a little bit on the architecture stuff, where he’s got a point, and used to listen to Roger Scruton a lot. Anyway, no, they’re old. Well, Charles, of course, is very old and he’s a fossil from the past like a lot of environmentalists. The kids are a disappointment that they’re going along with it, too. I think those old views are hard to shake. I may have had a lot of environmentalists say, especially on the nuclear power question, that they’d be more openly in favor of nuclear power, except the members of their organizations would kill them. And they’re that sort of afraid of the grassroots that’s mostly aging out and so forth. Yeah, I don’t know. They’re stuck on it. As you and I are talking, there’s another one of these climate conferences going on, and they’re saying, this is the most important climate conference since last year’s most important climate conference, and we need to work harder. And I mean, I hope they’re recycling their speeches. Otherwise, this is ridiculous.

James Patterson (26:34):

I think when I was thinking of Prince William, he was on a private jet flying to that conference and it’s like, ah, yes, that’s a solar powered jet right there. Anyway, so let’s pivot away from some of the picking on the royal family. I shouldn’t have done that. So let’s think about the hippies are gone. Alright, let’s not say where they’ve gone, but let’s just say they’re no longer holding things back in a kind of ‘60s and ‘70s agenda. What does a good responsible environmental policy agenda look like?

Steven Hayward (27:08):

Yeah, so we already mentioned nuclear, some sort of the regular, well, I mean you can do that on energy, but on the regulatory front we already mentioned sort of common law and also a serious cost benefit test. My simple proposition is if you’re wasting money, you’re wasting resources. I mean, Econ 101 should tell you that money is a proxy for resource use and consumption. And environmentalists seem to think the only unlimited resource is other people’s money. And the fact that we have allowed very sloppy and sometimes no cost benefit analysis for decades is really a scandal and ought to be. Second, an awful lot of environmentalism from very early on was very anti-technology. You really see that in Al Gore’s famous book, Earth in the Balance. It’s now 30 years old, more than that. And I’ve traced out the roots of that a few times, but I’ll skip over that and say, in fact, technology is what is delivering huge environmental gains and preservation of land in things like agriculture, especially agriculture.

Steven Hayward (28:07):

Everybody, I say everybody—a lot of people hate high, what do you say, high concentration, dense agriculture that uses lots of chemicals and fertilizers and factory farming is the other one that people don’t like. There are legitimate criticisms and questions to be raised, but that has allowed us to conserve a lot of land. So we have much more forest land than we had a hundred years ago, more raising land and just more fallow land that we can leave for wildlife. And there’s a nature reserve and so forth. Beyond that, we’re seeing all kinds of ways that technology is giving us more tools to make environmental improvements. And there are the people I wrote about in the first essay, they’re eco-modernists and they’re mostly sort of moderate progressives who said, “Hey, wait a minute, we’ve been thinking about this all wrong. We should embrace technology and not fear it.”

Steven Hayward (28:54):

And so that’s a change. I think one of the important changes going on. And then finally, the big one I’ve already sort of hinted at is both the abundance movement and then also I think something that happened before I wrote my response is Bill Gates coming out and saying, “I was all wrong on climate. This isn’t a world ending crisis. There are other things that are more important and are more valuable to direct our scarce sources to now.” Because of his visibility and importance, I think this is a huge moment, and I think we’re now seeing the end of what was central, the ‘70s air environmentalism, which was the limits to growth view.

Steven Hayward (29:27):

The abundance liberals like Klein, they’re explicitly opposed to that. They want to get back to the view that liberals had under, say John F. Kennedy, when their people don’t know this because it’s long ago disappeared, but their doctrine in the early was actually self-consciously called growth liberalism. Now they thought they had all the Keynesian knobs that they could control economic growth, and they were mistaken about that. But the disposition was, we want growth. Let’s get the country moving again. But by the ‘70s, you had limits to growth. Jerry Brown was a big advocate of that, so was Jimmy Carter in a huge way. And that lasted a long time. So between the abundance movement and I think what you say, the collapse of the climate crusade, I think that’s what is happening in real time with Bill Gates really putting a nail in the coffin of it. I think we’ve seen the end of that long cycle, and we’re back to now people saying, you know what? Growth is actually a good thing, and we now have more and more tools to deal with the side effects of it.

James Patterson (30:20):

My dad, decades ago, worked in oil and gas exploration and he joked that after Jimmy Carter, he went from making Americans a lot of money to making Argentinians a lot of money because they were the ones who were willing to engage in that kind of exploitation. And I think about that because growing up in Texas, it was one of the few places left in the United States where you could see the benefits of developing industry. And there were tons of people who worked in the industry and for younger Americans, they have no experience with developing industries and seeing how huge a quality of life can change. And I feel especially bad for the Californians like yourself, where that was a daily experience where you would go from a starter home to air conditioning and from air conditioning to really high incomes. What about the development of those natural resources? We talk about rare earth, this is an international issue with the Chinese. We could do rare earth drilling here, but is the technology going to spill waste into all the water or have we gotten past that?

Steven Hayward (31:36):

Oh no, it’s quite the opposite. If you’re serious, well, even if you’re a deep-dish environmentalist and you want to electrify everything, that’s one of the climate ideas that’s really unsound, but it makes some sense on paper. But for that, you need huge amounts of rare earth minerals, huge amounts of lithium. Well, we’re sourcing most of those from overseas. And what do you think their environmental protections for their mining enterprises are? Well, they’re a lot lower than ours. I mean, they vary, right? But I mean the Australians have state-of-the-art pollution control and so forth, and so you want it to be mined here, not just the national security reasons, but because we’ll be the most environmentally friendly producer of all those materials, but try telling that to environmentalists about the amount of copper necessary for all the green stuff, the windmills and new transmission lines and so forth, needs that are immense. We’ve got lots of copper deposits that can be mined and environmentalists sue every time one is proposed.

James Patterson (32:32):

I think, was it Pennsylvania who just uncovered a massive lithium deposit, and it was on some farmer’s land? Somebody had made this joke where as soon as anyone that makes a major discovery that requires a natural resource, a random American will dig a hole and find the largest deposit of it in the world.

Steven Hayward (32:55):

That’s kind of been our story. Right. Full circle. I mean, Pennsylvania is where we first struck significant oil in what, 1857 or something? Yeah.

James Patterson (33:03):

And so I guess we’re kind of reaching the end of all of this. Maybe give me a sense of what you think would be an issue for people to unite on. Do you think people will unite on nuclear? Do you think both parties might be able to reckon with that or at least see the job growth opportunities of developing our natural resources more? Do you think this is a future that we have?

Steven Hayward (33:29):

Yeah, I think both of those. I think there’s a lot of support for developing our natural resources more, and it’s going to require, and it’ll be bruising, fights in Congress and state legislatures to amend our laws, to reduce the unreasonable obstructions, which is both of them. I also think the nuclear one is big. I mean, it is true that nuclear power has always been very expensive, and a lot of people say that’s because of regulation, overregulation and all the rest. And I’m sure that’s a considerable factor. I think the technology was always immature, but we never had a learning curve. We gave it up 40 years ago. The French built something like 70 nuclear reactors in basically the span of a decade to use one design, and they didn’t have to subsidize them though. And we have subsidies available and so forth. But I think the really interesting question now is whether there’s going to be a new generation, not just of technologies but the size, whether we’re going to get these small modular reactors, and it’s anybody’s guess.

Steven Hayward (34:25):

I don’t know. There’s a lot of private capital going into it, including from Bill Gates for quite a while now, but lots of other people. And if those can be made to work, I think that is a real game-changer. I think it actually solves a lot of the environmental conflicts over a continued coal-fired power and so forth. And we’ll stabilize electricity prices if we can get it right. I simply, I try to follow this, but I simply don’t know enough technically to know where we are, how feasible it’s going to be. But I think that’s the most interesting question, and there’s a lot of receptivity to it that you didn’t see even 10 years ago.

James Patterson (34:57):

I think the intuition there is that if one of them blows up, the blowing up will be smaller. And that’s really..

Steven Hayward (35:05):

Well, I think a lot of these new designs actually are such that they can’t really blow up. So I think that hazard is now more illusory than anything.

James Patterson (35:15):

And I think the thing that caused a lot of fear was Fukushima, but the lesson there is don’t build a giant nuclear power plant on top of a fault line.

Steven Hayward (35:25):

Right, and not have backup power for pumps if the power goes out because of an earthquake and tsunami. Yeah, I haven’t seen the latest data on that, but actually, this is true of Chernobyl in Russia, which really was a terrible design and incompetently managed, but both the death toll and lingering radiation-generated diseases are much, much, much lower than people thought they would be.

James Patterson (35:47):

Yeah. Well, Dr. Hayward, thank you so much for your contribution on the Law & Liberty Forum. It was really eye-opening. And of course, thank you for coming on again to the Law & Liberty Podcast.

Steven Hayward:

Thank you, James.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online www.lawliberty.org.

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Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty and associate professor of public affairs at the Institute of American Civics at the University of Tennessee. With me, again, is my friend, Dr. Samuel Goldman. He is associate professor of humanities at the Hamilton School for Classical and Civic Education at the University of Florida. And today we’re going to be talking about both a newly-in-paperback book of his called God’s Country: Christian Zionism in America. As well as an article he wrote once again for Compact, “Tucker Carlson is Wrong about Christian Zionism.” And this has all been inspired by some of the contretemps of the moment over some of these issues. So we’ll get into those, but also some of the intellectual background that people may not know. Dr. Goldman, welcome to the Law & Liberty Podcast.

Sam Goldman (01:37):

Always a pleasure to speak, Dr. Patterson.

James Patterson (01:42):

I always feel a little guilty about being informal on these podcasts, so I’m going by honorifics at least at first. Now, before we started recording, we were just talking about how many people have offered commentary on Tucker Carlson interviewing Nick Fuentes. And your comment was never before in your life have you felt so middle aged. I feel the same way! So we are not going to talk about the ins and outs of all that business. We’re going to be talking about what was motivating them to talk, and that’s this idea of Christian nationalism. I mean Christian Zionism, excuse me, not Christian nationalism. Totally different show. So what is Christian Zionism and what does Tucker Carlson get wrong about it?

Sam Goldman (02:28):

So Christian Zionism is one of these annoying terms that can be defined in different ways. And one of the frustrating things about the discussion that I entered with my Compact piece and carried on in social media and elsewhere is that people sort of mean different things by “Christian Zionism” and unless you can settle on one definition, it’s hard to have a productive discussion. So I’ll give you two definitions. One is the one that I think Carlson had in mind, which is common and which I think is wrong or at least only partial. And then I’ll give you my correct definition, which is the one that I advance in my book. So one way of understanding Christian Zionism is as the affection of modern Christians, mostly evangelical Protestants, for the current state of Israel, and usually that is associated with a set of eschatological beliefs that involve the return of the Jews to the Biblical Promised Land, the establishment of a state there, increasing turmoil in the region and the world,

(03:49):

and finally a sort of apocalyptic narrative in which Christ returns to rule in person. That’s a definition that has been common for at least 40 years, and I think it’s probably the one that Carlson has in mind, although it’s not clear that everyone whom he mentioned, George W. Bush among others, is a Christian Zionist in that sense. But my contention in the article and the book is that that’s really just too narrow. I would say that Christian Zionism should be defined as something like the idea that God has a continuing concern for the people and land of Israel, that that concern is reflected perhaps imperfectly or mysteriously in the modern Zionist movement and the state of Israel, and because Christians profess to worship and serve the God of Israel, they have some responsibility for supporting or promoting those goals. That is a much broader definition of what it means to be a Christian Zionist.

(05:09):

And it’s also one that extends back a lot deeper in history. So Carlson in that show and on other episodes has suggested that Christian Zionism can be derived from the nineteenth century Anglo Irish theologian, John Nelson Darby. I think it really goes quite a long way farther back, really back to the Protestant Reformation. And what I suggest in my book is that this idea was brought to what became the United States by the Puritans. It became a recurring feature of American political and religious life. It was never uncontroversial or unanimously accepted; I wouldn’t suggest that for a moment. But it was a popular and fairly normal idea really throughout both the history of the republic and colonial history. So when people like Carlson said as he did in the interview with Fuentes, that this is a brain virus that’s somehow taken over the Republican party in America as a result of Darby or the so-called Scofield Bible, which included notes that were influenced by Darby’s ideas, I just don’t think that’s true. Christian Zionism in a broad sense is an old and powerful feature of American thought. And when we talk about its influence and value, I think we should approach it on those terms.

James Patterson (06:58):

During a now leaked video from the Heritage Foundation meeting over some of the fallout from their involvement with Tucker Carlson, one of the participants said that they regarded Christian Zionism as a heresy and they associated this with being either Catholic or Eastern Orthodox. We’re not going to speculate what they mean by that, but there is a kind of odd proximity of Protestantism to Christian Zionism that you don’t find in Catholicism or Orthodoxy. Why is it that Protestantism is so much friendlier to this way of thinking?

Sam Goldman (07:44):

So Protestantism emerges in part out of the idea that scripture is the ultimate authority for Christians. You know better than I do, as a Catholic, that it’s more complicated than that, and there’s a whole range of arguments, but one of the central ideas in what becomes Protestantism is that if you want to know what God wants, you have to go back to the Bible and you have to read it yourself. Which doesn’t mean that everyone’s interpretation is equally valid; particularly early forms of Protestantism had strong interpretive and theological authorities that were supposed to guide people. But you’re supposed to, you know, you read the book and you see what it says. So what happens if you do that?

James Patterson (08:28):

I have never read the Bible before, Sam,

Sam Goldman (08:31):

Well, I’ve seen on Twitter accusations that this is true of all Catholics. So I leave that for others to judge. So you pick up the Bible and what do you find? Well, first of all, you find that it has these two parts: if you are a Christian an Old and New Testament, or for Jews the Hebrew Bible and the other stuff, and then you have to answer the question of what these things have to do with each other. And one of the innovations of Protestant theologians was to say, well, look, when you read the Old Testament as it was for them, you see that it is replete with references to Israel, to the people and land of Israel. And some of those references they suggested are pre-figurations of the Church. They’re metaphors for the community of believers that would be fulfilled in Christ.

(09:40):

But some of them are references to what was called the seed of Abraham, the descendants of Abraham, and to the Biblical Promised Land. And from this turn to scripture and to the Old Testament, which for them was of equal authority to the New Testament, there developed a sense that God was not finished with the people or land of Israel. And through reading, especially some of the prophecies that occur later in the Hebrew Bible or Old Testament, many Protestants expected that one day in the fullness of time, God would bring together the scattered Jews of the world, would restore them to residence in at least some portion of the Biblical Promised Land, and would set up some kind of political community there. And all of this was vague and argument by way of implication, if not insinuation, but you can see in the sixteenth and seventeenth centuries something that looks like a precursor to Zionism emerging not among Jews and not in Eastern and Central Europe, but rather among English speaking Protestants in Britain and then in what would become the United States.

James Patterson (11:16):

So we see this and contemporary scholarship that’s come up, Eric Nelson’s book, The Hebrew Republic. I know we’re selling your book today, Sam.

Sam Goldman (11:27):

People should also buy Nelson’s book.

James Patterson (11:30):

Yeah, God’s Country: Christian Zionism in America of course. And I have this political Hebraism, which is a wonderful compilation. So this is sort of well known in scholarly circles or at least being better established than maybe it was before. And the thing about this political Hebraism is that it was not unfamiliar to the American Founders at the time of the founding of the colonies, or to the framers of the Constitution. So how is it that Christian Zionism makes its way to the US?

Sam Goldman (12:10):

Well, it becomes embedded in the religious traditions that shape the political culture of the founding period. Not equally or to the same degree everywhere, so one sort of current, where it’s especially powerful is the Puritan traditions that then become congregationalism in the eighteenth, late seventeenth and eighteenth century. Presbyterians have a strong tradition of this. It’s especially the religious communities that are influenced by Calvinism that seem to have this affinity. And that then gets picked up by many founders and framers, I think not in a sort of fully committed and explicit way. There are figures who did that; I talk in the book about a guy named Elias Buodinot who served as president of the Continental Congress and was an important aid to Washington, who actually wrote a couple of books making this case. But for some of the more familiar figures, it was sort of in the background.

(13:25):

So I am not an archival scholar. I don’t claim to have found things that other people haven’t found, but to the extent that I have any discoveries, I located a diary entry by John Adams from when he was riding the circuit in Massachusetts in the late 1760s. So in those days, as some listeners may know, the court moved so people could do their legal business and then all the lawyers would follow the court around the colony. So they spent a lot of time hanging out in taverns talking because they were away from home and didn’t have anything else to do. And Adams reports that one night in the tavern, he and his colleagues were talking about the restoration of the Jews. So this was an idea that people were aware of. It was something they heard referred to in the pulpit. It was a subject of sort of lay religious discussion.

(14:32):

And I think that created a climate in which many leading political figures, even if they were not particularly orthodox or even particularly pious, were sympathetic in principle to the idea that Jews were a nation, and that like other nations, it would be good for them to have their own state. So there’s a famous letter that Adams writes many years later to Mordecai Manuel Noah, who is the most prominent Jewish politician in the early republic. And he says to Noah, I really wish to see the Jews again in Judea, a state. And he goes on to say: And yourself at the head of an army of 100,000. And I don’t take that too literally. In part–and people who quote the letter don’t always say this–Noah had been bothering Adams for a blurb for his book, basically. So he’s sort of sending him away with this nice sentiment that he can use for promotional purposes. For Adams–he wouldn’t say anything that he didn’t really believe, either. And there are lots of statements by prominent founders and framers that express this sort of sympathy, again, for something that looks a lot or sounds a lot like Zionism, a century before the emergence of the organized Zionist movement in the late nineteenth century.

James Patterson (16:13):

One of my favorite places to go in the United States is Savannah, Georgia. There’s a synagogue there called Congregation Mickve Israel, I think the oldest or one of the oldest synagogues, 1735 is the founding. And it was Sephardic Jews escaping the Spanish and Portuguese Inquisition. So in a way, when they came to Savannah, they didn’t realize that they were going to be bordering the Spanish to their south, and immediately became very good friends with the Anglicans there, because of this common threat from the Catholic Church. So sometimes the Christian Zionism is complicated and its history…

Sam Goldman (16:58):

And one of the complicating factors is that this is a time when there are very, very few Jews in the United States. Nobody really knows for certain because the census didn’t count in those days, but in 1800 there were almost certainly fewer than 10,000 Jews in the United States. And even that may be high because I can’t remember exactly where that estimate includes. So part of the complication in this story has to do with the relation between this idealization of the national Israel and the encounter with actually existing Jews in the United States or elsewhere.

James Patterson (17:49):

The Scofield Bible that you mentioned earlier is a major inspiration for what eventually becomes known as pre-millennial dispensationalism, and that’s very strongly associated with contemporary Christian Zionism as Tucker Carlson misuses it, as you explained. And what’s really great about your book is how you illustrate that a lot of the early sympathies for Jewish inclusion in the American project, as well as for the Zionist project, was not from fundamentalists, it was from mainline Protestants of the Presbyterian and Episcopalian and Methodist sort of variety. What is it about post-millenarianism, which gets less attention, that drove them to that?

Sam Goldman (18:41):

Well, so maybe we should step back first and talk about the differences in these theories. So the classic way of doing this is saying there are people who are pre-millennial or pre-millenarian and they believe that Christ is going to return in person and then set up the millennial kingdom. And it is said that these people are waiting for a catastrophe. Things are going to get worse before they get better, and then there’ll be this miraculous intervention in history. And that’s an idea that has come to be associated with Christian Zionism, as we said earlier, partly through the influence of people like Darby and Scofield. Against that is so-called post millennialism, post-millenarianism, which is the idea that first human beings will establish the millennial kingdom, which is this, sort of, not exactly utopian but vastly improved condition that the New Testament describes. And then Christ will come back at the end.

(19:55):

And it is sometimes said that people who hold this set of eschatological views are more inclined to campaigns of political and social improvement. They want to make things better. They believe that’s how you build up the Kingdom of God. There is something to that distinction, but I don’t think it is quite as sharp as people sometimes suggest. So right up to roughly the end of the nineteenth century, you can find, and I cite in my book examples of both pre-millennial and post-millennial thinkers who see the establishment of some kind of Jewish political entity in the Biblical Promised Land as part of the progress toward the millennial kingdom. The big division in the first half of the nineteenth century is not so much whether Christ comes before or after the millennium, but whether Christ is going to come in person. And there were plenty of post-millennial theologians who expected a personal and literal return of Christ after the establishment of the millennium.

(21:07):

And they tended to be quite sympathetic to this proto Christian Zionism, or as it’s sometimes called Christian restorationism. That changes in the late nineteenth and early twentieth century as post millennialism becomes associated with what was known as the social gospel. The idea that what God and Christ want Christians to do is go and work on behalf of the poor and suffering and build earthly institutions that will reflect the teachings of charity and mercy and justice that are enjoined upon believers. And that understanding of the religious task becomes a major element in the liberal theology of the twentieth century. Now, let me bring it back to Christian Zionism. It is often suggested, especially for those who have this narrow definition of Christian Zionism and this stylized lineage going back to Scofield and Moody and Darby and others, that you didn’t find support for what is now the organized Zionist movement and eventually the state of Israel among these liberal post-millennial, social gospel type Christians, that it was concentrated in what by the 1920s were called fundamentalists.

(22:45):

But it turns out that that’s actually not true. A number of prominent social gospel figures were at least interested, although in some ways critical of the Zionist movement and the so-called Yishuv, the pre-state Jewish settlements in mandatory Palestine. And in the 1930s and especially during the Second World War, a group of Christian thinkers and activists associated with Reinhold Niebuhr tries to sort of extract that from what they see as the pacifism and the naivete of the social gospel. So by the late 1940s and early 1950s, so the immediate period of state founding, it was more common or at least more prominent to find advocates and defenders of the modern state of Israel among what were then called mainline Protestants and to some extent liberal Catholics, rather than fundamentalists or evangelicals. Once again, this was not universal. This was a source of major dispute in many churches, but those disputes go both ways.

(24:11):

So there were liberal Protestants, especially those associated with the ecumenical movement and the Federal and later World Council of Churches, who were very suspicious of Zionism and in no less a platform than Time Magazine, which was a big deal in those days. They fought that out with people like Niebuhr. But the same was true in fundamentalist and evangelical circles where many people did have this sort of eschatological belief that the establishment of the state of Israel was a step toward the second coming, but they were also very concerned about its socialist character. Remember that the state of Israel was nominally socialist and did not really firmly align with the West and the Cold War until the Korean War. So it took a little while. And also for the evangelical movement associated with Billy Graham that starts to emerge in the late forties and early fifties, there was a lot of concern about the restraints on proselytizing that the state of Israel imposed on Christians and not only on Christians. So you really see advocates of both sides of the question in both, for lack of a better term, liberal and conservative forms of Protestantism. And it’s not until quite a bit later than that, really the 1970s, that these categories start to get ironed out in ways that feel very obvious and familiar now, but again, as I suggest in my book, are a pretty recent development.

James Patterson (25:59):

The shaking out of those two categories is something that people like maybe Tucker Carlson’s age and younger sort of take for granted. They take for granted The Late Great Planet Earth and Left Behind and these kinds of resolutions that, as you say, take a century to resolve. And one of the causes for mainline churches to engage so much on this question was that, and this is something of a generalization, but in many cases, they are more proximate to large Jewish populations that have immigrated to the United States primarily in eastern coast areas. That’s as far as some Jewish immigrants could afford to arrive, right? They got off the boat with nothing, right? They became rag pickers…

Sam Goldman (26:48):

You mean they didn’t show up in Brooklyn and decide it was the greatest place on earth? There’s no reason to move on?

James Patterson (26:56):

Surprisingly, very few matcha latte vendors in Brooklyn at the time. The story of the liberal Protestant engagement with Zionism is often in terms with dealing with Jewish leaders that they became associated with. You even mentioned the ecumenical movement, which is the subject of Kevin Schultz’s book Tri-Faith America. How is it that they’re able to hash out some kind of consensus that eventually becomes known as the Judeo-Christian consensus, especially given that the third party incorporated was the Catholic Church, which as you mentioned, has very different considerations of eschatology and the nature of Israel?

Sam Goldman (27:44):

Yeah. So let me answer the second part first about Catholics and then circle back to your earlier question. So as you say, Catholics have historically a very different understanding of the relation of Israel to the Church, and standard Catholic doctrine very, very generally, certainly before Vatican II, is that the Church is the fulfillment of all the promises to Israel. So when (or I should say, if and when) you read the Old Testament and you see God promising these things directly or through prophets to Israel, they’re really talking about the Church. And this is the idea that the Protestants had challenged back in the sixteenth century. In addition to that theological position, the Catholic Church also claimed authority over the holy places in Jerusalem. It’s not uncontested; to this day you can see representatives of different churches and sects brawling in the streets of the Old City over control of certain shrines or holy places.

James Patterson (29:00):

There’s a ladder, right? Is it the church of Holy Sepulcher that no one moves because…

Sam Goldman (29:05):

Yeah, something like that.

James Patterson (29:07):

Nobody wants to say it’s their ladder or who can move it. As you say, you’ll have Franciscans in the street beating Greek Orthodox nuns, and nobody wants that.

Sam Goldman (29:19):

And the Catholic Church up to the establishment of the state of Israel had really hoped that Jerusalem would be declared an international city in which the Church would have religious custody over the holy places. So they did not like the outcome, the establishment of state of Israel and partition. Remember, people forget now, that most of Jerusalem, including almost all of the significant religious locations, were under Jordanian control, not Israeli control. But that starts to change in the late forties and early fifties for a couple of reasons. And one of them, which I think is more sort of global, is that a major political concern, the major political concern of the Catholic Church at that point was anti-communism. And it became clear, not immediately, but by say 10 years after the foundation of the state of Israel, that it was going to be part of the anti-Communist Alliance.

(30:30):

And that went some way in reconciling certainly high level Catholic officials, people who were thinking about geopolitics to the state of Israel in a way they weren’t at the time of its establishment. They were much more nervous about what it was going to turn out to be. The other cause, which is more specific to the United States, is the emergence of much stronger Catholic Jewish interfaith relations that really comes out of the American immigrant urban experience. The Jews and the Italians and the Irish all live together in these cities, and they have a long and complicated history of rivalry and tension. But in the twentieth century, there are a number of members of the Catholic clergy, Cardinal Cushing in Boston is probably the leading one, who are really trying to mend those relations. And one of the ways that they do that is through support, at least nominally for Israel and Zionism, which is a cause that’s very important to many American Jews.

(31:50):

And it provides a way for Catholics to say, look, we are on your side. That then turns into a theological argument. Some of these figures end up at the Second Vatican Council where the Church is reevaluating its stance on Jews and by the implication on Israel. And these more–here, I’m using the term very, very loosely, so everyone forgive me if you’re offended–“liberal” in a very broad sense, sentiments that come out of twentieth century America that are then sort of reflected back into Church doctrine. So it’s not a full rapprochement. I don’t think there’s been a full rapprochement to this day. This is more your field than mine. But by Vatican II, the Catholic Church, and many Catholics especially in the American hierarchy, see Israel as perfectly compatible with their religious and social and political commitments, rather than being at odds with it. Now, to return to your previous question, this is all very long-winded. This is the problem when you interview professors.

James Patterson (33:13):

No, but the thing is, I have as a pet peeve when the interviewer has on a person to listen to them. So I’ve always very self-consciously trying to make sure that when people come on the podcast that they get to talk about their stuff rather than hearing me. I’ve already felt like I’ve said too much.

Sam Goldman (33:34):

So you mentioned the idea of Tri-Faith or Judeo-Christian America or Judeo-Christian civilization. This is in my view, a much older idea. So having done this annoying thing with Christian Zionism and said, no, it’s older, it’s more complicated, it’s more deeply rooted, I have in mind maybe to write a book about Judeo-Christian civilization and do sort of the same thing. But certainly it’s an idea that becomes prominent in the 1930s as a way of describing a broad front. I mean, it’s like the religious popular front, all the churches, all the groups united together first against Nazism and later against communism. And this gets picked up in America in a particularly powerful way because it intersects with the American tradition of religious liberty and civic equality. So before World War II, and especially before World War I, it was completely normal to think of America, not just as a Christian nation, but as a Protestant nation, as a specifically Protestant nation that might tolerate non Protestants, but as having Protestantism at its core. During and after World War II, that kind of rhetoric doesn’t disappear, but it is marginalized. And instead, political figures and religious leaders start talking in very broad terms about Tri-Faith or Judeo-Christian America to create as broad a civic identity as possible, and that makes it much, much easier to think of Zionism and then the state of Israel as compatible with American aspirations and interests rather than outside or contrary to them.

James Patterson (35:46):

Yeah, when it comes to the Catholic Jewish story there, one of my favorites, I think I got this right, it’s from Machine Made, which is a book from 2014 by Terry Galway. I may be wrong about this, but it was a Tammany Hall thing where Irish Catholics during prohibition wanted to get alcohol. Now, there was no way to do that legally except through a religious dispensation, and they didn’t want to imitate being Catholic priests because they’re good Irish Catholics. So in Tammany, there are lots of Jews that have moved there recently, and the Jews don’t care if the Irish Catholics pretend to be rabbis because no one’s going to be fooled by Rabbi Ohanahan. And so they make them rabbis so they can get alcohol. They end up with Manischewitz. I’m not sure if it’s worth it!

Sam Goldman (36:39):

Well, this is also, by the way, the period when Italian food becomes America’s favorite foreign cuisine. Previously it had been German food, but after World War I, German things are very unpopular, but also at Italian restaurants, they would make wine in the basement, and suddenly Americans discovered a new affection for pasta that they hadn’t had before.

James Patterson (37:06):

Amazing, amazing how that works. The other story about this is that there was this very old continental European tradition of antisemitism, and it’s kind of represented in Charles Coughlin. He’s a radio priest in the thirties, and he’s sort of rivaled by Fulton Sheen, who’s very Philosemitic, refers to Jews as our elder brothers in faith. And the American bishops are so contemptuous of Coughlin, but they can’t get him off the air for reasons that are sort of beyond the scope of this. And then he finally says that Pearl Harbor was a Jewish conspiracy, which is hilarious to think of Emperor Hirohito on the phone with, I don’t know, the Elders of Zion. And because of that, he’s pulled off the air for seditious speech. So it is a close run thing at a certain point in mass media, but that gets us almost to the present now, where we start to see, as I mentioned already, The late Great Planet Earth and Jerry Falwell. That’s when we start to see the Christian Zionism that I think Tucker’s thinking about, and that this kid at the Heritage Foundation’s thinking about. What makes it kind of distinct from the stuff we’ve already described?

Sam Goldman (38:24):

Well, I would say the turning point is probably 1967, or the Six Day War, however you choose to describe it. And that’s where this sort of disaggregation of liberal and conservative, biblical and theological, to some extent, Protestant and Catholic tendencies begin, and you start getting something that looks much more like the kind of Christian Zionism that Carlson probably has in mind. So what happens in 1967? Well, Israel wins this extraordinary victory in a short time. OK, but what does it win? It wins control once again of the Old City, which had not been under Israeli authority previously. So there seems to be a moment in which God has reentered history and biblical prophecies are occurring. Once again, you go back to your Bible, it talks about the return to Jerusalem. Well, here are the Jews returning to Jerusalem.

(39:50):

And you can see it happening on TV. So I think that for a lot of Protestants, particularly in so-called evangelical and fundamentalist communities that sort of reawakened their sense that something was happening, that God was acting in history and big things were coming in the Holy Land. It didn’t create it. They sort of believed that in a general sense before. But again, here it was on TV in this remarkably dramatic context. But also, what else is happening in the world in 1967? It’s the peak or the nadir, if you prefer, of the Vietnam War. And what’s happening in Vietnam is that the great superpower is being fought to a stalemate, or seems to be fought to a stalemate, by these peasants in flip flops. So the juxtaposition is really powerful. America is Gulliver tied down by Lilliputians. It’s supposed to have all of this power but can’t do anything.

(41:00):

Meanwhile, Israel is David fighting Goliath (which is the rhetoric that you find everywhere in descriptions of this period) and it wins. So that suggests to some American Christians that, again, it’s not just that God is reentering history, but there’s a contrast between the biblically chosen nation, which is winning wars and getting things done, and an America that seems to be falling away from righteousness. So we’re being beaten in Vietnam, and you turn on the TV and there are hippies and kids are smoking dope. In Israel, as it seems, you have a disciplined, religious, sober people achieving their goal. So that’s really appealing to conservative Protestants. At the same time, some of the things that had once been appealing about Israel to liberal Protestants begin to recede. So it had been David, this plucky outsider, but now it’s won its war. Now it’s indisputably powerful. It starts to get harder to see it as the underdog there.

(42:22):

The Israelis are fighting with Western weaponry, mostly French, by the way. The United States had not yet become a major military supplier to Israel, but they’re fighting with Western weapons, and against whom? Against, as they see it, oppressed brown people who are parallel to the Vietnamese or the other anti-colonial movements of the world being suppressed by imperialism. Finally, the United States is beginning, if not a process of secularization exactly then a period of religious polarization. Before the late sixties, early seventies, knowing how religiously observant someone was didn’t really tell you very much about their politics. They could be liberals by the standards of the day or conservatives. They could be Republicans or Democrats. A sorting process is beginning where liberals, progressives and Democrats are more likely to be secular, and conservatives and Republicans are more likely to be religious. So what had been this sort of religious left even of Niebuhr’s period starts getting eroded and becoming more left and less religious in ways that are contrary to an enthusiasm for Israel.

(43:53):

So this doesn’t happen overnight. Really, into the 1970s, liberal Protestants like Franklin Littell, who is a Methodist, are sort of the face of Christian support for Israel in the United States. But by the late seventies and early eighties, roughly the Reagan in era, that’s changed. And it is people like Jerry Falwell, like Oral Roberts, later like Pat Robertson, who are much more consistently and explicitly conservative in their politics, are much more as they see it–obviously this is questionable, but as they see it–literalists in their reading of scripture, and who are also much more uncritical in their attitude toward Israel, which sometimes seems to interest them (this is less true of Falwell, I think, in that group) less as a real place with real people who have real interests in peace and security and normal life, and more as the aircraft carrier where Jesus is going to land. And as you’ve said and as we began the conversation, I think that is really what people have in mind now when they talk about Christian Zionism. And it’s understandable to some degree because that has been the public face of Christian Zionism now for at least 40 years.

James Patterson (45:31):

Yeah, the aircraft carrier where Jesus is going to land, that’s going to stay with me. With a Mission Accomplished banner, and gets out in a fighter jet. That is too great. The issue that I wanted to raise just as at the end here, is that Tucker Carlson tries to represent a particular kind of new version of the GOP that’s pivoting away from internationalism and what he regards as uncritical support for things like Israel or for Ukraine for that matter. But what’s weird is that what gave rise to this idea was that Donald Trump was going to be the figure that would initiate this break. And has there been a more pro-Israel president? Maybe Harry Truman? So I don’t understand why they think this is the moment to do that.

Sam Goldman (46:19):

Well, I can’t speculate. I don’t know what people imagine, but my impression is that there’s actually a lot of frustration with Trump for failing to execute this, if not break with Israel, sort of distancing from Israel. I think it is not surprising that Trump has failed to do this. His disposition in foreign policy is not non-interventionist or toward restraint. I think it’s basically what Walter Mead, who wrote a very good book about US-Israel relations calls “Jacksonian.” The Jacksonian disposition, as Mead describes it, has always had an affinity for Israel because these are tough guys defending themselves. They don’t take prisoners. They’re not hemmed in by lawyers and moral scruples. Whether or not this is true, I think that’s a big part of the appeal of Israel to a lot of Americans. And we should say as we’re having this conversation, according to polls, Israel and Jews remain pretty popular among the public at large. There has been some change in attitudes towards Israel, especially among younger Americans. But on the whole, it’s still doing reasonably well. And I think even apart from these religious considerations that Jacksonian quality is part of the reason. So Trump, as I think is often the case, is probably better attuned to his actual supporters than the social media political intelligentsia or sub intelligentsia. And at least for the moment, support for Israel is consistent with that.

James Patterson (48:30):

Trump’s not known for being terribly devout, but he’s at least probably been in the milieu for so long. He’s from New York. He grew up at a Protestant church. It’s probably beyond him; a lot of this stuff that’s coming out today just sort of doesn’t register. But I’m imagining now, because I’ve seen them already at events before, Tucker Carlson sort of beseeching Donald Trump at this side of a UFC fight, asking him to reconsider. Because I’ve seen them both together at a UFC fight before. It’s strange days, Sam.

Sam Goldman (49:15):

Every day is interesting.

James Patterson (49:18):

Anyway, thank you so much for coming on the Law & Liberty Podcast, Sam. Your book is God’s Country: Christian Zionism in America. The article at Compact “Tucker Carlson is Wrong about Christian Zionism.” Thank you so much for coming on, Sam.

Sam Goldman:

Thanks James.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts, and visit us online at www.lawliberty.org.

Related Links

On the Law of Speaking Freely by Adam Tomkins
“The UK’s Speech Problem,” by Adam Tomkins
“From Heresy to Hate Speech,” a book review by Helen Dale
Cato’s Letters by John Trenchard and Thomas Gordon
Areopagitica by John Milton
Adam Tomkins’s Law & Liberty author page
GB News v. OfCom

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty and associate professor of public affairs at the Institute of American Civics at the University of Tennessee. Today with me is Professor Adam Tomkins, who is the John Miller Professor of Public Law at the University of Glasgow. Today we’ll be talking about his book On the Law of Speaking Freely. Dr. Tomkins, welcome to the Law & Liberty Podcast.

Adam Tomkins (01:08):

Thank you so much for having me, James. It’s great to be here.

James Patterson (01:10):

So we have reviewed your book very favorably on our website, and now we are getting to talk to you about it. I’m very excited about this. As I said before we were recording, this is a book that I wish I’d had to assign to students because so much of the history you cover is a common history with the United States and with the UK. So why don’t we start there? There’s a kind of nexus of rights that appear at the dawn of the Reformation. There’s rights of conscience, rights of assembly, rights of publication or press, and rights of speech. How are these all interrelated?

Adam Tomkins (01:51):

Yeah, so I think that’s absolutely right. I write, I’m a law professor and I write about the constitutional law of a country that does not have a codified constitution. So there is no equivalent in the United Kingdom Constitution of the US First Amendment. So I can’t start a book on free speech by quoting what it says about freedom of speech in the text that everybody agrees is the Constitution. I have to work my way towards that. And of course, freedom of expression is protected in British constitutional law. I was going to say just like it’s protected in American constitutional law, but it’s not just the same actually, but of course freedom of expression is protected in British constitutional law. But because we don’t have a codified text, we don’t have any equivalent of the US Constitution in the UK, we need to do the work of showing, of demonstrating where that idea comes from.

(02:48):

And there’s a trend at the moment in British constitutional scholarship to do as if the fundamental principles of the constitution can be taken for granted. And I just don’t think, I think they need to be argued for, contended for and the only place that we can go, I think in order to establish what those principles are, the principles on which the British constitution is based, the only place we can go is history. So unless and until you understand something of the history and the making of the constitution, you really don’t understand anything of the contemporary law of the constitution. I would say that that’s true whatever constitution anywhere in the world you’re looking at, because I think it’s also the case in the United States that the more you understand of the history and making of the US Constitution, the more you’ll understand of the US Constitution.

(03:35):

So even where you have a codified text, you need to have some sense of where these things came from and who was talking about them and why they were talking about them and all of that kind of stuff. So the first question I asked myself in the argument in this book is, well, where does the idea of free speech come from? We know why we think it’s important. That’s quite well received information even in the twenty-first century. We know that there’s a sort of argument about truth, and we know that there’s a sort of argument about participating in a democracy and that freedom of speech is a necessary ingredient of these kinds of things. But where did it actually come from? And when you look back, when you peel away the various layers of the onion and you look to what the starting point is of the story of free speech, you learn two things.

(04:21):

The first thing that you learn is that at least in European terms, it’s a very recent story. And the second thing that you learn is that it doesn’t start off in the domain of politics. It starts off in the domain of theology. And the first battles for free speech were fought only about 500 years ago. Now, perhaps in some of the New World, 500 years feels like an awfully long time ago, but trust me, in a constitutional order that goes all the way back to Magna Carta, which is more than 800 years old, 500 years is nothing, right? So it’s a relatively recent idea. So it’s much more recent than the idea of democracy, which goes back two and a half thousand years. It’s much more recent than the idea of citizenship, which goes back at least two millennia, right? It’s much more recent than the idea of a balanced constitution or even the separation of powers, which are ideas which you can trace all the way back to ancient Rome, if not ancient Greece.

(05:16):

There is no equivalent of freedom of speech in the ancient world. It comes to Europe at the same time as the printing press comes to Europe. Because until the printing press the purpose of writing, very few people of course could write marginally, more people could read, but very few people could write. And the purpose of writing was not to say anything new. The purpose of writing was to try and inscribe what we already knew, principally, of course, it would be biblical texts, it would be the Bible, and monks would sit and for hours and hours and hours and try not to say anything new. What they would try to do is to write down and preserve knowledge. And anything which challenged that knowledge was regarded as heresy and heresy was a capital offense, not just in Britain, but across Europe. And of course the first advocates of free speech are the first proponents of free speech or what became free speech were Protestants in the Reformation in the middle of the sixteenth century who were seeking to break away from the rule of the Catholic church.

(06:24):

Now, Martin Luther was not exactly your conventional twentieth century free speech proponent. Martin Luther burned books himself. It is true that his books were burnt by the Pope, but he also burnt books. So he wasn’t particularly in favor of interpretations of the Bible that he disagreed with, and particularly in interpretations of St. Paul that he disagreed with. But that the struggle for free speech emerged out of the struggle for freedom of conscience, which really starts to come to a head in Europe in the sixteenth century in what we now call the Protestant Reformation. So the first claim I make in the book, James, is to say that you can’t understand anything about the history of free speech unless you accept and understand that it’s deeply entwined in the history of freedom of conscience.

James Patterson (07:10):

That’s right. And the first fights are between Protestants and Catholics. And of course the kingdom of England becomes Anglican, breaks away from the Catholic church, and then there are fights with the Scottish, the nature of the ecclesial order, right? There’s the wars over reformed interpretations of the ecclesial order with bishops not necessarily being allowed, which then means that because the church belongs to the crown, dissent is now a crown issue as much as it is a religious issue. So this brings us to all kinds of different restrictions on the press in the form of licensing. And I find that students often don’t appreciate that when there’s a discussion of freedom of the press, what’s often going on here is the idea of a licensing arrangement and how is this linked to the idea of freedom of speech?

Adam Tomkins (08:03):

Yeah, absolutely. So when the printing press came to Europe, the legal position in English law was simply that the crown assumed the right to license the press right from the very beginning. So there was never a free or an unlicensed press in English history because as soon as printing became a technology which was available, the crown simply assumed the right to license it. And it did that for two reasons. It did that partly because it was terrified of its potentially revolutionary potential, even in a largely illiterate country of what that might mean and what that might become. But also, of course, it was a revenue raising measure, right? As soon as you license something,

James Patterson (08:53):

Yeah, that’s right.

Adam Tomkins (08:54):

Right, you can charge a fee for a license, and printing was a source of revenue for the crown and was a source of revenue for a crown that was always desperately short of money and looking for new ways of being able to tax subjects of the crown without having to ask Parliament for permission. I mean, no taxation without representation was a great mantra of the American Revolution, but with all due respect to the great American revolutionaries, they didn’t invent it.

James Patterson (09:22):

Yeah, we got it from somewhere.

Adam Tomkins (09:23):

They got it from somewhere, they got it from us. And so here was a means whereby the crown could tax its subjects in an extra parliamentary way and also at the same time control the flow of information. And so there was never such a thing as a golden age of a free press. This had to be fought for, it had to be struggled for, it had to be fought for. One of the greatest proponents of an unlicensed press in the English seventeenth century was the great poet, John Milton. And Milton was up to his eyes in what was then revolutionary politics. He was an ally of Cromwell’s. He was a fierce and passionate and extraordinarily brave republican or commonwealth man, to use the seventeenth century expression. He wrote a pamphlet before the King was executed in 1649, arguing that regicide was a constitutional way to proceed.

(10:23):

He argued immediately before the crown was restored in 1660, that it shouldn’t be. So Milton was extraordinarily brave, but he didn’t always agree with Cromwell. And, Cromwell, well, licensing collapsed in the English Civil War. Quite a lot of things collapsed in the English Civil War. Wars can do that to governments. It can be quite hard to hold a government together when the country’s fighting itself. And licensing was one of many things about English government that collapsed in the early 1640s. And when it became clear that Cromwell was winning the Civil War, he sought to reimpose it. And Milton didn’t like licensing even when it was in Cromwell’s hands any more than he liked licensing in the days when it had been in the king’s hands. And he wrote this remarkable pamphlet in 1644, very famous pamphlet called “Areopagitica,” in which Milton argues for an unlicensed press.

(11:20):

And that’s really the first time in our language that there is an argument constructed for what becomes freedom of speech. Now, the freedom of speech that Milton was asking for, was arguing for, was far from complete, and it was also very partial, but nonetheless, it planted seeds which in subsequent generations were allowed to flourish and grow and Areopagitica is an extremely important stepping stone on the way to an unlicensed press. Milton’s argument was unsuccessful. Cromwell did reintroduce licensing, and it wasn’t until the end of the seventeenth century that the licensing act lapsed, and it lapsed under the influence much more of John Locke’s arguments than it did of John Milton’s arguments, and Locke’s arguments were really very different from Milton’s arguments. Milton’s arguments were about the Christian duty that all God-fearing Christians have to struggle towards their own truth, to struggle towards God’s truth. And the only way in which you can do that is by reading works which are bad, wrong, evil, and figuring out for yourself why they’re bad, wrong, or evil.

(12:33):

Milton makes this great distinction between eating poisonous meat that can really do you serious physical damage and reading poisonous words. And he says that the government may very well have the duty to keep its citizens safe from poisonous food, but it does not have a duty to keep its citizens safe from poisonous or bad ideas. That’s Milton’s contribution. And as I say, that argument failed in the 1640s, and licensing was reestablished by Cromwell and sustained thereafter in the restored monarchy of the 1660s and ‘70s. It collapsed eventually in 1695 for an altogether different reason. And the reason that might appeal to a lot of our listeners, it was a reason about trade. John Locke had spent quite a lot of his time in Amsterdam in the Netherlands where there was an unlicensed press, and he liked the fact that books were produced to a very high standard in the Netherlands.

(13:33):

They were well printed on paper that wouldn’t immediately rot and corrode as soon as you tried to turn it. Good quality printing, good quality books. And what Locke hated about the licensed press in England was that because it was a monopoly, it wasn’t a very good product. And he was a writer who wanted his works to be read, and he wanted his works to be read in books, which were a pleasure to read, a pleasure to hold, and wouldn’t fall apart as soon as you started to try and work your way through them. And so his argument against licensing was that licensing was in restraint of trade, and that argument was successful in the 1690s, and the House of Commons voted not to renew the licensing legislation, and it lapsed from 1695. So it’s been the case that from 1695 onwards, the press in the United Kingdom, what later became the United Kingdom, what was then England, has been unlicensed. And that’s what freedom of speech meant even a hundred years later.

(14:35):

So when Madison writes the Bill of Rights, when the third amendment in Madison’s Bill of Rights becomes the First Amendment to the United States Constitution in 1791, what Madison has in mind when he writes those famous words, “Congress shall make the law bridging the freedom of speech,” is we shall have an unlicensed press. That’s what those words meant to start with. Of course, that’s not what they mean anymore. They mean much more than that. But the original meaning of the First Amendment was to put into US constitutional law what had by that point been the position in English common law for a century that the press must be unlicensed.

James Patterson (15:15):

Speaking of Madison, the founding generation was very influenced by Cato’s Letters, and these are kind of like the next generation of defenders after Milton and Locke, right?

Adam Tomkins (15:29):

Yes, that’s right. So Cato’s Letters is not very widely known outside of the academy, right? I mean, that’s right. A lot of people have heard of Milton and not just because of the poetry. A lot of people have heard of Locke and not just because of what he said about licensing, but not many people have heard of Cato’s Letters. Cato’s Letters were written by relatively obscure Commonwealth Whigs, quite radical Whigs in the early eighteenth century, in the 1720s, in the early 1720s to be exact. And most of the Catos, there are about 130 of them, I think. And they were published weekly over the space of a couple of years, 1720, 1722, that kind of period that we’re talking about. And most of the arguments in Cato’s Letterss haven’t got anything to do with free speech at all. Most of them are about corruption. English government, or by now British government, was seriously corrupt in the early 1720s.

(16:24):

The most famous example of it was the collapse or the bursting of the South Sea bubble in which a lot of people lost a lot of money. It’s one of the things that Jonathan Swift, who writes, Gulliver’s Travels later on in that decade in 1726 parodies in Gulliver’s Travels. So the big theme of Cato’s Letters is the striving for a government that is free of corruption. But along the way, the authors of Cato’s Letters, John Trenchard and Thomas Gordon, write four letters in particular scattered throughout the series that are focused on freedom of speech. And the reason why they’re important, James, is because they are so far as we can see the first avowedly secular argument for freedom of speech in the English language. So Milton’s argument in the 1640s is a very Christian argument is a deeply rooted in his own sense of Christian faith and destiny.

(17:22):

Locke’s arguments are likewise imbued with his commitment to religious belief and to Protestantism of course. And Cato’s Letters are written not very long after Locke dies. I think Locke dies in 1704. Cato’s Letters written less than 20 years later than that are the first avowedly secular argument that we know of in our language in favor of freedom of speech. And that’s interesting because it marks a moment when advocates of freedom of speech start worrying a lot less about the power of the church, and they start worrying a lot more about the power of the state. So the way in which I phrase it in the book is to say that we move from the age of heresy into the age of sedition. Okay? So heresy is a crime that you can commit simply by your words. You can also commit it by act, but you can commit the crime of heresy by speaking against the received doctrine of the church.

(18:20):

And it’s recognized as a crime not only in Catholic countries, but also in Protestant countries. And Catholics were burnt at the stake in England and Scotland for their anti-Protestant or anti-Anglican heresy. Sedition is different from heresy because it is a crime that is committed against the government, against the administration, against the ministry of the day, and it is also punished differently. Heretics were burnt at the stake, as I said, burnt alive at the stake, absolutely barbaric, a brutal treatment. Those who were convicted of sedition were sentenced to be pilloried, and that’s a word we still use metaphorically. But the pillory was like the stocks, your hands and your neck would be put into stocks and you would stand in the pillory. Typically, if you were sentenced to stand in the pillory, you’d be sentenced to do that three times in three different places in London.

(19:20):

And the idea behind that punishment was that you would be publicly ridiculed. And that’s, that’s sort of the way we still use the idea of being pilloried. Now you say somebody is pilloried, then they are publicly ridiculed for what they’ve said. The pillory was not a capital sentence. You wouldn’t be killed by the criminal justice system, but you could suffer serious bodily injury in the pillory if the crowds didn’t like you because you’re defenseless. So people could have mud stuffed into their mouths and unable to breathe. People could lose in extreme cases and eye, your eye could be gouged out, your ear could be cut off, your fingers could be broken. So it wasn’t altogether safe to be pilloried. And people did try and avoid it, but it wasn’t …

James Patterson:

I can imagine!

Adam Tomkins:

… it wasn’t the capital offense in the same way that heresy was.

(20:12):

And Trenchard and Gordon and the Cato’s Letters that are focused on free speech are arguing specifically about the law of sedition, and they’re arguing that a sedition needs to be treated with great care. And again, the thing that’s interesting about that is that you cannot commit the offense of sedition until after you have published. So their argument is not an argument simply against pre-publication censorship like Milton’s was, and Locke’s was. Their argument is going much further. Their argument is saying that even after you have used and exercised your right to speech, there are things that the state should not be doing to you because you have the right to use your words in such a way as criticizes the government of the day. You might not have the right to use words so far as to seek to bring down the government of the day or ferment revolution. But at this point in the early eighteenth century, we’re beginning to learn how to distinguish between arguments which are arguments against the constitutional order itself from arguments which are simply opposed to the government of the day. And so long as you’re on that side of the line, you are opposing the government rather than trying to bring down the constitutional order itself. Then the argument in Cato’s Letters is that that is something which ought to be protected by an emergent idea of freedom of speech.

James Patterson (21:36):

Now, the pillory dons the cover of the book On the Law of Speaking Freely, and it looks like they’re being subject to some pretty nasty vegetables or fruit being hurled at them, but I don’t see any broken fingers, so thank you for not putting that on the cover. But “pillory” is one word that we use still to this day. And another one of these terms that we use for restrictions is the star chamber. And so what was the Star Chamber and what does it have to do with the free speech tradition of the Anglo-American variety?

Adam Tomkins (22:16):

The Star Chamber was what we would call a prerogative court. So the prerogative is the power of the crown and what has happened, the story of the British constitution, I mean the classic wig story of the British constitution is that over the course of the last nine centuries or so, the power of the crown has gradually come under control. And that control comes partly from the courts and partly from Parliament. So we have a government that is required to enjoy the confidence of the House of Commons, as soon as the government loses the confidence of the House of Commons, that government has to resign. That’s what happened to Prime Minister Boris Johnson a few years ago. But also we have this idea that the powers of the executive, the powers of the Crown and the powers of the Crown’s ministers are held to legal account.

(23:10):

And it is the common law that has done that work. And from time to time, the monarchs, kings and queens who didn’t really like the idea that their counselors of state should be held to legal account would find ways of bypassing the common law by having different sorts of courts that would uphold different sorts of law. And that Star Chamber was one of those. So Star Chamber was a court that was used by the early Stuart Monarchs, that’s really James I and Charles I in the early seventeenth century to bypass the common law rules that you find in documents like Magna Carta that say that the Crown and its ministers are accountable to law. And there were certainly, I suppose you’d call them dissidents. Now, there were certainly dissidents in the early seventeenth century who were sentenced to be pilloried by star chamber because they were saying things that the Crown didn’t like, and the judges in the star Chamber would do the crown’s bidding for it in ways that the common law courts were beginning to learn not to do. So I think Star Chamber plays a role in the seventeenth century, but Star Chamber’s abolished by Act of Parliament in 1641, and doesn’t really feature in the story after the English Civil War.

James Patterson (24:26):

Yeah, I got things a little out of order, but I want to make sure we got the Star Chamber in there because I find that people say it, but they don’t know what it was. These things all have a very important role, and it kind of speaks to the salience of your book that even though we’re dealing with things that aren’t that long ago by British standards for American standards, of course this is all ancient history, and it’s important that we know what these words mean. So we can move things up a bit closer to the present. Seditious libel, as you said, is not a question of whether what you say about the government is bad, but true, but whether what you said about the government is just bad. So how is it that we move from a standard of saying anything about the government is bad to defenses by truth against government prosecution?

Adam Tomkins (25:18):

So we brought the story up to about, well, we were in the eighteenth century, so beginning of the eighteenth century, you find the first secular argument for free speech, and you also find that argument being made in a climate where people are beginning to distinguish genuinely seditious speech, which is designed to bring down the regime, bring down the entire constitution.

(25:42):

On the one hand, and having that distinguished from just oppositional speech. This is the beginning of the “rage of party” as one recently published book puts it, right? So we have Whigs in one corner and we have Tories in the other corner, and they disagree with each other, but they’re all loyal to the regime. I mean, some Tories actually weren’t loyal to the regime. Some were Jacobites and some wanted the Hanoverian succession to fail. But putting that to one side for the moment, what you had, certainly by the time Blackston is writing in the 1760s, certainly well before the American Revolution or the Declaration of Independence in 1776, it’s well established by then, very well established by then. That political disagreement is part of our political experience. It’s part of it is what we expect. And we very quickly forget by the middle or the middle third of the eighteenth century, we very quickly forget that we somehow used to manage without it.

(26:43):

And then what happens is that the government starts to relax much more than it ever has done before about what people say, and it starts to get much more agitated, or it starts to perhaps continue to be as agitated as it always has been about what people do. And sedition by the early nineteenth century is understood not in terms of speech anymore, but in terms of action. So seditious libel begins to wane very considerably in significance. And instead, things like unlawful assembly start to matter. So it’s when crowds gather physically in town squares or city squares and then start rioting that the government starts to act. And that’s in the very late eighteenth century, very early nineteenth century, we start having this kind of speech act distinction really beginning to crystallize. Now, we know of course that it’s more complicated than that because we know that there’s such a thing as expressive conduct.

(27:45):

We know that even if we aren’t familiar with all of the kind of contours of free speech law or public order law, we know that philosophically there are these things called speech acts, right? So we know that action and speech can’t always be cleanly or crisply distinguished from one another. And yet that is precisely the distinction that the idea of free speech rests on. I mean, imagine for a moment that the First Amendment said that Congress shall make no law abridging freedom of action. Now, there might be some radical libertarians or anarchists who would quite like that, but it would mean that Congress couldn’t make any law at all, right? Because all law abridges freedom of action, Congress wouldn’t be able to make any criminal law at all if the Constitution provided that Congress shall make no law abridging freedom of action. So we must, at some level, be able to distinguish speech from action.

(28:38):

And that distinction starts to work its way through the legal order on my side of the Atlantic in the early nineteenth century. And the government just stops worrying quite so much about what people say about it and starts worrying much, much more about the folk who throw bricks at soldiers or shoot soldiers or start burning down the houses of corn dealers because they think the price of bread is too high. And it’s that kind of public disorder that begins to be understood to be seditious or troubling or riot or whatever you want to call it.

James Patterson (29:13):

There was not that long ago, maybe like six or seven years ago, a short film that someone made where a man is sitting out in the middle of a heath or a bog with a television that mysteriously can turn on, and he’s like, “Finally, I can watch some television without the BBC taking notice.” And he turns it on and out from the water comes a bobby and says, “Oi, you got a license for that, bruv?” So this is one of my favorite things to show, and when I teach a class on medium politics, we have roaring back with the rise of broadcast, a return to licensing that seemed dead in the nineteenth century, as you said, but what is the new impetus for licensing broadcasts?

Adam Tomkins (30:00):

Yeah, absolutely. My book is divided into two parts. So the first part of the book tries to tell a story about where speech comes from, and then how the idea of a right positive to freedom of speech becomes embedded in our law on both sides of the Atlantic, both in the United States and here in the UK and elsewhere in Europe. And then the second part of the book tries to analyze three contemporary free speech problems through the prism of that historical story that I tell in part one. And so the three contemporary problems that I talk about in the second part of the book are media freedom and in particular broadcast licensing. And then I say a few things about hate speech, which we might want to get onto. And then I say a few things about regulating the internet, which also we might want to get onto, if you like James, later on in the conversation, the media freedom chapter is actually the one that interests me most, right.

(30:56):

Because the justification for licensing broadcast was, I think, absolutely compelling. When broadcast was invented, when broadcast was invented, the spectrum was limited, and there was a real problem with interference. I mean, I grew up in the 1970s in a very rural part of England with very bad radio signal. I remember what it was like listening to the radio with lots of interference on it. It was lots of static. You couldn’t hear anything, right? All you could hear was static or it is no good. Nobody can listen to two radio programs at the same time, right? Because you can’t focus on either of them. And so there needed to be some regulation of the spectrum to ensure that radio and then television worked at all. Because if everybody’s trying to broadcast on the same frequency, nobody can hear anything. It’s just static. It’s just interference. And so the purpose of bringing licensing back to regulate speech when broadcast was invented in the early to mid-twentieth century was to enable listeners to be able to listen to anything at all. So it facilitated speech. It didn’t try to limit speech. The purpose of the licensing was not to limit speech. The purpose of the licensing was to enable us to be able to hear anything at all on the airwaves, and at the same time to safeguard those bits of the airwaves, shortwave, and so on and so forth that the emergency services needed, which is also manifestly in the public interest, right? I mean, if you make a 911 call and you can’t get through or whatever it is, then that’s clearly contrary to the public interest,

James Patterson (32:32):

And there’s naval vessels that are trying to navigate, and if they end up with people on their broadband or bandwidth rather than they might crash, right? This is a very serious business.

Adam Tomkins (32:42):

Absolutely. So the purpose of the regulation was not to try and suppress or control or restrict speech at all. It was to enable us to be able to speak to each other over the airwaves at all. Now, that was the technology of the 1930s, if we’re talking about radio. 1950s, if we’re talking about television, that technology plainly doesn’t still exist. I mean, it exists, but it’s not how we use radio and television services anymore. First of all, we had cable or satellite, and then we have digital TV, and there is now no restriction on the number of all of these restrictions are historic. And in the United States, both the Federal Communications Commission and the Supreme Court realized by the 1980s, if not the very early 1990s, that the old justification for limiting and regulating broadcast had gone because the technology had changed. Unfortunately, on this side of the Atlantic, on my side of the Atlantic, we haven’t made that realization yet. We’re 40 years behind you. We’re 40 years behind where the United States is in terms of thinking about how we should understand the relationship between the public interest and the need for regulating speech and the technology that underpins broadcast. And that image that you have of the television emerging out of nowhere in the middle of some heath and then some Big Brother

(34:09):

agent saying, hang on a minute, you can’t watch that because you haven’t paid your license is all too true. That rings absolutely true to the kind of experience that we have. And the European Court of Human Rights has been lousy on this. The UK Supreme Court has been lousy on this. The UK Parliament has been lousy on this. We still have a huge, I mean, it is unbelievable, a huge body of legislative restriction that does now act as a censor on broadcasters. So there are all kinds of things, all kinds of rules that apply to broadcast speech in the Kingdom, but do not apply to the press, and also of course, don’t apply online. And so it’s very difficult to, this is a podcast. I mean, in the United Kingdom, this podcast will be available in the United Kingdom, and it’s not subject to broadcast regulations at all.

(35:02):

But if we were on a radio show rather than talking to each other over the Internet, then we would be subject to all kinds of restrictions on our speech. But it seems to me are now manifestly disproportionate and unarguable, and yet they haven’t been overturned or limited in any way. There is a glimmer of hope because there are now TV channels which seem to have quite deep pockets that are beginning to challenge some of these presumptions in the UK courts. There was one case actually decided after my book went to press, so it’s not in my book, but a book. It’s a case brought by a TV channel called GB News against the UK’s broadcasting regulator, the UK’s equivalent of the FCC, which is a regulator called Ofcom. And the case is interesting because it’s the first time in Ofcom’s history that a broadcasting decision that it has made has been overturned by a court.

(36:04):

So this is a rule that said that politicians may not present the news, right? Politicians may present current affairs programs, but there’s a rule in Ofcom’s code of conduct that says that politicians, elected politicians may not present news programs on the regulated broadcast media. GB News have news magazines, news magazine programs that are partly current affairs and partly news. And when there is breaking news, if you’re in a current affairs part of the show, rather than the presenter having to switch himself off and go to some other presenter who isn’t a politician, the presenter reads the breaking news. This happened. Ofcom fined GB News, a pretty substantial sum of money because there were several of these breaches. And GB News took the matter to the court, and the court held in favor of GB News’s arguments and against Ofcom’s arguments. And that’s the first time, as I say, that’s the first time that this kind of decision by Ofcom has been overturned by a court. But it’s also, even though I’m quite excited about it, it’s a very limited ruling because what the case challenges is not the rule itself, but the application of the rule in this particular case. So the rule is still there. It’s still the case that politicians are somehow unable, somehow unlawful. It’s unlawful because it violates principles of due impartiality.

(37:43):

It seems to me that these are rules which might have made sense in the day when there were only literally a handful of TV channels that you could choose from. But now there are, again, literally hundreds of TV channels that you can choose from. If I want to come home from work and I want to find out what a particular political party or a particular movement in politics is thinking about a story, then surely I ought to have the right as a viewer to choose a news channel that is not duly impartial because I’m not interested in finding out what the received wisdom is. I want to find out what this party thinks or that party thinks. I have a spectrum of newspapers to choose on. I can read communist newspapers, I could read far right newspapers, I could read anything in between, and that’s all unlicensed.

(38:30):

Why can’t I do the same as a television viewer? And actually, the person who made that argument most clearly is good old John Milton, because when you go back to “Areopagitica” and that great trapped against licensing, quite a lot of what he says in “Areopagitica” is an argument in favor of allowing readers to choose for themselves what to read. And I want to be able to choose for myself what to view on television. And if I want to watch on television something which I know is not impartial, but my point of viewing it is simply to find out what that group of people, what that political party is saying about a particular issue. I ought to have that right as a viewer. It seems to me, and we have been extraordinarily slow to see that, at least on this side of the Atlantic.

James Patterson (39:21):

So conservative or right-leaning coverage of Britain here in the United States has stressed the problem of hate speech as a kind of cooling, a chilling effect on coverage of certain issues. In the UK, you don’t have to talk about those issues, but in case that’s not something you want to drift into.

Adam Tomkins (39:41):

No, no, I’m happy to go there.

James Patterson (39:42):

Okay, then is there really a licensed media fear of covering specific issues because they’re afraid of running afoul of hate speech? Or does that cover for some kind cowardice in the face of what their coverage might… Oh, go for it.

Adam Tomkins (40:01):

In my mind, both. So I’ve just talked about the power of the administrative state. I’ve just talked about the regulatory reach of agencies. We call it Ofcom, you call it the FCC. It demands to the same thing, government agencies that are paid by the taxpayer to monitor what is broadcast. That’s the power of the regulatory state. And my view, is that that’s the real threat to free speech right now in Britain. But it’s not the threat to free speech in Britain right now that has caught the attention of some in the American media. And indeed, it’s not the threat to free speech that’s caught the attention of the Vice President. JD Vance has said quite a few things about this during the course of the year, and their focus tends to be much more on criminal law than on administrative law. And I can understand why, because criminal cases get people’s juices flowing and much more interesting to write about a kind of prominent hate speech case than the mundane quotidian administrative overreach of the regulatory state.

(41:09):

But actually, it’s that mundane quotidian overreach of the regulatory state that really matters, not the occasional criminal justice problem. But let me talk about the criminal stuff, right? Because in addition to the regulatory overreach that I’ve just been talking about, we also have a bewildering, dazzling array of criminal offenses, a number of which capture different sorts of speech. So it is, for example, an offense in the United Kingdom to send by email or any other form of electronic communications, a message which is grossly offensive. It is, for example, in the United Kingdom, an offense to stir up racial hatred by using an epithet which is perceived to be insulting. So there are some cases in the UK even now where you can be criminalized for saying something or tweeting something or writing something, not because you’ve said something which is threatening, not even because said something which is abusive.

(42:12):

But because you said something which somebody thinks is either grossly offensive or insulting. And in my view, and the argument I make in the book is that that is drawing the line of criminal liability in the wrong place. A lot of Americans will disagree with what I’m about to say, but my view is that it’s perfectly appropriate to criminalize threatening words. I can’t use my fists in a threatening way. So why should I be able to use my words in a threatening way? I have an argument in the book that defends hate crime when hate crime is understood to be a threat or even an abusive communication. But I absolutely draw the line at insulting or offensive speech, the answer, if you’re offended by what I have to say, the answer is not to silence me or to censor me or to cancel me, or to write to my employer saying that I have brought my place of employment into disrepute or whatever it might be.

(43:09):

The answer to my words, if my words are offending you or upsetting you or insulting you, is to use your own words to explain why I am being offensive and to urge that I should stop being offensive. You don’t meet and capture and deal with and defeat the problem of bigotry or prejudice in society by silencing it. You defeat it by exposing it, and you can only expose it if you’re prepared to engage with it and call it out and defeat it with words of your own. So the argument, this is the classic American position, right? That the argument against offensive speech is not to cancel the speaker, but more speech, right? Your speech showing me or showing everybody, showing my audience why I’m wrong to say what I’ve said. And I absolutely adhere to that view, and I think that the Vice President is right to draw attention to this issue. I think the American media are right to draw attention to the fact that in the United Kingdom, there are far too many instances of the criminal justice system being used to tackle speech, which somebody else is upset about, which somebody else is offended by or somebody else is finding,

(44:27):

claims to be insulting in some way. Now, the picture is not uniformly bleak. There is all sorts of pushback going on in all sorts of places in the media, in public discourse and in the courts. There was a recent case, for example, which gave a lot of us a lot of hope. A man had been convicted of a relatively minor public order offense for burning a copy of the Quran outside the Turkish embassy in London or Turkish consulate in London. And that conviction was overturned on quite strong terms on appeal. And the court gave its reasons and the reasons were very robustly articulated in the context of free speech. And it doesn’t follow from that case that we all have the right to burn a copy of the Quran wherever we see fit. If we were to do that in a way which is deliberately provocative, it could very well be fighting words.

(45:22):

It could very well be expressive conduct that would trigger all kinds of public order liability. But it does follow from that important breakthrough judgment that it will not always be a criminal offense to burn a copy of the Quran, even if there will always be Muslims who find that deeply offensive. And that it seems to me is drawing the line in the right place. So actually, I’m always being accused, James, of being too optimistic, but I am actually quite optimistic that there’s an increasing number of voices in UK society and UK politics, and also now an increasing number of cases being decided by the UK courts in which freedom of speech is being much more robustly defended again than it has been perhaps for some years. And if the Vice President’s contributions to that have been part of it and have helped, then I welcome them.

James Patterson (46:23):

On page 234, you open a section that says, “When the Online Safety Act was passed in 2023, after unusually long and protracted parliamentary passage, the UK government claimed legislation would make the UK the safest place in the world to be online.” What’s the score on that one? Professor Tomkins, are you safe?

Adam Tomkins (46:48):

The Online Safety Act is a nightmare.

James Patterson (46:52):

Sorry to bring you down from your optimism by bringing up your own laws…

Adam Tomkins (46:55):

Words, but this is going to be the cutting edge of free speech going forward. So we need to talk about it, right? Because the students I teach, I’m sure it’s the same for the students that you teach in Tennessee. James, the students I teach don’t obtain their news from any source other than online. They don’t read newspapers, they certainly don’t read books. They don’t read newspapers. They barely watch television. They sometimes do listen to podcasts, but they overwhelmingly, overwhelmingly receive all of their news and current affairs information online. And so we need to think really, really hard about what that means in terms of freedom of speech. And I think that there are, so if you take a Millian approach to this, right? J. S. Mill who wrote this wonderful essay “On Liberty” in the middle of the nineteenth century said that your speech and mind should not be curtailed at all unless it causes demonstrable harm to somebody else.

(47:59):

So if we think about a harm based approach to speech, and this is kind of classic classical liberalism, right? If we think about a harm based approach to speech, then I would go back to my example about threats. It can cause harm to threaten somebody with words in the same way that it can cause harm. To use Oliver Wendell Holmes’s world famous example to falsely to shout fire in a crowded theater, the reason why those sorts of words are not protected by even the world’s amplest protection of free speech is because they cause demonstrable harm to others. So if we use that as our way into this, as our way into thinking about this, then it is, I’m afraid, the case that online speech can be more harmful than offline speech. There is more anonymity online than there is offline. People can hide behind that anonymity in all kinds of ways that are dangerous for people. People also feel that they are able to say things, particularly on certain social media platforms that they wouldn’t say to each other face-to face perhaps because there aren’t any faces online. It’s very difficult. I have teenage kids. It’s very difficult to know what they’re looking at online. It’s very difficult to police that. I know that there are apps available. I know that I can restrict their, I know all of that, but I’m also kind of a liberal, so I don’t really enjoy doing those things.

James Patterson (49:24):

Also, a lot of work to conduct surveillance on teenagers

Adam Tomkins (49:27):

All day. Absolutely. And they’re always going to be more tech savvy than I am, and they’re always going to be quicker to work out their way around it than I can. So it’s kind of futile, right? Again, that’s something that Milton said about censorship. It’s like the farmer who puts a fence around his field to keep the crows out. You’re not realizing that the crows can just fly in. So it’s absurd. It’s futile. So what I’m saying is that I think there is a very good argument for thinking about online speech differently from the way in which we think about offline speech, because I think that the harms that speech can cause online might be different from, and might even be greater than the harms that can be caused offline. But… And you knew there was a “but” coming…

Adam Tomkins (50:10):

We also need to think about freedom of speech online and getting that line, getting that line right between what is permitted and or licensed or criminalized, and what is not is going to be, I think, a work in progress. I’m going to say two things, which I think are unfortunate about the Online Safety Act. First is just complexity. So the legislation itself is fiendishly difficult to understand. I’ve tried to teach it to very advanced law students a couple of times now, and more or less completely failed. It’s very difficult to understand. But that is a problem, which is massively compounded. When you look at the regulatory verbiage that is spewing from Ofcom. We’ve talked about Ofcom already, and it’s the same regulator who are empowered under the Online Safety Act. Within the first year of the Online Safety Act coming into force, Ofcom had published more than 2000 pages of regulatory guidance.

(51:14):

Now, whenever you’ve got 2000 pages of regulatory guidance, you haven’t got much freedom. So this is all stuff that is designed to restrict freedom of speech, and it’s all happening in real time. It’s happening right now. It’s happening without any real democratic accountability because Ofcom are a government agency. The courts, the cases have not yet really started to filter up into the courts. There are very few cases on the Online, so there are one or two, but there’s very few cases on the Online Safety Act. And of course, parliament is not interested because Parliament’s done its work and has enacted the, except for the fact that Parliament is interested insofar as it thinks that the Online Safety Act doesn’t go far enough. So the Online Safety Act is designed to focus on specific harms, but it is not designed to focus on the alleged harm of disinformation.

(52:07):

And there was a parliamentary committee that reported very recently, just the last few months in the House of Commons in Westminster that was focused on the problem of the perceived problem of disinformation online. And it recommended as an all party committee that unanimously recommended that the Online Safety Act already needs to be amended to increase its reach into online speech to begin to capture this problem or a perceived problem of disinformation. So I’m afraid that on this score, notwithstanding my optimism five minutes ago, I’m much less optimistic that the United Kingdom is moving in the right direction or is indeed even facing the right direction. It seems to me at the moment, we’re terrified of what’s happening online. We don’t understand what’s happening online. We dislike what we think we see online, and we are increasingly reaching. The impulse is there in our politics. I’m afraid that lawmakers are reaching for the regulatory tools that are familiar to them from the broadcasting world, copying and pasting, applying them to the online world. And even if that one day makes the Internet a safer place, it’s going to make the Internet a lot less free. And that is a conversation that we need to be having upfront and in public and not under the cover of a thousand pages of regulatory garbage from Ofcom. It’s really, really troubling.

James Patterson (53:38):

Well, I can’t do better than that to close us out, Professor Tomkins. Thank you so much for appearing on the Law & Liberty Podcast.

Adam Tomkins:

You’re welcome.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

Related Links

Philip Wallach, Why Congress (2023)
Philip Wallach, “Choosing Congressional Irrelevance,” Law & Liberty
Yuval Levin, “Congress Is Weak Because Its Members Want It to Be Weak,” Commentary (2018)

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor and associate professor of public affairs at the Institute of American Civics at the University of Tennessee. I’m here in person—this is a rare treat for me—with Phil Wallach, who’s his senior fellow at the American Enterprise Institute. We’re going to be talking about his latest book, Why Congress, which is published in 2023 with Oxford University Press. Dr. Wallach, welcome to the Law & Liberty podcast.

Philip Wallach (01:13):

So good to be with you.

James Patterson (01:14):

So the great thing about your book is that it gave me my first question, which is “why Congress?” But of course, the thing about Congress is that it hasn’t gotten a lot of conservative attention, and this is strange. Conservatives are very interested in the Supreme Court and federal courts and interpretation in the judiciary and we’ve had a very strong interest in the presidency and things like maybe the limitation of the imperial presidency, but also the unitary executive theory. There are these really big ideas there. So is Congress sort of the left out branch here for the right?

Philip Wallach (01:53):

I think if you go back to the time of Franklin Roosevelt, conservatives were very interested in Congress and very pro-Congress. They believed Congress was a kind of earthy bulwark that really was connected to the public, to the people close to the ground. And the classic statement of this is Wilmore Kendall’s essay that he is still writing at the end of the 1950s, talking about the two majorities. But he really portrays the congressional majority as embodying this sort of home-spun wisdom as opposed to the utopian, quixotic tendencies of the presidency, which tends to appeal to people’s grand aspirations and engage in world changing projects. And that’s also representing a real tendency that Americans had. But the way of representing the other thing in Congress was he thought as a very important counterpoint. And so there was that time when conservatives and you saw James Burnham write a book around the same time really appreciating the same sort of thing about Congress, but then you see Democrats control the majorities in the House of Representatives from 1955 until 1995—four solid decades.

(03:18):

Of course the Republicans do control the Senate from 1981 to 1986, but Congress just comes to be thought of as a democratic institution first. Of course, Democrats were half a conservative party at the beginning of that period, but by the end of that period, Democrats are a liberal party and they’re very much in control of the Congress. And so the modern conservative movement of the 1970s and eighties defines itself in opposition to Congress. They think of Congress as a corrupt liberal place and the emblematic figure of that is Newt Gingrich, who comes in, from the very first time he starts campaigning, talking about how awful and corrupt Congress is and how we can’t work with this congressional majority—we Republicans need to find ways of throwing it out. They eventually do, they succeed at that, but in that course of those decades, they’ve really sort of lost the sense of what it is a Congress is supposed to be for.

(04:17):

I would argue that conservatives came to adopt a much more leader-centric, Wilsonian model of what politics looks like, including Newt himself. And so in some ways, Congress is sort of without its ideological support from the right for many decades now. And you saw maybe a little bit of efforts to rediscover it around the Tea Party time and when people thought Hillary Clinton was going to be a president, but that’s not what happened. And so conservatives have mostly gone off in a very different direction and don’t genuinely have a lot of use for Congress these days.

James Patterson (04:57):

So there’s been a kind of great forgetting among conservatives and, to a lesser extent, among Republicans about the operations of Congress. Is there also maybe also a kind of change to the institution of Congress itself? Centralization under leaders, for example; it’s not as deliberative as it used to be. That’s led Congress to become less of an object of study.

Philip Wallach (05:24):

Well, it goes along together for sure. If you think of members of Congress, first and foremost, the most important thing they can be is members of the team, good foot soldiers for the party, then you don’t have a whole lot of use for deliberation. The deliberations should sort of happen elsewhere, and then Congress should put through the conservative agenda. I argue in the book that not deliberating well actually handicaps the Republican Revolution to some extent in the mid-nineties, that they sort of don’t actually have a good sense of where they can succeed and where they can’t. And so they make some real missteps because of that. But yeah, generally I’d say this comfort, including amongst members themselves, with the idea that the institution should reorganize itself on a purely partisan basis and that the main thing is teamsmanship in that environment. And of course, if you’re setting things up in that way, then leaders at the top and organizing sort of discipline followership is what matters.

James Patterson (06:37):

I’m remembering one of my favorite sketches in the history of SNL was on Newt Gingrich becoming Speaker. Do you remember this? It is actually kind of hard to find. I’m not sure why, but I had wanted to find it so I could use it in class and I only found an edited version of it, but it’s Chris Farley as Newt Gingrich and he’s becoming increasingly frantic as he’s gaveling in all of these Contract with America ambitions and by the end of it he’s just screaming and hammering on the dais. And that does sort of point to, I thin,k the way that Republicans understood their position in Congress when they finally attained a majority. What do members of Congress do? Do they legislate? Do they fundraise? Do they go on to television shows? It’s sometimes hard for people to pin down because it isn’t abundantly clear that Congress does anything.

Philip Wallach (07:34):

It’s definitely possible to overstate the point, and I think if you literally imagine members of Congress as a bunch of lazy bums, you are seriously deceiving yourself. They are very hustling people. They’re going from one thing to another all the time. A lot of that is to try to maintain organic connections with their constituents. They spend a lot of time trying to be at events in their home district, get out, shake hands, listen to people—that hasn’t gone away. It’s hard to represent a congressional district of 750,000 people, which is around the average today, or most senators, of course, have states considerably bigger than that.

(08:21):

And so they do spend a lot of time on that. And of course, the fundraising part of it also does create connections with the district, but it also creates connections with all kinds of elements of the donor class that might be sympathetic to them, which is not always so geographically oriented, but they spend a lot of time cultivating connections with donors. And legislating is really a reduced part of the portfolio. It hasn’t gone away. There are still quite a few earnest legislators on Capitol Hill. But yeah, I’d say it used to be the case that if you wanted to have a chance to exercise legislative power, there was more of a clear sense that you put in your time over the years on your committee, you prove your worth by making yourself an expert in these matters and showing your colleagues that you know what you’re talking about.

(09:13):

And after a while, once you’ve proved your bona fides there, you get to write the legislation, and the legislation will then get considered and given its chance to become actual on the law books. I think people are much less confident in that path these days. They think if they put in all that time investing and making themselves an expert, it’s likely to go nowhere, that it’s likely to just be a waste of their time. And so I do think a lot of the more ambitious members have reacted to what they see as the incentives showing them. They think actually the way I’m going to get ahead and become a powerful person is by cultivating my national public profile by attending to the new media in all the different forms that takes

James Patterson (09:59):

The way Alexandria Ocasio-Cortez does Instagram live?

Philip Wallach (10:02):

Yes. She’s obviously one of the most successful at sort of taking her position in Congress and turning it into a platform for her to become a major political celebrity who people talk about becoming the president, and it is funny in how many members that is the goal that’s animating them. Maybe that’s not such a new feature of today, but the sort of clarity that the path to getting there is through media celebrity rather than legislative accomplishment is distinctive to our moment.

James Patterson (10:37):

So no doubt. We’ve talked a little bit about the things in your book, Why Congress, but why don’t you give us the elevator pitch, the summary statement that we have so far missed?

Philip Wallach (10:50):

Well, the title of the book is Why Congress, no punctuation. It’s meant to imply that there is an answer, and so the book is an apology for having a strong Congress as the center of our constitutional order because, the way I see it, having this body which is defined by its multiplicity is actually more capable of representing the diverse interests that make up America than a system in which we let everything collapse into this sort of Manichean war between one side and the other. And when we sort of collapse everything into presidential politics, that becomes the natural tendency of our system is to just make every single presidential election seem like this existential conflict. You get people putting their great hopes in their leader as somehow going to redeem the American soul one way or the other.

James Patterson (11:50):

I don’t think that’s in the enumerated authority of the president in the Constitution.

Philip Wallach (11:55):

Fair. It’s really not, but that’s sort of so Why Congress is trying to explain, well, when we had a functioning pluralistic Congress back in the day, what did that get us? My contention is that it better legitimized the federal government than what we’ve got today. What we’ve got today is a lot of people imagining that whenever they lose, it’s the end of the world almost literally in those words, people are willing to make the argument and they’re taken seriously and that’s not healthy. That’s not a way—its’ not been working. We haven’t seen Trump or Biden become a wildly popular figure with the majority of the country. They sort of do their shtick and find it difficult to tread water even. So I don’t think that we have a successful alternative to Congress. We’ve let Congress atrophy and that’s in my view, a much larger part of the story of why our politics are so deranged in the 2020s than people realize. I think people don’t even bother thinking about Congress much anymore.

James Patterson (13:08):

Another figure who really has done a lot to return our attention to Congress is Yuval Levin. He wrote the very important essay in Commentary magazine. I think it’s “Congress is Weak Because Its Members Want It to Be Weak” or something like that. Is there something you would add to the argument that he makes, and what is the argument that he makes?

Philip Wallach (13:28):

Well, that metaphor of using Congress as a platform that I already spoke out before comes directly from that piece from Yuval. It’s, it’s a very powerful metaphor that he develops in his book, A Time to Build. Also, we have a whole lot of institutions without institutional loyalties and without a sense that institutions are supposed to shape people. Instead, we have people who come to sort of inhabit the institutions but use them as a platform again to launch themselves as personal brands in the larger sort of media ecosystem. And you see that not just in Congress, but in a number of walks of life, and Yuval is a real believer in sort of the integrity of institution-specific ethics, role moralities, right? If you’re a judge, you’re supposed to act like a judge. You’re not supposed to act like an op-ed writer. If you’re doing that, you’ve lost the plot in some very important way, and he looks around at a lot of different institutions in American life and sees people having basically disregarded the idea of that sort of role specific morality and instead just sort of throwing themselves into the big culture war that preoccupies so much of us in so many ways, and for Congress specifically, again, that makes Congress a less interesting place.

(14:59):

It means that really Republicans and Democrats feel like they can’t have anything interesting to say to each other, or sympathies to build across the aisle because well, “if you’re on the other side of all that stuff, we must be enemies. Our leadership tells us don’t work with those people because you might give them comfort, you might give the enemy comfort and we don’t want that.” So Congress becomes less interesting. It sort of desiccates our politics, and Yuval and I would like to see some people pushing against that. It’s a hard thing to turn it around. We’re kind of in an equilibrium now. It’s not easy for one person to just break out of it because it’s a coordination problem, but we have to sort of at least start to build the awareness that something has really gone wrong here and that Congress can be a big part of the answer if its members are willing to try to take this leap. Our pitch is, “this isn’t pie in the sky because we have seen this institution operate in this way before. It really is a choice of the members should they decide that they want to take it.”

James Patterson (16:12):

How much of this is structural? How much of this is the result of changes to congressional authority, especially in the way they’ve delegated it either to the bureaucracy or to directly to the president?

Philip Wallach (16:32):

I think that a lot of what makes the teamsmanship work as opposed to having to reconcile with the other side and figure out how to do bipartisan lawmaking, is our willingness to circumvent Congress and to make policy through the executive branch. And you’ve seen this in case after case in the last 20 years, where first the president says, “Oh, I can’t do this all by myself. I need to go through Congress.” And then he gets frustrated with Congress not doing what he wants, and they said, “Oh, actually, it turns out I can do this.”

James Patterson (17:08):

Everyone discovers their pen and their phone.

Philip Wallach (17:10):

Yes, so I mean certainly thinking back to Obama and the DACA program, the immigration program that he fashioned for people who were brought to America illegally as children, and that’s a very sympathetic class of people. There was a legislative push to do something about them. It didn’t pass, and then Obama cut it off. He said, “Okay, never mind. I’m not going to work with Congress to pass this law. I’m going to create this program through a massive use of my prosecutorial discretion not to bring actions against these people and actually because I’m not going to bring actions, I’m going to create this weird permitting program that doesn’t really have any legal basis.” That’s DACA. And Democrats in Congress did not say, “Oh my gosh, why are you cutting us out of this process?”

(18:01):

They said, “Good for you, Mr. President. You’ve reacted to Republican obstructionism and the only way that’s really reasonable by making progress for the American people, bravo.” And that’s the story of our politics today is members of Congress sort of wanting to be cut in, but if they don’t get what they want right away, then saying actually maybe cut us out. And I’m afraid that’s a bipartisan story. By now, we’ve sort of lost our will to really struggle through the hardest problems in the legislature. As soon as we see they’re really hard, we say, “Okay, never mind. This isn’t a legislative agenda item anymore. This is something that the big people over in the White House and the Supreme Court building are going to go figure out.”

James Patterson (18:53):

Another structural problem, one that’s not really the result of anything the members have done, I get from a book by Morris P. Fiorina called Unstable Majorities, and he talks about how the way that parties have now sorted so ideologically—that was once the objective, and I think it was in the 1954 American Political Science Review, they wanted more ideological parties. They thought the Democratic Party was too internally incoherent. So now here we are with a case of be careful what you wish for. We have very ideologically sorted parties, but they also don’t have a single majority. The old political science term for this was a “sun party” and then the minority party, we called the “moon party” and there would be this effort of the minority party to kind of figure out a way to pivot into a majority position. Instead, it’s a 50-50 country, and so members of Congress are always waiting until they can clear a large enough majority in Congress. I think what’s the majority in Congress now for the Republicans, like three, two?

Philip Wallach (19:54):

Oh, in the Senate?

James Patterson (19:55):

In the house.

Philip Wallach (19:56):

It’s gotten real slim.

James Patterson (19:58):

So the problem is that you’re not going to be able to legislate that much with that, and you can always wait until the next two years, when maybe you’ll have a larger margin, and then you can really go for it.

Philip Wallach (20:08):

Yeah, I think to be fair, we haven’t stopped seeing legislation. We had a really big important enactment this summer that we shouldn’t pretend didn’t happen. So that was a case of all the Republicans except for very few getting together such so they could pass an all Republican giant spending law.

James Patterson (20:29):

Right. Yeah. This is the one big beautiful bill?

Philip Wallach (20:30):

That’s it.

James Patterson (20:35):

One of the greatest names of a piece of legislation. It is exactly what it says.

Philip Wallach (20:39):

Well, the keyword is one. They really put everything they could put in there, subject partially to the whims of the Senate parliamentarian adjudicating the details of the bird rule, which is what exactly is allowed in a reconciliation.

James Patterson (20:57):

So maybe not beautiful.

Philip Wallach (20:58):

They put an awful lot of stuff in there. It’s a substantively very important law. People shouldn’t lose sight of that. They don’t have much of a legislative agenda after it passed, to be clear. There are exceptions you can find, but it’s kind of striking how little of the president’s ambitions run through Congress now. He has a lot of stuff he wants to do, and pretty much none of it depends on convincing congressional majorities. I think you going back to the Fiorina book, political scientist Francis Lee has a lot of similar discussions, they’re very convincing. There is something structurally about being on the knife-edge where every election is decisive. We really don’t know who’s going to control Congress after the next election, and that does change the way things look quite a bit. So yeah, that’s part of why it’s so hard to get, there are an awful lot of features of this equilibrium that are rational and so are we stuck in it until the structural features change? Maybe I would say there are a lot of margins that members could push at, and we have seen them pushing at some, right? We ejected a Speaker of the House in the middle of a term just a couple of years ago, and we’ve seen an increase in the use of the discharge petition in the House of Representatives.

James Patterson (22:20):

What’s the discharge petition?

Philip Wallach (22:22):

Basically, when leadership or committee chairman are bottling something up, not letting it come to a vote, a majority of the members in the chamber can sign a discharge petition, file it with the clerk, and then they have a right to call up that bill whether the leaders want it or not. So we’ve seen a lot more use of the discharge petition all of a sudden in the last couple of years. We’re seeing a very high-profile fight with it right now about the Epstein, some kind of legislation to force the government to release more of the Epstein materials.

James Patterson (22:54):

For those who don’t know, there’s the Epstein list is what, I’ll let you handle that question.

Philip Wallach (23:01):

No, let’s go on.

James Patterson (23:01):

The issue with Congress is then not as, sometimes people portray it where members go to their offices, take calls from donors and then go on to cable news. They’re actually working and in many cases are pushed in a lot of different directions, as you said. What are some of the things that members of Congress do that we don’t see?

Philip Wallach (23:21):

Well, I don’t want to dispute some basic correctness to what you just said. I think members really do spend a lot of time sitting on the phone calling donors, and that’s really unfortunate.

James Patterson (23:35):

They have quotas, right, don’t they?

Philip Wallach (23:36):

Yeah. Basically getting ahead in committee placements these days is just very sort of straightforwardly connected to your fundraising prowess,

(23:48):

Your ability to kick dollars up into the team, not just your own bank account, and yeah, I think that’s not great and it’s not great just as a time use problem actually. It really is something that legislators half a century ago would’ve been horrified by because it has become much more of a chase. So that is a big thing. I think the whole connection with constituency is still more important than people realize, and legislators do hustle to try to know their constituents, to try to perform constituency service. That’s an old Fiorina standby. The bureaucracy creates lots of problems. One of the ways people try to deal with these problems is by contacting their member of Congress’s office. A good portion of the staff on Capitol Hill spends their time trying to do constituency service, make things right that have gone wrong for people and members involve themselves in that at some level, that’s part of how they learn about what’s going wrong in the federal government, so that’s constructive.

(24:55):

It’s a perfectly respectable use. I think that it can sometimes crowd out bigger thinking. If you keep tending to the symptoms of a problem, but you never fix the problem, there’s something going wrong there. I think members do spend a lot of time trying to figure out some angle that they can take into the fight of the day. They’re always looking for certain way that they could hold that hearing that’s going to get on the news, that they could be the member who makes themselves the main character of a news cycle. That takes a fair amount of craftiness and scheming and a lot of trying without succeeding.

James Patterson (25:36):

One of the more startling examples of that really having a major effect was when former, she’s not a representative, Elise Stefanik. She, I’ve blanked on this. Is she still in the House, or did she take up? Anyway, Elise Stefanik created a moment in higher education in her interviews. She didn’t pass legislation. She used the hearing as an opportunity to kind of expose some pretty serious issues. Is that something of what you have in mind with Congress taking on its more traditional role ,or is that an example of the problem?

Philip Wallach (26:14):

I mean, I wouldn’t want to gainsay the success of that particular example. She clearly performed very well in this very well-created forum where Congress asking some tough questions to powerful people made a big difference. I think that kind of oversight function that doesn’t necessarily have to route through legislation can be very successful. So period, congratulations for that. But at the same time, okay, now the Trump administration is in, we’ve got Republicans in control of both chambers of Congress. Maybe this is the big chance for Congress to try to steer a new course in federal higher education policy, and I mean indeed it is. We are seeing that, but it’s almost all just through executive branch action.

James Patterson (27:05):

Grant cancellations and stuff like that.

Philip Wallach (27:07):

Even taking the civil rights laws and finding whole new interpretations of them that are favorable to the sort of right-wing suspicion of affirmative action, instead of, so we see, again, people make use of strategies that are available to them in this environment. Some of them are good at that. To me, it’s regretful that some of the most potent tools are left neglected and that there’s opportunity to really fight things out in a deliberative way on the floor of Congress is often also just neglected, and so we don’t feel that we sort of make a lot of progress. We sort of have one side get its advantage for the moment or the other side, and we kind of expect things to flip back and forth in a fairly mechanical way when the election results change. It would be better if we actually had a way to figure out a modus vivendi that we can make more stable.

James Patterson (28:08):

The issue with Congress right now is that we have a shutdown. We have another shutdown. I remember when this was a huge deal. I was a younger guy when we had the shutdown during the Gingrich speakership and we’ve kind of had these shutdowns. Why can’t Congress pass a budget? Why can’t it handle fiscal issues the way that you would think are existential for the Republic?

Philip Wallach (28:40):

There’s a lot—as a Congress pedant, first I just have to slap you with a wet noodle for saying “the budget,” right? Our budget process is a complete mess. The only thing it’s used for anymore is budget reconciliation laws, which they used it for back in July, right? The whole budget process is supposed to be the opportunity Congress takes to look at the big picture and chart a long-term course that makes sense. Again, we’ve just completely disregarded that as a real opportunity to do real work. It’s become a partisan tool. It’s a disaster. Our annual appropriations process, which is what we’re having trouble with right now, why we have a shutdown, only controls a very small portion of federal spending, about a third.

(29:28):

Most federal spending is on autopilot as a result of entitlement laws. The thing driving us into fiscal peril is largely stuff that Congress doesn’t even pretend to touch on a year-to-year basis. But we have annual appropriations, something like $2 trillion that we are talking about allocating every year. The past year we’ve just been on a continuing resolution where they said, “actually, we’re not going to be able to figure out anything. We’re just going to continue the spending levels from the previous year,” and there’s a pretty darn good chance at this point that we might see that. Again, so levels that were agreed to under President Biden just continue those

(30:11):

And somehow assume that the Trump administration will do some on-the-fly adjustments of dubious legality to make things work out. That’s where we are right now. In the bigger picture, the shutdown itself is a little bit perpendicular to all that. It’s a little bit random or strange or something. Why do we have it? Because Democrats feel like they can’t say yes to anything involving Trump right now. They feel like their base is so sick of them seeming compliant that they needed to take a stand, so they took a stand and didn’t allow a continuing resolution into November or December, which is common as dirt in our system. That’s what Congress does every year, and the Republicans were not making any big policy asks to get that. It’s just that Democrats felt they had to say “no” to something, so they said no to this, and now it’s not quite clear what the way out of the impasse is.

(31:04):

They need to be given some kind of concession that they can spin as a win, but Republicans aren’t actually inclined to give them, and meanwhile, even if they were to agree on a short term continuing resolution, that doesn’t fix the larger problem, the Democrats don’t really feel like they can bargain with Republicans at all because they’re so afraid of how Trump is going to renege on the bargain. It’s kind of a big problem where even in Trump’s first term, we saw bipartisan cooperation happen on a fairly routine basis, and we really are at a point just now in the fall of 2025 where it seems like partisan cooperation might be something we just can’t do, and our government is not set up for that situation.

James Patterson (31:48):

See, the downside of doing these in person is getting hit by a wet noodle. I don’t know if we should do this again, but there are lots of people who have lots of ideas about how to make this better. I’ve heard removing cameras so that it’s not so much of a public display, increasing the total number members, excuse me, the total number of members in the House of Representatives. Obviously, you can’t do that in the Senate without pretty significant change to the Constitution. What is it in your book? Why Congress that you have in mind for improving this state of affairs?

Philip Wallach (32:25):

I do want to see us get back to committees. So there are structural things we could do to make committees stronger and to give them more of a clear share of agenda control. I’ve articulated my sort of preferred slate of structural changes, but I have to admit that the how question really seems quite secondary. It’s like whether we actually want to fix this problem, and based on what I’ve seen in the last year, the answer is just no. That pains me. I would like to be somebody helping this institution move toward relevance and move toward a sense of revival and understanding its place in the constitutional order, but that’s just not where we’re at this particular moment. The sort of more we can just get by the skin of our teeth at the moment is kind of the more realistic hope for right now. The larger turn back toward Congress has to come because people feel totally burnt out on this president-centered government and the way that it creates whiplash, and maybe more and more people who take these existential stakes that they perceive literally and try to solve problems with bullets. I would say that seems like a pretty predictable feature of the politics of this country in the coming years. So that’s bad. I would love to turn away from that, but we need to get to a point where people actually are ready to turn away, and right now, I just think people want to be in control of that chair.

James Patterson (34:05):

You’re right. The sources of political authority and political change become increasingly scarce, and as they become scarce, the stakes for securing those become higher and then they start to engage in things like firing on presidential candidates, and it seems like such a major opportunity for whichever party can mobilize in Congress that they can seize like a tremendous amount of political authority in Article One, Section Eight powers to say the least. So, is that what you think it’s going to take, this kind of catastrophe in dealing with some kind of presidential issue that leads us back to Congress, or is there even a way back?

Philip Wallach (34:46):

I guess I also tend to believe that we need some major disruption to our partisan organization, which Trump himself has been a major disruption, and I think I would push back a little bit on the idea that we are very well ideologically sorted anymore.

(35:07):

I actually think that if you try to figure out what do people in the Republican party believe about issues X, Y, and Z, from trade to should we legislate on morals to taxes? I think that the Republican Party is actually full of internal dissension, and so I think that there is more multipolarity out there in the electorate than we realize. Our political system really is set up to effectively shut it down, and it does a good job. But I think that some kind of forcing event could come through and kind of shake things up, and we could find ourselves unstuck and Trump, the most predictable event that we know should be coming is Trump’s withdrawal from the scene.

James Patterson (35:59):

Yeah.

Philip Wallach (35:59):

Don’t know when that’s going to come. You can argue about that.

James Patterson (36:02):

Well, there’s all these conspiracies that he’s building this ballroom, so clearly he wants to stay. I think he just likes to build stuff. That was his job before all this, right before game show host.

Philip Wallach (36:15):

But in any case, clearly the Republican party has organized itself around him over the last decade, and it will have to do something other than that before too long. So that creates some kind of forcing event for some kind of big fight where we try to figure out what this Republican party is all about. I think there is a fight about what the Democratic Party is all about going on. I don’t know how much it’s going to break through, but yeah, I think possibly the structural changes in Congress need to come downstream of a sense of political disruption, a sense that to accomplish something politically, some frustrated, bipartisan, cross-cutting coalition needs to make its move. Right. The touchstone moment that I look back to is the revolt in 1910 in the House of Representatives. So you had an extremely powerful speaker of the House, Joseph Gurney Cannon, a fascinating figure well worth learning about. He ruled the house with an iron fist, and he had a very orthodox Republican sense of what his party was about, and the fact that there was a growing progressive segment of his party who was frustrated with his leadership did not interest him very much. He felt that they should make their arguments in the party conference and have their say there, but once it came time, they needed to be good party regulars.

(37:53):

And eventually, these progressives made common causes with the Democrats, stripped him of many of his powers as Speaker of the House to get their legislation moving. They thought regulating the railroads was that important that they were willing to blow up their party coalition. What’s the something that’s going to make people get to that moment in the 2020s or the 2030s? I don’t know. I try to come up with a scenario in my book, and it is not a convincing scenario.

James Patterson (38:22):

What about entitlements blowing up?

Philip Wallach (38:26):

Yeah. Gosh, that’s really not so far over the political horizon anymore, right? Having to figure out something about the funding of Social Security and Medicare. I actually don’t think there’s a lot of bipartisan disagreement on these. In some ways, it’s about the mix of taxes and benefit cuts that we have to agree on, and it’s so painful that no one’s willing to get out ahead and incur political costs for no reason. So we have to kind of wait until we hit the wall. But actually I’m a little bit of a quietest on that one. I kind of think the parties are in enough substantive agreement that they’ll have to come up with some answer, so I think they will, but it’ll be ugly.

James Patterson (39:09):

And not a moment earlier than they have to.

Philip Wallach (39:11):

Not a moment. No, no, that’s for sure. So Trump, not his problem.

James Patterson (39:15):

That’s right.

Philip Wallach (39:16):

That’s very much clearer to him, and he’s just like all the other politicians we have right now. In that respect. There’s nothing special about it.

James Patterson (39:26):

Well, it’s been really great having you on the Law & Liberty Podcast. The book is Why Congress, the guest is Philip Wallach. Thank you so much for coming on.

Philip Wallach:

Pleasure, James. Thank you.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts, and visit us online at www.lawliberty.org.

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The Kingdom of God and the Common Good by Dylan Pahman

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund. Hello and welcome to the Law & Liberty Podcast. My name is James Patterson. Today with me is Dylan Pahman at the Acton Institute. Dylan has written a tremendous compendium of Orthodox social teaching, especially on economics. It’s titled Kingdom of God and the Common Good. Is it “in the Common Good” or “in Common Good”?

Dylan Pahman (01:07):

The Kingdom of God and the Common Good.

James Patterson (01:09):

Okay. My PDF has a slightly abridged title up here. So …

Dylan Pahman (01:14):

Sequel will be Two Kingdom God, two, common Good, and so on. We’ll drop the the’s at some point and be a new title.

James Patterson (01:21):

Please tell me that this is the first time you’ve used that joke. Okay. As some listeners know, when I interview people who are my friends, things tend to be a little bit looser. Dylan and I have known each other for many years and I’m very excited about this project because it is something that I never thought of, but rather than having me explain it, how about we’ll have Dylan. So Dylan, tell us about what inspired you to write this project to maybe give us the elevator pitch for the listeners.

Dylan Pahman (01:54):

Yeah, definitely. So I’ve been working here at Acton for 14 years as a research fellow and as an editor of our academic journal. And I got all my degrees are in theology, so all the economics and political theory I’ve learned on the job. And part of that was reading a lot of great scholarship and hearing a lot of great lectures of people talking about Roman Catholic social thought and Calvinist social thought, and even some Lutherans and other people. And I am Greek Orthodox, and I kept thinking, well, “what’s our perspective on all those stuff?” And for those unfamiliar, the term “Christian social thought” refers to the problem of the working poor in the industrial era and then further issues, social and economic issues beyond that. So it begins in the Roman Catholic tradition with the encyclical Rerum Novarum by Pope Leo XIII. And that was “On the New Things” is literally what it means or on revolutionary change.

(02:50):

So he is looking at the problems of social unrest and the rise of socialism, and he’s trying to come at it from the wealth of, at that point, 1,900 years of Christian tradition while also admitting that the world was very different and trying to engage that. And so that was the, inspiration is I really felt like my tradition needed something like that too. I think there’s a lot we can learn from other traditions and in fact, the first part–the book’s in five parts–the first part is just a survey of here’s what the other Christians are doing. Orthodox tend to like to be special sometimes, and we are special, but we also need to be part of the broader conversation. And I really don’t think we’ll know what our unique contribution is until we’ve actually surveyed, well, here’s what the other Christians are doing, here’s what the common ground is, and here’s maybe some areas of dissonance.

(03:38):

So the goal is to research and figure out what are orthodox principles for engaging our modern world and our modern economies and questions of wealth and poverty today, all the complexities of wages and lending and monetary policy and all that kind of stuff. And so what I wrote was basically the book I wished existed 14 years ago that didn’t exist. It’s a book that walks readers through contemporary Christian social thought, biblical teaching on wealth, poverty and society, orthodox church history, and then a survey of modern economics, which I actually look at historically. So my goal is that each chapter is very short, 2,000 to 3,000 words, like Law & Liberty essay length and people can maybe read one a day, that sort of thing and work their way through the book. And instead of bombarding people with terms, I take this more historical approach where I tell the story of Orthodox social thought and I tell the story of modern economics.

(04:35):

So we get a sense of who were the people; who was Adam Smith; who were the classical political economists; what were they dealing with; what motivated the rise of socialism and Marxism and what was the difference with Christian socialism and social activism and that kind of stuff. And then I finally take readers to contemporary Orthodox contributions, which there have been some, but part of the problem is that history that with the Russian revolution, you have atheistic, militaristic communism, just sweep across Eastern Europe and Russia and other traditionally Orthodox land had for a long time been under the Ottoman Empire and you just don’t really have a space for Orthodox to think freely about this stuff. The thinkers who did escape, and many of them were exiled from Russia, suddenly they find themselves with a very different set of questions that they concern themselves with. So they are wondering, well, how do we be faithful to our Eastern Orthodox tradition while living in the West?

(05:31):

And they start focusing on questions of ecumenism. And those are very good things, but it’s very distant from that question of, well, how do I be a good Orthodox Christian banker or whatever? How do I live in our modern economy as a faithful orthodox Christian? So that’s the goal of the book, is to walk people through that so that they know the story, they know our tradition and they know something of how modern economies work to prevent the kind of unfortunate and sometimes embarrassing statements that you can find on blogs and unfortunately sometimes even in unofficial church documents about the nature of wealth and poverty in our economies today.

James Patterson (06:10):

So I was actually about to ask you about the intervention of Soviet communism because I know a lot of listeners, their probably biggest association with Orthodoxy is going to be Russian Orthodoxy. So what happened with the encounter, not just of Russian Orthodoxy, but of Eastern Orthodox in general with communism? How did they respond to it in their social thought?

Dylan Pahman (06:42):

Yeah, so you can find writings actually as early as Vladimir Solovyov, who is a nineteenth century Russian Orthodox philosopher. He died in 1900. His first book is very metaphysical, but it begins with a critique of socialism. So he’s already seeing it in the kind of mid- to late-nineteenth century. His last book, The Justification of the Good, has a whole section on economics, and again, he sees this kind of danger. And then even more so in the early twentieth century, there’s an excellent volume that I recommend. I think you can find the PDF on archive.org. It’s called Vekhi, which is Russian for landmarks. And it was a collection of authors. It’s probably the most successful edited volume of scholars that I’ve ever heard about because usually they get published and never read, but it brought together, let’s see, S. L. Frank Nikolai Berdyaev, Sergei Bulgakov, somewhat recognizable names, but they were critiquing the Russian intelligentsia in 1909, so eight years before the revolution.

Dylan Pahman (07:43):

At that time there were storm clouds on the horizon. And there had been a failed revolution, actually. So they were almost taking a victory lab. These were all intellectuals who had had a religious turn in their thought and had realized that the kind of nihilistic and Marxist fervor was very, very much mistaken. And so they were critiquing their peers, their former peers at least. And as you might imagine, it was not well received. There was a huge blowup about this. Even people, Bulgakov was a cadet. He was basically the closest you could find to a liberal at that time. And he was part of the second Duma in Russia and the Russian Empire. But even people in his party didn’t like it, probably most notably Vladimir Lenin wrote a response to it. I mean, it really had that level of impact. And they talk about things that would be very recognizable to readers of Law & Liberty, the importance of rule of law and order and religious and moral culture, all that sort of stuff.

(08:43):

You see these thinkers really wrestling with these issues. And like you said, they kind of see the storm clouds on the horizon. And unfortunately you have this conflict. And that’s part of what I try to answer in the course of the book is to say, “well, what happened?” I mean, the Russian Empire is a mess in a lot of ways, but there’s nothing inevitable about history despite what Marxists will tell you, no un-combatable historical dialectic that we’re all just at the mercy of. People have free will. And why did a nation like that go in that direction? You see, in the early twentieth century, they were moving towards having a constitution with recognizable liberal human rights protections and things like that. But you had just this building and building and building of this class that had been about a hundred years before disenchanted with their role in society.

(09:40):

So the intelligentsia were basically aristocratic young men who ordinarily would’ve entered the civil service. And for the first half of the Russian Empire, there was a liberalizing trend, and it was not without problems from an Orthodox perspective, but it wasn’t all uncritical either. Their interaction with Western ideas and they were moving towards probably having a constitution. But then you get, I believe Czar Nicholas I and things changed upon his succession. You have the Decemberists uprising, the Decemberists murder the Czars negotiator, which was a very bad idea. I think they shot him in the back. They were the moderates as well, among people who wanted a constitution. The Decemberists, the moderates shoot the czars negotiator in the back. And so the czar commands his troops to turn his cannons on the crowd. And that’s kind of the end of that liberalizing trend in the Russian. That’s Russian,

James Patterson (10:34):

Russian politics in 30 seconds right there.

Dylan Pahman (10:36):

And so you have people, if you read Pushkin’s, Eugene Onegin, it’s all about this guy. You get this character in Russian literature called “the superfluous man,” and it’s this disenchanted young aristocrat, and it comes up again and again because it was a common phenomenon of people who thought their role was to reform Russian society and to lift up the former serfs and whatnot. And then they just kind of find themselves listless and directionless. And if they can, they get their hands on books. In fact, one of the reasons you find a lot of people coming out of seminaries being so radical in Dostoevsky’s Brothers Karamazov, it’s the seminarian who’s the most nihilistic and terrible character in almost the most in the book. And that’s because seminaries were one place where they could still have books that were banned elsewhere. The church was actually trying to protect freedom of speech, but unfortunately that meant there was books like Karl Marx where in the libraries, Joseph Stalin was like a Georgian seminarian as a youth.

(11:40):

And you see that sort of a trend. And so you end up, and then in the midst of all that, the last czar completely bungled military policy in World War I and economic policy at home; people are just losing their jobs standing in long breadlines an absolute disaster, and it’s just ripe for revolution. So you get this conflict, and I mean, frankly, many people at the time, and from an orthodox point of view will also say, and the devil, I mean, read Russian literature. It’s unusual for someone not to have a conversation with the devil at some point. And Bulgakov called it a black miracle that you have this society that is a thoroughly Christian society, has its issues and problems, but it’s moving in this recognizable direction. And then just the most terrible thing happens. I mean, conservative estimates count something like a million people martyred, more liberal ones would be up to 10 million by the Bolsheviks.

(12:44):

So it’s a really, really terrible time. Most of the bishops of the church are replaced by atheist agents of the church or of the state. All but one monastery was completely shut down, turned into a museum or labor camps. So really, really awful thing. And it’s something that you can only understand in part by understanding the history of economics. You have to understand, well, what is it about Marxism that captures people’s imagination? And I talk about that. There’s two chapters in my book where I deal specifically with Marxism, and one, I look at it as a worldview. So Marxism is sort of like the ultimate conspiracy theory. It’s something wrong in your life. Well, here’s the answer: you’re oppressed and there’s an oppressor. And yeah, he’s the bourgeois, but in other ages he would’ve been, there’s again this historical dialectic that suddenly can help people make sense of their reality.

(13:38):

I don’t think it correctly does, but you can see the appeal, right? You’re struggling. You know what? It isn’t your fault. And sometimes it’s not people’s fault, but it’s just this story that suddenly they can, this meta narrative that they can hang in all of their problems, all the problems they see in society and make sense of it all. And we are storytelling people as human beings. We want a story to hang everything on, and Marxism provides that for one and it provides a very powerful one. Yeah, the Communist Manifesto says the history of all societies is the history of class struggle, which I think from a historical perspective is the most ridiculous historical statement I’ve ever read. They say everyone is conspiring this, including Pope and Czar, never mind that the Pope condemned the czar for forcibly converting Catholics to Orthodoxy at the same time. No, they’re conspiring together.

James Patterson (14:31):

That’s right.

Dylan Pahman (14:31):

For the sake of capital. But the reason that works from a Marxist perspective is well, they all have a false consciousness. They all are under the sway of these social forces because it’s ultimately material. There’s no place for human persons in Marxism, for that inherent dignity and freedom. We are the product of a historical equation, even to the point where Engels says the same about Marx, that he discovered this great material, historical, social dialectic. But you know what? The time was right. It was bound to be discovered. If not Marx, someone else. He says this, this is his friend. He gives his friend no credit for his own intellectual achievement. He ultimately kind of worships this as something in the place of God. And that’s a critique you find from Father Sergei Bolgakov, which I draw upon in that chapter. It says, ultimately this is a religious movement and it’s trying to stand in the place of religion for people.

(15:30):

And what does religion do? Among many other things, it gives people a narrative, a meta narrative to make sense of their world. And so that’s the power of Marxism. And then the other side that I look at is the economic analysis of Marxism and why that doesn’t work, why the marginal revolution ended up becoming the mainstream in economics and why it actually better explains reality. I feel like this is a long answer to your question, but I hope it’s still interesting. The example I give about why Marxist analysis doesn’t work, and I try to do this with every chapter, if I can, I have some kind of little attention grabbing hook to help it be relatable. So I talk about how two years ago, Hasbro Company, Wizards of the Coast published a genius crossover product: Magic the Gathering cards that were Lord of the Rings-themed just as J. R. R. Token intended, I’m sure.

(16:25):

And among those cards, they printed a one of a kind printing of the one ring card and card collectors were really stoked to get it. And they’re opening these $12 or $13 packs of little rectangles of cardboard trying to find this one ring card. And eventually a young woman did open the card, she found it, and she sold it at auction to Grammy award-winning musical artist Post Malone for $2 million. Now, according to Marxist analysis, the price of something and the market directly reflects the amount of labor put into producing it. There was no more labor that went into producing that rectangle of cardboard than any of the other ones.

James Patterson (17:11):

Wait, to be clear, it is a card of a ring. It’s not actually,

Dylan Pahman (17:16):

Oh, no, it’s not actually a ring. Nope, it’s not. It’s like a baseball card.

James Patterson (17:20):

With a demonic.

Dylan Pahman (17:23):

Nope.

James Patterson (17:24):

Or power. It’s just a card.

Dylan Pahman (17:25):

Nope, it’s just a card. It might be kind of glossy. There might be some foil on there or something, but nope, just a card, just cardboard. And the young woman who opened the pack didn’t take any more labor for her to open that pack compared to anyone opening any other path. It just doesn’t explain reality at the end of the day, the labor theory of value, the other element being the assumption of equality exchange, but I don’t need to get into that, but that’s kind of the idea.

James Patterson (17:49):

Did Post Malone throw the card into a volcano?

Dylan Pahman (17:53):

Maybe he should. Maybe that’s why our world is so chaotic these days because Post Malone just won’t do the right thing. He’s trying to use it for his own power. I don’t know. I’m sure he’s got it framed and behind a glass case or something like that.

James Patterson (18:07):

It’s either that or the orb, which is, remember when Donald Trump went to Saudi Arabia and put his hands on the orb? We entered a second dimension at that point.

Dylan Pahman (18:17):

That’s one of those news events where I’m just like, I think I’m a smart guy, but I don’t think I really understand the world. End of the day, I didn’t even know they had an orb. Not to mention what its function is. I still don’t know.

James Patterson (18:29):

They haven’t brought it back. Have you noticed the orb is a one and done like the one ring card.

Dylan Pahman (18:35):

Served its purpose, I guess? Yeah, right. Anyway, so that’s a very long route to answering your question of, but it is a big question. How did communism happen? So part of that is just there was the right opportunity. There was a disaffected class of at least pseudo intellectuals, and then there was a really terrible economic and military and national crisis, and people were fed up and they took power into their own hands.

James Patterson (19:02):

So when it comes to the development of modern economics, so the eighteenth century is normally sort of looked at, but when you take a look at where a lot of Orthodox Christians are sort of in the occupied territories of what used to be Byzantium, they’re bearing witness to the silk trade. They see all of this specialization that comes in. Its manufactured, the conveyance of goods and the marking up of prices for risk and discovery. So does that area of orthodoxy, the Greek Orthodox and the Balkan areas, did they develop a greater appreciation for modern economics that maybe doesn’t translate into the same ideas that we have in Western Europe?

Dylan Pahman (19:49):

Well, I mean, it’s hard to find translated treatises on economic issues. I’m actually not convinced they don’t exist. I just don’t think it’s what’s interested scholars for a long time. Usually if you’re looking into that stuff, you’re looking at philosophy or theology, and then you’re into metaphysics or the doctrine of the Trinity or something like that. And if you see a treatise on usury, that’s just not the normal scholar’s interest, and so they’re going to overlook it. But I will say, actually that’s a really good example of a East-West difference is the question of usury. So in the West, partly due to the rediscovery of Aristotle and adopting his definition of money and his definition of usury. For them, all interests on a loan was sinful usury. And this was based on Aristotle saying, well, it’s not the nature of money to reproduce itself.

(20:40):

It’s not like seed that you can plant in the ground and get many more seeds. It’s just money. It’s sterile. Now, he’s not really thinking it through as later scholars even in the West would point out that you use money to create stuff and then you make more money, and that’s how you get more money from your money. But there of course, is the problem of exploitation. There are predatory loans out there, and in the ancient world, that was a real concern. If someone is desperate and coming and asking for a loan, they probably can’t pay it back. And so it amounts to theft and an attempt to completely dispossess them to even give them the loan in the first place. But what you find, because the east was less agrarian and had to be more commercial, as you said, they’re kind of at these trading junctures.

(21:26):

Legally there’s never a ban on usury. I think it was once attempted by Leo the Isaurian, who is known in church history for being one of, I think it was the first emperor to try to impose iconoclasm. So he’s not exactly the most orthodox or popular emperor in the history of our church. And it’s like the law that I’ve read is funny because he is basically chastising everyone, like, well, we tried this, but since everyone’s so sinful, we’re going to go back to having some usury. And if you look at the Justinian code, it just caps the rate of interest at a certain point depending on the kind of loan. And that’s actually really common in the East, including in the Middle East. There’s records of church cannons. Church cannons ban priests from lending at interest, clergy from lending at interest. And that gets a very important theoretical distinction, which does come up in the book starting with the section on the Bible between the law and the gospel.

(22:20):

So the law aims at impartial justice, and you actually see this in Deuteronomy. Ancient Israel was allowed to lend an interest to foreigners. I don’t think that was the poor foreigner they’re always called to care for among them. I think that’s like a traveling merchant, right? Somebody who could be expected to pay back a loan with interest. But among their own people, if someone comes to you and they’re your friend or your family, I mean Jesus is the same thing. Someone comes to you and says, “I need help. Can you give me a loan?” He says, “lend expecting nothing in return.” Well, you have a personal relationship. It’s not at the level of law. It’s at the level of mercy. The gospel focuses on mercy. And so you see, canon law is an organized body of law, but it’s law aimed at a system of mercy that pastoral restoration of a person. Whereas the civil law, it has to be impartial, has to file the rule of law a bit more strictly in a positive sense, and then they just cap the rate of interest because they know that you can’t have commerce without that. They’re trading with Russians and with Persians and with people from all around the world. And the empire wouldn’t have survived a thousand years if they didn’t do that. So there’s a different sensibility just because of a different historical experience there as well.

James Patterson (23:36):

Does there emerge any kind of new understanding of sort of orthodox social thought from its contact and eventual conquest in some ways with Islam? Because Islam has its own kind of Sharia sort of conceptual work here, Sharia here, not meaning the scary stuff, but they have their own system of laws about trade, and it’s usually very favorable to commerce.

Dylan Pahman (24:04):

Right. It is. Although they specifically do have laws about lending, and they have a whole system of ways of getting around their absolute interest prohibitions.

James Patterson (24:13):

Selling someone a token for a very large sum of money and then you giving it back to them,

Dylan Pahman (24:22):

Right, right. You find similar stuff in the early modern West, actually with the triple contract. That was something I do talk about Scholastic economics, actually. That’s where I start the history of economics. I talk about the Jesuit to the School of Salamanca and some Protestant writers as well. But I had to cut the part about the triple contract. It was just too much detail for the sort of book that it is. But yes, I actually have a whole chapter on orthodox Christians and Christians in general in the Middle East after the fall of Jerusalem, basically from the fall of Jerusalem to the Ottoman Empire. And so what you find is not so much different economic thought, although Christians did have a different view of usury. For example, Christians, what you find is a social shift. So suddenly Christians could no longer serve in the military,

(25:10):

But they could serve as administrators, public administrators. For centuries, they were the most competent people and the majority there. So they continued kind of running a lot of society and they dominated the trades. So education, medicine, and there was a ton of Christian merchants. So what you have is this interesting situation where in many cases, Christians were persecuted and they become second class citizens. This is dhimmitude; they have to pay a head tax, but they were often tolerated. So it’s really kind of a mixed bag; it depends on usually the temperaments of the caliphs rather than necessarily anything fundamental to Islam. And what you find is now you’ve suddenly gotten Christianity for the first time since Constantine disentangled from the state, right? And from any kind of state favoritism. So what you see at that time is actually the birth of the Scholastic method. It comes from Christian scholars, and the purpose of it is they want to reasonably debate with one another about things like the nature of Christ.

(26:14):

There were three different churches actually that had slightly different views about the nature of Christ. And then of course they want to also dialogue with Muslims, with Manicheans, Zoroastrians. There’s this religious pluralism that they encountered. And there’s this kind of amazing wealth of people that, and on one sense it’s a very different context, but in another sense, there’s a lot we can learn that we live in pluralistic societies today, and at least in the United States, there’s no established church or religion. So there’s actually quite a bit that are these amazing treasures that I actually added the chapter to the outline after the book proposal was accepted because Ancient Faith, the publisher is a ministry of the Antiochian church in the United States. And I thought, “boy, I have this whole thing on orthodox history. I should have a chapter that tells their story.” These are Palestinians, Syrian, Lebanese, Orthodox Christians, largely, at least historically.

(27:11):

I was like, “I need a chapter.” And thankfully there has been enough Arab Orthodox sources translated into English as well as some good secondary sources. I was able to write that chapter, and I’m so glad I did because it gave this excellent bridge in terms of natural law and the scholastic method to talking about the early economics of those Jesuits. And it also showed, again, this common ground I get a little tired of. I am Orthodox. I chose to be Orthodox, I’m a convert. I do have some strong convictions about our church, but I do get frustrated with the polemics. There’s a lot out there that’s “Oh, the West is just scholastic and rational and bad, but we’re mystical and good.” And it’s like there’s no scholastic method without us. We invented it. It came through these Christian educators to then Muslim scholars to then the west. And in the Byzantine era, everybody was a scholastic, east or west. It’s a silly sort of thing that I think is an example, that kind of unhelpful, unhelpful rhetoric that actually obscures what’s unique about orthodoxy rather than bringing it to the fore. So I think there’s a lot to learn from Middle Eastern Orthodox Christians and from that experience under Muslim rule.

James Patterson (28:26):

I was actually about to go. You’re anticipating my questions. This is good, Dylan. I don’t know why I’m narrating my thought process into the microphone, but might have something to do with being at Dollywood all day yesterday. The experience in the West is so different from that of the Orthodox. They’re in control of their own regimes, but they’re all fighting each other and they’re not just fighting each other in temporal authority, but also over spiritual authority. You have different popes showing up depending on who was allied with different kings. And this is not as true in Spain for obvious reasons, but when we think about France, Italy, Germany, and to a lesser extent England. And so the result is after the Reformation, there is another sort of attempt for those states to adopt a singular understanding of Christian social thought, but one that is considerably more pro-usury than well just lending, right? It’s not actually considered lending. And so what you end up with is this kind of fractured space of Protestant and Catholic social thought. And as you’ve indicated before, the Orthodox approach has a kind of productive engagement in the book. So why don’t you tell me about the modern version of Orthodox social thought as it confronts the Catholic effort to reckon with the industrial revolution as well as the Protestant?

Dylan Pahman (29:59):

Yeah. Okay. So some of the back history that I think is really interesting, you’re right that in the West there is that difference in the medieval period, but you actually see something similar in the Orthodox East when it comes to the Russ. So Vladimir unites them and baptizes them all, but then they start fighting with each other again. The Mongols show up and they say, out of my cold dead hands, and the Mongols say, okay, and then they conquer just about everybody with the exception of Novgorod and Pskov, who very wisely just preemptively surrender and agree to pay a tax. And they actually are both republics for over 300 years. So similar to you get Northern Italy and German republics, you get Magna Carta in England. So you see a similar Christian progression in the East. There are some differences though. So there’s no guilds in the East, which is an interesting phenomenon.

(30:52):

And what you have in the absence of guilds is a domination of monastic commerce. A lot of the markets were on monastery grounds, monasteries owned factories and bars and all sorts of printing presses, that kind of thing. As far as in the modern era, that’s when you have, well, the fall of Constantinople. So you do lose a lot of the intellectual powerhouse there. But you get the rise of Kiev again this time as part of the Polish Lithuanian Commonwealth. So actually technically part of the West, a Catholic kingdom, but one that was uniquely in favor of religious liberty at a time when everyone else was killing each other. It’s like they have, there’s constitutional documents you can find where they actually explicitly mentioned freedom for Greek Christians, meaning Orthodox, but they were also favorable to Protestants.

James Patterson (31:39):

Just to interrupt, that is a policy that makes sense when you have the Germans to your west and the Russians to your east. Absolutely, absolutely. Let’s not find each other guys.

Dylan Pahman

(31:48):

Yes. And they had two kings and they elected, I mean, it’s really fascinating thing. This is a bit of a tangent there. But anyway, you have this rise of Kiev in the first Orthodox theological school in the modern era is Peter Mogila’s Academy. And Peter Mogila was very much just reading Jesuit theology and then trying to make it Orthodox. And that’s not necessarily a bad thing. He made a catechism that was modeled after the Tridentine catechism, but it was so Catholic that he submitted it to, he said, “Hey, I think the whole church should adopt this.” And they’re like, “Hey, that’s great, but maybe you should take out all this stuff about literal fire and purgatory because we don’t believe in that.” He was just like, “oh, okay, sure, I’ll take it out.” I mean, he didn’t really know any better. So to some degree, you kind of have the Orthodox lagging behind a little bit.

(32:36):

You also have a very different social experience. So in Spain, once it’s re Christianized, one of the first things they do is discover the New World. And the New World means gold, and the Spanish empire is very much gold means being rich, and so we want more gold. And the result, Marjorie Grice Hutchinson notes, is that prices doubled twice in the sixteenth century: inflation. And combine that also with really terrible monetary policy that people were convincing the king to debase the coins in addition to flooding the market with a ton of extra gold. They’re also debasing the purity of their coin, and it just runs havoc. So that’s how you get all these treatises in the West about proper monetary policy in the early modern era. Whereas in the East, they’re just trying to survive under the Ottomans, right? They have a very different experience. So you shouldn’t really expect exactly a parallel, but by the time you get to the modern era, to answer your question, you do have people like Solovyav, Bolgakov, S. L. Frank, and they all take somewhat different approaches, but there are some commonalities.

(33:45):

I mean, one thing I track all throughout Orthodox church history is this idea of catholicity, which you might think, well, your Orthodox not Catholic. Why is that a central principle? But we in our creed, confess the church to be one holy catholic and apostolic just like anyone in the west. And I traced that all the way back to Ignatius of Antioch who was martyred in one 10 AD. He knew the apostles. Basically, if he didn’t know what Christianity is, we’re all in big trouble. And in his letter to the Smyrnaeans, he warns them about Gnostics. He says they care nothing for love. They neglect the orphan, the fatherless, and the widow among them, they deny the incarnation, resurrection of Christ. They deny that the Eucharist is the body and blood of Christ, and they reject the authority of the bishop. You on the other hand, where the bishop is present, let the people gather just as where Jesus Christ is.

(34:32):

There’s the Catholic church. I don’t think he just means “universal church” when he says that the word Catholic in Greek means through the whole, right? He’s talking about the church that cares for the poor, the orphan, the widow that believes that Christ became a material person in contrast to gnostics, who believes in a literal resurrection, and who believes that the grace of God is present in the sacraments. It’s all of those things together. And you see that kind of again and again, whether it be in Byzantium, that symphony between canon law and civil law, trying to actually address the whole human person, not without flaws, but still that’s at the heart of it. Then in the modern era, especially in Russian thought, because again, that was where the Orthodox were most free and could write about and think about this stuff, you get this idea of sobornos, which it’s a Russian word that just derives from the old Slavonic word for Catholic in the creed.

(35:32):

It’s literally catholicity. That’s what they’re talking about, and they take it in all sorts of interesting philosophical directions. But one person that I focus on who I like a lot is S. L. Frank, and he talks about it in terms of the element of personal relation. So he’s a personalist for anybody familiar with Jacques Maritain or Martin Buber, other people. We have those in the east as well. And he talks about how human beings are not isolated individuals. We all are embedded within relationships. It’s not just he, she, they. It’s you and me. And that’s incredibly important for understanding our social life. And what makes those relationships happen is that we like each other. I mean, it’s a really simple point, but we like and trust each other, and he contrasts this with another even bigger, more obscure Russian word, which is kind of this external unity of society, which he thinks is fine.

(36:30):

That’s okay, but that very much corresponds to impartial justice, this impersonal nature of things. So the state needs to be impersonal, law needs to be impersonal, and a lot of commercial relations need to be impersonal. If I go to the grocery store, it doesn’t really matter who I am. They can’t deny me service unless I’m causing a ruckus and hurting people or breaking the law. I show up, I pay my money, I get my thing, and there’s an agreement there, or you sign a contract and there’s justice once again is a standard: rendering to each what is due. But that is, while essential is a pretty cold society, if that’s all you have, We need relationships of love. We need friends, we need family, and we need that dynamic even in these more impersonal relations. So a country that has no patriotism, no loyalty or love is in crisis, right?

(37:23):

Business where the employers don’t trust the employees. I mean, this is one of his rejoinders to Marxism is like nobody hires anybody unless they trust them not to steal from their shop or whatever, and nobody takes the job unless they actually have some affection for their boss. And in a free society, if they don’t, they go get a new job. And so you actually have to have this as a sort of glue that holds society together. And he relates this to catholicity or to sobornos and to that, the most perfect expression being the church. So you get in all these kind of biblical Christian dichotomies between, or juxtapositions between grace and law or the church and the world. It’s a way of harmonizing these things with attention to these new eras, new realms of life in the modern era. One of the things you find across Christian traditions, even into the early modern era is that the Christian map of society is very simple.

(38:22):

It’s not wrong, but it’s sort of like if you found an old world map, which I found one of these recently from the early 1200s; it’s a circle. They knew the earth was round. It’s got Europe, it’s got Africa, it’s got Asia. Some of the details are a little fuzzy, but there’s actually quite a lot. There’s a lot written in Latin. There’s even a ring of islands all around the outside. But beyond that, it’s like sea monsters. They do not know about the western hemisphere or Antarctica or Australia. That’s fine. It served them well for a time, and then it became obsolete. And that’s a similar sort of thing happened with our social map. So in our catechisms, when you get to the command, “honor your father and mother” basically across traditions, they will all say, this also applies to other legitimate authorities, among which they say there’s the church authorities and the state authorities. So that’s where you get church, state and family.

(39:16):

But in the nineteenth century, suddenly you have business as just another realm of life. It’s not a family business, it’s not a state business, it’s not a church business. All of those existed before; the East India company and that sort of more of a state enterprise, or at least a crony-istic one. But the idea that there’s just someone out there who, they have a project, they have a way in which they want to serve a social need, and they’re going to provide a product and they need to hire people to work for them, and they get the machines and they get the capital and they get it going. This is a new realm of life and we need to theologize about this as well. And so Frank and others like him, they use this concept of catholicity to help build some continuity between that ancient tradition all the way back to the Bible even, and these new emerging realms of life, whether it be, again, business commerce, we could talk about higher education in a similar way or the art world or whatever.

(40:15):

We need to have a more accurate map of social life. So part of it, I do have a little bit of a constructive contribution. Mostly I’m trying to say here’s what other people think throughout the book, but that’s one of my constructive contributions is to say, here’s a more accurate social map. And I have a way of charting that out for people, but it involves this sense of there’s a impersonal and personal realm of life or economy I call ’em, and there’s also materially productive and materially zero sum, and you put those together and you get four different kind of sectors of social life. You have the state which is extractive, not necessarily in a negative way, although we all know about the negative ways, I’m sure, but every law works that way. If you break the law, if you don’t do the good thing, the law says you’re going to receive a bad thing that’s coercive, right?

(41:06):

That’s just the nature of law. Good laws work that way just as well as bad ones. There’s the family and other integrative societies where a baby doesn’t earn its mother’s milk, right? It’s just a matter of mercy. It’s a matter of just this one way gift. And of course, vice versa. I hope my children will obey me out of just the love of their hearts, but sometimes we do need those other dynamics, need a system of rewards and punishments to teach our kids to obey, but it does happen. And I provide for them just because I love them and I care about them. And then you can move into that productive economy, and you have things like friendships, which are very personal, right? Local business. I talk about, actually, I did this last year at the Ciceronian Society Conference. I had a paper on friendship, and I talked about it as the wimpy dynamic of life. This is a reference for all the people our age and older who remember the old Popeye cartoon, but it was the mooch, the character “Wimpy” on Popeye. And his tagline for some reason was he would show up is if I remember right, usually a non-sequitur. But he would just show up and say, “I’ll pay you Tuesday for a hamburger today.” Right? That’s an insane thing to say at a McDonald’s, right? It’s never going to work.

James Patterson (42:22):

Although they did try to make that a thing, right? Remember when Klarna, you could finance your burrito? They were literally doing the “Wimpy,” a model of burger purchasing.

Dylan Pahman (42:32):

Yeah. Yeah. I mean, I would be worried about usury in that case, but somebody can’t, that’s actually a good point. Afford a burrito, but let’s say a local restaurant owner, and you come to the restaurant and you order your food and you say, “Oh, shoot, I forgot my wallet.” You say, “Hey, John, can I pay you Tuesday for this hamburger today?” And they’d be like, “Oh, yeah, you’re good for it. No problem.” That’s a different sector of society. There’s a different nature to that relationship. We see that dynamic throughout everything else. Anyway, all that is to say, I draw that from my own tradition. I think that’s something that every tradition can learn from, and I hope that it’s a book that won’t just appeal to Orthodox Christians, that really, anybody who’s struggling with how to integrate faith in modern society will find something that they can build upon within their own tradition from this book. But that would be the thing that I would center on is those different categories of social life, and then especially that principle of ster Catholicity.

James Patterson (43:34):

Dylan Pahman, thank you so much for appearing on the Law & Liberty Podcast. The book is The Kingdom of God and the Common Good: Orthodox Christian Social Thought.

Dylan Pahman:

Thank you for having me.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts, and visit us online at www.lawliberty.org.

Related Links

This Book Is Dangerous! by Adam Szetela
Publishing Prejudices by Theodore Dalrymple

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson. I am contributing editor to Law & Liberty. Our author today is Adam Szetela. He earned his PhD in English in the Department of Literature at Cornell University. Before that, he was a visiting fellow in the Department of History at Harvard University. He’s written for The Washington Post, The Guardian, Newsweek, and other such publications. Today we’re going to be talking about his new book, That Book is Dangerous: How Moral Panic, Social Media, and the Culture Wars Are Remaking Publishing. It’s from MIT Press. Welcome to the Law & Liberty Podcast.

Adam Szetela (01:21):

Hey, thanks for having me, James. Appreciate it.

James Patterson (01:24):

So I just want to start off by saying that when I was carrying this book around at my office at the University of Tennessee, it got a lot of attention. People were very excited, and then when I told them about it, it got even more exciting. People were very thrilled to hear that someone had written this book. But before we get started talking about the details of this book, why don’t you give us an outline of what you argue in it?

Adam Szetela (01:49):

Yeah, so basically, so for context, I started noticing kind of in the early 2010s, this period that now hopefully in hindsight we’re referring to as the “Great Awokening” and sort of the birth of cancel culture, however you want to describe it. So there was a lot of attention around that time, rightfully going to universities for example, and sort of how they were shutting down speakers and you had these high profile cases of Charles Murray and Brett Weinstein and all these other folks. But around that time I noticed there was something similar happening in publishing. And every now and then a story would end up at The New York Times or The Washington Post that a book had been canceled before publication, and I don’t use that term metaphorically, I’m talking literally canceled before publication because someone had said it was racist or sexist or transphobic or homophobic.

(02:43):

And then sort of around the George Floyd “Summer of Love,” those cancellations really amped up a lot and I was seeing them more and more. And it was extending from picture books to journalism to scholarship to adult novels to memoirs. Really no corner of literary culture had been untouched by this climate of social media cancel campaigns. So basically I started with the question of if this is what I know about as someone who does not work in publishing, then surely this culture is affecting decisions that are being made behind closed doors. So I spent a few years interviewing people in all corners of publishing. So people who are presidents and vice presidents at the Big Five publishers, places like Penguin Random House, Harper Collins, Hachette, et cetera, to editors, to people who work in the marketing departments, to people at indie presses to directors of public library systems. And I even interviewed more than one person who is part of this growing career field of “sensitivity readers,” people being brought into edit manuscripts for potentially insensitive material. And these folks have now edited everything from a children’s picture book to there’s even scholarly journals that hire sensitivity readers now. So the book itself is really in many ways an exposé of this new historical moment in literary culture.

James Patterson (04:15):

The publishing industry, I don’t think, is something a lot of people know much about, but in particular you spend time talking about YA novels or young adult novels. And this is an area of publishing that really started to blow up as a result, I guess, of Harry Potter. So there’s a lot of details about the publication of young adult literature that I don’t know if people necessarily know. What is a “sensitivity reader,” how do they affect what’s published? And most of all, what is this whole concept of the moral panic? How does it play into all of that?

Adam Szetela (04:54):

Yeah, so the way I use moral panic in my book comes out of the sociological tradition called the “sociology of moral panic.” So these are folks who have studied everything from the Salem Witch trials to the hysteria over rock music at the end of the twentieth century. And basically a moral panic is a disproportionate response to a perceived threat. So the folks that I focus on in my book, and these folks in publishing, these folks on social media, who are getting books canceled and whatnot, they’re not people who are just like, “Oh, I think this book is not very good. I think it could be more well written.” These are folks who are associating books with violent crime. There’s someone I quote in my book who is actually head of an imprint who said, “Trayvon Martin might be alive right now if his killer had read better books as a kid.” These are folks who are comparing books to cars without seat belts. And in their minds, they think that the way you’re going to get rid of racism, sexism, transphobia, homophobia, and ultimately, people who voted for Trump, is to control publishing and control what people read, especially young people. So children, young adults, and they’re waging this crusade from their perspective to be on the right side of history, and they’re more than willing to get books removed from bookstores and to outright stop the publication of books before they even hit bookstores.

James Patterson (06:29):

Yeah, an element of the sensitivity era in which we use these sensitivity readers, you describe as a kind of reintroduction of race essentialism, and on page 58, a discussion of “racial mysticism.” How is it that these sensitivity readers that are attempting to kind of engage in some kind of filtering or refining of racial representation ends up ironically reproducing the very bias they’re trying to prevent?

Adam Szetela (07:01):

Yeah, it’s a great question. So basically to be a sensitivity reader, you do not go to college to be a sensitivity reader. You don’t complete any sort of course to become a sensitivity reader. All a sensitivity reader is, is someone who shares an identity with a character in a fictional book or the topic of a nonfiction book. So if I’m a black guy, I could be a reader, a sensitivity reader for say a nonfiction book written by a white guy that is in some way, shape or form about black people. I could be a sensitivity reader for a white guy who has a black character in his novel. And it’s premised on this idea that as a black person, I can speak to the needs, interests, values, et cetera of the “black community.” So what the way this sort of manifests in practice, and I try to offer a lot of empirical examples from the sensitivity readers themselves about what they actually do, but in practice, it sort of recreates the idea that people who share these demographic characteristics think the same, that they eat the same, that they have the same views of politics and things like that.

(08:10):

So there’ll be a sensitivity reader who’s like, “Hey, if there’s a black character in your book, I want to know what that character is eating for dinner.” That’s literally one example I quote, and it’s premised on this idea that black people in the US are supposed to be eating certain kinds of foods, talking a certain way, and ultimately the expectations for what they should be eating and how they should be talking actually are sort of the very stereotypes that they’re ostensibly sort of trying to correct in publishing. So an “authentic black meal” would be collard greens, something like that. Now, in reality, and one of the reasons that writers of color who I interviewed for my book who identify as being on the Left find these people so infuriating is because we’re now in a moment where a black novelist trying to get a book published is being told that their book is not “black enough” to be published. And essentially what the publisher means is we need more slang vernacular, we need more collard greens, we need more hip hop, things like that. And so that’s the short answer to your question. And a lot of this is being betrust by certain incentive structures in publishing. So right now, all the publishers are aware of the controversies. They don’t want their book to be called racist or sexist or whatever. So the sensitivity readers have created a market for their services, for their racial expertise and their expertise of these “communities”.

James Patterson (09:40):

There appears to be professional incentives within the industry to get ahead of a lot of the trends. In fact, I use the term “Get ahead” because I was just looking on page 62, probably one of the moments in the book where I had to stand up and walk around, I couldn’t believe what I was reading. It said there was a Filipino author who was talking to a white editor and upon the white editor discovering that the Filipino author is not black, he says, “Hey, you’re not black, you’re Filipino. Oh my God, we got to get ahead of this. We got to get ahead of this. You’re going to face a—” and then we’re not allowed to swear on this podcast. And the author, recounting this event to you, says, “The agent is telling me, ‘Hey, we got to swap some races around.’ We need to get a Filipino in this book somehow because so far it’s all black. I mean, there’s some mixed race people, but they’re black.” So what is it on earth is driving this white editor into such a panic that he thinks he’s about to lose his livelihood?

Adam Szetela (10:46):

Yeah. So especially around 2020, there was this emergent but now institutionalized idea that writers should “stay in their lane” when they’re writing. So if you’re a Filipino author, you shouldn’t be writing from the perspective of a black character or what have you. So in that case, this gentleman’s agent thought he himself was black and he turned out to not to be. So he was like, we need to, in his words, “swap some races around and get more people in this book who look like you, because I don’t want to take this to a publisher.” And the publisher realizes the author is not black, because they’re going to see that as potentially becoming the next target of these folks online who will be very quick to go after you if you’re writing outside your own identity.

James Patterson (11:34):

So there’s a particular book that becomes a kind of paradigm case, and this is the book Blood Heir. What is this book and what happens with this book?

Adam Szetela (11:46):

So this one’s wild, but is in many ways just representative of other incidents. So this is early 2019, there was a young adult author named Amélie Wen Zhao. This was her debut book. It from my understanding, got a good advance. It was getting hyped up. It’s a fantasy novel, set in a fantastical world. And in the months leading up to publication, people had started posting screenshots of the book’s description. So not even the book itself. And in the book’s description, they say this is a novel set in a fantastical world where there is slavery, but the slavery is not based off skin color. And people started saying that this was appropriating African American slavery, that this was “whitewashing” slavery. And for someone like myself who doesn’t have cognitive deficiencies, it’s obviously like a preposterous claim at face value, the idea that any book with slavery in it is speaking to African American slavery or taking something from that tradition.

(12:54):

From my understanding, the author was actually writing about sort of indentured servitude back in China, her home country. But anyways, so this reached a crescendo and the publisher, Penguin Random House actually canceled the publication of the book, sent the book to sensitivity readers for editing, and eventually it came out. Now, one of the things that’s most striking about this example is that there was someone, another author who led the charge in this cancellation campaign. He himself also, he was about to have his debut book come out. He’s an author of color as far as I can understand. He is on the far left. And a few months later, the same thing happened to his book. People went after him, said his book was, if I recall correctly, Islamophobic, because he had a villain in his book who was Muslim, and this guy, his book got canceled, it never got published, and he himself is a sensitivity reader. So when I was watching this, I was kind of like, if this guy cannot “get it right,” what hope do the rest of us have? This is a sensitivity reader for Big Five publishers who is heavily active in these cancellation campaigns, and even he himself cannot prevent himself from getting canceled.

James Patterson (14:15):

“Above all,” this is page 105, “above all, moral crusades tend to become more extreme. As they become more extreme, they lose sympathizers.” And you talk about how this was the case for the comic book crusade, and now it’s the case over why literature moving in the same direction, and it’s, like many revolutions, a revolution that is eating itself. But a part of this story about Blood Heir is the rise of social media. One of these social media sites, I think is going to be one that may not be familiar to many listeners to this podcast, maybe some, and that’s Goodreads. What on earth is Goodreads doing to authors, especially in YA?

Adam Szetela (14:55):

Yeah. So Goodreads is a platform where anyone can write a review of a book even if the book has not come out yet. So these folks who are involved in these cancellation campaigns, these are not what I will, for lack of a better word, called normal readers. These are very left-of-center people who spend a lot of time online, so not just on Twitter, not just on Facebook, but a big platform for them is Goodreads. So you’ll come across people on Goodreads who are not authors, who aren’t professional reviewers, but they have hundreds of posts, hundreds of ratings. They sort of see themselves as the de facto gatekeepers of literary culture and sort of the moralness of literary culture. So what happened was they started using this tactic that we call the “Goodreads review bomb.” So the way this works is let’s say you James have a book coming out in a few months, I get wind of it, maybe I get an advanced reading copy, or maybe as in the case of Amélie Wen Zhao, I just read the book description and I don’t like it.

(16:02):

I find it problematic. I can start sharing screenshots, posting on Twitter, things like that. But when you put in a book’s title on Google, Goodreads can be one of the first sites that come up, especially if you’re a new author and you don’t have a huge platform. So what these people realized is that working together, they could totally tank a book’s rating on Goodreads in a way that it won’t recover, and they can post comments that are like, “this book is racist, this book is sexist.” “This book is,” as my own title suggests, “this book is dangerous”. So some of these controversies, ones that eventually get covered in places like Slate in The Washington Post because a book gets canceled or what have you, or an author gets death threats, as was the case with the woman that wrote American Dirt. Some of this stuff just starts on Goodreads with people posting.

James Patterson (16:57):

For the life of me, and I can’t remember if it’s in the book or not, but for the life of me, I cannot think of a single real definitive indication that YA novels cause violence against underrepresented people. It just occurred to me while you were talking, it’s like, well, does this really happen? Do people have a moment they’re thinking of when this happened?

Adam Szetela (17:20):

Yeah, so no, they don’t, short answer to your question. And the relatively little empirical work that has been done on how reading actually shapes people’s opinions and stuff like that, I mean, it’s, it’s a skim field, and basically what they find is, yeah, if you watch, I don’t know, Al Gore’s The Inconvenient Truth or something as a 13-year-old, then maybe on a survey a week, two weeks later, you might be more liberal in terms of your views on that. But it’s not like people are doing these ten-year long studies about what books you read and how they affect your life and stuff. Now, one of the biggest ironies here is that a lot of the people in the pundit class who have been making that connection between books and the election of Donald Trump or the death of Trayvon Martin, these same people are highly critical of that one-to-one causality in other contexts.

(18:14):

So these are the sort of left-of-center people who will be like, yeah, it’s preposterous that someone’s going to shoot up a school because they played Grand Theft Auto, or it’s preposterous that listening to rock music in the 1980s is going to convert you to a Satanist or something. So they’re aware of, for lack of a better word, the stupidity of those sorts of arguments. But I call them “magic words,” when you’re and start inserting these “magic words” like racism, sexism, a lot of the sort of logical thinking just kind of goes out the window and then all of a sudden you’re connecting a picture book about George Washington’s slave to the death of George Floyd. And these are people who have power. It’s not just a random blogger online, it’s like distinguished professors of English or the presidents of imprints at  Big Five publishers and so on.

James Patterson (19:09):

Yeah, I was always laughing about seeing these tenured faculty that were participating in this. I guess once you’ve gotten tenure, you don’t really have a lot else to do for some cases except to review on Goodreads. I mean, there are better uses of your time. So there’s a lot of people listening to this that might remember Ryan Anderson’s When Harry Became Sally getting canceled. But one thing you point out is that aside from these kinds of examples, this specific one, it’s not really conservatives targeted by sensitivity readers or by the Big Five. So conservative authors aren’t the targets. This is a circular firing squad.

Adam Szetela (19:57):

So Big Five publishing houses are Penguin Random House, Harper Collins, Simon & Schuster, Hachette, and Macmillan are the sort of Big Five. So those are the ones that, for lack of a better word, have a near monopoly on the books that get published, and particularly the books that are profitable. I could of course start my own indie publisher and stuff, but I don’t have the distribution channels of Simon & Schuster. So the reason I focus on those publishers are in the same reason I would focus on the UFC as opposed to some backyard fighting organization if I want to study MMA.

James Patterson (20:33):

Yeah, this is not a video podcast, but is that Connor behind you I see? Is that

Adam Szetela (20:39):

Yeah, yeah, yeah…

James Patterson (20:39):

If we were running a different podcast, we could talk about the UFC because unfortunately that’s something that I follow probably too much.

Adam Szetela (20:49):

Anyway, I followed quite closely. I’m trying to get my hands on some White House tickets for July.

James Patterson (20:55):

Oh, man. Well, maybe they’ll bring Jones back. Although, anyway, no, no, no, we’re not going to do that. That’s not this kind of podcast. There is probably the funniest chapter to read is the chapter on political economy, and in the political economy chapter you talk about, or you open it with this man named Jason Allen who’s at a mansion in Bridgehampton, New York, and Allen is working as a pool repairman for another writer. Why is this story so emblematic of the problems you see with access to resources in publishing and the incentives to keep people of a certain kind of way?

Adam Szetela (21:38):

Yeah, so I will answer that and then I’ll actually go back to your other question about the relative paucity of conservative authors like Ryan T. Anderson. So in terms of this question, yeah, so one thing you’ll notice as I did when I started really studying this zeitgeist is that there’s a borderline fetishistic obsession with identity and making publishing as diverse as possible. And by publishing, I mean who works at the publishers, who works in the agencies, who are the authors being published? So it’s like if 1.5% of the population is, I don’t know, trans African-American women, then we need 1.5%. It gets that granular, but one thing you’ll not see is virtually any attention to the class backgrounds of people who end up working in publishing and the class backgrounds of people who end up getting the big contracts and things like that. So as someone who’s very much interested in that dynamic, that chapter is very critical of the kind of in some ways, hypocrisy of this movement. Because they will look at statistics on say, the number of women of color in publishing or the number of trans people or what have you, but particularly when it comes to race, there’s this idea that if you get more unconscious bias training seminars, if you force your workforce to read Robin DeAngelo or Ibram X. Kendi, then publishing will become this sort of multicultural paradise where you walk down the hallway and there’s five black people and three in it.

(23:21):

But one of the things that explanation fails to grasp is just the material realities of working in publishing. So you could go on LinkedIn right now or Indeed or Glassdoor and just plug in what is a starting salary for an assistant editor at Penguin Random House make, and you’ll see it’s like $51,000, and these are really, really hard-to-get jobs first off. And then two, it’s like, who’s living on $51,000 working in Manhattan? Well, I’ll tell you who. It’s people who have a parental safety net or people who have a trust fund or a wealthy spouse, that sort of thing. And one thing you’ll also notice when you look at who’s working in publishing, who’s working at agencies, these are people who are not being pulled from the local community college. These are people from the same, I dunno, 30, 40 to 50 universities, but really the same top 20 universities.

(24:19):

It’s the Ivys, Chicago, NYU, UC–Berkeley, UCLA, NYU. It is a very, very elite culture and one in which all problems including this problem of diversity, which is on all these people’s minds, are solved with solutions that have nothing to do with say, increasing the amount of working class people, people have working class backgrounds in publishing and that sort of thing. And then the question then becomes following their own logic. So their logic is like if there’s majority of white people in publishing, then it’s going to affect the stories that are being told. If its majority cis people, then it’s going to affect the stories that are being told. Well, then the question is like, well, if its majority highly educated people from selective universities and colleges in the US, then yeah, what kind of books do you think are going to be published and accepted?

(25:18):

And I will say this too, it’s not something I talk about at length in my book, but it’s something I’ve started talking about a bit more since its publication because it kind of relates to some current research I’m doing. The number one demographic of people who work in publishing is actually women. It’s a heavily feminine workforce, depending on what stats you’re looking at, it’s as high as 75 percent of people, and it’s largely white middle to upper class women who live in New York City. So if I’m a man and say, I want to write a book for, I don’t know, high school boys, a population that is historically not big readers, and I’m like, this is my audience. I want to write a cool book that connects to them, get some reading, that can be my audience. But in reality, my audience is the gatekeeper who is a middle to upper class white woman who lives in New York City and probably voted for Hillary Clinton. So if you want an explanation as to why certain books are not being published, that would be according to the Left’s sort of own logic why that is.

James Patterson (26:21):

The line here on page 131 is about sensitivity readers that really raised my eyebrows was “Many sensitivity readers earn more per hour than public school teachers, daycare workers, bus drivers, firefighters, dentists, and doctors. According to one university as of March, 2019, the average pay for a sensitivity reader was $0 to one penny per word. For a work of 60,000 words, you can expect to receive about 300 to $600 at an average reading speed of 250 words a minute. A 60,000 word manuscript will take five hours, four hours to read. This means sensitivity readers make an average of $75 to $150 per hour. If they work 40 hours a week, they can make $156,000 and $312,000 per year.” Are they providing any value that matches this? Are the books any good?

Adam Szetela (27:19):

I mean to give them the most generous reading humanly possible. It’s certainly true that when you look at the long history of literature, particularly American literature, yeah, there are books that have recreated stereotypes and et cetera, et cetera, and there still are cases. I learned this from talking to sensitivity readers where it seems like in certain contexts they can be somewhat helpful. But yeah, I mean I think about their value less in terms of the actual value they provide to literature and more in terms of the optics for the publisher. In many ways, sensitivity readers are now a kind of disaster insurance, and that evidenced quite clearly when you read acknowledgements for books. So now in acknowledgements ten, 20 years ago, you’d see, thank you to my editor, thank you to my agent, thank you to these readers.” Now you start seeing “thank you to the two sensitivity readers for helping me whatever, write about the Asian character in my book” or whatever.

(28:22):

And it’s kind of like this public relations preface of sort of getting ahead of any potential controversy that might ensue, right? Because it’s hard to say, “Hey, Adam, you don’t understand how to write Indian American characters” when I thank three Indian American sensitivity readers in the acknowledgement section of my book, I think that is what’s fueling it in large part because the stuff that I think most people would agree could be better like avoiding certain stereotypes, things like that. That stuff was already getting addressed by editors and by other people because in regards to the question that you brought up with Ryan T. Anderson, mainstream publishing is overwhelmingly left-of-center. It’s not like there’s this huge phalanx of conservatives or sort of far right people who are churning out these genuinely racist books season after season. As Durkheim would say, this is largely a society of saints, and in a society of saints, the saints go after the least saintly, which is why from the outside, this is just progressives going after progressives essentially for not being progressive enough.

James Patterson (29:40):

You provide a copy for the submission of stories to Folio, which is a literary journal published by American University, and it’s what came to mind when you mentioned the overrepresentation of wealthy white women because the description here is, okay, I’ll just say it, and people can make their own conclusions. It says, “If your jam is recreating Grimm’s fairy tales with a badass feminist spin, we want to hear from you. If your love language is recommending stories by Carmen Maria Machado, your taste is up our alley.” It’s an odd mixed metaphor. “If you correspond to how Jordan Peele corners the intersection between horror and racial social commentary, send us your stuff. Folio does not tolerate racism, bigotry, misogyny, homophobia, transphobia, Islamophobia, xenophobia, antisemitism, ableism, or any work that promotes harmful stereotypes and viewpoints.” And as you comment, that Folio is not getting a flood of racist, antisemitic, or otherwise intolerant submissions. So why bother even saying this? And I guess the answer is because of staking a kind of public reputation on the line, right?

Adam Szetela (31:02):

Yeah. I mean there’s few corners of culture that are as hyper left as literary culture, particularly literary culture tied to universities. So these days, if you want to be a writer, you can move to New York City and try to bus tables and sell your first novel. But increasingly, the more common path is you go to a university, you get an English degree, you get an MFA degree, and a lot of those university writing programs have these magazines like the one you quoted. So when they post that, I know I have published in these literary magazines, I have friends who have worked on them, professors I know who run them, there’s no significant contingency of racists and homophobes submitting stuff. So then it becomes a question of like, is this just virtue signaling to the public because we too want to make a statement about how we don’t tolerate racism, sexism, whatever.

(32:00):

Yeah. I mean, that’s probably the case in my opinion. But one of the profound ironies of this is like, and I quote a bunch of submission guidelines in my book, is these people will be like, we’re not going to publish your racist sexist work. We want whatever stories like Jordan Peele and stuff, but then they’ll say, Hey, if your story includes pseudo-sexist language or something like that, you need to preface this with a trigger warning at the front. So I just read that and I read these guidelines where these people, some of them will literally tie their literary magazine that has 400 followers on Twitter to global revolution and stuff like that. And then I read that and I’m just like, dude, you’re literally saying your staff is going to be brought to pieces if a trigger warning is not on the cover of your poem. And then it’s like these same people are talking about overthrowing global capitalism. These are literally the very last people I would want near me if I was interested in concrete political change. There are people who can, unless they’re lying, they’re people who can sort of get broken by the most minimal nudge of something that upsets them.

James Patterson (33:19):

When you start to piece together the book, it actually gets more horrifying because you’re learning now that the stated position you just mentioned justifies the creation of a $300,000 a year position to do race essentialism and YA novels. This is the thing, by the time I finished the book, I got so sad because I think a lot of people, I mean I’m 45, I don’t know how old you are, but a lot of us remember the Scholastic Book Fair, and it was fun. You would go there, you’d maybe buy an eraser, you would get Frog and Toad or something, and now you’re getting sort of left-wing race essentialism for sale. Does it have to be this way? Can there be some billionaire that creates a sixth alternative or are we stuck with this?

Adam Szetela (34:15):

Yeah, it’s a good question. I appreciate the Scholastic Book Fair throwback. I haven’t thought about that.

James Patterson (34:21):

I loved it. I would go there and I would just walk around and take it in. It was my favorite thing ever.

Adam Szetela (34:26):

Yeah, yeah. So money talks and BS walks. I think there’s some publishers, obviously Skyhorse Publishing, Regnery, its imprint, which publishes some of the big hitters on the right, like Ted Cruz, et cetera, et cetera. There are people trying to do that work. Now, do they have the same sort of capital, like a Penguin Random House? No. So I think for me to see actual change, it’s probably going to come from a cultural level in the same way the Left has been very effective at bending culture to its will. At the end of the day, these are for-profit companies. People don’t know it was the Murdoch family that has owned Harper Collins. And these Big Five publishers, they do have their conservative imprints where they publish really profitable books, but for the most part, the people who go into publishing are left of center and that sort of affects the norms.

(35:21):

But at the end of the day, it is bottom line, which is why you see people get fired from these publishers when they’re not meeting their bottom lines. I think it’s the main reason conservative imprints still exist. So if there was something comparable to what the left has done to put pressure on publishers, I could see them responding to that because the ones at the very top do have shareholders and they do have to meet public need and stuff. And I think more importantly, there’s an audience for books that are not pushing this over the top left wing agenda. One of the critiques I make just from an aesthetic position as a reader is these people who have spearheaded this movement, they will say, we need more diversity in publishing. When we need more diversity in publishing, we need to stop teaching Mark Twain.

(36:17):

We need to stop teaching whoever, and instead we need to teach this book, that book and that book. And then you read the descriptions of the books and it’s all more or less the same story. It’s all a story about some character from a marginalized background set in the present who’s valiantly trying to solve some social problem like police brutality or something like that. I quote specific books in my own book and I’m like, I have no problem with those books existing. To every reader their own book. But once you start talking about trying to prevent the publishers from publishing books that deviate from that, once you start talking about getting Huck Finn kicked off the syllabus so that your contemporary social justice YA novel is widely taught, that becomes a problem. In the same way I interviewed a director of a public library system who was like, I have colleagues who will not purchase Christian fiction even though there are people in our library network who would want to read that because it goes against their personal, moral-political beliefs. And at the end of the day, that’s doing a disservice to art to readers. And I think as we’re seeing with the backlash that’s going on against universities, I think there can be a moment where the proverbial chickens come home to roost when people are aware of what’s going on and frustrated with what’s going on.

James Patterson (37:56):

Yeah, we’re getting towards the end, but there is this one thing I wanted to ask about Fight Club. You point out, and American Psycho is another one, these are books written sort of a different period. The funny joke about Fight Club is it was written back when the worst thing a person could imagine would be having a boring job, right? Very pre-2008. But these are books that have taken on a new political valence among very extreme right-wing people. So is this an indication that there may be something about literature? I guess this isn’t YA. I mean, if you’re giving your kid American Psycho, maybe reconsider… But is this a good counterpoint to the criticism you’re leveling?

Adam Szetela (38:44):

Yeah, so I mean, I love Chuck Palahniuk who wrote Fight Club. If you see that severed arm on my bookshelf?

James Patterson:

I do. I do.

Adam Szetela:

That is an arm that he sent me that he signed. It’s a medical replica. He’s awesome.

James Patterson (38:58):

I’m insanely jealous that you have that.

Adam Szetela (38:59):

Oh yeah, yeah, yeah, yeah, you should be. It’s amazing. Yeah, so I mean I’ve interviewed Chuck Palahniuk for another project. I listened to Bret Easton Ellis’s podcast and stuff. Both of those dudes have said that if they were coming up in this moment, their magnum opus would not be published. They got sorta grandfathered into the system where they have proven profitable, they’ve been around for decades, so they’re going to continue to do what they do. But if you were a young novelist and your only goal was to get published, you would not do well by trying to mimic Chuck Palahniuk or Bret Easton Ellis. That said, I think your point about the way these books have been received differently over the years is a really good point, and it’s one that I’m very much on the side of, which is the side of polysomy, which is this idea that there’s always multiple interpretations to a text.

(40:02):

And so when Fight Club first came out, the left loved that book that was around the time of the Seattle antiglobalist protests and things like that. That was very much, I think Marxism had a sort of kick during that moment and they were like, yeah, this is awesome. Fight Club like “Eff American Capitalism, eff the sort of existential crises produced by white collar work.” He was in many ways a hero of the left, especially after the film came out. But now that book is considered alt-right, because I think this is a fair observation, it does sort of glorify what the left calls toxic masculinity, but a more violent kind of masculinity, which I’m kind of a fan of, as you mentioned with the UFC, but now it’s considered that’s bad, Chuck Palahniuk is bad. Same thing with Bret Easton Ellis. When American Psycho came out, that was considered the satire of the hour of Wall Street and excess, and he did get some flack by feminists and things like that, but now he’s considered super far right, et cetera, et cetera.

(41:11):

Same thing. I mean, JK Rowling’s a great example. Her books used to be the primary people going after her book used to be people really on the Christian who are accusing her of converting kids to witches and glorifying Satanism and stuff. Now it’s all about the trans stuff. That’s why people are burning her books now. So the lesson from that is there’s always multiple interpretations to attacks. I could read Fight Club and think it’s super progressive. You could read it and think it’s super conservative. I could get something out of it that’s totally different from you. So why would you try to define a book in one way and then try to enforce your definition of a book through defacto censorship and these other methods that these folks are using to control what we read and what we’re allowed to write.

James Patterson (42:01):

Well, to close, I have one last question, which is on, let’s see here. November 15th, Jack Della Madalena is fighting Islam Makhachev for the welterweight belt. Who do you got?

Adam Szetela (42:17):

I don’t foresee Islam losing to anyone right now.

James Patterson (42:20):

He’s already pretty GOATed. I appreciate the conversation. Sorry, those of you listening who don’t follow the UFC, but I cannot tell you how excited I am for that point. Thank you very much, Adam Szetela for coming onto the Law & Liberty Podcast.

Adam Szetela:

Yeah, thank you man. I appreciate it.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

Related Links

The Golden Thread, by James Hankins and Allen C. Guelzo
“Reviving the Study of Western Civilization,” by James Hankins, Law & Liberty
“The Right Standards for American Schools,” by James Hankins, Law & Liberty
“The Origins of the West,” by Max Skjönsberg, Law & Liberty

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

John Grove (00:39):

Hello and welcome to the Law & Liberty Podcast. I’m John Grove, the editor of Law & Liberty. I’m filling in this episode for our regular host, James Patterson. Pleased today to be joined once again by Professor James Hankins. Professor Hankins is professor of history at Harvard University and a senior writer for Law & Liberty. He’ll be joining the Hamilton School of Classical and Civic Education at the University of Florida for the 2026 academic year, and he is the author of several books including Virtue Politics and Political Meritocracy in Renaissance Italy. And most recently he has written with Allen Guelzo, The Golden Thread: A History of the Western Tradition, and that is what we’re going to be talking about today. Volume one was released last month, and volume two is scheduled to be out by the end of the year. So Jim, thanks a lot for joining me again.

James Hankins (01:28):

It’s a great pleasure to join you.

John Grove (01:30):

So before we get into the book itself, I thought we would talk a little bit about the project and where it came from and a little bit about Western civilization and the study of Western Civilization. So I understand you and Allen Guelzo have a relationship that goes way back, far beyond the writing of this book. So tell us a little bit about how you two know each other and where this project came from.

James Hankins (01:54):

Okay. Well, Allen is my oldest friend in academia. We went to junior high school (middle school, they call it now) and high school together. We were in the marching band together, but we’ve been close friends for about 55 years now. And we always kept up our friendship and met, and we’ve been talking about Western Civ and other topics for many, many years. We didn’t actually come up with the idea of doing Golden Thread. This was a proposal to us by Encounter Books. They knew of our relationship and they were looking for someone to write a Western Civ book. Encounter is involved in a massive project to reform and revive the study of American history and Western history in a way that is appropriate to our time. As you know, people have taught Western history to educated people for hundreds of years in America.

(02:54):

It’s been called Western Civ since, let’s say, the late nineteenth century. But if you went to school in America in the eighteenth century, you would learn about the Greeks and the Romans. You would learn about medieval civilization, you would study history of Europe, all of this. This is standard fare for educated persons in the West since the Renaissance, really. And this stopped rather suddenly about 40 years ago. The educational establishment decided that they wanted to go global. There was discussion of this in an article in Law & Liberty published this week that talked about why it was put down, and how no one gave a thought to what the long-term effects were going to be of not teaching our own tradition. So now we find ourselves in a clash of civilizations—and we do have a clash of civilizations—but the West has unilaterally disarmed itself. We don’t know anything about our own civilization. And believe me, I know this, I teach at Harvard. I teach what are supposed to be the best students in the country and the level of civilizational ignorance is just astonishing.

(04:12):

They’re smart kids and they’ve learned what they can learn in high schools, but high schools simply aren’t teaching Western Civ anymore. That stopped also 40 years ago. K12 education gave it up. I once went through the social studies standards for all 50 states, when I wrote another article for Law & Liberty, and it’s just not there anymore. They’re teaching global history now. Anecdotally, I have three nephews who teach in public school system and what they’re teaching as history these days is just completely disengaged from any narrative of the West. And this is a terrible thing for us. As I said before, we’re unilaterally disarming ourselves in the clash of civilization.

John Grove (04:58):

Before we go on, why is that? What was happening? Obviously, we know about the radicalism of the ’60s, but what was the rationale? Why were so many people convinced to give up the study of Western Civ?

James Hankins (05:11):

Well, it’s partly the Vietnam generation, which didn’t like Western Civ. They thought of it as a Cold War historical phenomenon. This is incorrect, right? Max Skjönsberg published an excellent article recently,

John Grove (05:29):

I was going to mention that too.

James Hankins (05:32):

… reviewing a book that shows that Western Civ has always been taught. I knew this already because I do Renaissance history. It’s just not true that Western Civ is an artifact of the Cold War, but that’s how the Vietnam generation saw it. And so they didn’t want to teach it anymore. They had a very negative view, not just of the United States, but the whole west. So there’s that element. But I think even more powerful, in the 1980s and ’90s when this was done, was that the universities and colleges in America aspired to globalize themselves. This was a big project at Harvard in 1980s. Derek Bok wanted to make Harvard an international institution. They wanted to found branches in India and there was going to be a Harvard Law School in India, this center and that center. And they were also taking in lots more foreign students than they used to take in.

(06:32):

So the population of the university changed. There were fewer people who were native speakers of English. There were fewer people who had any background in Western Civ. And those people had to be educated. And also the professors didn’t want to teach it. Professors never want to teach required courses. They want to teach their research, and in places like Harvard and the Ivies that was going on. People were teaching narrower and narrower things; they didn’t want to teach a big narrative anymore. So that’s part of it. It was the globalization project of the 90s. And that wasn’t necessarily coming from the left either. It was coming from conservatives as well who just wanted a university that was more globe spanning.

John Grove (07:18):

It was interesting. Prepping for this, I looked up that phrase, because I knew that phrase, right? “Hey ho, Western Civ has got to go.” And I was surprised to find that they started doing in the ’80s. That was an ’80s slogan. I was expecting to find it in like ‘66 or ‘67, but it was in the ’80s that people did that. And so that’s interesting background about what was going on in the ’80s at that time. How do you respond to that? It sounds like a related issue. How do you respond to that idea that focusing on Western Civ is a sort of cultural chauvinism or western chauvinism or something like that. And how does the focus on Western Civ relate to this idea that, well, we also want to study the world and study other cultures. Other cultures are always represented as good. So how do you respond to that?

James Hankins (08:03):

Well, I think the real problem is not cultural chauvinism—what the left at the time labelled Eurocentrism—but cultural self-hatred right now. I mean, the best taught subject at Harvard is the history of China. And I say this with admiration because the people who teach Chinese history have done a great job of covering the entire spectrum of Chinese history and having somebody to cover every era and teaching a survey course every year and having upper-level courses that people can study after they get interested. They do a fabulous job on that. And they also teach Islamic civilization. But Western civilization, no. Harvard last hired a senior faculty member to teach any Western subject, ancient, medieval, and modern, in 2007. And we have lost eight senior historians through death, departure or retirement or since 2007. So it’s actually neglected. There are so many things you can’t study at Harvard now.

John Grove (09:04):

That includes any faculty member that has just an expertise that happens to be Western, not necessarily somebody that committed to Western Civ as a whole? That’s any faculty member who has a specialty that’s western focused since 2007?

James Hankins (09:18):

Anybody. I’m talking only about the history department, okay? I’m not talking about the other departments, but in our department, there have been no new hires in ancient history, in medieval history, and European history since the Renaissance. That’s the whole of Western Civ. And we haven’t hired anybody. And this year I’m the only person at Harvard University teaching ancient philosophy. So once I retire, who’s going to teach Plato and Aristotle, and the ancient philosophical schools, and Augustine and authors like that? I don’t know. They might be able to get an Augustine course in their religion department, I don’t know. But that philosophy department used to have course called Philosophy 10. It was taught every year since the time of William James. And they introduced people to ancient philosophy because they thought that was important for people to know. And they have a guy they brought in from Munich to teach Stoic ethics or something this year. But that’s really it. And in the gov department, they have a course where they teach a few texts, political philosophy. It’s very sketchy. They’re well-taught courses, but they’re not really survey courses of Western political philosophy.

John Grove (10:35):

Okay. Yeah. So you mentioned this idea of just self-hatred or sort of self-loathing. Roger Scruton always used the phrase oikophobia. And I know at times he sort of presented that as a Western phenomenon, that it’s something that seems to have really taken root in Western countries. And so there’s just an interesting dynamic there. What is it about Western civilization, about the train of Western thought, that somehow led us to that desire to just turn our back on and hate our own tradition and thoughts and ideas? Do you have any thoughts on that?

James Hankins (11:14):

Yes. Well, I spent a lot of time in China, and I studied Chinese history because of a comparative history project that I’m involved in. And China went through this whole period of self-hatred from the time the Marxist took over in ‘49 down to quite recently. But at some point the Chinese decided, oh, we can’t really hate on Imperial China. We can’t suppress the history of it. We have to turn it into something that’s positive. So if you go to China today and study Imperial China, they’re very positive about their own history, but we have not had that turn. I think it’s basically coming out of the post-colonial studies people, a trend that has not been that strong in the US until recently. Post-colonialism dominates historical study in Europe, especially England. We have a very strong strand of it here in the US now, [particularly in indigenous studies and Middle Eastern studies], and I think those are the people who are demanding that

(12:06):

…we hate on the West. They feel that the West has been responsible for the state of post-colonial Africa and post-colonial Middle East. And it’s a way of shifting blame for them. They don’t want to take any responsibility for their own problems. So they blame everything on the West. But that has been picked up: I mean, this is what’s behind the endorsement of the Palestinian cause. And we have to side with the victim. So the West is strong, the West is wealthy, powerful. So we are the victimizers and we should be ashamed of that fact, [they say]. 

And in the US of course, the big issue is slavery. People have been taught nothing about Western civilization except that it had slavery. So we’re supposed to hate on the West because of its history of slavery. But of course, all civilizations have had forms of unfree labor, sometimes chattel slavery, sometimes forced labor regimes that you get in China. It’s just the fact that anytime a society is strong, it attracts labor from foreign countries that are not doing so well. And those people sometimes sell themselves into slavery, or sometimes they’re captured in war, but this happens in all civilizations. And Islamic civilization, I think, had a much more serious slave regime than anything in the recent Western history. But that’s forgotten.

John Grove (13:44):

I’ve often thought there is, to get back to that phrase like Western chauvinism, there’s a kind of Western chauvinism I think that holds Western civilization to this much higher standard. So the things that have happened all throughout the world, well, Western civilization is guilty of them and the others really aren’t. There’s a sort of implicit sense of superiority there, that we are more morally elevated and therefore have responsibility for these things.

James Hankins (14:10):

But John, it’s tunnel vision, right? Because the West has fantastic civilizational achievements, and this super negative history is just totally blind to all the great things that happened in the West, such as the invention of democracy, the invention of experimental science, the invention of theoretical applications to medicine and mathematics. And you can go on. In fact, if you look at our book that we just published, Allen and I published, it’s a kind of treasure trove for all of the achievements of the West. And that is its goal in large part, to remind people of all the wonderful things that the West has produced, not just in political theory, but also in the arts and in music and in architecture. The West has had an extraordinarily rich civilization. And unfortunately, one result of hating on the West is that people don’t learn that anymore. So we have a generation that’s growing up that doesn’t know the names of Michelangelo or J. S. Bach. They don’t know who they are. They don’t know who Thomas Aquinas is. They don’t know anything about anything. And it’s impoverishing. They’ve lost the golden thread, as we call our book. They’ve impoverished themselves with all this hatred. And that’s why we really feel it’s important to start studying Western Civ again, but in a way that’s appropriate for our time.

John Grove (15:41):

That’s a great segue. So let’s get more, talk more specifically about the book. I’ll note, first off, that it is a beautiful book. It reminded me, going back to when I was in college, how you went to the bookstore and got your books, and you could tell which courses were going to grab you and which ones weren’t. And this was the sort of textbook that says, yeah, this is going to going to be a good course. It’s beautiful, it’s well designed. It’s also very large. So anybody who’s picking it up outside of a course better prepare yourself. You’re going to want to plan accordingly. That’ll take a while. So looking at the substance of the book though, I’m going to do something that’s a red flag, and that’s if you have a 1000 page book and you quote the first page of it. That’s what I’m going to do, though. I’m going to quote this very opening of the introduction, and just let you elaborate a little bit. It says, “A civilization is a space, so to speak, in which people may breathe.” What does that mean? And we’ve already been talking about Western civilization, we’re talking about the importance of studying civilization, but what is civilization?

James Hankins (16:46):

Well, that first paragraph is written by Allen, and he was trying to make the point that civilization is a flower of a culture, one might say. It’s not enough simply to survive, and to have wealth, stability, and all the basic necessities of any society. The society also has to flourish. It has to give reasons to people why they love their civilization, why they love the countries that have inherited that civilization. And it gives them a space to perform music and to cultivate the arts. And it gives them a space to think about deep philosophical questions and to enjoy literature. And this, I think, is really behind a lot of our motivations in writing the book. We’re afraid that these great civilizational achievements will be lost. People have to understand that a civilization is something that has to be cultivated; it has to be practiced. We don’t only need to have people performing in symphony orchestras, we need to have people in high schools playing music that will enable them to keep alive these great musical traditions.

(18:09):

We need to have the works of classical civilization taught. So I have a friend on the faculty at Harvard who came from England and he’s looking for a school for his daughter, a 14-year-old daughter. She wants to study English literature. They went around to all the fancy private schools in Boston area, and they couldn’t find anybody teaching anything older than the year 2000. This girl wanted to read Jane Austen. She wanted to read George Elliott, but she couldn’t read them because the schools considered older English literature to be white supremacist. They worried that the students might pick up some colonial or racist ideas by reading older authors. So they’re being made to read young adult literature written by woke writers, mostly since the year 2000. It’s tremendously impoverishing. 

I have my own definition of civilization, slightly different from Allen’s. And my definition is a civilization is something that civilizes. That makes us more civilized people.

(19:17):

And this extends from developing all the human capacities, human flourishing, the ability to reason, the ability to speak, the ability to appreciate the arts, but also extends to things like good manners and treating other people well. Western civilizations have always had books, from the Greeks onwards, telling you how to treat other people, what’s polite, how to shave down the rough edges of society. And this is something we obviously need to be doing in our society today because we’re so much at each other’s throats and angry and shouting. Teaching the arts of civility is part of what a civilization does. It teaches the arts and civility. And in order to do that, you need to have examples. All of the great moralists of antiquity talk about precept and example. You had to teach “little morals,” etiquette is little morals, and you had to teach morals alongside that. But what you really needed is examples. An example is so much more powerful than precept. You can tell people the rules, but if you see somebody who’s really good, you want to be like that person.

(20:41):

Our civilization preserves examples of great heroism, great conduct, great artistic achievement. And if people are unaware of these possibilities, the chances that they will meet an inspiring example go down dramatically. Because most of us in our daily experience, we occasionally meet outstanding people, people of extreme goodness or holiness or heroic people, but it’s just not very common. If you read Marcus Aurelius’s Meditations (this is his own book that he wrote for himself, for his own edification), he starts with all of the people that he had met in his life who encouraged him to be a good person and to live a Stoic philosophical life. And that example is so important, but we’re stripping out all the examples of goodness and human achievement from our educational system.

John Grove (21:38):

And it seems like there’s something to it being shared, too. Somebody gets a good example from their father or somebody in their life, or just a book they happen to read. But there’s something about having this, the examples that we all recognize and share. And then we can talk to one another about that example or with that example in the back of our mind without even recognizing it. Today, even when we do have good examples, it’s sort of like it’s your own personal example and it doesn’t provide us something to…

James Hankins (22:10):

It’s just good luck. And I’m very grateful that my father was a great man. I mean, man of high moral principle, and I’m so glad for that. Not too many people these days have that; there are many people who don’t. But your point about the shared culture, I think is absolutely on target. And one reason why we have such partisanship and fragmentation in our public life today is there is no shared story. There is a shared story of America, of course, but America is a product of Western civilization. And it was created by people, the Founding Fathers, who knew Western civilization very well. Just read the Federalist papers and you’ll see that they’re very well informed about history, but they know they’re very interested in founding a republic. So Madison and Adams, above all, and others as well, had libraries. And they were looking for all examples of history of successful republics that they could find. And this is a shared discourse of the Founding Fathers, which we don’t have anymore, but they knew about the ancient Greeks. They knew about the Roman Republic and the medieval city Republics and Dutch Republic, and they were using that to inform their practical wisdom.

John Grove (23:33):

This is actually leading directly to my next question. So why don’t I go and pose it? When we’re thinking about Americans looking back at ancient Greece, and the Romans and the Dutch, I asked previously, what is civilization? My next question was, what is a civilization? So when you think of Americans and the ancient Greek polis and the America we live in today, quite different. There’s huge gulfs there. You’ve got Christianity in the middle, you’ve got modern commerce. So across time and also across space, what makes a civilization such that it’s not exactly a cultural unity, but there’s something there. So another way of saying this might be, what is this golden thread that you’re talking about? What is the thread that binds these things together that we can speak of it as maybe not a complete unity, but something that’s together?

James Hankins (24:26):

So in this book, we’re following Sam Huntington’s idea that the modern West is a third or fourth order of civilization that embraces earlier civilizations, which is itself an achievement, by the way. So Greek civilization was a self-standing civilization, its own heroes, its own stories, its own historical experience, its own arts and music. And the Romans, when they conquered the Greeks in the second century BC were wise enough to say, we need the Greeks. We want to be civilized like the Greeks. We want Romans to be civilized too. We want our own literature, we want our own architecture, but we want to stand in that tradition. So the Romans absorb the Greek tradition, and when Christianity becomes the official religion of the Roman Empire in the fourth century, the Christians were tempted to be abolitionists if you will. They were tempted to stamp out the earlier civilization,

(25:28):

because they had a lot of problems with the morality of the Greeks and the Romans. But they didn’t end up, like Islam, being completely secessionist. They didn’t crush Roman civilization the way that the Islamic civilization crushed Persian culture. They decided that they needed it and that it was valuable for Christianized Romans to remember the Greeks and the Romans. And so they kept it going. They kept teaching the same authorities, the same philosophy, the same literary monuments, and they kept building buildings in the classical style. Romanesque style is a version of the classical style. So they kept it going, and they adapted it to Christianity. In the 4th century Christianity itself changes and the Romans change at the same time, but they kept the golden thread going. 

And when the Roman Empire fell in 476, it’s the Benedictine order that decides it has to preserve civilization.

(26:37):

So they are copying manuscripts. Every single work of a classical text in Latin that we have today was copied at some point by a Benedictine monk in the early Middle Ages. So they kept it alive, and they fought for it too. I mean, there were many key battles that kept the Western civilization alive. 

European civilization emerges in my account in the eleventh century, and it also inherits the classical Christian past as well as the Greek and Roman past. But European civilization is something new, and one of the things that it includes is the cultural practices of the barbarians who had conquered the West. So it’s not true that the West has always destroyed barbarians. It’s in fact the case that Europe actually picked up from the German tradition an idea of consultation, that rulers have to consult with people and have the permission or acquiescence of the people before they can proceed with any policies that they’re going to do.

(27:44):

So the modern West is a fourth order civilization, which inherits from the past a very, very rich civilization. This is why people sometimes ask me, do you think Western civilization is better than Chinese civilization? I get this question in China, right? So the answer is: it’s not a fair comparison because Chinese civilization has a great unity to it from the time of the Han dynasty, or even before that, down to the early twentieth century. It’s really one civilization in a way that ours is not. So it’s not fair to compare four civilizations to one, and it’s an unanswerable question anyway, and not fruitful to pursue. But we want people to understand that we have an enormous cultural heritage, 3000 years of it that we need to preserve. And we in our generation have the same responsibilities as the Benedictine monks and the European intellectuals who founded the university. We have to keep it going. It’s up to us or we’re going to lose it all. And you can lose it.

John Grove (28:57):

Right. And it is nice to remember that there were other times where it seemed like things were on their way out, and things changed, but something was still handed down. So, I want now to just get more into the substance in the book. So volume one—and I understand you are primarily responsible for Volume One, and Allen Guelzo primarily responsible for Volume Two—Volume One, takes us basically from classical antiquity up to the Renaissance. So there’s a lot there. I’m not even going to try to cover the scope of that. But just to give a sense for how you approach some of these things, I thought I would just ask a few big picture questions about the development of Western civilization. So you’ve already kind of hinted at one of these, but one of the huge dividing lines in that period from antiquity to the Renaissance, obviously, is the rise of Christianity. And so we were talking about handing down, and how Christianity rose in this pagan world. They kept some things, they changed other things. What do you think is the most important thing to take from this massive movement?

James Hankins (30:05):

Well, Tom Holland wrote a wonderful book about this. I’m sure you read Dominion, and he talks about the fact that we’re all Christians, whether we believe in Christianity or not. The moral world that we inhabit today is a post-Christian world, at least for people like Tom Holland (I’m a Christian, so I don’t consider myself post-Christian), and even if you’re hostile to Christianity, you still have Christian morals. We still privilege the suffering victim. We consider that a suffering victim is someone who deserves our help. They didn’t have that attitude in pre-Christian Roman Empire or among the Greeks. And suffering was a shameful thing. So I have a section in the book, I think it’s chapter six, about the moral revolution of Christianity. The Christians, they’ve been alienated from the Roman Empire for centuries. The Book of Revelation is a gigantic denunciation of the Roman Empire, and they had been persecuted by the Roman Empire for centuries.

(31:12):

They worshiped a criminal who had been executed by the Roman state. That’s about as in your face as you can get. They were not persecuted continuously, there were outbursts of persecution, but they were determined to change the Roman state when they took over at the time of Constantine. They hated its violence. They hated its militarism. The early Christian military saints were all people who were sainted or martyred because they refused to fight under certain circumstances. St. George and St. Maurice and all these early military saints were saints who refuse to fight for the wrong reason, against the wrong people. They were determined also to do away with blood sports. Tom Holland starts off by talking about crucifixions, right? The crucifixions that were done by Crassus, I believe; in the first century—he wanted to put down a slave revolt, and he wanted to remind people that they shouldn’t rise up against the Roman state.

(32:22):

So they lined the Via Appia for hundreds and hundreds of miles with crucified slaves. And this was a message, a very strong message, do not revolt against the Roman Empire. But what Tom doesn’t talk about, or maybe he does and I just missed it, is that the Romans used to have beast fights. They would slaughter thousands and thousands of animals in the Circus Maximus or the arena, the Colosseum, for the entertainment of people. So people could enjoy seeing the blood spurting out of the animal and watch them die in agony. They would applaud at a particularly large animal being killed by a gladiator. It’s just sickening, but that’s what people liked to do in ancient Rome. And so the Christians did away with that. No more blood sports, no more gladiator sports. It took awhile to get rid of them, but they got rid of them. And so if you go to the Christian capital of Rome, which is Constantinople, now Istanbul, there are no gladiatorial games.

(33:26):

They have horse races. That’s the big public entertainment put on by the emperors. 

But there are many things like that. And one of the things that has been written about is the attitude to sex. In the ’60s, the Romans and the Greeks were admired for their open attitude to sex, but nowadays it looks a little different. The Christianized Romans decided that slave masters who forced their slaves to have sex with them were doing something wrong, and that should not be allowed. And the first expressions of the concept of human dignity emerged, right? St. Paul prohibits porneia, which is sex outside of marriage. And husbands—there was as a double standard as there usually is, that the males could do whatever they wanted for sex, with their slaves or with other women. And the women had to observe sexual purity, although they didn’t.

(34:29):

But the Romans, Christianized Romans, decided that forcing sex on your female slave was wrong. Historians today forget things like this. And I think that that’s something that we need to recognize again. Christianity has had a huge moral effect on Western civilization, going right back really to the Jews. I wrote a whole chapter on ancient Judaism and early Christianity, partly because I wanted to make the point which became ever stronger in my mind as I wrote about it, that Christianity is really descended from Judaism. It tries to distinguish itself from Judaism, especially in the second century when Jews are being persecuted. But it really grows out of the Jewish religion and its values, like equality, for example, the value of equality among members of the state—that really comes out of ancient Judaism. And so that’s something I’ve discovered. 

John Grove (35:36):

You mentioned tradition and a handing down or passing down. And one of the things that so many people today don’t realize is—even people who are anti traditional—they’re clinging onto these ideas that emerged from this or that tradition, so part of the divide is just: do you realize that you are traditional or not? And are you grateful for that tradition that gave you the ideas that you have or not? Other than the rise of Christianity, the other topic I was going to have you say a little bit about is the Renaissance. So you chose to end this section at the Renaissance, presumably, I’m guessing Volume Two is going to start right up with the Reformation. What’s interesting about the Renaissance for us today? I know you’ve written in some other things for us that you think various elements of our life are sort of ripe for a renaissance, and I thought there was a sort of interesting unity in ending Volume One with the Renaissance. What is interesting for somebody in the twenty-first century looking back on the Renaissance? What sort of example does that period give to us?

James Hankins (36:44):

Well, first of all, Allen and I decided to divide the book there because I’m Catholic and he’s Protestant. We spent our adolescence arguing over Catholicism versus Protestantism. So we decided we would not reenact our adolescent debates in The Golden Thread. But I personally believe that the Renaissance is a tremendously important period for us today because we need a renaissance. Our civilization has gotten rotten. We have forgotten our past, to start off with, but we also have tremendous partisanship. We have an educational system which doesn’t improve our human nature anymore. It doesn’t aim to improve our human nature. And the Renaissance is a period where suddenly in the mid-fourteenth century, people realized that things were falling apart and they had to renew the sources of civilization. 

So in the mid-fourteenth century, you have the failure of the crusades. All the soldiers come back, they start wars in Europe, and there’s continuous warfare.

(37:53):

The longest war in human history, the hundred years war, which is actually more like 150 years of war, starts with the end of the Crusades and it doesn’t let up. Europe is destroying itself, and the soldiers come down to Italy and they maraud and shake down towns. The town of Siena was surrounded by soldiers, I think it was 27 times, and they had to pay huge amounts of money and everything was destroyed. So they had that problem. They had just discovered deficit financing. Governments had discovered deficit financing for public funds using banks. So it wasn’t long before the King of England had bankrupted his entire country with debts to Italian bankers because the Italians were the bankers for Europe at the time. So the result of that was that the banks all collapsed. So this is gigantic financial collapse in 1342.

(38:55):

And then you have famines, and then you have the Black Death, which wipes out at least 40% of the European population. So things are looking pretty bad in the middle of the fourteenth century. And Petrarch, who’s the great leader of the humanist movement, he thinks God’s punishing us, obviously, but what can we do about it? And his idea is that we have to renew humanity, and we’re going to renew humanity through education, through reviving the ancient education. Because he lives in Italy. He’s surrounded by the ruins of the Roman Empire. He knows there was a great empire there at one time. And he’s a man of letters. He has the best library of his time, a private library. He’s read Roman history; he’s read Greek history. He reads the great writers of the past, Virgil and Seneca, and he says, where is the virtue? Where is the human excellence? The ancients had it.

(39:53):

We don’t have it. Our leaders are all tyrants. Our leaders are military thugs, or they’re very rich men without good morals. So his goal is to bring back the virtue of the ancients. And obviously it’s idealized. I think he was aware that the ancients were not morally perfect; he’s fully aware of ancient vices and disasters of different peoples, but he also recognizes that the ancients had something that no longer exists, which is this high level of human excellence, which only comes from a civilization. So he’s trying to refound European civilization through education and through trying, especially, to convert the elites—the princely elites and the republican elites of his day—to classical civilization. He wants them to bring back the virtue of the ancients, which includes wisdom and prudence, as well as the ordinary virtues of justice, temperance, and courage, which are not so ordinary.

(41:05):

So that’s his project: to bring back virtue. And the Renaissance is an age that seeks virtue, that seeks excellence, and that fact has been somewhat obscured by the modern historiography on the Renaissance. That’s what I was writing about in Virtue Politics, trying to correct the negative view of the Renaissance that you find in Hollywood. The view that the Renaissance is Machiavellian, for example, or that the sins of the corrupt Popes define the era. But the Popes are actually part of the humanist movement. They’re part of the Christian humanist movement that was founded by Petrarch. Many of them were, not all. So I’m trying to build a more positive image of the Renaissance itself, because it’s a resource for us. They pulled off a renaissance, and this is what the classical schools are trying to do right now in the US. They’re trying to create an alternative educational system inspired by the past.

John Grove (42:05):

Well, on that point then, you talk about refounding Western civilization in part through education. Obviously this book is part of that. It’s also part of a broader initiative, the Golden Thread imprint, that Encounter is going to do. Why don’t you just tell us a little bit more about that broader project?

James Hankins (42:21):

Well, it started with Bill McClay’s, Land of Hope, Wilfred McClay. It’s a wonderful book. It’s been very successful, and that was designed to give a balanced account of United States history. It wasn’t a celebratory account. It does celebrate, but it also points out the failings and the attempts of Americans to overcome their various failings. But it does describe the positive side of the US, and it does try to give people a sense of loyalty and love for their country. So then the Encounter people came to us with this project. They said, well, we have to do this for the civilization as a whole. We need a second volume, which is going to be like Land of Hope, a volume that will tell the story of the West in a balanced way, that will not deny the failures of the West, but will also celebrate its achievements. Keep the thread of our civilization going, or reconnect it, really, before it’s too late.

(43:23):

So that’s how this project got organized. And now Encounter has an entire publishing project built around the Golden, I think it’s called The Golden Thread Initiative. And they’re going to try to supply teaching materials and teacher training and all sorts of things that will be connected with both books, Land of Hope and Golden Thread, to renew education in America. And while I hope that there will be some public schools interested in doing this, we’re really directing these projects at the new educational alternatives, homeschoolers, Christian classical, classical charters. One of the things about our book and Bill’s book is that we’re trying to write a book that’s not hostile to Christianity. And many of the older Western Civ books are implicitly hostile to Christian societies, and they present the modern world as something that’s escaping superstition or dogmatism. And we don’t take that line. It’s not a sectarian book, it’s not a Christian book. It’s written for everybody to read. But we’re trying to write a book that’s not going to be hostile to Christians, or Jews for that matter. And so they can use it without the fear that their whole worldview is going to be subtly undermined.

John Grove (44:43):

Well, as somebody who has two kids in classical schools, it’s always reassuring when I hear that you have an involvement in that classical school movement. That’s obviously a really fast-growing movement, and hopefully this initiative will give a lot of clarity to that movement and give it even more momentum. So James Hankins, thanks so much for joining us here. You’ve been a guest on our podcast several times, three or four times. Always a great pleasure to talk with you. This is a great and worthy endeavor that you’re undertaking, and glad it’s finally out. We’ve been hearing about it for a while. It’s been much talked about, so it’s great to finally see it and to be able to dive into it. Thanks so much for joining us here again.

James Hankins:

It’s been a pleasure, and thank you for having me on.

James Patterson (45:29):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

Related Links

The Social Philosophers, by Robert Nisbet, foreword by Luke Sheahan
Quest for Revolutionary Community by Luke Sheahan, Law & Liberty
Revolutionary Degradation by Luke Sheahan, Law & Liberty
Why Associations Matter by Luke Sheahan

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

John Grove (00:39):

Hello and welcome to this episode of the Law & Liberty Podcast. I’m John Grove, the editor of Law & Liberty, filling in this time for our regular host James Patterson. I’m pleased today to be joined by Luke Sheahan. Luke is associate professor of political science at Duquesne University. He is a senior affiliate in the Program for Research on Religion and Urban Civil Society at the University of Pennsylvania. He’s the editor of The University Bookman, and he’s the author of Why Associations Matter: The Case for First Amendment Pluralism. And most recently, he’s brought back a new edition of Robert Nisbet’s book, The Social Philosophers, and he’s written a new foreword for that book, and that’s what we’re going to talk about today. So Luke, thanks for joining me.

Luke Sheahan (01:23):

Thank you for having me.

John Grove (01:24):

So let’s talk a little bit first about Nisbet himself and his place in the intellectual landscape of the twentieth century. Most of our listeners will probably be familiar with his book, The Quest for Community. I personally feel like that book is often cited but not necessarily appreciated in its fullness, to say nothing of the rest of Nisbet’s corpus. So I think there are a lot of intellectual conservatives out there who probably haven’t read a lot beyond Quest for Community and maybe not The Social Philosophers. So tell us a little bit about Nisbet and his importance before we get into this particular book.

Luke Sheahan (01:59):

So Robert Nisbet was a significant figure in the twentieth century. So he’s one of the few leading lights of the conservative movement who spent his entire career in academia. So he started off at the University of California–Berkeley, and he ended his career at Columbia University, holding the Albert Schweitzer chair, and retired from teaching in 1978, and commenced with teaching in 1939. So long career, very storied. He gave the Jefferson Lecture, which is the highest honor given by the federal government in the humanities. So a very significant figure. He’s most famous for his book, The Quest for Community. So that book was published in 1953. He was 40 years old, came out with Oxford University Press. It still was, as you indicated, it’s read or at least cited all the time. And there he makes the arguments that communities, real concrete communities, have been in decline for some centuries, largely due to the ideas of the state, the state being the most cohesive and important community and the state being composed of individuals.

(03:21):

So this kind of individual-state dyad has grown at the expense of communities by which he means families, local communities, professional associations, religion, and religious organizations. All of these things have been squished in the middle between the individual and the state. Now that argument he carried on throughout the rest of his career. It was the main aspect of his scholarship and popular writing. Now what people don’t quite realize is that when you read Quest for Community, sometimes you’re left with questions. Sometimes I wish it was twice as long, so there are certain things, I just want to hear more about this, what do you mean? And if you ever think that reading Quest almost certainly, he did go more in depth elsewhere. He wrote another 20 books or thereabout where he really digs into some of these issues. So the book we’re going to talk about today, The Social Philosophers was published in 1973.

(04:27):

So 20 years after Quest. He goes much deeper into his concept of community. What exactly is he talking about when he says these communities? What is a community? What he means is not a statistical aggregate. So it means people who identify psychologically as the same thing. They’re are community and it endures through time. We are the same thing. We rely on each other, we’re going to help each other, and we are devoted some higher cause or purpose, the community itself. That could be—and he says we can form communities around all sorts of things—politics, we’ve done that for a long time; war, we’ve done that for a long time. The family can be a community of course, and has been for many millennia. And religion is another one. And these are really four types of communities that have been the ones that have been with us the longest—kinship, obviously for tens of thousands of years, but most recently and as the subject of social philosophy, war, politics, and religion. He says these three have really dominated over the last couple of millennia and always at the expense of kinship. They always came into being in conflict with the clans and tribes and patriarchal family.

John Grove (05:48):

I want to get into most of what we’re going to talk about. We’ll be talking about some of these particular forms of community and how he approaches them, but I think you’ve already started to introduce us to The Social Philosophers and what that book is. But just tell us a little bit before we get into the details about where this book fits in Nisbet’s Corpus and what value somebody who’s studying Nisbet, what value they get, particularly from The Social Philosophers, because a sweeping book, very, very wide scope, broad take on Western history and social thought. Is this the pinnacle of his scholarship? Is this sort of the central book to read?

Luke Sheahan (06:28):

Yeah, so his kind of three most popular books are The Quest for Community (1953), Twilight of Authority (1975), and The Present Age, which is his Jefferson lectures from the 1980s. So those three [are] his most popular. They’re most accessible to the public, so they’re not too long by any means. They’re written as lectures or adapted from popular writings, scholarly based upon his scholarship, but accessible. So he publishes his first book, 1953. He actually doesn’t publish a whole lot in the coming decade because he’s dean of the University of California at Riverside. And then at the age of 50 or thereabouts, he goes back to teaching and he starts to really publish. Interestingly enough, he starts to really publish in earnest really in the 1960s. So in his fifties and sixties is really when he gets, kind of hits his stride interestingly enough. So The Social Philosophers comes in 1973. He’s 60 years old. And it is you might say, his magnum opus, what he really has to say about community all comes together in that book. So if you’re willing to invest in the 400 pages, that’s really what it is. And so it’s basically a textbook in some ways. It’s very sweeping in terms of both temporally, chronologically, he’s going through everyone. And also in terms of the breadth. So it’s not just political philosophers, it’s social philosophers as the title indicates he gets into economic thinkers. I mean Marx is in there, Adam Smith is in there, Plato’s in there, Aristotle’s in there, Burke’s in there, Proudhon’s in there, Tocqueville’s in there. It’s Althusius, it’s everyone.

John Grove (08:13):

I remember the first time I ran across this book back when you had to go hunt for it on 8 books somewhere for the original edition, and it was just really eye-opening. I had no idea that Nisbet had written this stuff on Plato and Aristotle. He’s not somebody you immediately think of as writing on the entire scope of the history of political philosophy. So it was a very exciting find when I first discovered, when I first discovered this book. So I think a lot of people who study twentieth-century conservatism will like it and people who are more interested in that broad sweep of political philosophy will use it. I know I really focused on his discussion of community and how it was being replaced in Greece in the century just before Plato and Aristotle. I use that a lot in the last time I taught a classical political thought class.

(09:08):

It’s useful to a lot of people. I will note before we get into some of the specifics, it does seem to me that when he talks about The Social Philosophers and political thinkers, he is pretty historically grounded in them in that he’s very interested in understanding how they are responding to the crises of their time. So he’s not somebody who’s kind of goes back and just finds ideas sort of in a vacuum and kind puts them in conversation together as if they’re speaking the exact same language. He’s very historically focused. And in some ways, it seems to me that it’s a book that when you’re looking back at the scope of Western, the Western tradition in general, he sort of punctures the idea that you should go back there looking for some time when everything was just right. He really presents it as a continual history of tension and crisis and conflict. And most of the great political thinkers are the ones who are trying to understand that conflict. Some of them definitively taking a side on the conflict. Others, especially when you get to the plural community, are trying to figure out how these various tensions between kinship, politics, war, how they can all be made to fit into the broader scope of human life. But he is pretty historically focused. Is that right?

Luke Sheahan (10:32):

That’s right. And so interestingly enough, he was responsible for the kind of importation of history into the discipline of sociology. So he wrote a lot on the historical grounding of the sociological tradition and sociology as a discipline. And he held joint appointments between history departments and sociology departments at the University of Arizona and at Columbia. So it’s very historically grounded and it was very much for him, a matter of the discipline that this is how you did things.

John Grove (11:02):

Okay, well, let’s get into some of the specifics in the book. You’ve already set the stage for this a little bit, but the book is divided up into different forms of community that he says, even though they take very different forms and different historical times, you can sort of trace throughout the Western tradition different types of community that people are building around and starting to understand themselves as within. The one that’s in the background. It doesn’t get its own chapter, and I was kind of wondering why it doesn’t have its own chapter, but it’s sort of in the background of all of it is kinship community. So it starts with family ties and for the most part with kinship community, he’s talking about more traditional societies where the family is the absolute centerpiece of human life and then everything else he sort of presents as a response to kinship community. So just tell us a little bit about the importance he places on kinship community and what caused that to break down. Why is it because for the most part, kinship community is sort of spoken of as in the past. There are little remnants of it that sort of remain in various parts of history, but what launched the attack on kinship community?

Luke Sheahan (12:23):

So kinship for him is the background of everything. As far as we know, human beings have spent most of our history and kinship groups, clans, tribes, these sorts of things. As far as we know, thousands and thousands of years, that’s how we lived. And obviously the kinship community is very important for procreation. You have to have some sort of coupling as far as we can tell, you need to be raised by your own parents or something close to it. Human beings even today are continued to come into existence and to be raised in that way.

John Grove (12:55):

Give us another 15 or 20 years and we’ll see.

Luke Sheahan (12:59):

Yes, but this is how it’s done. And so everything is in that. That’s the backdrop for everything. And authority structures in these places are fairly sophisticated, grounded, and shaped the human brain in terms of just how we are, but it doesn’t handle certain crises. So these kinship groups run into a sort of crisis, usually a crisis of war. There’s some sort of conflict. And it turns out the kinship group good for all sorts of things, existed for tens of thousands of years, not so great at winning wars. So just because your grandpa is your grandpa doesn’t mean he’s good at military strategy. Doesn’t mean he’s good with a sword or an ax. So an individual who is good with the sword and ax and is good at commanding on the battlefield presents a conflict, a challenge to the authority of the kinship structure. And so you have this war community is what he calls it.

(13:59):

You get a crisis of war of some sort, the general rises and he wins. But how does he win? He has to exercise absolute authority over the individuals, probably young men under his command, which means he has to break the kinship tie. They are not under their fathers and grandfathers, they’re under him. And his authority has to be absolute. So that means it has to trump the kinship group. So it creates that challenge. And then once that challenge is put into place and it’s successful, you end up with a permanent tension between the kinship group and the military community. Now some places, Rome kind of famously negotiated that for a number of centuries. So when the general returned to Rome, all the soldiers across the Rubicon, everything’s different. Not Caesar, but previous generals, when they crossed it was different. So you cross over, the soldiers are now under the authority of their fathers and grandfathers again, their complete authority. Whatever booty they had, they have to turn over to their family. All those rules apply. The general’s no longer the general in Rome, but that of course falls apart later when Caesar crosses, he remains the general, the individuals remain under his command. And that’s the crisis of Rome.

John Grove (15:17):

Importantly in Greece particularly, he says in Greece you didn’t have as much of that negotiation. It was more of a continual assault of the military and then the political community against those kinship bonds.

Luke Sheahan (15:33):

So Nisbet sees this as the rise of Cleisthenes in Athens. So he comes in, Solon had already tried some rearranging, it didn’t really last. Cleisthenes comes in and what he does is definitively breaks the power of the Athenian tribe. He utterly annihilates them. And so all of your identity is in your quote tribe, but it was a political identity. It was not a kinship identity. And that just changes everything.

John Grove (15:59):

It reminds of French Revolution sort of stuff. The way it describes it, right? It is you have these divisions that are just random divisions. You’re put in a group that that’s your group and it had nothing to do with your background, with your previous life. And so Burke’s line about nobody being committed to a square mile of territory or something like that where he says nobody feels commitment to be part of a zip code basically. And that was kind of the point for Cleisthenes. So that was the whole point. He doesn’t want people to be committed to those local because he wants all of their commitment to be focused at the polis level. So we’re already kind of getting at that. But the military community and the political community, and this is maybe one of his more provocative arguments, maybe a somewhat skeptical, even cynical argument or way of understanding politics and the origin of politics. He says the political state and the political community are very closely tied to the military community and war. So how does he understand that the relationship between war and politics?

Luke Sheahan (17:08):

Yeah, so what he sees here is Cleisthenes for example comes in. He’s the general, he reorganizes, but the war is over. So he says the political community, it’s the military community at peace, when it becomes institutionalized. We no longer refer to you as the general, we refer to you as the first citizen or the president or the emperor. We come up with another term for you. But it says the structure is the same. So military community, you got all the soldiers, the warriors, and you have the general. Well in the political community, you have the sovereign, you have sovereignty, and you have citizens. And the sovereign is, well, sovereign/ [He] has absolute authority over the citizens. He said, well, it kind of looks the same structurally. Now the political community becomes much more, you might say evolved. It changes. It starts to attach—the military community, what is it about? Dealing with the crisis of war. But the political community, what is it about? Well, first it’s maintaining order. First, it’s breaking the authority of the kinship, but then it starts to acquire other things. It starts to be about justice and morality and the highest life, where is the highest life? Is it in the family? Is it in the village? No, it’s in the polis. It’s in the political community. That’s where we achieve our full humanity.

John Grove (18:36):

I’ll pause right there and say, is all of that sort of just a rationalization in his view? Because a lot of political philosophy, especially people who study political philosophy, not me, because I’m already healthily skeptical of all this stuff, but for a lot of people who study political philosophy, they’ll say, well no, he’s presenting all a political philosophy as if it’s just basically a rationalization. These people have power, they have control that was justified militarily. And then they find these reasons to justify maintaining it in peace. So you could kind of see the history of political thought and political theory as being just this big rationalization for people to hold on to power.

Luke Sheahan (19:20):

He does see it as at least originating there. You’ve got to give it. Why does the military community continue after the war? You got to give a reason. And so if you say, well, because this is the highest life, because this is your true identity as being a citizen. This is more important than your family. You’ve got to give a reason for it to continue. So he does see it as a bit of a rationalization. Now that said, he does say, look, we probably couldn’t have civilization and clans at the same time. Something else had to come into existence. So we could have civilizations as we understand them and we could have art and music and high culture. That probably was never going to come out of the clans as much as he appreciates the scholarship on the clans, not as a primitive way of existence in this kind of demeaning way, but it’s not going to give you civilization as we understand it. And it’s given us all sorts of great things. He says, you’re not going to get there. But nonetheless, what happens at the beginning of political philosophy is trying to justify to rationalize what has happened. And some of it’s, it’s not necessarily a cynical rationalism of they were just trying to hoodwink people, but what’s done is done. They broke the power of the clans. The polis existed. Socrates comes along, this was in the past, it happened. So now what do you do? And they’re trying to say, well maybe there’s some good here too. And what does it mean to live in the polis we live in?

John Grove (20:51):

Right. That’s a good way of putting it, is that there’s almost the sense that they’re sort of discovering something that it seems like there is something that they’re getting out of that and they have to kind of figure out what it is, which is a little bit higher than just rationalization. It’s sort of a process of discovery that a political philosophy is doing there. We’re going to come circle back to politics in a bit when we talk about the plural community. But he goes through a military and political community, you mentioned in the third form of community, that says is very dominant in Western thought, is religious community. Then he has these other two, the ecological community, which is sort of like a community of withdrawal from everything else. And then also the revolutionary community. We don’t have time to go through all of those.

(21:48):

I picked out the revolutionary community. I wanted to ask a question about, because you wrote a very interesting piece for us at Law & Liberty in a very revolutionary year, 2020, or at least it felt like it at the time, called the Quest for Revolutionary Community. And there you kind of indicated that Nisbet’s idea of revolutionary community can really help us understand some of the dynamics of the everyday radicalism that’s sort of in our society today. Not necessarily people who are true mouths, but sort of banal revolutionaries of our own times. So tell us about the revolutionary community and how that notion might kind of help us understand our own times.

Luke Sheahan (22:36):

So the way he frames this is there’s the three dominant types of community, which we talked about, military, political, and religious. Sometimes you come to a period in time where those three fail, by which I mean they fail to really offer a satisfying community to a critical mass of people or at least a critical minority of people. And there are two reactions to this: revolution and withdrawal. So the revolutionary community is the type of community formed around, well, revolution. And he outlines each of these communities with having several elements. So the elements of the revolutionary community are myth, the myth of human goodness. So we’re looking around, I see a lot of corruption in our society. Politics is corrupt; religion’s corrupt; wars are all for selfish corporate gain, whatever. And we got to tear this stuff down so we can get back to the human goodness, which is lurking under the surface, but we, we’ve corrupted it through capitalism or whatever.

(23:37):

And the only way we can get there is violence. That’s the second element: the necessity of violence. You cannot have reform in a corrupt system. You have to overthrow it and it has to be violent. And this violence. So his third element is the holiness of sin. It’s good. Now, normally we think violence is a necessary evil. Of course you have to do it, but that’s only because you’re in a crisis. But no, for the revolution community, it’s a good thing. It’s to be celebrated when you behead people, this is to be celebrated. When you torture people, this is to be celebrated. So why we see eruptions of horrendous violence at revolutionary periods in kind of an astounding way. So think of the Soviet Union. You look at the stats of how many people the Soviets killed versus the czar, and it’s astounding. So you have an authoritarian czar and you have a revolution.

(24:29):

And not just the revolution, the continuing torture and death that continuous for decades afterwards. It’s just astounding. But yeah, it’s a holiness of sin. You have to have violence, you have to have this. And then number four, you have to have terror. Now we’ve used terror for a long time to control people, but for revolution, it takes on a whole new dimension. So I tied this into, I actually wrote two articles for Law & Liberty on this. So understanding the eruptions in the summer of 2020 in this term. So notice the revolutionary community has a political element. It wants to take over the political order, the corrupt political order, but it has a religious element. They have dogmas attached to it and they’re going to advance them, the revolutionary dogma. And they’re also a military component to, it has to be violent. So all these protestors, they were wearing jackboots and fatigues.

(25:22):

They looked like they thought they were in a militia and they were capturing parts of Seattle and holding them, and declaring them independent. There was a political element to it, a religious element to it, and a war-like element to it. They killed people, and they intended to kill more. And so there’s a total element to this. This is the fifth element, totalism, absolute control. Not just over your soul but over your soul and everything else. Political order, the religious order, military power. There are going to be no voluntary associations here. It’s taking over everything. And this final element is the elites. It’s always elite-driven. So this was true in 2020, we saw these ideas. They’re from academic departments. They’re articulating the revolutionary doctrines that they were advancing and that were driving it. And this has always been true of Marxist doctrines. It’s these elites who create them, whether it’s linen or Marx or whoever.

(26:24):

And then it’s imposed from the top on the masses. So I kind of identified all these in my article for Law & Liberty going on the summer of 2020. And I think cancel culture was very much driven by this revolutionary community. We saw these elements there. So you think of terror was very much what we are going to do is going to ruin your career. We’re going to get you fired, and we’re going to make sure you never get hired again. So you might not be dead, you might not be maimed, but you’re going to lose your house, you’re going to lose your friends and maybe your family, but you’ll have, your life will be ruined for the next three or four decades, however long you last. So all these elements seem to be there. And the totalism aspect is interesting. So we can’t have somebody on Twitter with 150 followers say something I don’t like. We have to go after them. And it was a bizarre aspect. I mean, I don’t really care what happens in San Francisco. I think it’s crazy. I might retweet something about it, but I’m not particularly interested in ruining anybody’s lives there. But they are really interested in ruining our lives on the other side of the country. But that seems to me to be the revolutionary community at work. So Nisbet offers this analytical tool to understand certain movements even in our own age.

John Grove (27:42):

Right. Yeah, I like that he sort of presents the revolutionary community as taking, as you just said, taking elements of politics of the military and of religion and blending it into one big mass. And that then overpowers anything else. Anything that claims to be religious community, the stable status quo, political community and so forth, all needs to be brought under this sort of revolutionary umbrella and be dominated by that form of community. So that’s kind of a good segue into the last form of community that he talks about, which is sort of the inverse of that. And that’s what he calls the plural community. And in this section he introduces or expands upon this distinction that he says between sort of monistic understandings of community and plural understandings of community. And all of the previous ones I think that he had talked about, he talks about in a very, he presents as kind of monistic character in the sense that it’s a form of community that presents itself as dominant and as the one that needs to be controlling that the political community as he discusses it in his second chapter, is a form of community that is precisely above and over and more important than kinship, more important than or potentially sort of maybe in tandem with military community more important than religious community.

(29:14):

And then when he talks about religion, he’s talking mainly about people who see religion as the dominant form of community and one that politics and military are subordinate to that. The plural community is the one that starts to introduce some nuance and some difference there. And he says the plural community starts with, I believe this is the “diversity of the human mind.” And he says, the plural community recognizes the diversity of the human mind and then says we need to have different forms of community if you’re going to have community that sort of reflects that diversity of the human mind. And so plural community is the first one that seems to allow for multiple forms of community. So tell us a little about his concept of this.

Luke Sheahan (30:01):

Yes, his final chapter is the plural community. It’s his answer to all the tensions and conflicts that have come before that he identified before. He says, look, human beings seem to have actually these different needs in our minds. The political community is making a point. The religious community is making a point. The kinship community is certainly making a point. The problem is neither, none of those give the final answer. So if we were to collapse into those type of community, you end up with tensions. It just seems like each of those communities can’t actually do everything. And one would argue, I certainly would, that the American Constitutional Order is a plural community. So what that means is there’s just this inherent baked in plurality, recognition of these different communities. So you take, we have a military community, we have a military, but it’s subject to the civilian powers.

(30:52):

So we recognize it’s there, it’s real, but it’s subordinate to the overall community. I mean, of course we have federalism. So yes, we have political powers, but they’re split up and we recognize there’s just different levels operating and it’s baked into the name of our country, the United States. And even beyond that, the religious community. So religious liberty. And what does that mean? Does it just mean individuals free free-floating citizens, get to believe whatever they want? Maybe that happens. But what it really means is organizations, concrete institutions exist that can make religious claims on their members. And in fact, I’ve argued before, and I think I’m right, that our system carves that out. So you take our tax exemption regime, Supreme Court has said that these tax exemptions are our subsidies, and it’s tried to justify that in various ways. I think that’s wrong. What it actually is, is a recognition that the religious community makes a very real claim upon us, and we can make donations to that.

(31:53):

They can tell us you have to tithe, then you tithe. And our tax regime says, we’re not going to count that. So we don’t say, “yeah, we’ll leave you with some money. You do what you want with it.” We’ll say, “we actually take that off the top. We will only make a tax claim upon what’s left over after you have paid your dues to your religious community.” So the plural community you recognize, yeah, religion makes a claim upon you, and we’re going to give it its space. Your family makes a claim upon you. We’re going to give it its space. Politics of course is there, but it’s going to be a limited government that will make a claim upon you, but it’ll leave space for all of these other associations. So the public community tries to leave them in place. So other elements of the public community, decentralization, for example, he calls functional autonomy. So all these groups to fulfill their function, whatever it is, they’re going to be autonomous insofar as they can do that and as insofar as they don’t stomp on the other or invade the other spheres of existence. So he doesn’t talk about sphere sovereignty or subsidiarity very much, but you can see those lurking in the background. They’re kind of articulations in various religious traditions of a plural community

John Grove (33:00):

Is the plural community—this is this question I legitimately just kind of struggled with—is the plural community a different understanding of politics? That’s not the sort of militarized political community, but it is a different notion of what politics is, and that’s how the plural community takes its shape is by having this specific notion of politics that doesn’t try to dominate?

Luke Sheahan (33:25):

Yeah, that’s exactly right. That’s the best way to see it. So see it as the political community he talks about is a particular type of political community. The plural community is a particular type of political community. So that’s one problem with his language is I know why he does it. He’s talking about political philosophy as such, Plato, Hobbes, Rousseau. But it gets confusing. And when I talk about those with people, they’re like, there were collective action problems that were being solved prior to Socrates and Plato. So how is that not politics? How is that not the political community and the plural community? I say the United States is a plural community, but surely it’s a political community. That’s how we talk about it. It’s a government and all of that sovereignty.

John Grove (34:08):

When he says political community, it’s sort of like Nisbetian term of art there that he has a very specific meaning with the political community, but there are other forms of politics, political activity that can be taking place. So before we move on from the plural community, I wanted to ask, why is the plural community so difficult? He opens the chapter on it by saying that it has “taken a rather poor second place to philosophies which have made their point of departure the premise of underlying unity and symmetry.” So he says that the monistic forms just seem to have dominated. Why is the plural community so difficult?

Luke Sheahan (34:46):

Yeah, so Plato seems, sorry, Nisbet seems to think that Plato is maybe responsible with this, and that’s a compliment to Plato. He’s utterly brilliant. So he gives this, articulates this vision of politics and it just captures the Western imagination and we kind of keep working in his mold. And Rousseau, Nisbet despised Rousseau, as many conservatives did going back a long ways. And so Nisbet hated him as much as anyone, but there’s no denying his utter brilliance. And so that was kind of a problem as he articulated the political community, the total political community in such beautiful terms, it’s hard not to be enamored of it. And so he said, that’s our problem is we ended up with some really talented guys on the other side and we’ve just been caught in that web. So that might be part of it. Part it might be precisely that philosophy as such is aiming to give an account a total account and to understand reality.

(35:48):

When we apply it to politics, we can’t help but to give it a unifying theme. So if I’m going to take all of philosophy, narrow it to politics, the tendency will be to try to give a total account under politics rather than saying, hang on, this is plurality. When I articulate this, if you have a unifying mind that needs to be completely coherent, you’re not going to be happy if I say, yeah, those religious institutions, they can do things, the governments can do things, families can do things, and there’s going to be tensions between them, and we’ll work it out, right?

John Grove (36:21):

You’re supposed to give me answers.

Luke Sheahan (36:23):

There’s certain, a cast of mind that is not satisfied with that and will never be. And so I think he kind of thinks there might be something in the human mind that wants the unity. It might just be that Plato was just so good, we’re kind of stuck in his mode and we’ve never been able to free ourself from it. It’s kind of hard to say. But nonetheless, as an empirical fact, it’s true that Burke did not get as much play as Rousseau. Aristotle doesn’t seem to have gotten as much play as Plato, at least from most of our history. Plato seems to have been the dominant one. And even today, we still want to speak in terms of politics and we struggle to say, we even think of the conservative refrain. We want limited government. Well, we don’t want limited government as an end in itself, per se, as if just if we limit governments, sure, why not?

(37:11):

It’s because we believe in all of these other institutions. The family has a positive authoritative role. When we talk about separation of church and state, what we don’t mean is well, because we don’t want the church to have an authoritative influential role. It’s that we want it to have an authoritative role. We just don’t think that that’s a state. It’s not that there’s going to be some overlap in politics. It gets more complicated than just church and state, but that we actually think it’s a real thing. I love it when I hear about some religious leader taking to task some politicians: “You are a bad Catholic and you’re not going to take communion if you keep it up.” Great, you’re doing the right thing. You’re skirting your authority over your parishioners as you want to. And that tension is a very real tension. That politician elected to be a politician to the district or whatever. Also a parishioner in the church, there’s a tension there, very real tension. And I say amen to that. The plural community says, that’s great.

John Grove (38:09):

I just saw a tweet—or an X or whatever they’re called on X now—yesterday by some it was fairly, I’m assuming fringe figure, but it was a successful troll because it was going all around Twitter where he said, if any church is holding a service in anything other than English, you’re undermining the nation. And I was preparing for this podcast at the moment and I was thinking, oh my goodness, here’s the political community and the religious community in tension. And this person, I think, is sort of a Christian influencer, but it seemed very clearly to have chosen the political community there over in that tension. The comment on Plato segues pretty nicely to my next point, which is that it’s such a sweeping book, and it covers so much territory. There is, and a lot of different thinkers, readers will be bound to disagree with some of his takes on some thinkers. Plato will be one.

(39:04):

I don’t have a dogmatic interpretation of Plato, but there are parts where I was like, well, maybe Plato is trying to get at something more nuanced than the way he presents. I think he gets Luther very wrong. I agree. Luther in particular, this question of the church and the state, I think, is in some way prefiguring an element of the plural community because I think a lot of Luther’s thought was precisely what you were saying, that the church is supposed to be doing something very distinctive and very different. And that was one of his big complaints about the Roman Catholic church is that he felt like it was doing all sorts of extraneous stuff that wasn’t the function of the church. But I think he misses some of that stuff. People will disagree with Plato,  might even be a few people who like Rousseau who are going to read it, which I don’t quite understand that, but they are out there. Can you sort of disagree with some of his substantive interpretations of these people while still kind of gaining the broader insight of the scope of the book?

Luke Sheahan (40:00):

Oh yeah, I think so. So Plato’s the classic example. So his reading of Plato is a little oversimplified and I think he knows it’s oversimplified. So he is saying, Plato gave us this vision. Is Plato way more complicated and sophisticated and brilliant? Yes, yes, he is. There’s a ton in Plato. Nonetheless, that vision of the political community, in simplified form from what Plato’s articulating about ordering the soul and all these things, yes, that seemed to have captured the political imagination in the West. That seems to be accurate. And people who defend Rousseau, they’ll be like, oh, read the constitution of Poland or whatever, that nobody reads and didn’t have very much influence. And it says, okay, but what does Rousseau say about the social contract as it took on the world and took over the world? I mean, we have to look at that. And so we can have our fun intellectual debates in academia over the proper interpretations, but in concrete, historical reality, what characterizes our understanding of the modern state, what part of Rousseau? It’s the part that the French that influenced the French Jacobins, it’s the part they took out of him. That’s what captured the imagination and that’s what dominated politics and the French Revolution and dominated politics since. So do read him with, he knows he’s not giving the definitive account of these guys,

John Grove (41:22):

And that’s not really what he’s trying to do. He’s trying to provide their influence in that broader sweep of history. That’s right. Yeah. That point about capturing the imagination, I always think of when I’ve taught political theory before, classical political thought, how much more engaged the students are with Plato than Aristotle. You get such a huge drop off when you go from the Republic to teaching the Politics because now you’ve just got this guy who actually wants to look at the world and just sort of explain what it’s, instead of, Plato has these just soaring imaginative situations that capture the student’s mind. You talk about the communism of women and children for a week or something like that, and then you get Aristotle and even Aristotle. So it should be mentioned. I think you sort of hinted at this, he places Aristotle very much in that plural community.

(42:16):

There would be plenty who would maybe argue, Aristotle is a political community thinker because you have all that language in Book One of the Politics that everybody likes to quote, “man as a political animal,” the polis is by nature in some readings are all these other communities sort of point towards the polis. That’s sort of the final culmination of everything. But what I found interesting is more I’ve read, the more I find it’s the boring chapter or the boring books in sort of the middle of the politics that everybody sort of likes to skip over, jump over to whatever it is, book seven that has this ideal king, skip over all this boring stuff about democracy and oligarchy. But it’s in there that you really get all that stuff about plurality because here it’s just like, look what is a real polis? A real polis has oligarchs and has democrats and they find all these various ways to institutionalize their authority and that’s what these constitutions are. I just mentioned that to bring back what captures the imagination might not necessarily be what captures the phenomenon that’s being investigated there. Alright, well we’re about to wrap up here. You got one minute, two minutes. What’s important about reading Nisbet today? Why should more people read Nisbet in general? Why should they read Social Philosophers?

Luke Sheahan (43:37):

So I think reading Nisbet today in particular, The Social Philosophers, gives us a way of thinking about politics, about political regimes, about freedom of association. I’ve connected a lot of Nisbet’s ideas to First Amendment rights that’s fresh and timeless. So there are some tired old debates. I mean, you take individualism versus statism. Nisbet kind cut through that very quickly. That’s a false dichotomy that we’re looking at. And so Nisbet helps us to see through these false dichotomies. And so I think really kind of deeper motifs going on underneath. He said, you can quibble about the way he discusses certain thinkers, but his basic typology is a really helpful way of thinking through when I’m looking at something right now, is this the religious community this guy says it is? Or is this the political community? And start thinking really hard about that. What is going on with these riots?

(44:33):

What is going on? I think they’re seeking community in revolution. And I think that tells us there’s been a failure in politics and religion and society at large to account for something. And that’s why we’re seeing these eruptions and they can be very dangerous. They can help us understand them and start to identify what’s going on. And then the plural community gives us a helpful alternative so we don’t have to argue about whether we should have a Christian nation or not a Christian nation established religion or not established religion. In some ways we might be thinking in terms of the political community and we’re just arguing within it, but we’re not actually outside of it and it can give us motifs and ways of understanding what’s going on that really, I don’t know that any other thinker really goes as deep as Nisbet and as thorough as Nisbet does and really giving us a really helpful typology and thinking through these things.

John Grove (45:24):

Alright, well that’s great. I really enjoyed reading. This is the second time I’ve read through The Social Philosophers and I benefited from it both times. It’s an elegant new edition. It’s from The American Philosophical Society Press. It is available now and it’s definitely worth your time, with your read. So Luke, thanks so much for joining us here on the Law & Liberty Podcast.

Luke Sheahan:
My pleasure.

James Patterson (45:48):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

Related Links

“Fight Bias and Legalize Meritocracy,” by Robert VerBruggen

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. I’m your host, James Patterson, contributing editor to Law & Liberty. Our guest today is Mr. Robert VerBruggen. He is a fellow at Manhattan Institute, where he provides policy research, writes for City Journal, and contributes to special projects and initiatives in the president’s office. And he has served as a deputy managing editor at National Review, managing editor at the American Conservative, and editor at RealClear Policy. And finally, as an assistant book editor at the Washington Times, he publishes on a number of issues and was the 2005 winner of the Chicago Headline Club Peter Lisagor Award. That’s great. And today we’ll be talking about his study at Manhattan Institute titled, “Fight Bias and Legalized Meritocracy, A Unifying Vision for Anti-Discrimination Law.” Mr. VerBruggen, welcome to the Law & Liberty Podcast.

Robert VerBruggen (01:38):

Great to be here.

James Patterson (01:39):

Let me give you two accounts of DEI and you tell me where they go wrong and maybe what half-truths they get. So the first is that DEI, which for those six or seven people listening to this podcast who don’t know, stands for diversity, equity, and inclusion, is mandatory for all hiring practices because of the permanently structured white supremacy in American institutions. And without it, we would experience the same levels of discrimination found, say in Jim Crow America. That’s the first version of the story, usually understood to be on the left. And the second version of the story is that DEI policies are a form of counter-discrimination designed to elevate minorities, otherwise incapable of achieving excellence in a competitive environment, and thereby exposing people to all kinds of forms of incompetence. These are the two extremes. It’s more of the right-wing extreme, and your study seems to say, look, let’s take this much more seriously and look at the evidence. What does the evidence tell us about these two positions?

Robert VerBruggen (02:54):

Well, sure, I think the beautiful and ugly thing about the term DEI is that it’s very vague. It can mean a lot of different things to a lot of different people. I think some people really do mean it just to refer to the concept of being open to people, being inclusive, being willing to hire and consider candidates from all different walks of life, and making efforts to make sure that you’re not overlooking people because of where they come from or who they are. And that’s, of course, entirely laudable, but I think it’s also a euphemism for, as you might say, counter-discrimination, reverse discrimination, whatever you want to call that, discrimination against sort of overrepresented groups or higher performing groups in an effort to hit the correct numbers that you think that a company or a student body should have. And I think that that’s where it runs into problems legally. I think there’s been a lot that’s been going on under the banner of DEI that has always been illegal, and I think that there’s a lot of gray area as well that as what the Trump administration is doing plays out. And as courts hear more of these cases, I think we’re going to have to resolve a lot of that gray area in terms of what exactly is allowed and what is not allowed in these sorts of areas.

James Patterson (04:06):

So where does the term DEI, or diversity, equity, and inclusion, come from? Does it have the same provenance as something like affirmative action? Does it grow out of affirmative action, or is it its own thing?

Robert VerBruggen (04:19):

I mean, I think it’s largely used in the same context as affirmative action. We talk about DEI and wokeness. These are sort of new terms or they’re new debates that we’re having, but in a lot of ways, they really just echo the debates about racial preferences and affirmative action that we’ve been having for 50 years or more. So I think in a lot of ways, they refer to ways of trying to diversify a company or a student body typically by taking race into account. And that’s also a problem that we have with the term affirmative action. The original use of it is just take affirmative action to make sure that you’re being fair and not discriminating by race. And it ends up being a euphemism for discriminating by race to get the numbers that you’re trying to get. And I think it’s a similar sort of thing with DEI where it’s just vague enough that a lot of people hear it and think, oh, that sounds nice, but it also turns out to be sort of a cover for some discriminatory and often illegal behavior.

James Patterson (05:07):

So the policy of DEI, at least as I understand it, is kind of a strange thing to emerge, given that as you put in your study, it actually has its origins originally in an attempt to establish a colorblind law. So how is it that we go from the colorblind objectives of, say, the Civil Rights Act of 1964 into at least as it’s been abused, a DEI that creates preferences almost to the point of quotas?

Robert VerBruggen (05:45):

Yeah. What the original civil rights laws reflected was sort of a consensus in America at that time that things had gone very, very badly under Jim Crow and it was not fair for African Americans to be treated the way they’re being treated and to basically ban discrimination by race. And these were written in very colorblind terms, and it was not only discrimination against certain groups was illegal, and it was okay to discriminate against other groups. It was just colorblind language that said, you’re not allowed to discriminate. But there’s always been a vocal minority in the US, and this is a debate that plenty of other countries have, as well, something Thomas Sowell has written a lot about, there’s always the vocal minority that says, no, we should be making more affirmative efforts. We should be discriminating in favor of the population that’s been discriminated against in the past. And that has very rarely actually been written into the law. It’s been very rare that Congress has put colorblind language into the statute books, but what’s been more common to happen is that courts and executive agencies blur the lines of the law and open the door that you see that with affirmative action in higher education. You see that with affirmative action plans in hiring where essentially courts and executive agencies blessed behavior that was pretty clearly not supposed to be happening under the Civil Rights Act.

James Patterson (07:01):

So let’s look at some of those laws, or at least what we might consider the sort of the big moments in anti-discrimination. What are they, and maybe how did judicial rulings or bureaucratic enforcement change?

Robert VerBruggen (07:20):

One of the bigger examples is affirmative action in higher education. The text of the Civil Rights Act says basically you’re not allowed to be denied participation in something that’s funded by the government, which is pretty much all colleges, public and private, on the basis of race. A couple decades or a decade and a half or so later, the Bakke decision comes along and says, well, you can consider race as one factor among many to get the educational benefits of diversity despite the very clear language of the statute that’s on the books. And also the constitutional issue of, especially for public colleges, denying equal protection under the law. It basically says it’s okay to do that. In employment law, you have a few different developments. One is the Griggs decision, which says that the original law had basically said you’re not allowed to intentionally make a test to give to your employees that’s designed to discriminate to weed out certain racial groups.

(08:15):

But you’re protected if you want to use tests to find the best employees. And the Griggs decision comes along and says, actually, if the test has a disparate impact, we’re going to hold you to a higher standard. We’re going to make you basically presumptively liable for discrimination for using that test unless you can defend it in court with pretty stringent rules and also with affirmative action. In private employment, you have the Weber and Johnson decisions which say, okay, if you’re a private company and you think you have a traditionally segregated job line, you can take race into account. If you have an affirmative action plan documenting what you’re doing, you can have an affirmative action plan to take race into account to some limited extent. And these are all things that are just not in the statutes. These are things that courts later kind of allowed out of the sympathy, frankly, with that vocal minority that wanted to do something that hadn’t been enacted in law.

James Patterson (09:11):

Yeah, there was a kind of optimism during the 1960s that with correct legislation and maybe with some kind of federal assistance, there would be a rapid evening out of outcomes. And when these don’t surface, there’s increasingly a justification for interventions that come from the courts. The one that seems to be most important, at least in beginning the process, is the Griggs decision in disparate impact. What does that mean?

Robert VerBruggen (09:46):

Basically, disparate impact means that in the case of an employment test (which is just kind of the textbook example of disparate impact, though the ruling applies to other selection mechanisms too) if you give people a test for the job and one racial group passes it at a significantly higher rate than another racial group that is presumed to be discriminatory, and the employer then has the burden of defending the test, showing that it’s adequately job related, showing that it’s validated. And there’s a whole very technical process that tends to play out in those kinds of cases called a Battle of the Experts, where each side hires testing experts to defend and criticize the test at a very technical level. So it basically says that if you’re going to use tests that have any kind of disparity, they have to be very rigorously vetted, and if you get challenged on them, the judge has to agree with you that they’re appropriate for the job.

James Patterson (10:37):

And the report on the area of employment, it says by the end of the 1970s, the Supreme Court had thrown out a requirement that Alabama prison guards be at least 5’2″ and 120 pounds, and yet allowed women to be outright excluded from certain roles in maximum security prisons owing to sexual assault fears. In the same decade an appeals court threw out a company’s categorical policy of refusing to hire those with criminal records. But the Supreme Court allowed New York’s transit system to refuse to hire addicts on methadone treatment without making case-by-case distinctions among applicants and job roles. The evaluation of written tests came to involve fact-intensive nitpicking of exactly what skills a test measured. I don’t know about you, if I were five one and 115 pounds, I would definitely not apply for a job as a prison guard, but what explains this battle of the experts? There’s a real aversion to being hauled into court and suddenly having to hire a firm or keep on staff a certain amount of legal expertise.

Robert VerBruggen (11:46):

Exactly. It’s not just, you can’t just say, okay, look, I’m using this test in good faith. There’s no evidence that I chose it to a certain racial impact. If you look at the test, I can explain to you why the questions on the test relate to things that I want my employees to know. It’s this really intensive process that stems from the EEOC putting out, they’re called the uniform guidelines. It’s a really long document on testing procedures that does not have the force of law, but that courts have really looked to over the years, and it’s just sort of an additional layer of requirement on employers that want to use tests. So when you use a test, you’re taking the risk of being held into court, and even if it’s a good test, you’re going to have to defend it. You’re going to have to go through the expense of defending it, and you’re going to have to hope that the legal process ultimately agrees with you that the test is a good one. So it’s basically an additional layer of risk that people take on when they try to screen their employees.

James Patterson (12:40):

We have a pretty lengthy history in the United States of what’s called redlining, which were efforts of cities or planners somehow to create housing arrangements in cities that would keep African-Americans out of certain neighborhoods. Do we find DEI as a policy impacting this sort of thing and has it been successful?

Robert VerBruggen (13:04):

Yeah, I mean, I went into the history of housing discrimination a little bit in the report. That’s an area where there’s been, I think, a lot of progress in a lot of different ways. One exception is that real estate agents do in more recent papers, still seem to just steer people to kind of like neighborhoods. And it not clear the extent to which that is because they’re trying to preserve discrimination, which I think is probably not a major motive these days, or if they’ve come to realize that if you have a majority white neighborhood, a majority black neighborhood, people of that race are going to be more likely to rent there. But that is illegal. You’re not allowed to steer people. So yeah, I think that’s an ongoing concern that there has been discrimination in real estate. There are laws to prevent that I think are good laws. And I think there are still, I think the audit studies do show that there are certain ways that those are still being violated, but there’s also been immense progress. There’s been a pretty big drop in a lot of kinds of bad behavior, like telling people that homes or apartments aren’t available when they are, that sort of thing.

James Patterson (14:01):

Earlier you mentioned the Bakke decision and its impact on higher education. Bakke comes down in 1978. What is this case and to what extent is it still controlling on issues of admissions to higher educational institutions?

Robert VerBruggen (14:19):

Sure. Yeah. I guess I forgot to finish my thought. It was the beginning of a very wishy-washy period in jurisprudence over the affirmative action issue. So it was basically, well, you can kind of do it, but you can’t have a quota. You can consider it to increase diversity, but you can’t do it, for example, in the name of social justice. It has to be that you’re trying to get the educational benefits of diversity. And then of course, as the Supreme Court turned back to the right, over the past few years we’ve had the SFFA decision that essentially overruled it without quite coming out and saying that it was overruling. It said that, no, you don’t get this extra sort of broad discretion to discriminate by race just because you’re a college.

James Patterson (15:03):

Great. And an area that, I guess, doesn’t occur to me that often because I’m not in this world, but there’s a fair amount of discrimination or history of discrimination in government contracting. And so maybe explain to an audience that may not know much about this, why this matters and what happened with it.

Robert VerBruggen (15:27):

Sure. Yeah. I mean, over the past 50 years or so, there’s been a number of developments under Nixon going back to Nixon and the Philadelphia plan and a little bit even before that where basically you had an executive order urging sort of diversity in government contracting and especially trying to ensure that African-Americans have equal access to those jobs. But it bled over into basically pretty intensive pressure on government contractors to balance their workforce in that way. And in one of the big developments of the Trump administration is that he rescinded the executive order from the Johnson administration that undergirds a lot of that. So we will see kind of going forward how well that works and how much that kind of trickles down to other layers of government because it’s not just the federal government that does this with government contracting.

James Patterson (16:17):

Yeah, and each of these stories has, I mean, there’s little distinctions and differences in them but they each seem to have the same sort of narrative, which is in the beginning there’s just reprehensible amounts of racial discrimination, especially targeted at black Americans. And then there are interventions in the law attempting to establish colorblindness. There is not the same degree of evening out that everyone had anticipated, and there’s still, less and less so, but there remains entrenched opposition to the law, that justifies greater interventions that haven’t really been repealed except maybe in the case of higher education in the SFFA case you mentioned earlier. But all the same remain sort of around and justifying increasing interventions despite the fact that the motivation of discrimination isn’t really around anymore. And this gets us to a section of the report called “Bigotry Falls, Disparities Persist.” So what are these disparities persisting, and what significance should we attribute then to failures of policy?

Robert VerBruggen (17:29):

Sure. I mean, one of the things I show is that if you look at surveys of whites asking things like, would you object if a relative of yours married someone from a different race? Do you think that people have a right to segregated neighborhoods? Would you vote for a black president if your party nominated one? When those sorts of questions that get at basically, are you a racist? You see a very steep drop off going back to the 1970s. So you’ve had, at least in terms of people being openly willing to admit to a survey taker that they’re racist, you’ve had a pretty drastic change in white attitudes essentially. And you have also seen some other things like audit studies showing that discrimination in places like the labor market may have fallen off as well, but you still see very deep inequalities in terms of things like school outcomes and things like wages, especially the male wage gap is very significant as I talk about in the report.

(18:28):

And that’s been just extremely frustrating. I think for everybody that was hoping for these things to improve and for America to take steps forward from its past that we haven’t seen these concrete outcomes equalize nearly as much as we wanted to. And I think what you see when you dig into the data, which I do a bit in that section and into the studies that have been done on it, is that the effect of intentional discrimination may not be gone, but it’s lessened over the past since the 1950s, 1960s. But instead, you still have these academic gaps and you also have, for example, in the labor market, you have the labor market putting a lot more value on education and skills where those gaps are still quite severe. So I think that there’s a really important discussion to be had around yes, continuing to fight the discrimination that still exists. And I have a section on audit studies in the report that goes into that. I do think that there is some level of discrimination that still happens in places like the labor market and the housing market, but I think we also need to work on things like human capital, making sure that education is sound from the early years and also that people have access to opportunity to apply the skills that they’re able to develop.

James Patterson (19:41):

Yeah, this section of the report really gets into some pretty technical data that you do a very good job of explaining for people that maybe aren’t as fluent in “statisticalese.” That’s not something some of us have to do in our daily jobs. What are some of the limitations of these studies? I see here, for example, formally studying the links among race cognitive skills, educational attainment and income has proved surprisingly difficult owing to certain patterns in the data and technical limitations. Maybe say more about what the problem is there.

Robert VerBruggen (20:22):

Sure. I mean, well, one interesting thing is that there’ve been some studies where you want to statistically control for things like test scores, you want to statistically control for educational attainment. And one of the weirder things is that because there’s such a big test score gap, African-Americans with a given test score actually get more education than whites with that same test score. So basically the test score gap is bigger than the educational gap in that sense. So you get very different results depending on whether you control for one or both. And there’s been a lot of debate in the literature about that. And one of the odder things is that in some analyses, you actually reduce the wage gap more if you just control for test scores as opposed to controlling for test scores and education level. So it’s a sort of conundrum of, okay, what is this actually telling us? How are we supposed to interpret this?

James Patterson (21:10):

And in some of these studies, I’m saying this almost as though I know this for certain, but maybe I should pose it as a question, but in some cases you’re dealing with sample sizes that are sufficiently small that where you control for population, you might end up with pretty few cases making it hard to make inferences. Is that a problem?

Robert VerBruggen (21:28):

It depends what dataset you’re using. If you’re using census data, those data tend to be really big. There are also some longitudinal studies like the National Longitudinal Survey of Youth that’s much smaller. You’re going to have sample sizes in a few thousand depending on how you strain out the cases you don’t want to analyze or which variables you’re looking at. But yeah, sample size can be an issue in some of these studies more than others.

James Patterson (21:52):

Well, that’s good to know that a lot of it’s done by census. This isn’t an area where I do any kind of empirical work, so I need to defer to the expert here. One of the things that emerges as a prominent study in this section is one where Patrick Klein and two authors send out 83,000 fake applications to jobs across the country offered by 108 major employers and check to see which received responses. This is a pretty incredible amount of work. Tell me about the results of the surveys and what bearing they have on the sort of broader discussion of DEI today.

Robert VerBruggen (22:33):

Sure. I mean, one thing I’ve been writing about for a while and pressuring people on the left to think more about is this sort of study, it’s called an audit study. The idea is that you send out otherwise similar applicants to do things like apply for jobs. What they did in this study is they sent out, you said 83,000 fake applications, and basically looked to see if the application had a stereotypically white or black name, did that affect whether you got a call back? And I’ve got the numbers here, about 25 percent of the white applicants were contacted within 30 days versus 23 percent of black applicants. So you have, it’s sort of an interesting disparity because on the one hand, it doesn’t sound that big, 23 versus 25. Basically, if you send out a hundred applications, it’s only a difference of two applications getting a response, but that’s basically a 10 percent gap for every 10 successful applications, you’re only getting nine if you’re from the disfavored racial group.

(23:31):

And of course, because this is just one aspect of the hiring process, it raises the question of, okay, if they’re discriminating at this level, what else is going on elsewhere in that process? And I think it’s important to note that when I say that I’m skeptical of DEI, I’m skeptical of reverse discrimination, that doesn’t mean we should lose sight of the fact that regular old discrimination is still a factor and it still matters and it’s still something that we do need to enforce and think about.

James Patterson (24:03):

Yeah, that’s right. There is this sort of persistence in this study to refuse to go to one of these chief narratives, but to stick with the data. That’s what makes it so valuable. I skipped over something I meant to ask you about, which is that there’s been this, especially on the right, some amount of discussion about the impact of family formation on success rates, especially for black men. What if any kind of impact could policy have on those kinds of outcomes?

Robert VerBruggen (24:36):

Yeah, that is kind of the million-dollar question. I’ve been thinking about family policy for a long time. I think there are certain things on the margins that matter. There are, for example, safety net programs that discourage marriage by taking benefits away when somebody gets married, things like that. I think that’s really important. That’s something we should be thinking about. But when you have a gap as big as the gap that we see in family formation in married parenthood, is any realistic government policy going to close that gap completely? I don’t know that it can. And of course, we’ve seen over the past 50 years, what started out with the Moynihan report is a crisis that was focused among black Americans. Instead of closing the gap and fixing it, it’s gotten worse over the years until fairly recently. And also, white illegitimacy rates have gone up, too. So that doesn’t seem to be something that we’re actually making too much progress on.

James Patterson (25:30):

So I wanted to ask you about this one last issue before moving on to the legal landscape, and I’m very curious about this because it’s one that I’ve heard people complain about when describing discrimination, which is the issue of stereotypically black names. Is this still in the Kline study?

Robert VerBruggen (25:52):

Sure, yeah. Yeah. That’s something that they address. They find that the particular name didn’t seem to make too much of a difference beyond the race of it. But there is a lot of research, and I do discuss this a bit in the report, suggesting that different names have different class connotations in addition to having different racial connotations. So there is that question about how much are you measuring class versus measuring race? One of the interesting things I found when I started to dig into this and that I mentioned in the report is a study finding that when there was a survey study about these class connotations and a fair number of people who had stereotyped a black name as being poor, when asked why they did that, they said, well, I know that there’s this income cap and it’s a black name, so I assume they were poor for that reason. So it’s not as clear cut as I think some of the critics resorting to that argument would like it to be. And also, I’m just not sure how good we should feel about it if employers discriminate against blacks but also discriminate against poor white people. It’s certainly worth teasing out the extent to which that’s what’s going on, but I’m not really sure that that’s anything good if that is what’s going on.

James Patterson (27:00):

Right, right. It’s one of these factors that–and I’m going to have a baby soon–it’s one of these things where you don’t realize that the name might actually affect trajectory, but apparently that is an issue now that I have to consider. So when we get to the changing legal landscape, you make a very important distinction between constitutional and statutory precedents, which are more important for DEI issues today.

Robert VerBruggen (27:32):

I think they’re equally important because I think we have an equal protection clause in the Constitution that’s been hugely important in a lot of these issues. The SFFA decision and the Bakke decision relied on equal protection despite the fact that the statute actually has much clearer language. The Bakke decision basically just assumed that the statute was meant to put into effect the equal protection clause despite the fact that it used completely different language. And the SFFA decision said, well, okay then, I guess we’ll decide this one on the equal protection clause. But the reason that I think that distinction is so important is that several of the originalist, or right-leaning, or however you want to put it, judges on the court are extremely reluctant to mess with statutory precedent. They have this sort of assumption or theory where if the Supreme Court screws up a statute, Congress can just pass it and fix it.

(28:24):

Whereas if the Supreme Court messes up the Constitution, it’s much, much harder to pass a constitutional amendment. That’s true as far as it goes, but I’m not really a fan of that way of thinking. I don’t think that the justices adhering to that are going to listen to this podcast and change their mind because of me, but I’m doing what I can on that. I think the problem is that passing a law through Congress requires both houses of Congress and the President all to agree to the same thing. And in the Senate, you might even need 60 votes to overcome a filibuster. So if Congress comes to a specific compromise and then the Supreme Court misinterprets that and says it means something else, they might not have the votes to turn that back to what the original compromise was. If any one of those decision makers either doesn’t think it’s worth the effort to put into changing the law or actually prefers that one because this was a compromise, if one part of that compromise actually prefers what the Supreme Court says to what they actually agreed to, they have no incentive to change that back.

(29:20):

So I think this sort of super deference to statutory precedents is a problem, but it’s just sort of a reality of the court that when you’re trying to overcome bad statutory precedents made in the past over issues like employment, affirmative action, you’re going to face a little more of an uphill climb than you do with something like SFFA where you can make your case to the originalist judges and they’re going to take the issue on and come to the conclusion they think is right without being excessively deferential to what was said incorrectly in the past.

James Patterson (29:53):

And I hope the listeners will forgive my academic bias here, but I have to ask just for my own sake. You have here some language here, it says, early signs indicate mixed compliance with the SFFA decision. The first class was admitted after the ruling revealed the kind of substantial demographic changes that one might’ve expected at others, there was virtually no change. Do you think we’re going to have to see more judicial interventions in the future?

Robert VerBruggen (30:28):

Yeah, I think it is actually very difficult to understand what’s going on in a lot of these schools. Basically, the Supreme Court said that you can’t use race as a factor. It didn’t say that you have to remove race from your admissions process and leave everything else exactly the same. Obviously if you were using race heavily before and you stopped using it, you’re going to see a big demographic change. But the more you change other things, the more you might be able to mitigate that demographic change. And the courts seem inclined to let people do that sort of thing, even if they are doing it for the specific purpose of preserving some kind of diversity. Even some of the briefs in the SFFA case from the plaintiffs were basically arguing that schools could preserve their diversity by moving to things like class-based affirmative action and things like that.

(31:11):

So I think it’s going to be very difficult to figure out which ones of these are doing things that are permissible and which one of these are basically still considering race even though told not to. And also where the courts are going to draw the line between what’s permissible and what’s not, because I think there’s a big gray area of policies that colleges may adopt specifically for the racial effects that probably would not be allowed in other contexts. For example, if you were trying to discriminate against black people or Hispanics, I don’t think that kind of thing would be allowed, to deliberately design your process to minimize their presence. But I think that the courts do seem pretty deferential to saying, hey, colleges, you can do things like class-based affirmative action. You can tweak those preferences with diversity in mind a bit. You just can’t use race directly. And I think finding out where to draw that line is going to be an interesting battle in the years to come.

James Patterson (32:06):

Yeah, that is, and I’m sure it’s going to be difficult to make everyone happy with any kind of result. There are some smaller programs you mentioned here and you highlight a COVID-era program targeting debt relief to black farmers and how it was replaced by a sort of thinly veiled, maybe more constitutionally compliant version. Is this a regular event in legislation where there are these handouts based around identity

Robert VerBruggen (32:40):

That has been much more unusual. As I lay out kind of earlier in the report, to me, the main thrust of the history is that Congress passes colorblind laws, and then the courts go back on it. Here, you had something that was kind of interestingly the reverse. You had big democratic majorities, and you had this sort of racial justice moment where people were very inclined to accept that sort of thing, so that Congress actually passed it and the Supreme Court rejected it, and then Congress tweaked it up a bit more. So I feel like that was part of the DEI fervor that we saw circa 2020, whether that’s over for good or whether we’ll see it again is an open question.

James Patterson (33:19):

Yeah. I have to wonder how many people were actually able to benefit from that. It’s a strange program, but I guess you never know what’s going to be in the law until you pass it. As a famous former speaker…

Robert VerBruggen (33:31):

You’ve got to pass it to know what’s in it.

James Patterson (33:36):

One of the worst things ever uttered about Congress. Also true, unfortunately, in many cases. In the midst of all of this, you reach a pretty poignant passage here. You say, “a backlash against double standards is a natural reaction, and racial favoritism raises additional issues as the nation diversifies and the horrors of the past decades recede. It’s one thing to grant preferences or special protections to black workers who attended segregated schools as children. It’s another to grant preferences to Hispanics over Asians for the foreseeable future, merely because the latter tend to perform better academically and economically. So while an identitarian equity-seeking approach has certainly shown itself to be a political possibility, it has proved neither popular nor desirable as an actual solution to the country’s racial problems.” Is this sort of where you land, or do you think this is where you think America’s landed?

Robert VerBruggen (34:38):

I think it’s both. I think any realistic solution going forward has to take public opinion into account. Even if I were to disagree with public opinion, I just think, you’re going to have all these people of different races living together and competing with each other for jobs and slots and colleges. You’re going to need a regime that has popular support, I think. So I think policy views need to be informed by public opinion to some extent in that regard. And I think the reality is that Americans never really made their peace with race-conscious policies. Even in some of the surveys, there does tend to be a racial gap, but even black support for a lot of these policies falls below 50 percent. So it’s a matter of, I think Americans generally want fair processes and equal opportunity and a fair chance to compete. They don’t want a thumb on the scale in terms of race. And I think public policy is going to have to sort of confront that reality and readjust, especially as we become more diverse. And as I said in that passage, as the horrors of slavery and Jim Crow fade into the past as we continue forward as a nation.

James Patterson (35:48):

Yeah, and in some ways there has to be some amount of time passing. We have a black justice on the Supreme Court who endured that life. He’s now 80, Justice Thomas. I’m reminded in that passage of something. I taught for a year as a visiting professor at Hampden-Sydney College. It’s a small men’s college in Central Virginia, and there was a generation of some white, some black men who were more or less illiterate because of massive resistance, in which they shut down the schools. They had illiterate parents, and so they were at that formative age when they would’ve learned to read at school, but never did.

Robert VerBruggen (36:32):

Yeah. It is a thing where each generation that passes, hopefully, those things go further into the past and are replaced by the better times that we’ve had more recently in that regard. So yeah, it’s one thing in 1970. It’s another thing in 1995. It’s another thing today, and it’ll be another thing 25 years from now, and my hope is that we will learn to find ways of focusing on concrete disadvantage and making sure that everybody has opportunity and everybody has a good education, and then letting people compete from there.

James Patterson (37:03):

So we’ve covered the courts a lot, but there’s a section on the future of DEI both in how the executive and the judicial branches will approach it. So maybe say a few things about what those predictions are.

Robert VerBruggen (37:19):

Sure. Well, essentially, what we’ve been seeing even since this report came out is obviously a huge push from the Trump administration. There’s obviously a very big Democratic Republican divide over this that we’ve seen in previous administrations, including the previous Trump administration. But this seems to me to be at an entirely different level. I mentioned that he rescinded the affirmative action and government contracting executive order. He’s reoriented the civil rights enforcement agencies so that they’re not relying on disparate impact theories anymore. He has started to take seriously reverse discrimination. It’s never actually been legal to put a job posting up that says you don’t want any white people to apply for it. But we’ve seen that, especially in colleges, that sort of thing. There’s a lot of things that have just been flagrantly illegal that they’re finally going after. And my hope is that this is going to be an even-handed enforcement effort.

(38:12):

If you look at the EEOC’s press releases on the cases that they’re talking about, there is still a mix of traditional civil rights enforcement, where you might have a case where black or Hispanic workers are being mistreated or being harassed at work, and they’re pursuing that still. I think that’s fantastic and it’s good, and also enforcing it even handedly, and obviously getting a lot more news coverage for going after DEI practices. So the executive branches have just seen this enormous reversal. I don’t know how much of that will last over the long run. Certainly, if a Democratic president is elected next, that’s all going to go out the window. I don’t know if that is going to create a precedent, kind of a standard for future Republicans to live up to or not.

James Patterson (38:56):

So in an area where you talk about the possibility of a grand bargain in Congress, which is interesting. I am happy to hear people still take Congress seriously as a source for changes. That was probably my favorite part of this was oh, Congress. But yeah, they can actually pass laws, not just make hits on cable news. So you say that the compromise could be, and there’s more to it than this, but the central nature of the compromise is effectively jettisoning disparate impact as a way of solving the problems created by the left, and in order to ameliorate the jettisoning of it, the government funding studies that would actually attempt to measure real discriminatory practices. And then throwing the book at those firms. Who are the buyers for this? Who are the people who might want this kind of law?

Robert VerBruggen (39:59):

Well, I mean, I think most people want an even-handed enforcement of anti-discrimination law. I think most people would think it’s unfair to say, you gave people a test and some people failed it more than others, so therefore we’re going to drag you into court and make you miserable. I think a lot of people would also think it’s unfair for there to be genuine discrimination where people are being rejected because of their race. I think that people who genuinely believe in colorblindness, I would say, are the buyers of that policy. And I would hope that it would be a little bit of a left-right compromise where the left gives up kind of this DEI approach to the issue that I think they’re paying some prices for in terms of public opinion anyhow, but the right admits, oh hey, there is still some discrimination out there. Why don’t we make more of an effort to address that? Why don’t we try to study it in a rigorous way and work with firms or sue firms as needed if they’re rejecting applicants because of their race?

James Patterson (40:53):

You’ve run into a problem, not you specifically, I’m sorry, Americans run into a problem where the two parties have to negotiate within their coalitions in their extremes. And on the right, you have people who are still racialists, right? And they’re self-discrediting in some degree, but still they manage to be a problem for people who want to take this on. And if you’re like me, and unfortunately, too online, you see a lot of their nonsense. But the left has more of an issue here because their more radical fringe, or their more radical advocates, are people who are, in some cases, actually employed as people in DEI organizations or activist groups. And so their checks are cashed on the basis of implementing these policies, whether it be for private firms that have brought in DEI executives or work as consultants. So this is essentially a hard sell for them, right?

Robert VerBruggen (41:57):

Yeah, exactly. I mean, I think the idea I put forth in the report is the centers of the two parties come together and pass a bipartisan bill, whereas increasingly what we’ve been seeing is that you have some fringe elements in both parties and increasing polarization among the electorate at large. So instead of passing a bipartisan bill, you wait until you have a trifecta and do what you can then. And I don’t think that’s a healthy way of making policy. And I think you’re obviously right if you look at that and say, that’s never going to happen because of this polarization and this refusal to deal with the center, I think. But yeah, I mean, I felt like it was helpful to at least outline in the report what it would look like if Congress did something that was consistent with public opinion, in my opinion, a fair policy.

James Patterson (42:44):

Oh, I didn’t mean to criticize you. I was, like I said, I was happy about it. I was just worried that it’s hard enough to make radical fringes of whatever side you’re on compliant, but when they’re paid not to be compliant, it’s even harder. So just as a final question here, how hard is it to make this very data-driven, complicated argument to people that are accustomed to dealing with DEI as either a term meant to imply an elevated racial consciousness or a form of racial favoritism?

Robert VerBruggen (43:25):

Yeah, I think one of the things I did in the report is try not to get too wrapped up in the term DEI. I mean, I certainly use it in the report. I don’t think you can talk about these issues without doing it. But honestly, after I work at the Manhattan Institute, we do a lot of work on DEI. And nonetheless, I still have trouble telling you exactly what it means, because as I said before, it means different things to different people. What I tried to do in this report is kind of connect the current DEI discussion, wokeness discussion, to all of these policy developments and all of these debates we’ve been having since the 1960s to some extent even before. And to talk about how anti-discrimination laws evolved and how it might move forward in a way that’s productive and that could gain the consent of the American people.

James Patterson (44:12):

So again, this study, “Fight Bias and Legalize Meritocracy: A Unifying Vision for Antidiscrimination Law.” Its author is our guest today, Robert VerBruggen of the Manhattan Institute. I hope everyone moves over there to take a look. We barely scratched the surface in terms of the material he covers, really, in 20 pages. I don’t think I could have done it. So thank you so much for coming on the Law & Liberty Podcast.

Robert VerBruggen:

Thank you for having me.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

Related Links

In Covid’s Wake by Stephen Macedo and Frances Lee
Liberalism vs. Scientism, a book review by Mary Carmen Mead
The Pandemic in Hindsight by Law & Liberty‘s Editors (March forum)

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund.

G. Patrick Lynch (00:39):

Welcome to the Law & Liberty Podcast. I’m G. Patrick Lynch, a senior fellow at Liberty Fund and a contributing editor to Law & Liberty. And for this episode, I’m filling in for James Patterson. Today we are joined by Stephen Macedo, who is the Lawrence S. Rockefeller Professor of Politics in the University Center for Human Values at Princeton University. He writes and teaches on political theory, ethics, public policy, and law, especially on topics related to liberalism, democracy and citizenship, diversity and civic education, religion and politics, and the family and sexuality. We will be discussing his latest book In Covid’s Wake: How Our Politics Failed Us, co-authored with his Princeton colleague Frances Lee. Macedo and Lee have appeared in many major media outlets, including The New York Times, CNN, PBS NewsHour, and The Hill, to discuss the book, which has been lauded for its critical review of the political and policy responses to the pandemic. Steve, welcome to the Law & Liberty Podcast.

Stephen Macedo (01:36):

Thank you. It’s a pleasure to be here.

G. Patrick Lynch (01:37):

Well, it’s great to have you here. As I mentioned to you before we got started, I think this is a tremendous book and I congratulate you and your co-author, Professor Lee, on it. I want to begin by saying, I know for many of us, looking back on the pandemic is personally difficult because of the challenges we all faced, particularly those of us who lost loved ones. And yet in my view, this book is immensely important because it serves as a sort of a truth commission almost on the Covid response by the government, and it reveals a lot of unpleasant truths about how poorly the public sector performed. The title of your book suggests that the government failed the test of Covid. As a professor, would you have given the government an F for its response on Covid?

Stephen Macedo (02:18):

Well, thank you for the introduction first of all. I haven’t really sat down to think about that. And I think I would say that actually the scope of the focus of the book is a bit wider than just the government, though public health officials and others obviously played a very important role in a way, the focus of the book is on what we call the” truth-seeking departments of liberal democracy,” journalism, science, public health included in that of course, and universities more broadly. And while it’s true that public officials did, I think in many cases pass the buck and say “follow the science” in a way to avoid taking responsibility for hard decisions themselves, it’s also the case that these other institutions did not ask hard questions and didn’t play their role as well as they should have under the influence, I think, of the polarized environment in which we live, a kind of epistemic tribalism that so deeply affects our politics.

(03:20):

So we do look back on the record and try to be as accurate as we can. It’s really only the beginning of a reckoning because there’s so much we don’t understand still. I think about what happened and what the results of the policies may have been, but it’s our best shot at doing a first take, fair mindedly, on what happened. And we do emphasize the shortcomings. Part of it is that there were a bunch of pre-Covid pandemic planning documents, which looked at these non-pharmaceutical measures going back to 2005, 2006, and they were skeptical, let’s put it that way. They emphasized the weak evidentiary basis for a lot of those measures that were imposed. And they emphasized the importance of being frank with the public about the weak evidentiary basis and the certainty of costs, considerable costs from imposing these measures.

G. Patrick Lynch (04:18):

I’m glad you raised that because I think that was one of the most eye-opening parts of the book. I think if you asked the average citizen, if they knew that, in fact, all the pre-pandemic planning had shown that there was skepticism about many of the measures that were pursued, they would be surprised. And I certainly was surprised. Can you explain to our listeners exactly why policy officials in most of these major health organizations in the public health field generally advocated for abandoning most of this planning? What happened? What shifted in their thinking?

Stephen Macedo (04:47):

Well, let me say a word about those things first. It is remarkable that the planning documents went back early to 2005, 2006. George W. Bush read John Barry’s book on the great influenza of 1918, and he initiated these planning processes. There was always a national security component as well, having to do with bioweapons, but he was concerned about another pandemic. There were mathematical modelers who were optimistic about the effectiveness of these measures, very optimistic. And they wound up playing a leading role as it turned out in shaping some of the discourse. But going back to that era, scientific officials who looked at this, including the Institute of Medicine, as it was called back then, which has issued a report on these measures and said that they found the evidence unconvincing and that there was a lot of uncertainty around these measures. And anyway, in 2019, Johns Hopkins did one of these surveys on all of these non-pharmaceutical measures, social distancing, mask-wearing, school closures, border closures, and so on.

(05:49):

And emphasized just as you said, the weak basis. And the World Health Organization did one that came out in November 2019. And among the things that said there, again emphasizing uncertainty, weak evidence, was that there were certain measures that were not recommended under any circumstances, including border closures, quarantine of individuals who had been exposed, and contact tracing, and those were not recommended under any circumstances according to the WHO. And those were all implemented in short order during Covid. I think what happened and what shifted the discourse was partly that the World Health Organization sent a team to China in late January 2020 to survey their response. And that team came back after spending about seven or eight days in China in Wuhan, Hubei Province, and proclaimed that the Chinese had solved the problem, that they had defeated the virus, and that every government in the world should follow the Chinese strategy of suppressing the virus, locking down–something that’s never really been attempted in human history before.

(06:55):

And when you read that report from the World Health Organization, a joint mission that included half Chinese participants, half non-Chinese participants, only a couple of Americans were involved in that, it reads like an award citation, as we say in the book, it’s just uncritically endorses the strategy. So that played a major role. And then there were a couple of other things too. A bombshell report came out of Imperial College London on March 16, which had very impressive graphs. The lead there was Neil M. Ferguson, who’s another mathematical modeler who had been involved in the original 2005, 2006 projections. He said that if we didn’t impose this whole suite of measures, this “Report Nine” from Imperial College said that if we didn’t impose this whole suite of measures by the end of August 2020, we’d have 2.2 million dead Americans. So that report, which was finalized and published on March 16, the Trump administration had gotten an advanced copy of it, that was shown to Donald Trump on March 16.

(07:58):

And later that day, he had a news conference where it was recommended that places with infections spreading should close bars and close other places and impose lockdowns. By that time, schools had already closed across substantial parts of the country. But so those two things were important, and there were other projections that were made. 3.4 percent death rate was projected by the head of the World Health Organization in, I think it was February, or maybe it was early March. So there was a lot of fear. There was a lot of uncertainty of course, and the original lockdowns were very widespread across the country and across Europe. But I think what’s in a way most important is that the European–well, some countries never closed their schools at all. I don’t think Iceland ever closed at schools. Sweden never closed them for kids under 16. And the Western European countries in general, France and Germany and other places in Europe, reopened their schools at the end of April and May.

(09:03):

And it was clear, by the middle of May certainly, that schools were not spreaders of Covid and that teachers were not at great risk. And the European health ministers met education ministers, excuse me, met I think it was around May 10 or something, and issued a statement of the education ministers from around Europe saying that it was safe to reopen schools. So there was a lack of learning, especially in Democratic states, which closed down faster and stayed closed much longer than Republican states. It was a partisan pandemic, as we say in one of our chapters, that there was a striking partisan divide on the stringency of all of these measures with democratic states imposing school closures much longer. Republican states were generally reopening their schools in the fall of 2020. Many Democratic school districts were closed through almost the entire 2021 school year. California closed right through March. So the discourse, the narrative, became very rigid and intolerant of dissent. So I would say that a big part of the book focuses on the shortcomings of public deliberation and kind of intolerance of dissent, forgetting the fundamental principles of science and, in a way, classical liberalism: To be open to dissent, to allow criticism, to welcome criticism, and to not close off disagreement prematurely.

(10:37):

I think one thing that happened, we found is that, about April 2020, once the lockdown strategy had been adopted in, of course, many parts of the country, but there’s the sense of a war mentality that arose. We see this in a report that came out of the Safra Center at Harvard that was endorsed by the Rockefeller Foundation and other foundations including the Niskanen Center, and indeed the American Enterprise Institute put out a Covid planning document or policy statement around that time, April, May 2020, which also endorsed the lockdown strategies to some considerable degree descent, became that this is our chosen strategy and dissent was unwelcome, that we were on a war footing and we needed the equivalent of national unity in the face of a war, in this case, a war on Covid. So as in previous wars, we cracked down on dissent, and that was the big problem. Mistakes get made, but we should have been more open to dissent and disagreement and more ready, prepared to learn over the course of 2020, especially over the summer.

G. Patrick Lynch (11:52):

So this is one of the questions I wanted to ask you, because I think the emphasis on deliberation, discourse, and exchange of ideas is one of the strengths of the book. You mentioned, for example, the Great Barrington Declaration in the book and talk about it in a way that I think is probably the fairest and most honest assessment of it that I’ve seen because it was such a polarizing document when it first came out. And you also mentioned the example of Sweden. Before we get into the sort of who was right question, can we talk a little bit about the importance of deliberation during these times of crises? I guess I was struck by, on the one hand, the hopefulness that y’all place in the importance of having that deliberation discourse during a crisis, during this war language. But is that too much to ask of democracy? Is it too difficult to believe that during a crisis we can tolerate and have that kind of discourse and exchange? And I think this is obviously critical, looking back on Covid, and potentially even more important for looking forward to whatever the next problem’s going to be.

Stephen Macedo (12:53):

Yeah, well, it is a very reasonable question, and I don’t have a particularly good answer for it. One thing I would say is that other democracies did a better job. There was more open debate, I think, in the UK, there’s a very good book by Mark Woolhouse called The Year the World Went Mad. He’s obviously very critical of the lockdown strategies, as you can tell from the title of the book, though he supported the first lockdown, though in retrospect, he doesn’t think it did much good because these lockdowns tend to be imposed after the viruses, the horses out of the barn. So the lockdowns tend to get imposed, late viruses tend to come in waves. So oftentimes the rates of infection will drop at some point after, and people assume that’s because of the interventions, but it just turns out there’s not a lot of great evidence for that.

(13:39):

But they did learn more over the summer in the UK. There was more open debate there. And in Germany and France, I think. So the US is especially polarized by Western standards, and this is a dispiriting picture, a window into the state of our highly polarized political discourse. So I wouldn’t hazard guesses about how well we’ll do in the future, but we do need to think about this. And part of what happened, I think, is, as you’ll recall, 2020 was an election year. Donald Trump was on the ballot. He was associated with the “Let’s reopen the economy as fast as we can” sort of approach. He also, of course, referred to the virus as the “China virus” and so on, kind of unhelpfully actually. But suggesting that the virus might have leaked from the lab was always a plausible hypothesis, which again, should have been entertained and was not particularly, and still not being properly entertained, I think, in the US more so than in Europe.

(14:37):

So I think that was part of it. And of course finally there is some reckoning going on on other issues on this too, that if Donald Trump said it, that must be the opposite of the truth. And that was one thing to say we should not take him particularly seriously on these particular matters, but it’s another thing to assume that the truth is the opposite of what he says. That was a silly approach as well. But deliberation is important. It proceeded better in other places. We should have paid more attention to the pre-Covid pandemic planning documents. And there were voices. I mean, it’s not as though no one pointed these things out. Emily Oster, an economist at Brown, wrote some very good pieces pointing out the cost of school closures and the safety of reopening them. Graham Allison, who is scholar in crisis decision making, going back to the Kennedy administration, he’s a very senior scholar at Harvard.

(15:35):

He put out a statement right around the time that Harvard Saffer Center put out its statement, and this is I think in April, maybe late April 2020. And Alison said, look, we need a wider conversation and wider deliberation here. We need a Team B, we need devil’s advocates. We’re doubling down on the strategy and we’re not sure that it’s the right strategy. It’s going to be costly, he pointed out, and we need to reexamine our assumptions and widen the discussion beyond epidemiologists and public health experts, and have a wider conversation. And he was exactly right, surely on that score, but from what I can tell, his statement was completely ignored. So there were people calling for wider dissent, and there were others. Katherine Eban in Vanity Fair wrote some good pieces as well. So there were a few voices out there, but these issues were not discussed adequately for sure.

(16:35):

And then the Great Barrington Declaration–well, let me just say one other thing. When the lockdowns were imposed in March, there were dissenters. Michael Osterholm, who’s one of the leading epidemiologists scientists in the world at the Mayo Clinic University of Minnesota. He warned in mid-March 2020 that these lockdown measures were unlikely to succeed, that they would be extremely costly, that the best strategy was probably protecting the vulnerable from Covid and allowing most people to go about their business, and recognizing that there was a huge age gradient in vulnerability here. Young people were relatively at low risk. They could acquire herd immunity from getting infected and recovering. He pointed all this out in March. David Katz from Yale did. Tom Frieden, former CDC director, again, pointed out the cost of schools back in March 2020. And then those voices tended to become silent. And when we got to October and the Great Barrington Declaration was published, they were saying essentially the same things–Kulldorff, Bhattacharya, and Sunetra Gupta from Oxford, Harvard, and Stanford, they were essentially saying essentially the same things that were said back in March by Michael Osterholm and Tom Frieden and David Katz at Yale and Justin Leslie from Johns Hopkins. But they were greeted, as people know, with great intolerance. Francis Collins, the head of the NIH then, called them “fringe epidemiologists, dangerous, they’re going to kill people.” By that time, schools had reopened in Europe and reopened for months. Schools had been open for Republican states since August. So I think when it comes to school closures, I think people are starting to recognize that that was kind of egregious, the extent to which we didn’t learn from other places about the relative safety of reopening schools. And so I do think that while the Great Barrington people were wrong about some things for sure, they speculated about the virus having traversed society in a much more widespread way over the summer.

(18:37):

And in the fall, there were some projections about the virus being already on its way out over the summer. I think it was what Sunetra Gupta said, and Bhattacharya has gotten a lot of flack for a Wall Street Journal op-ed he wrote with, I think it was Eran Bendavid, in I think it was April 2020, March or April 2020, suggesting that Covid might lead to as few as 20 to 40, 60,000 deaths. That was the low range of his speculation at that point. The main point of that op-ed and of his work in the spring of 2020 was trying to do studies of the population to see how many people had antibodies or other evidence of having had Covid infections. We knew how many people were getting seriously ill from Covid, but we didn’t know how many people had contracted the virus and not gotten seriously ill because the symptoms are much the same as the flu or cold or other symptoms.

(19:35):

And many people had mild symptoms. So he was really in that op-ed emphasizing the importance of doing these seroprevalence studies in the community to try to figure out the actual mortality rate, which was not as low as he speculated. But there have been viruses in the past that have more or less just disappeared: Swine flu in 1976, we had a mass vaccination program for that, and it never materialized. So he wasn’t completely off base when it comes to the evidence of previous flus. But in any case, his main point was that we needed to do these seroprevalence studies, and he tried to do them in California on a shoe string, but the CDC should have been doing them and wasn’t doing them at the time. So I think the Great Barrington folks were hardly infallible. And Bhattacharya has admitted himself that he made mistakes, everyone did. But I think they were calling for a wider discussion of the cost of these measures. And certainly in retrospect, they were correct about a number of things, including the need for a wider discussion. And going forward, we should at least take seriously respectable dissenters as they certainly were.

G. Patrick Lynch (20:51):

So you mentioned Emily Oster and Graham Allison. It’s interesting. Those were two people I wanted to sort introduce in the conversation because Emily Oster’s work was to try to figure out, she was trying to collect data on schools and just take a look at the trade-offs, and to raise that trade-off question. One of the interesting things for me, reading this boo,k was learning about what worked and what didn’t. You’ve got an entire chapter dedicated to taking a look at the US through the lens of federalism to try to see if a lot of these NPIs were effective. And can you walk our listeners through sort of a general overview of those results so that you can at least share with them what y’all’s view is on the effectiveness of the NPIs compared to vaccines, compared to some of the other measures that were

Stephen Macedo (21:35):

Pursued? Yeah, yeah. My coauthor, Frances Lee, who’s an excellent empirical scholar, very broad intellect, but she really knows her empirics as well. She did a 50-state study of the United States based on CDC data from across the 50 states, looking at Covid mortality from the period from the beginning of the pandemic through the availability of vaccines. And it’s not the best data in the world, it’s state by state, but it’s the best we can do. Other scholars have done this work. Thomas Bollyky also did a state-by-state study using somewhat different data. He came to the same results. But what it shows is that the states divided very sharply in terms of the stringency of these Covid interventions, school closures, masking, social distancing, business closures, restrictions on social gatherings, and so on, with Democratic states imposing much lengthier stay-at-home orders compared to Republican states.

(22:33):

It’s really a very strong partisan relationship, very strikingly so. And there was also a partisan relationship on vaccine uptake with Democratic states people getting vaccinated at a much greater rate than in Republican states. And what the data that we have shows on mortality in the 50 states is that there was no relationship between the imposition of these non-pharmaceutical interventions, the school closures, the masking, the social distancing requirements, stay-at-home orders, and so on. And Oxford has this index of nine of these measures, and they’ve rated governments around the world on the stringency of their interventions, and we have our own data on school closures and so on. No relationship between the stringency or length of these restrictions and Covid mortality. The partisan divergence on mortality begins after vaccines are available. So the evidence shows that the evidence that we have provides evidence for the effectiveness of vaccinations at curbing mortality, the rate of death correcting for age and percentage, uninsured and percentage urban, correcting for a whole bunch of other confounding variables.

(23:46):

The evidence shows that the rate of mortality did go up in Republican states by about a third higher than Democratic states after vaccination, but not before. So we simply have an absence of evidence for the effectiveness of the NPIs on mortality. There is some evidence that they reduce transmission, but not enough or in the right places to affect mortality. We just had a piece published in the Boston Review Forum, and there were four critics there, three of whom focus on this issue, expressing doubt about our findings, but they all emphasized transmission reductions. None of them present any evidence suggesting that there was mortality reduction. And it’s just not clear that these costly measures were worth it if we didn’t reduce mortality and serious illness. Now, there’s another study in Europe, 29 states of Europe by Pizzato et al from the University of Milan, came out in 2024.

(24:43):

It’s excess mortality data across all the states of Europe with a 10 year prior to Covid baseline. So what they did is they looked at the mortality rates across Europe and the 10 years prior to Covid, they adjust for demographic changes over that course of that time and under Covid and look at the excess mortality post-Covid just to see that that’s considered the best measure because when it comes to recording Covid deaths, countries have done it very differently. In Norway, for example, in order to be recorded as a Covid death, it had to be certified by the medical examiner. In Sweden, if you died with Covid, it was counted as a Covid death. So countries had different methodologies for counting their Covid deaths, but if you focus on excess mortality, that’s considered the better study. And what this study by Pizzato et al show, is that Sweden had the best outcomes across the pandemic in the entire 29 states of Europe.

(25:36):

They did have a bit higher earlier on in the first few months. There may have been various reasons for that. They had had a mild flu season the year before, maybe even the two years before as compared with Norway and some other countries which had harder flu seasons. So there were more people alive who were very vulnerable to respiratory infections. But by the spring of 2020, they were doing better than their Nordic neighbors and other European countries. And over the three years of the pandemic, they had the best outcome in Europe according to Pizatto et al. And again, they find no relationship, and they expressed surprise about this and the article, no relationship between the more stringent NPIs and lower mortality across Europe. So the evidence is fairly considerable, and it just means, as my co-author says, and in the language of social science, we cannot reject the null hypothesis, which is we just can’t reject the proposition. The evidence does not allow us to reject the proposition that these non-pharmaceutical interventions, costly as they were not just economically, but in terms of our lives, socially, family relations and so on, social relations. We just can’t show that they had any significant effect. So that’s what the data shows.

G. Patrick Lynch (26:49):

Steve, where did discussions about trade-offs go exactly? Because you guys have a great citation about a survey of economists who were asked whether or not they supported the lockdowns despite all the costs. And something like, I believe the site was something like 80 percent of them said, no, the lockdowns are worth it. And these are economists who were supposed to be talking about trade-offs. And y’all point out throughout the book that there was no consideration or at least very little consideration, except for some dissenting voices to the notion that the costs here were significant, there were things that had to be included in the policy discussion. What happened to alternative voices? What happened to these kinds of discussions? And can you talk a little bit about some of the suppression stories that you tell in this book about the government and certainly leaders in public health and leaders in social media and their inability to maintain the kind of liberal values that you think are very important?

Stephen Macedo (27:40):

Yes. Well, I think the discussion of cost was simply in a way bypassed. There was a lot of rhetoric about, oh, the kids will recover. The kids are fine, the kids will be resilient. We do think there was a class bias issue here. The policies were being made by, and of course, the educated elites who staff elite journalism and universities and science, our members, in effect of what we could call the laptop class. We were able to work at home on our computers, being better off. Our kids were relatively well-positioned to be able to study. I mean, it was hard on them, of course. And I don’t think enough attention was paid to the fact that one third of American workers had to keep working right through the pandemic to keep our electricity on and the internet running and the lights on and the fire department and the police department and food service, food preparation and so on and so forth.

(28:34):

So a third of workers had to keep going to work, their kids had to be taken care of, somehow had to do online schooling, and so on, under much more adverse conditions. So there was definitely a class component to this, I think. So that was part of it for sure. Somehow, the cost issue got bypassed. Fear gripped people, the fear of death, dying a suffocating death from Covid. And it was a bad pandemic. We shouldn’t discount that. It was the worst pandemic in a century. But we do find that among journalists and public officials who–take Andrew Cuomo for example, we quote him in the book, he had those news conferences every day, and he won a special Emmy Award for his news conferences. He was seen as the “Un-Trump” during 2020 under Covid. And he constantly said, “I’ll do everything we can to reduce the spread of the virus, and if everything we do saves just one life, it will be worth it” without giving any attention to the other side of the ledger.

(29:36):

So it was like doing cost-benefit analysis with no attention to the costs at all. And there’s actually have a quote from him in the book saying something like having to stay home and keeping your kids out of school very bad, but not death, domestic violence on the increase, very bad, not death. And he goes through this whole series of things. The only thing that they focused on was reducing deaths from this disease. Francis Collins has said subsequently in a really quite amazing online discussion he had in July, 2023, that the way he put it there was that the public health mindset is to focus only on reducing deaths from disease and not to focus on anything else, including keeping kids out of school for so long that there’ll be lifelong detriments that they never will recover from. And of course, bad health outcomes associated with postponing hospital visits, doctor visits, bankruptcies can have very bad psychological and health impacts for those involved owning their own businesses and so on.

(30:40):

So there were going to be deaths on the other side, but no attention was paid to them. And the news media also played a role. They constantly asked why more wasn’t being done. We have quotations from journalists questioning governors and so on saying, and the President, “Is any attention being given to a national lockdown such as being imposed in the state of New York?” and so on. So there was an attention to this. I would recommend one other book by the way, which came out a bit after ours called An Abundance of Caution by David Zweig, which focuses on school issues. And it has many parallels to our book. It’s a terrific book. We think very highly of it. And Frances and I, and it’s well researched, and he really also shows how biased the media was that the percentage of negative coverage of news concerning Covid was overwhelming in the United States as compared with Europe.

(31:32):

So, for instance, he talks about a specific CDC report that came out in April, I think it was April 8, 2020, a month and a half into the pandemic. And it contained various pieces of information, including that children were at very low risk from Covid, but that African Americans and men were at greater risk than women and non-African Americans. The media reported widely on the negative information about men and African Americans being at greater risk, but they didn’t report the positive information about kids being at very low risk, the bad news predominated. And there was a narrative that took hold. It was a partisan narrative. It had to do with partisanship in part, and people weren’t willing to question the narrative. And we moralized the disagreement, questioning what was considered to be the science, not “following the science” was considered morally reprehensible. Masks, of course, became a very visible symbol of this.

(32:34):

The evidence around masking was extremely weak, and people shifted their positions this promiscuously, as did Dr. Fauci. I mean, he was asked in 2019, a few months before the pandemic with no sign of the Covid on the horizon by an interview, what should I do in the event of another pandemic? Should I wear a mask? Dr. Fauci immediately interrupts the interviewer and says, “No, no, no, avoid the paranoid stuff. Just keep yourself healthy, get a good night’s sleep, don’t drink too much, get some exercise, and so on.” And a few weeks later, he’s for not recommending masks, then recommending masks, and so on. And he still says now that they work, but now he says that it had to be an N95, which was not, of course, what was required at the time. And then there were warring op-eds in The New York Times by my colleague, Zeynep Tufekci,

(33:19):

“The science is clear that masks work.” And Bret Stephens, “No, the science is not clear. Well, I think Bret Stephens was closer to the truth there, and the evidence is still lacking for the effectiveness of masks against aerosolized viruses, such as this was. And I think we knew that quite early on. So yeah, the narrative took hold and it still exists, I think, around some of these measures. We’re having some more open discussion, the school closures, the cost of the school closures for kids, I think that’s just too dramatic to ignore. But the origins of the virus issue remains kind of a mystery. Nature magazine, the public-facing magazine of Nature, the science journal, a very prestigious journal, published an article in February 2025 saying, “There’s more and more evidence to support the natural origins theory of Covid in a Pangolin or a raccoon dog from the market.”

(34:15):

I just don’t think that’s the case. There is, it remains debated among scientists, but there’s not growing evidence for that. Only a month later, the French Academy of Science, or maybe it’s the French Academy of Medicine, voted 97 percent to 3 percent in favor of the proposition that the virus likely emerged from the lab. And there is quite a lot of evidence. I think it’s more likely than not that it emerged from the lab, but we’re not having a serious discussion of that. And it’s not just a matter of historical reckoning. Did the worst virus in a century, was it manipulated through research funded in part, funded adjacently, at least by the US government in a lab that involved collaboration between American scientists and Chinese scientists? I mean, my God, we’re not investigating that. But the most important part of it perhaps, is that the research still goes on, that we’re still doing this gain of function of research on coronaviruses and other viruses, and it remains dangerous.

(35:14):

So that I just find shocking as well that we’ve not had more public engagement on that issue. Where’s 60 Minutes when you need them looking into these matters? So there is a question, what mistakes did we make? What should we have done? We don’t really try to answer that question. We’re not epidemiologists. But what was the discussion like as you asked? Did science function the way it should function? Did research function the way it should function? Did journalism function the way it should function? Were skeptical questions asked to authorities? And unfortunately, we find that these institutions did not function as well as they should have. And the skepticism that is normal on the part of these institutions towards public institutions, public measures, public policies, where social scientists routinely question whether any policy actually works. That was sorely lacking around this one.

(36:16):

And we still are surprised. So you asked about restrictions on speech and so on. It did become clear. The evidence presented in the Missouri v. Biden case which became Murthy v. Missouri on appeal, that the Biden administration was suppressing social media posts against US policy during Covid, ample evidence of that, threatening the social media companies with the loss of Section 230 protections against liability, which would’ve bankrupt the companies and put them out of business. And intense pressure was brought to bear because we have the emails now, it was subpoenaed through the records. And this was all being done in secret, suppressing arguments and evidence against government policy and boosting government messaging. And we don’t know actually of a single law school conference on those issues. I don’t think the ACLU filed a brief in that case. So it’s kind of amazing that these matters are not being adequately looked into even now.

(37:18):

And there is concern about misinformation and disinformation on the internet for sure. We’ve always had misinformation and disinformation. Maybe it’s worse now than it used to be, legitimate reason for discussion. But I don’t find myself feeling highly confident about trusting the government to become the censor here. So that record as well is quite important and quite impressive. We talked to a scholar who also edits an education journal, and he wrote a piece in March or April 2020, pointing out the cost of school closures, drawing out evidence from previous teacher strikes and blizzards where schools were closed even for just a couple of weeks or a few weeks, and pointing out based on that evidence, how much learning loss would take place and so on. And he was saying to us that as far as he could know, that that was immediately suppressed. And his journal more or less disappeared from the internet once he published that article. So that’s anecdotal, but we have ample evidence that that sort of thing was happening partly on the initiative of the social media companies themselves, but then certainly with administration involvement under President Biden, which they renounced it. And so when it got to the Supreme Court, the Supreme Court didn’t consider merits because the policy had been revoked, but it certainly is a matter of concern. Free speech was one of the casualties of Covid it seems, or at least unbiased representation of different points of view on the internet.

G. Patrick Lynch (38:52):

So two quick questions to finish up. Number one, you talked about the chapter in which you all summarized the cost. Can you briefly walk our listeners through some of the costs of the pandemic as you all measure it?

Stephen Macedo (39:02):

Yeah, this will be brief. We have a whole chapter on that. And again, my colleague took the lead on that and did a wonderful job. Well, there are the fiscal costs for one thing, the 2020 Covid relief effort was as much as a percentage of GDP corrected historically as the entire New Deal and the 2009 financial rescue package put together. So 2020 was a huge fiscal cost. We have graphs there showing that. And then in 2021, we did essentially the whole New Deal over again as a percentage of GDP, as the equivalent of percentage of GDP. So the fiscal cost and the debt burden that we passed on to future generations is itself quite significant. And it also means that the country is in a weaker position when it comes to trying to respond in a fiscal way to a future recession.

(39:54):

Learning losses have been profound. I believe it’s the case that chronic absenteeism is up one-third from before the pandemic. Losses of learning test scores and so on have been very considerable and have been especially bad among poorer kids, low-income kids, and minority kids, just as predicted. So the learning losses and the lifelong detriments to education are profound. Associated with the loss of jobs and schooling, the crime rate went up in many cities, the biggest year-on-year increase in crime in recorded history, I believe. At first, that was associated with the George Floyd protests. But recent research now shows that they pre-date that the crime surge is associated with the Covid lockdown measures and business closures, not the George Floyd protest. They may have contributed a bit later on. Again, business losses and healthcare losses in terms of postponed doctor’s visits, medical interventions, cancer screenings, and so on, depression, higher rates of depression, drug abuse, and so on, including the populations, not themselves significantly affected by Covid. And greater isolation. Church attendance has, I believe, never returned to pre-Covid levels, business closures in many cities.

(41:20):

If you go to Washington, DC, the city is still never fully recovered from Covid, nor is San Francisco. So there have been many losses of businesses in inner city areas that have permanently, or at least over the long term, reshaped many cities, and the feelings of depression and isolation and loss of social connection, and so on. So the cost themselves have been quite considerable, and we’re still trying to figure them out. I think our chapter is a kind of first take survey on that, but there’s no question that the costs are very considerable, and for many people will be lifelong. And just as the pre-Covid pandemic plan said, they seem to have hit poor and minority families and children, and people more severely than the better off.

G. Patrick Lynch (42:10):

I want to finish with one final question. One of the big takeaways for me of this book was that humility is something that we could use a lot more of, certainly in public life, but also in politics. Because I was stunned at how policymakers and politicians were either afraid to say or didn’t feel comfortable saying, We don’t know. We don’t know exactly what the trade-offs are. We don’t know exactly what works and what doesn’t work. We’re going to try things. We’re going to try to move forward with them. And I guess I wonder a little bit, a big part of the project that you all are pursuing is this focus on democratic institutions and elites and other policymakers and folks in academia and media, their inability to accept humility. Is an ability to accept humility one of the goals of this book? Is it something you guys thought about and talked about as you were composing it? Because it seems to me my big takeaway is we need to be a lot more humble the next time we face something like this to understand what we don’t know before we start acting on the things that we think we know.

Stephen Macedo (43:13):

I think that’s exactly right. I think you’ve captured it exactly. There’s no question that those pre-Covid pandemic plans that I mentioned, which are quite remarkable to go back and read, and we survey them in our chapter…

G. Patrick Lynch (43:24):

That was an eye-opening way to start the book.

Stephen Macedo (43:26):

It’s just astonishing. I was sort of amazed when I came across them and even this Institute of Medicine letter from 2005 warning that public officials will be apt to exaggerate the certainty of these measures working and to implement them to show that they were in charge to show that they had things under control for political reasons, in other words, not because of the sound science behind them. So I think you’re exactly right. And I think part of this is a public health thing that the messaging from public health officials and public officials associated with pandemic planning probably had to do with behavioral change, trying to get people to change their behavior. Francis Collins says this, we quote this in the book that we were trying to get people to change their behavior, in case what we were recommending was right, but they weren’t sure it was right.

(44:16):

And he admits again in the July 2023 message he gave, that we should have been more frank about that. And we lost a lot of trust because we were not frank, that we weren’t sure about the things that we were recommending. So I think that’s a big part of it, is that public health officials need to realize that they are responsible for telling the public the truth. They have not been authorized to not share the truth with us. And the way that Paul Offit, who’s a doctor at the Children’s Hospital of Pennsylvania, puts it, is they need to commit themselves to truth-telling with nuance. If there’s uncertainty communicated, if there is some evidence of adverse incidents associated with a vaccine, even if they’re quite minor, don’t cover it up, allow it, and recognize the limits of the evidence. And that’s going to be the only way to restore trust is to be frank with the public, because the public has access to many sources of information and many dissenting voices.

(45:08):

And I think honesty and humility are two virtues that need to be rediscovered in the wake of Covid. We just need to be honest about the limits of the evidence. People figure these things out. They were told about the vaccination. So if you get vaccinated, you’ll be a dead end to the virus. You will not transmit the virus to others was what was being suggested. We did not have evidence of that. Transmissibility was not an endpoint in the vaccine trials, so that should not have been claimed. And once people found that, well, even if they got vaccinated, they could still get Covid, get milder, somewhat severe disease, but not life-threatening disease nearly at the same rates. Nevertheless, they felt they had been misled. So I think you’re exactly right. We need to be much clearer about the limits of our knowledge. It’s not a comfortable thing to hear in a pandemic that we don’t know exactly what to do.

(45:58):

We’re not sure, or maybe this is worth trying even though it’s going to be costly and there’s some evidence for it. But I think that that’s absolutely necessary: frankness and truth-telling. And those are supposed to be, again, the fundamental virtues of science and universities, university researchers, and journalism. So I agree. I think that that’s exactly right. And that’s something we found throughout, that there was an inadequate commitment to frankness, humility, and also being willing to say things that might seem to be critical of your own side in a partisan way, things that might be at odds with the narrative that’s favored by your side and the partisan struggle. I think people need to rise above. Scientists, journalists, academics need to do more to realize the importance of rising above partisanship.

G. Patrick Lynch (46:55):

And on that hopefully positive note, we will conclude. Steve, I’d like to thank you very much for being on the Law & Liberty Podcast.

Stephen Macedo (47:01):

Today. Thank you very much. I enjoyed the conversation.

James Patterson (47:05):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

Related Links

Law & Liberty’s Coverage of the important cases of the recent term:
John O. McGinnis, Logic Without History
Chad Squitieri, Nondelegation Doctrine in Limbo
Joseph Griffith, A Victory for Religious Liberty
James Rogers, Skrmetti‘s Win for Self-Government
Adam J. McLeod, A Charity Case
Richard W. Garnett, Education Pluralism Delayed

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. I’m your host, James Patterson and contributing editor to Law & Liberty. And our guest today is Professor John O. McGinnis, the George C. Dicks Professor in Constitutional Law at the Pritzker School of Law at Northwestern University. He is a graduate of Harvard Law School and has areas of expertise in constitutional law, international law, and antitrust law. Today he is going to be giving us our Supreme Court rundown, which we do annually. And so we are going to start with just a general discussion of the session and then go through some of the more important cases and maybe touch on some interpretive questions at the end. Professor McGinnis, welcome to the Law & Liberty Podcast.

John McGinnis (01:32):

Delighted to be here.

James Patterson (01:34):

Alright, let’s get into a general question is: how would you describe the docket for the past year? Was it a victory for conservatives, a retrenchment of the progressives? What is the general thrust of all the cases combined?

John McGinnis (01:51):

I think overall this was another very good term for, if we want to use the term conservative versus liberal, which doesn’t completely describe the court because there is an interpretive axis as well. There’s also an overlap between what conservatives and liberals think about interpretation. So I think that it’s fair to say this was a strong term for conservatives, although I would note that what I think is the most distinctive about the Roberts Court, what I think it will be most remembered for in 50 years is an administrative law revolution. In other words, trying to put back the administrative state within the bounds of separation of powers, forcing the court to say what the law is and the legislature to legislate rather than have the executive branch create broad rules under discretion. I think that may be petering out a bit because there were at least two cases where the court could have taken the further and declined to do so. So I think we see that this is one way I would describe it as a mature conservative court in which at least in the administrative law area, the clear objectives may actually have been largely realized. On the other hand, there are still very important decisions that I think conservatives welcome particularly, the curbing of universal injunctions–which goes to the nature of the judicial power–and I think a very important religious liberties case in Mahmoud v. Taylor, which is very important both doctrinally and sociologically. And maybe I think the most important case of the term.

James Patterson (03:47):

You really stressed before we got started, how overlooked the administrative law cases were. So why don’t you tell us about the case that you think has been most overlooked and what makes it so significant?

John McGinnis (03:58):

So one very important case is FCC v. Consumers’ Research because there the petitioners tried to make a full-blown nondelegation argument and the court rejected it despite indications before that the court was interested in perhaps revisiting the nondelegation doctrine. This may suggest that we are coming to the end of the revolutionary period of the Roberts Court on administrative law because first of all, there is a strong dissent by Gorsuch speaking for himself and Justices Alito and Thomas arguing that this again was a very broad delegation and while it may have met the old standard of “intelligible principle,” it still allowed the executive branch large policy discretion of the kind that critics of the administrative state have suggested only Congress should exercise. And actually, of course, the Gorsuch, including in a dissent that was joined by Roberts, had raised questions about the intelligible principle doctrine.

(05:14):

And Justice Kavanaugh, who’s in the majority in this case also had raised questions about it. So there seemed to be perhaps a majority for really changing the nondelegation doctrine and requiring Congress to make the major policy decisions in legislation. And that would’ve had huge implications for the administrative state because right across the policy space Congress has, at least critics would say, abdicated its policy authority and given that over to the executive branch, allowing the executive branch to make really legislative decisions. Nevertheless, Kagan–an opinion by Justice Kagan–really brushes that aside. And that suggests, I think, that we’re not going to see a major change in the nondelegation doctrine. And indeed Justice Kavanaugh, in a concurring opinion, suggests well that’s no longer necessary because the court has already done work to confine the administrative agencies. And two things in specific, he discusses, one, the Loper Bright decision that takes away interpretive discretion from the administrative agencies and places it in the court.

(06:30):

And two, the major questions doctrine that suggests that at least in new kinds of actions by the administrative agency, ones that aren’t traditional, and if they are major and go beyond filling in the details in a new way, well then Congress has to come back and authorize it. But that’s not a constitutional rule, it’s a rule of statutory construction you might think of as a poor man’s nondelegation doctrine. So I think that case is really very important. But the nondelegation doctrine has been a target for conservatives for as long as I’ve been a law professor, and it really suggests that the nondelegation doctrine isn’t going to change much. And it suggests that it won’t change much because the court has already a structured doctrine in a way that it thinks sufficiently confines administrative agency. So I think that’s a very important case.

James Patterson (07:27):

Right. This is actually the first I’ve heard someone talk about it to that degree. Do you think maybe it’s because there’s a bias for big changes and in this case this isn’t really a big change?

John McGinnis (07:40):

I think that’s right. I think that’s right. So it’s a case of course that liberals are quite happy with and conservatives hardly want to trumpet. And maybe also there’s truth to Kavanaugh’s concurring opinion that the nondelegation doctrine has become less important as a target after Chevron was overruled. And we have the rise of the major questions doctrine, which now, and as Kavanaugh’s concurrent suggests, is part of the warp and woof of administrative law.

James Patterson (08:12):

Well, I guess congress has had its bacon saved now they don’t have to go into session all the time.

John McGinnis (08:18):

That’s right. Well, still with the major questions doctrine, they may force Congress to come back and legislate. And so I think that’s the argument and note that what it allows the court to do is save old large delegations. And of course if it struck those down, you might think that would rather be chaotic, or at least if it struck them down retrospectively, because there’ll be all sorts of regulations that will be called into question. And yet the major questions doctrine allows it to say, well, you can’t go further if it’s not a traditional way you’ve exercised authority under broad delegations, we’re not going to let you go further. And that creates less disruption. And so it’s a very carefully scalpelled doctrine to prevent disruption and protect reliance interests without allowing the administrative state to go on in the way it did before.

James Patterson (09:20):

So moving on to a case that’s close to my heart. We have the Mahmoud v. Taylor case. What is this case about and what made it such a significant event and religious liberty?

John McGinnis (09:32):

Well, the case is a case that comes out of Montgomery County. Montgomery County in its English language curriculum introduced a variety of “inclusive books” that at least I think it’s fair to say, celebrate at both same sex marriage and gender transitions. And of course, that’s at a fault line in our society, both about traditional religions–notice that the lead plaintiff in this case was a Muslim–all the Abrahamic religions, at least traditionally, I have affirmed opposite sex marriage and certainly a binary view of the sexes and an immutable view. And so this is in some sense a substantial challenge to that. And the Montgomery County had permitted previously religious parents to opt out of the curriculum but then decided that was too disruptive and prevented its objectives and said, well, your children have to attend this curriculum. We won’t give you notice of when these books are going to be read and they have to attend in any event.

(10:49):

And a group of a coalition of actually parents who are Christian, Jewish, and Muslim challenged this and said that this is a burden on our religious liberty and we should be able to opt our children out of this public school curriculum. And this was, I think, the major religion case of the term and it I think changed or at least may suggest even further changes in the doctrine of religious liberty and also I think is an important case sociologically and politically for reasons I’ll discuss. So let’s begin with it doctrinally. So doctrinally, what was important about the case was the idea that these celebrations could be a burden on religious liberty. And the argument here is really very similar oddly enough to cases in the establishment area in which, for instance, the court has said that school prayer, even at graduation can be a burden, can harm, can create an establishment of religion because there’s some coercion involved, there’s a captive audience.

(12:05):

And in this case, of course, it’s a very young captive audience that’s going to have trouble making its own decisions about whether or not the teacher is right, about whether the teacher and the curriculum is right about celebrating these matters. And the court also points out quite correctly that the instructional materials for the teachers really told them to shut down, effectively shut down discussion if someone said, “well, how can someone transition? This is a boy, a boy  is a boy, a girl is a boy.” They were to say, “well, that’s a hurtful comment.” And that’s obviously a way of, in some sense a condemning a kind of religious perspective. And so that’s significant in itself. It suggests that, at least for children of tender age, the actual speech of the government can be a burden on religion. So that’s, I think, new and important. Secondly, doctrinally, the court relied on a case called Yoder.

(13:08):

You may remember this case. It’s a case in which the Amish challenged the obligation to send their children to high school as a burden on their religion because it would integrate their children into a modern way of life and pull them away from their religion. And that case is a famous case. The court upheld the right of th Amish to pull their children out of public school. And it did so despite the fact that that law was neutral in its application. It applied to all religions, people who are not religious, the high requirement to go to high school. And that might seem to be blessed by a case called Employment Division v. Smith, which allows neutral rules even if they do burden religion. And in this case, Justice Alito in his majority opinion said, well, of course they didn’t apply Smith in Yoder and we’re not going to apply it in burdens that look like Yoder.

(14:12):

He didn’t quite say what those burdens were. I guess one could say maybe burdens on children are those kinds of burdens. So that’s significant. I think it’s also maybe significant, as you may remember, that Justice Alito is no fan of Smith. He dissents, or he concurs in an opinion, and says that Smith should be overruled previously. And you might say, well, by making another exception to Smith, at least Justice Alito may be hoping to set it up for overruling because in stare decisis analysis, one way the court often overrules cases is this just, well, there’s been a lot of exceptions to this. It makes it hard to apply and therefore that’s another reason for thinking that the doctrine is wrong, that we can overrule it. So I think it’s very significant doctrinally. Of course, sociologically this case is enormously significant because this is a case about public schools and the curriculum of public schools.

(15:16):

And that is in some sense the fault line between this traditional, religious view of morality and a new morality that I think has come up. And the question is how far and this meme in the dissent, how far democracy demands that we allow, encourage new norms that are compatible with the way we think our democratic polity should live. And that is the big fault line here, and I don’t think it’s going away. And so that’s why it’s significant. One point I would make though is you might say that in one sense the liberals should be happy they lost this case because one of the pressures for school choice and homeschooling is precisely that religious people feel alienated from the public schools. And so if they feel more alienated, that’s going to make a greater pressure for homeschooling, which may well have to be constitutionally permitted. And school choice, which the court in a variety of decisions has said is all right. And you actually can have vouchers for religious schools. So in that sense, by making public schools more friendly to people of traditional religious views, it may take some of the steam out of the move to demand alternative schools or alternative structures for education. And that may actually be a democratic reinforcing aspect of this decision, which I don’t think is widely understood.

James Patterson (16:59):

Yeah, I wanted to get at this issue about the schools. What is it that the court really is always dealing with? Is it the court itself? Is it the laws where so much of the religious liberty case law has to do with schools like from Lemon v. Kurtzman to this one, you see it all based around school funding or the curriculum content. Why is it that religious liberty is so based around education minors?

John McGinnis (17:29):

I think it goes away. It’s really a political theory issue, I think ultimately, and two ideas of the enlightenment, I would go back far as to say that. So one idea of the enlightenment is very much liberal, decentralized ideas. So you might want to really encourage different sets of beliefs and so be protective of people’s right to opt out and to protect those beliefs to actually going back to other school decisions to give money in some sense to religious schools so long as you give it to all private schools. That’s one vision. But then there’s another enlightenment vision that goes back to Rousseau that really worries about education, actually says that education says that what we really have to do is prevent education in a democracy from having quote as he puts it, “the prejudices of the fathers be reflected in education and prejudices of the families.” And the reason is that makes it harder to form the general will of democracy. And of course it does. It creates a much more pluralistic, much messier world if the next generation comes up with a whole variety of views. And so I think that’s the reason it’s really a fault line between two different views of the enlightenment, two different views of democracy, one that celebrates real pluralism, a real pluralism in different perspectives, and another that’s much more worried about the coherence and the unity that democracy needs.

James Patterson (19:14):

That’s great. Alright, so another case that got a lot of attention was the US v. Skrmetti case. It’s not something I think people would’ve expected to see at the court even like 10 years ago, but this concerns transition care for young kids here referring to transition from one gender to another. This was a Tennessee law that prohibited them. So what did the court rule and what do you make of the decision?

John McGinnis (19:46):

Well, the court upheld this ban. So the ban to be clear, was a ban on gender affirming medical treatment for minors. And so we’ve seen this across the country. This case came out of Tennessee and the argument for it is minors can’t make these irreversible decisions and we’re going to uphold them. So one way of understanding this case, and I think this is the way the court, the majority opinion and we’ll talk that there important concurring opinions here as well. Majority opinion, I think really tried to understand this is a case about minors, about young people and really therefore it wasn’t really a case about discriminating against transgenderism at all. It was just about minors. And of course then it just gets rational basis review and maybe even particularly lenient rational basis review because even in other cases, even cases like the First Amendment when young children are involved, we don’t actually have the kind of stringent scrutiny that we would have even for well-established rights like the First Amendment.

(21:01):

So I think that’s the way the majority puts it. Both the dissent and I think an important concurring opinion by Justice Alito say, well, is this really fair way of understanding this? I mean it seems that this is sort of aimed at transgenderism. This can’t be seen to be neutral in any way. It’s only aimed at the use of these drugs for transgenderism for other reasons you can use it. So it isn’t really easily understood as just a medical intervention. And so he thinks you have to deal with the question of whether transgender people are a quote “discreet and insular minority.” And he writes that, well, they really aren’t according to the traditional standards because they don’t look like people who have been discriminated against in the way that African-Americans were, not certainly by laws, and that there’s nothing on the order of the visibility.

(22:03):

In other words, you can’t actually see whether people are transgender very readily. And so some of the traditional tests, we shouldn’t include them as a discreet insular minority. And so that’s a very different perspective and I think is going to be important going forward because the court has accepted cases that seem clearly about deciding that transgender people can’t participate in sports for instance, or at least in a sport of their choice of the gender of their choice. And that, I think, is going to raise much more directly these questions of whether transgender people are a discreet and insular minority. And so I think we’ll hear a debate about that next term.

James Patterson (22:54):

And transgenderism as a social phenomenon does have its own peculiarities that make it difficult to make perfect analogies either from issues concerning black civil rights or LGBT or LGB rights. I guess because of this, the transition itself requires surgical or pharmaceutical interventions in this case specifically for young people because of the nature of puberty and the changes that come with the bodies. Do these kinds of differences potentially affect the decisions that judges will be making?

John McGinnis (23:30):

I think so. I mean, one, again, socially one might say that the difference is someone who looks at the case, the Supreme Court more as an institution that reflects deep social trends in society. There’s just no doubt that rights to homosexual conduct have been much more widely accepted than transgenderism. And I think that’s going to have an effect on how the court is likely to deal with these cases. And I think also the sense that men and women are different and, therefore, not interchangeable in sports even whatever interventions have been made is very deep rooted in society. And so I think it’s likely to have a substantial effect on the way the court deals with these changes. There have been some interesting articles that have been, even by liberals, who’ve been very critical of the way these cases have been litigated, suggesting that the cases have gone too far and too fast and are just very unlikely to succeed in the objectives of the transgender movement. And I think that’s right. It’s seems to me very different from the cases of the same sex marriage litigation which unfolded under a longer period and I think was much more carefully targeted to move more incrementally to the objectives of that movement

James Patterson (25:23):

For some people. We’ve a bit buried the lead here because we’re only now going to talk about Trump’s executive order on pausing birthright citizenship. The court ruled on this and what was the ruling?

John McGinnis (25:38):

Well, so first of all, it’s important to note that it didn’t rule at all on birthright citizenship. All that was thought to be the rule and it was never likely that was going to happen because it didn’t take that case for this issue. It actually took the case for something that it goes way transcends in some sense, birthright citizenship because it’s now a phenomenon in every administration. And the phenomenon I’ll describe as this is there’s the administration, Democratic or Republican, takes some legally controversial step. The Biden administration, for instance, it was a payment of school loans, forgiveness of that, forgiveness of school loans. A good example is of course, birthright citizenship and the Trump administration. And then what happens is groups that are opposed to that find a district with a set of very favorable judges to their perspective. And that’s easy to do actually in the US was there are a lot of districts, and we still have a blue slip phenomenon in the Senate that allows home state senators veto power over district court judges.

(26:55):

And so actually even under Republican administrations, the justices who are appointed in California, our district court judges are somewhat liberal. And conversely, even under Democratic administrations, the district court judges in Texas are somewhat conservative and you can find the best district and get a result that’s likely favorable. And then this single district judge does a nationwide injunction and stops the administration’s program in its tracks. So that’s the political, social issue that’s raised by this. And so the court’s decision to eliminate, and I’ll say it’s maybe a little too strong to say that, to say that as a matter of course, at least, the district courts can’t enter such injunctions, will help both administrate, both Republican and Democratic administrations. And their theory of why this is the case is really a statutory theory about what equity meant in a statute that was passed very close in the beginning of the republic.

(28:10):

And the argument was that it doesn’t include the power to have these nationwide injunctions because equity only gives the power to give “complete relief to the plaintiffs in a case.” And if you sue, just as an individual in a court, for instance, in San Francisco, about one matter or the other, it’s not obvious to give complete relief, you have to have a nationwide injunction. You can say, well, the government, you can’t do this to this particular person that gives them “complete relief.” So that’s the holding of the case and the reasoning of the case is that’s all that equity required as equity was understood around the time of the early republic. Well, I think you, and I’m not unhappy to not begin with this case. Well, it’s a very important case. I think the case and the dissent in the case and the criticisms and the worries are a little overwrought in the sense that there are other ways to get fuller injunctions than just to an individual party.

(29:22):

You can bring, for instance, a class action and that can protect everyone similarly situated. And so that, while it isn’t a universal injunction, it can give complete relief to people who are maybe threatened by this order, at least if they meet the standards of class actions, which will I’m sure turn out to be another debate. Moreover, in some cases you might say to give complete relief, you might have to move to a more, something that looks more like a nationwide injunction, and that may be an example in the birthright citizenship case. Many of the plaintiffs in these cases are states and states say, well, we want to treat, we think that everyone in our state who was born, who’s here and was born in the United States is a citizen. And well, that can apply only to people in their state because of course some people in their state may have been born in other states. And so how are you going to give effective, complete relief may actually turn out to be quite a broad injunction. So while this is an important ruling, its actual effects on the ground, I think, remain to be seen to see how much of a substitute class actions are and how much it will be necessary in particular cases to have broader injunctions to give the kind of complete relief that the majority in the court admits that equity contemplates.

James Patterson (31:05):

So no reading on the actual Fourteenth amendment, we don’t get comprehensive statement about religious liberty and Mahmoud v. Taylor. We get a kind of punt or dodge in the administrative law case, it feels like everyone kind of got a piece of what they wanted but maybe didn’t quite get the home run in any individual case they were hoping for.

John McGinnis (31:32):

That may be fair. I tend to think that Mahmoud v. Taylor was a pretty comprehensive victory for religious liberty. And, as I say, maybe sociologically, it helps the public schools and in that sense takes some of the steam out of a movement. So that might be the silver lining for liberals, but in both doctrinally and in its strong support for parental liberties to raise their children in their religion even as against what happens in the public school, I see as a pretty dramatic win for religious liberty and continues a stream of wins in the court. I would say that for the Roberts Court, religious liberty has been second only to the administrative state so far in its importance. And, as I’ve suggested, maybe the administrative state changes in the law of the administrative state are, may now be tempering, or maybe running out, or slowing down.

(32:48):

And that Mahmoud v. Taylor gives no sense that that’s true in the context of religious liberty. So I would put that caveat on your description. I think religious liberty still seems to be a strong engine of constitutional change. I think of constitutional change. Of course, defenders would say going back more towards the original meaning of the constitution, but I think we see that as a long way to play out. And indeed there was one case we haven’t talked about, of course, because it didn’t have any result, which was a case coming out of Oklahoma in which the court didn’t decide the case because the justices were divided four to four with Justice Barrett recusing. And that case was whether a holy religious school could be a charter school. And it was a Catholic school. And that remains an important issue. And so that case is going to come back in one form or another with a different school to the Supreme Court and Justice Barrett will be the decider. And you might think the chances for those who want to expand religious liberty to include the ability to participate in any charter school program, I would rate their chances as pretty good. So I think we’ve got a ways to go in looking at where religious liberties will go in the Roberts Court.

James Patterson (34:20):

Well, I will 100% accept the correction because it’s in a direction that makes me feel much better about that area of case law that is religious liberty. Two final questions. One is were there any examples of the development of originalism or any kind of interpretive methodology that stood out in this? Or did we just have a sort of normal sort of year in which the court’s making normal decisions?

John McGinnis (34:50):

So going back to the administrative law cases, I think we see a kind of pragmatic endpoint or stopping point even to originalist revolutions. So the revolution is to try to put the administrative state back into the separation of powers, but the question is how can you do that without disrupting the administrative state? And the court, I think, feels that it’s done so with the major questions doctrine and overruling Chevron without bringing out the heavy artillery. And so, for pure originalists, that doesn’t make any difference or much difference. And yet we see the court, I think, exercising a sort of pragmatic stopping point. And so that’s I think the most important aspect because otherwise I don’t think there were that many full-throated new and novel originalist discussions in constitutional law. Although I would say that in statutory interpretation you might say that the Trump v. CASA case, the case about universal injunctions that focused on the meaning of equity close to the early republic had a statutory interpretation.

(36:14):

It was very similar to constitutional interpretation. It sort of took a text and tradition approach that looked not that dissimilar from what the court has been doing in the Second Amendment. So it looked at the text, what did equity mean? But then it started to look a bit at the traditional forms of equity, even after 1789 and suggested that nothing looked like universal injunctions. So in that sense, we might be seeing, and I think this is a good development, although I will bracket exactly how it should be done, we should understand statutory interpretation as like constitutional interpretation. We shouldn’t say for instance that statutory interpretation is textualism any more than we think of constitutional laws, just quote textualism. It’s statutory originalism, understanding the text of a statute in the context of its time, including the legal interpretive rules of its time. So I think there’s a hint of that in the cases, and I would welcome that methodological development.

James Patterson (37:27):

So final question. I’m sure some people anticipated when we got to the Trump v. CASA case that we would bring up something that I’m now only going to bring up, which is that the court typically tries to keep disagreements or internal politics among the justices in the chamber. They don’t like to reveal it too much, but, in Justice Barrett’s opinion, she made some pretty pointed comments about Justice Ketanji Brown Jackson. Is this supposed to be a very pointed demonstration against her or is this a more typical kind of way of addressing a dissenting justice in a case like this?

John McGinnis (38:10):

Well, certainly there have been often pretty sharp responses, although they’re often in dissent. Justice Scalia, for instance, was famous for his sharp pen. Justice Barrett of course was a former clerk to Justice Scalia. But it is true that Justice Barrett has hardly been known for her sharpness. And of course, I think it’s fair to say Justice Ketanji Brown Jackson’s dissent was extremely sharp saying this was really a threat to the rule of law. And Barrett’s comment as well, judges have to follow the law as well, and we only have constrained power. So I think this is interesting in this sense. I do think that some of the dissents this term, both Justice Jackson’s and in some cases Justice Sotomayor’s were particularly, I think struck the majority at least is particularly shrill. And maybe that’s not surprising in our society that why shouldn’t polarization come to the Supreme Court? But you detect at least on the part of the dissenting justices some real unhappiness and even anger.

(39:26):

And this was a kind of response to say that, well, we are following the law too. Well, at least we’re following our understanding of the law. You can’t say that we’re being lawless. And so that’s the context in which I read it, a really sharp response to the idea of the court that they are countenancing violating the rule of law. No, they’re following their best understanding of the rule of law, and at least the dissenters should give them that, that they’re doing that in good faith. And I think Barrett seems to think that Jackson is really kind of crossing the line here and that’s why she’s responding pretty sharply. I think an interesting question going forward is some division between Justice Kagan on one hand and Justices Sotomayor and Justice Brown Jackson on the other, if you ideologically score the court, Kagan is really sort of midway between what I would call the Roberts, or maybe it’s a little closer to Sotomayor, but midway somewhere.

(40:36):

And so she’s really not with them completely jurisprudentially, and I think she’s going to have a choice about how far she’s going to side with some of these majority dissenting opinions. She did so in the CASA case, which was sort of surprising because at Northwestern University I heard her at law school, she came and really expressed great doubts about universal injunctions, and yet didn’t even write a concurring or a separate dissenting opinion explaining that, but just joined in this very harsh dissenting opinion of Sotomayor.  She didn’t join in Jackson’s. And so I do think that’s an interesting question going forward where Justice Kagan is going to be, because I don’t think she’s entirely with the program. That would be my suspicion of the dissenting justices. And we saw just actually the other day, her part from the dissenting justices in a case which effectively slapped down a lower court judge for not following the Supreme Court. And although she didn’t agree with what the Supreme Court had said in the second decision, she  said, “well, no, the lower court has to follow what the Supreme Court, what we’ve said, even if I were in dissent.” And yet Jackson and Sotomayor were again in dissent. And so I think that’s going to be something interesting to play out.

James Patterson (41:59):

That’s a very good point to end on because I’ve thought about that myself, the internal division of what we would consider the more left of Center Justices. Well, Professor McGinnis, I just want to thank you so much for giving us a very comprehensive discussion here. It’s hard for me sometimes to keep up, and I guess we’ll have to talk, if not sooner, at least next year, when the court will no doubt do its thing.

John McGinnis (42:24):

Well, thank you very much. Very much enjoyed talking to you.

James Patterson (42:28):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

Related Links

We Have Never Been Woke by Musa al-Gharbi
“Questioning the Oppression Olympics,” by Jesse Smith (Review of We Have Never Been Woke)

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund.

Patrick Lynch (00:39):

Welcome to the Law & Liberty Podcast. I’m G. Patrick Lynch, a senior fellow at the Liberty Fund, and a contributing editor at Law & Liberty. And for this episode, I’m filling in for James Patterson. Today we’re joined by Musa al-Gharbi to discuss his critically acclaimed 2024 book, We Have Never Been Woke: The Cultural Contradictions of a New Elite published by Princeton University Press. To give our listeners some sense of the impact of the work, the book was listed by both the Wall Street Journal and Mother Jones of all places in their top books of year. Musa has discussed the book on numerous prominent podcasts and periodicals across the ideological spectrum. Musa is a sociologist in the school of Journalism and Communications at Stony Brook University. Musa, it is so great to have you on the Law & Liberty Podcast. Welcome.

Musa al-Gharbi (01:23):

It’s great to be here. Thank you so much for having me.

Patrick Lynch (01:25):

Thanks for coming. The book has just gotten a ton of a positive attention and I think very deservedly so. It’s well worth a read for our listeners and I strongly encourage you to pick a copy of it. Let’s jump right at the beginning and give the listeners some background. The key claim that you make is that there is a group of people, these woke folks who are very interested in categories, but they themselves are a category, and you use that term “symbolic capitalists” to describe who those folks are. Can you explain a little bit about what symbolic capitalism is, who symbolic capitalists are, and how they differ from other folks in the market system?

Musa al-Gharbi (02:00):

Sure, sure. The “we” in We Have Never Been Woke, is this group of folks that I call symbolic capitalists, as you said. So the term “symbolic capital” is from a Pierre Bourdieu, a different sociologist. And what Bourdieu argued is that symbolic capital were the resources that elites draw on to get other people to do what they want to conform with their preferences, but without stark coercion. So as people like Weber and so on have pointed out from beginning of the field of sociology, almost all social orders do in a deep sense, rely on some kind of consent. It’s actually very difficult to just coerce, to constantly surveil everyone in society, and to constantly be coercing them into doing what you want them to do is basically impossible. The only way that any social order persists is because huge shares of the population comply when they could choose not to.

(02:54):

And so symbolic capital are the resources that people at the upper ends of social distributions often rely on to get other people to do what they want, to follow their will to accord with their preferences. Bourdieu came up with three different forms of symbolic capital. So there’s political capital. That’s when you get people to do what you want based on your position in an organization and based on your reputation for getting things done and so on. So an example of people leveraging political capital would be, you should do this because I’m the manager, I told you to do this and I’m the manager, so you should do it because I’m the manager, right? So the place that you’re occupying in the social order creates this expectation of deference. And the same thing is true of parents talking to children, for instance and so on.

(03:40):

Then there’s cultural capital, which is when people try to do what you want, conform with your preferences because they think you’re cool or interested or sophisticated or cultured or they like you and they want you to like them, they want to ingratiate themselves with you. And then finally, there’s academic capital, which is when you try to get other people to defer to your preferences, to do what you want because you have some kind of knowledge that they don’t have because you’re tied to institutions of knowledge production. So people leverage their academic capital by emphasizing, for instance, that “I have a PhD in sociology,” or “I came from Columbia University,” or “I write for the New York Times.” So these are all examples of people trying to leverage academic capital. And I call these people symbolic capitalists because the main way that we make a living is by cultivating these different forms of symbolic capital and by leveraging that symbolic capital on behalf of ourselves and other people.

(04:40):

So who are symbolic capitalists? Symbolic capitalists are people who primarily make a living based on what they know, who they know, and how they’re known. They’re people who make a living by manipulating symbols and data, ideas and stuff like that, instead of producing physical goods and services to people. So if you think about people who work in fields like journalism, consulting, education, finance, things like this, these are all examples of symbolic capitalists. They’re people who make a living by manipulating symbols and data and ideas and stuff like that, instead of providing physical goods and services to people.

Patrick Lynch (05:13):

Historically, this group, well, first of all you claim this is not the first wave what we call wokeness, or that this group has some aspirations and uses, and tries to leverage its position throughout history, or at least in the last 150 years or a hundred, say 120 years. But historically, it seems like this group has become more homogeneous over the past 20 years, that it’s moved in a particular direction and it’s started to adopt a set of views. Why do you think that it’s moved towards adopting these views? And what do you think are the forces that are moving it towards what we now call “wokeism” in which you identify these sets of cultural expertise and the kind of call to power that gives them this leverage over other people?

Musa al-Gharbi (05:59):

Yeah, I mean, one of the things that’s really interesting about symbolic capitalists as a group is that we have this kind of longstanding relationship between the symbolic professions like law, higher ed journalism and so on, and social justice, narratives about social justice. So from the beginning of a lot of our professions in their recognizably modern form, when they started organizing as professions, if you look at symbolic capitalists today, and through most of our history, we get more pay than most other workers. We have a lot more prestige than most other workers. We have better benefits and working conditions, a lot of autonomy and freedom. As an academic, the freedom I have and how I structure my time and what I work on day to day, it’s truly wild. As someone who’s had normal jobs in the past, it’s truly insane. And from the beginning of our professions, this autonomy, this pay, this prestige, we’ve said, the reason you should give us these things is not for our own sake, but because if you give us these things, it’ll better empower us to help everyone in society, including, and especially the least among us.

(07:06):

A lot of our professions are explicitly defined in terms of altruism and serving the common good. So take my own profession, for instance. Journalists are supposed to speak truth to power and to be a voice for the voiceless. Academics are supposed to follow the truth wherever it leads and to tell the truth without worrying about anyone else’s political interests, their economic interests and so on. And so our professions are defined in terms of altruism and the common good. And when you look at the landscape of public opinion at who in America is most likely to self-identify as anti-racists, as feminists, as allies to L-G-B-T-Q, people as environmentalists and so on, environmental, it’s symbolic capitalists. And as a group, we overwhelmingly self-identify as some kind of left of center, either liberal or progressive or left or socialist, something that says “not right wing,” and politically we’re overwhelmingly and increasingly sorted into the Democratic party.

(08:09):

This wasn’t always the case. This is actually relatively recent, our longstanding cultural liberalism and so on has been a pretty persistent feature of the symbolic professions. But for a while, kind of where we sat on the Democrat-Republican spectrum was actually kind of volatile, but there was this kind of sorting that happened over time. So today within the parties and their ideology, symbolic capitalists are overwhelmingly something like five to one sorted into the Democratic party. And yeah, one of the things that’s interesting is that, as you said in some dimensions, symbolic capitalists have been getting more diverse than we used to be in the past. So, a lot of the professions when they were created, they were created as basically sinecures for white Anglo-Saxon Protestants. People who were not white Anglo-Saxon Protestants were forbidden from joining them. So black people, for instance, couldn’t be lawyers.

(09:09):

The American Bar Association excluded black people from taking part in the American Bar Association. And when black people tried to create their own legal associations because they couldn’t get into the ABA, the ABA worked aggressively to shut those down and so on and so forth. But there were these changes starting in the 1950s and 60s where women became, there was a passage of Title IX, BEOC, policies on sexual harassment and discrimination, things like this, so that a lot of the barriers that were set up to prevent women from joining the professions were eventually taken down. And the same thing is true for non-whites and so on. And so the professions today are more diverse than they were in the past. But critically, even today, these professions and these institutions tend to be significantly less diverse than most other workspaces. They’re actually, compared to most other workspaces, they’re actually much more hierarchical, much more exclusionary, and in many respects have been growing more so. Especially the reliance on degrees and elite degrees is this kind of important sorting mechanism.

Patrick Lynch (10:12):

And I think this is an important point for the listeners. So the way you think about diversity: it is not necessarily the case that it’s based exclusively on things like race and gender. It’s based on economic opportunities and backgrounds to some degree, unless I’m reading the book incorrectly.

Musa al-Gharbi (10:29):

Yeah, absolutely. Well, and they actually intersect in ways that are important and underexplored. For instance, a lot of programs like Affirmative Action were created as basically a kind of soft reparations program for American descendants of slaves. But look at who benefits the most from race targeted affirmative action policies. So, these are programs that were designed to provide social mobility for people who had been historically disadvantaged. They were designed to give a leg up to people who were American descendants of slaves. That’s not the way these policies actually function in practice. The primary beneficiaries of race targeted assistance, affirmative action programs, as I show in the book, tend to be black people who are already relatively affluent, whose parents were also highly educated and successful. So in practice, they primarily serve as ways to help elites who are not white reproduce and enhance their own elite positions. They actually don’t do a lot to help the genuinely disadvantaged.

(11:32):

And even when you look at which black people tend to benefit from these programs, even though they were programs that were created for American descendants of slaves, that’s actually the subset of black people who are least likely to benefit from the programs. And at elite universities and in knowledge economy professions, the people who benefit the most from admissions and hiring preferences for black people, for instance, tend to be Afro-Caribbean and recent African origin people, people who are of recent immigrant background, from the Caribbean, or from Kenya or Nigeria or places like that. So people who are not American descendants of slaves, and the people who are American descendants of slaves who benefit from the programs tend to be half white like myself. And this matters because biracial people have importantly different risk exposures, importantly different vulnerabilities, importantly different social networks and opportunity structures compared to monoracial non-immigrant black people.

(12:30):

And so, in practice, this is what you see with the beneficiaries of a lot of these programs. On its face, it’s already the case that a lot of these professions are actually less diverse than most other workplaces. But even the diversity that’s there is often misleading. So if you look at schools like Harvard, they’ll say, we have X percentage of students who are black. Well, the share of your students that are American descendants of slaves, which is the overwhelming majority of black population, is what most people think of when they hear “We have X number of students who are black.” That is not the population of students that you see at Harvard who are black.

(13:17):

And so these intersect in interesting ways, these kind of class things. The last thing I’ll say on this is that actually, this is one of the cases where in a lot of knowledge economy spaces, a lot of these symbolic economy hubs and institutions, there really are aggressive policies in place that tend to punish people who diverge from the kind of dominant left-aligned viewpoints on cultural issues especially, but even on other issues. Now, one of the things that’s striking about that is that the people who tend to suffer the most from these policies don’t tend to be people who are already privileged and overrepresented in these institutions. The people who belong to the dominant group at these institutions also tend to subscribe to the dominant viewpoint. That’s part of the reason it’s a dominant viewpoint, because it’s the viewpoint of the dominant group.

(14:14):

Again, if you look at the highly educated, relatively affluent urban and suburban white people who dominate a lot of these institutions, they are also the people who are the most likely to subscribe to these left-aligned cultural views. And so if you create an institution that’s hostile towards socially conservative views, towards religious views and so on, the people who tend to suffer the most from that, who are most likely to be punished, excluded, and so on, to face a hostile atmosphere, are people who are already underrepresented. So people who are of immigrant background, people who are of non-traditional academic backgrounds, people who are from lower income backgrounds, people who are ethnic minorities and so on. These tend to be the people who face the most hostile atmosphere. And we can see this when a lot of institutions create policies that are supposed to help that, often in the name of empowering minorities of various kinds. Minorities are often the people who suffer the most.

(15:14):

So for instance, a lot of knowledge economy institutions have created anonymous reporting systems. If someone says something that’s not in accordance with predominant norms of highly educated, relatively affluent to urban and suburban white people, you can report them. The idea behind a lot of these anonymous reporting systems is that people who are from less advantaged backgrounds often don’t know how to work the system as well as more traditional applicants, and they’ll feel less comfortable seeking authorities. This is actually true; there’s a lot of research on this and it’s actually true. But consider how these systems work in practice. So there’s a great study in Harvard Business Review that was published by Frank Dobbin and Alexandra Kalev. They found that when companies institute these anonymous reporting systems, the net effect is that there doesn’t seem to be any kind of negative effect on managers who are white or male.

(16:20):

They are not more likely to get punished, they’re not more likely to get fired and so on. For white female managers, there’s a slight uptick in disciplinary actions that they face. For non-white female managers, there’s an even bigger uptick, and then for non-white male managers it’s huge. They are much more likely to get fired and terminated and so on. This is counterintuitive because what the reporting systems are supposed to do is help punish people who speak out of turn on cultural issues. So the intuition is that people who are minorities and so on would be benefiting the most. The reason they don’t is because the people who are actually most likely to know the right thing to say in different circumstances, who have mastered the cultural scripts of what’s appropriate and not, tend to be people who are from relatively affluent backgrounds, people who are white, people whose parents were highly educated and so on. The people who are actually already underrepresented, they’re the least likely to have mastered these discourses.

(17:18):

They’re likely to say the wrong thing at the wrong time, or to say things in the wrong way. And so when you make it easier to punish people who color out of the lines, again, even if the intent is to help people who are disadvantaged, it often has the opposite effect. And so a lot of these issues are actually deeply intertwined in a way that I think a lot of people don’t appreciate. So a lot of times people focus on things like race and gender and sexuality while ignoring class, or they focus on things like viewpoint diversity while ignoring things like demographic diversity, or they view these as antagonistic pursuits so that the people who support viewpoint diversity often think that demographic diversity is nonsense. But if you keep pulling from the same subset of society, but expecting that somehow you’ll get a radically different share of views, that’s kind of weird. But on the flip side, a lot of the people who support demographic diversity also have really negative views towards the viewpoint diversity stuff. When in reality these are actually really deeply interrelated social problems that are best addressed in tandem.

Patrick Lynch (18:31):

Let’s jump in here and talk about why. So just to clarify the language, the diversity piece. These symbolic capitalists are a group. Why do symbolic capitalists take on this woke identity? What advantages does it give them in their day-to-day lives, their professions, their careers?

Musa al-Gharbi (18:48):

Yeah. So one of the things that’s interesting is that as I noted from the beginning of the symbolic professions, our autonomy, our payer prestige were rooted in these claims about altruism and the common good. And so this created this unique form of status competition within the symbolic professions where for a hundred years now, for more than that, people who did an especially good job of depicting themselves as allies for the marginalized and the disadvantage, as having the right motives and so on, were seen as being especially worthy of deference and prestige and power and respect, and holding strong social positions. And on the flip side, people who were successfully painted as having the wrong motives or feeling the wrong things about the wrong groups or being in bed with the wrong people, they’ve been seen as worthy of having their position and their social respect stripped away.

(19:40):

And again, this isn’t something that started with Twitter. This has been a recurrent aspect of the symbolic professions from their outset. One thing that changed a little bit in an interesting way is that since the beginning of these professions, there’s been this competition about who’s the most oriented towards social justice, who was the best advocate for social justice. But after the things like the Civil Rights Act in Title IX, there was this interesting shift. As you started getting more women and minorities, and it became more acceptable to openly acknowledge yourself as queer or something or things like this, this kind of changed the status competition a little bit in an important way, because increasingly you had this group of people who couldn’t just claim to be good allies and advocates for the marginalized and the disadvantaged in society, but they could actually claim to directly represent minoritized populations.

(20:39):

They could claim to directly embody the kind of disadvantage and oppression we’re trying to fight. And so, you started seeing this new form of symbolic capital that developed within the symbolic professions, I call it totemic capitalism, which is when people kind of lean on their association with historically marginalized and disadvantaged groups in order to be taken more seriously. So, within the symbolic professions, people who self-identify as say racial and ethnic minorities are viewed as being more morally pure. They have a stronger moral authority. They’re seen as better people than whites. They’re also perceived as having deeper, truer, more authentic insight into racial issues than whites. People who are women who are gender or sexual minorities are perceived as having truer, purer insights into gender issues than men, cisgender heterosexual men, and are also seen as being better people, as being morally pure, as having better mix of motives and so on. This is actually, again, a form of deference that’s unique to the symbolic professions. It’s created this kind of unusual situation where the people who are most likely to self-identify as some kind of marginalized population, who are most likely to self-identify as victims, happen to be the people who are most likely to be social elites. So you have these social elites who are painting themselves as marginalized and disadvantaged, often kind of stretching the truth, sometimes telling not fully accurate stories about their ethnicity, and that sort of thing.

Patrick Lynch (22:31):

I very much enjoyed that part of the book. Not only do you list a lot of examples where incentives are so strong for these elites that some of them, a number of them, engage in fraud and make up these identities. Or in the case of sexuality, you document that for people who identify, for example, as bisexual, they’re more likely to be engaged in heterosexual relationships than the heterosexual people, at least for women, I believe it is. It’s a really, really interesting take on the data. And can you talk a little bit about these examples and what’s going on here? What are the underlying mechanics?

Musa al-Gharbi (23:04):

Yeah. So, let me turn the lens on myself, as I do briefly in the chapter as well. I mentioned before that there are important distinctions in practice between people who are Afro-Caribbean or of recent African origin, or people who are biracial versus non-immigrant American descendants of slaves. There are these vast differences in terms of their life outcomes or opportunity structures and all of this. But most of the black people that you see in knowledge economy spaces tend to be either immigrant, black people, or biracial. So I was on a panel, for instance, on polarization at this big conference, and there were four black people who were speaking at this conference. Two of them were of Jamaican backgrounds. One was a Kenyan Nigerian person, and then there was me who’s half white. So four black people, not one single person, not one single person was a non-immigrant, monoracial, American descendant of slaves. But here we are offering the black perspective on this issue, and that’s how it is with the overwhelming majority of black people that you see. And the thing is, even when I describe myself, I often just describe myself as black. I don’t describe myself as biracial. I don’t describe myself as mixed race. I could come up with flattering reasons why I do that. For instance, I could tell some story about how when people look at me, they basically never go, oh, there’s a white guy, and so I’m generally perceived and coded.

(24:36):

I could tell this kind of a story, and those stories would be true, but they’re not the whole truth. Another thing that’s also true is that in a lot of the spaces in which I operate, I gain more credibility. I’m seen as being more moral. There are more opportunities provided to me to collapse this kind of more complicated story about my ethnic background into just describing myself as black. In fact, one of the things that’s really interesting about the book, We Have Never Been Woke, is that the book is itself a kind of a physical embodiment of many of the social dynamics and critiques. So for instance, the book critiques the use of credentials, especially credentials from elite schools like Columbia to decide whose voices are worth listening to, whose perspectives are worth taken seriously.

(25:36):

But I published the book with Princeton University Press, and I published the book with Princeton University Press very deliberately. I targeted a prestige press, and they were interested in me in part because I was coming from Columbia. If I had sent them the same manuscript, but I was a PhD student at the University of North Dakota, that’s a fine school. But if I sent them the same manuscript as a PhD student from the University of North Dakota, it probably would’ve ended up in the slush pile. There wouldn’t have been a competitive auction for the rights to it. Similarly, the book critiques how people leverage their association, and these kind of collective identities like black or Muslim in the service of their own individual benefit. But it’s also the case that part of the reason Princeton was interested in this book is because I’m black. Now, it’s not the case that all black people just get Princeton books.

(26:29):

“You get a book! You get a book!” They didn’t publish it just because I’m black. But it is the case that if I had sent them the exact same manuscript as a cisgender, heterosexual white person, especially God forbid, if I had any whiff of conservatism or Christianity about me, the exact same manuscript would’ve been evaluated in a very different way. It probably would’ve been passed over, perceived as being too risky or something like that. To the extent that they published it at all, they probably would’ve subjected it to sensitivity readers and a whole bunch of other oversight. The reason why I was able to go “pow, pow, pow” and just say what I think is in part because of my racial and ethnic identification, now the book criticizes the use of ethnicity to decide who gets to speak honestly about which topics and whatever, but the reason I’m able to leverage those critiques in the way I am is because I’m a black Muslim dude who writes for The Guardian. So there is this kind of interesting sense in which the book is itself a physical manifestation of a lot of the things that it’s criticizing.

Patrick Lynch (27:44):

So three quick things. Number one, thank you for clarifying the pronunciation of Colombia. I have been mispronouncing it for all these years, so I appreciate it. Second of all, if we can kind of summarize this, in your view, wokeism is a self-interested act by these elites, by symbolic capitalists are using woke in very, very self-interested ways, even though they may believe these ideas. I’ll help bring a little bit of the book in here. You don’t claim that these folks are just being disingenuous. They have adopted these views, but that it is in fact in their best interests to be able to boot up use.

Musa al-Gharbi (28:14):

Yeah, I’ll say just real quick on ethnic identification, just to bring that point full circle. So to me, it’s the case that for instance, self-identifying just simply as black feels like the best, the most appropriate, the truest way for a lot of folks like me to define themselves. So it’s not cynical or insincere, this conflating of the more complicated ethnic background that most of us have into just calling ourselves “black” instead of Afro-Caribbean or biracial. Now, that said, I suspect that if the opportunity structure were different, such that it was more advantageous to self-identify as biracial or mixed race, or that it was more advantageous to create a distinction between Afro-Caribbean people and black people, if Afro-Caribbean people or recent African immigrants were seen as more prestigious, as being better truer, more authentic, more moral or whatever, then I suspect that a lot of these same folks, myself included, would probably have some different sense of this. What would strike us as the most authentic way of understanding and describing our racial identity might be different.

(29:26):

Now, that’s not to say again that we would be cynical or insincere, it’s that the set of stories that we’re drawn to about ourselves and other people are importantly structured by what’s in our interests. So one of the contributions that I hope the book makes is that often there’s, especially on the left, there’s this tendency to create this kind of false binary. You’re either using something in a self-interested instrumental way or you’re sincere. And so there’s this whole genre of work where if you can expose that someone has an interest in believing something, or they have an interest in promoting some idea, then you go, ha, you’ve been exposed. You must be cynical, you must be insincere. There’s this whole genre of stuff on the left that attempts to do this, and it also plays out with funding and other things like that.

(30:26):

If you can show that someone has received funding from the wrong people, then ha, they must not really believe it. They must be cynical or insincere. This is a really terrible way to think about thinking. So there’s a lot of research in the cognitive and behavioral sciences that shows things at a very fundamental level about the ways that we perceive the world. We’re faced with these really intense challenges. At any given moment, I’m just being bombarded by just tons and tons of information, and I have to make decisions about what to focus on, about what to remember, about how to sort the things that I focus on into a coherent picture of the world in terms of the kinds of stories I tell about why things are the way they are and so on. We don’t make these cognitive decisions in a random way.

(31:22):

We don’t make them in a disinterested way. We make the choices we make about what to focus on, how to remember how to fit things together. These are deeply informed by what we want, by what we expect, by what’s in our interests. This is the way that our brains are structured at a very fundamental level, and it’s usually life affirming. It’s fitness enhancing, it’s life affirming to kind of analyze the world in this way. It’s a healthy thing to interpret the world in this way, but it does cause problems in a lot of circumstances. Now, if we take this literature seriously, that the ways we perceive and think about the world at a very fundamental level, at the foundational level are shaped by things like our interests and our goals and priorities, then we can see there’s not actually any kind of a tension between believing something sincerely and using it instrumentally. If we had an interest in believing something, we would actually be more likely to believe it sincerely, to believe it passionately, and to try to get other people to believe it too. And so the argument that I make in the book is that, yeah, some capitalists are sincere when we say things like “we want the people at the margins of society to live lives of dignity and inclusion.” We’re not lying when we say that we want the people who are suffering and poor to be better off and flourish.

(32:45):

We’re not being deceptive. When people were crying after George Floyd was killed, that was a performance, but it wasn’t just a performance. People were actually sad. The thing I stress in the book, the core problem, this kind of tension that’s defined the symbolic professions from the outset is that on the one hand we have this set of sincere commitments towards egalitarianism, but that’s not our only set of sincere commitments. Most people who work in the symbolic professions are also sincerely committed to being elites, which is to say we think that our perspectives should count for a lot more than the people checking us out at the grocery stores. That our priorities, that our values, that our needs and demands should weigh more heavily. We think that we should have a much higher standard of living than the people delivering our packages or driving us around when we Uber. When we want our children to reproduce our own social position or to do even better than us, this set of commitments is also very sincere, and they’re in fundamental tension. So we have this set of desires to be an egalitarian, the set of desires to be an elite. They’re in fundamental tension. You can’t actually be an egalitarian social climber. It’s a contradiction in terms.

Patrick Lynch (33:59):

Lemme jump in here because time is running a little short, and I want to touch on two things that I think you underlined very, very well. The first one is this idea: so you said you speak for black people even though you are biracial, and that you were on this panel with two Caribbeans and Kenyan. Talk briefly about how there are differences among, say, the main working class blacks, working class Latinos, and how elites express themselves. You talk about use of the term Latinx in the book, which I absolutely 100% resonated with me because when I go to Latin America, and I do frequently for my work, I tell people that this is a term among elites in the United States now, and they look at me as if I’m speaking Martian. They’ve never heard this term before. They have no idea what it means. And you talk a little bit about this, you talk a little bit about how white people have adopted the defund the police position, even though African-Americans by and large don’t support it. Can we talk a little bit about these tensions and how there is a non-representative nature to this. I think you just touched on that tension, so let’s discuss this.

Musa al-Gharbi (34:59):

So this issue of non-representative representatives, that’s something that I’ve been interested in for a long time. I don’t think I’ve talked about this before, but I started becoming interested in this question from my work on national security-informed policy. So there’s this phenomenon where if we want to understand, for instance, what would happen if we depose Hussein, or what would happen if we overthrew the Ayatollah in Iran, it’s actually kind tough for us to just go to Iraq or go to Iran or go to Syria and other places like this and do nationally representative polling. And so what people often did is they looked around in the United States, they found people from Iran who were in the United States, or people from Iraq who were expatriates and asked them, “Hey, if we get rid of Saddam Hussein, how will people respond?”

(35:59):

Now a problem with this is that the kind of people who are expatriates tend to vary in systematic ways from the baseline population that’s in that country. It’s part of the reason why they’re expatriates in the first place. Because there are people who don’t fit in as easily with the mainstream culture and politics of the country they came from. And the longer they’re in the United States or some other country, the less representative they become, because they’re just less connected, but often the people who are expatriates don’t understand themselves to be non-representative. They think that they have their finger on the pulse, that they’re broadly like most other Iranians, that they have their finger on the pulse of what most other people from Iraq feel, and so on. And there’s this kind of systematic pattern of blindness that often happens where not only are they not representative, but most of the other people who are in their social networks who are from Iraq or Iran or whatever, are also non-representative.

(37:03):

So they know a bunch of other expatriates in the United States or their family back home who also hates the ruling government or whatever. And so almost all the Iranian expatriates, almost all the Iranians that they talk to, also hate the Ayatollah. And so it’s really easy for them to fall into the illusion that these perspectives are representative. They know all sorts of Iranians, every Iranian they know agrees with them, perhaps overwhelmingly agrees with them on this. And so it’s really easy for them to think that they are in fact representative when they’re systematically not. And this is the kind of a thing which I became sensitized to when I was studying foreign policy national security questions, because this problem actually contributed to some of the big intelligence failures and strategic blunders in the national security foreign policy arena.

(37:51):

It also really messes up our understanding of a lot of domestic issues. So you have the same kind of situation where a lot of people who are the kind of black writers again, who are themselves typically from relatively affluent backgrounds or they’re biracial or they’re Afro-Caribbean or whatever, but they self-identify as just black. And they think of themselves as being broadly representative of black people as a whole. They think that their views and priorities and preferences broadly align with those of black people as a whole. And most of the other black people that they know in these elite spaces and that they talk to, they’re not very often engaging with normie black people. And so all the black people that they know tend to share similar sensibilities and views. And so it’s really easy for them to fall under the illusion that this is just how most black people think because all the black people that they know think and talk this way.

(38:42):

And it’s really easy for white people who work in these knowledge economy spaces to also come under the illusion that these black people are representative of how most black people think, because that’s all of the black people that they know in their knowledge economy, and because these white people are also not just going out engaging with normie black people. And so it’s all the black people that they know seem to support defunding the police and things like this. And so it’s really easy for them to fall into the illusion that this is just a popular idea with black people. And so what often happens for convenience and for other reasons is that if you’re a knowledge economy professional and you want to go, oh, well, what do black people think about the police reform? Rather than conducting or consulting nationally representative survey data, to understand the modal black opinion, which takes a lot of work and efforts and so on, or rather than going out into the affected communities and just directly asking the impacted stakeholders what they want, which also requires a lot of legwork and a lot of effort, what they do is they go, well, let me see what the black writers in the New York Times think and say about this. With the implicit assumption that these people either themselves are directly representative, or must have done the work, because they’re making strong claims in their essays about what black people want, what black people feel.

(40:05):

So they assume that either these people are representative themselves or they’ve done some kind of research to find out, and that’s often not the case. And so we have this problem where you have all of these people who are held up as representatives of various groups, whose preferences and values and priorities are demonstrably not representative of how most people from those groups think or feel. But this is something that most people themselves are unaware of. They’re often not aware of how unrepresentative they are. And this is something that a lot of the people who listen to those folks are also unaware of.

Patrick Lynch (40:43):

So one final question, and we have to wrap it up unfortunately, although I’d like to talk to you for several more hours about the book because again, I would encourage all of our listeners to pick up a copy. It’s really, really insightful. Very, very powerful. You don’t talk a lot in the book about what would be some of the mechanisms, some of the institutional changes, some of the concrete steps that either symbolic capitalists or societies a whole could take to help out people who are in the lower end of the economic spectrum. And really, this is a book that’s implicitly about economics. Do you think the problem is that symbolic capitalists are blocking the use of the public sector or preventing the private sector from effectively helping people at the lower income ends, particularly minorities, racial and ethnic minorities or people of oppressed groups, to make serious economic strides? Is it that they are preventing one or the other or both? Can you elaborate a little bit on that? Have you thought much about that because it’s not really in the book.

Musa al-Gharbi (41:38):

Well, so one of the things I do in the book is I do challenge this fantasy that most symbolic capitalists seem to hold, which is that the real problem in society is just the top 1%, and that if we just tax Elon Musk hard enough, we can fix all the world’s problems. One of the things I show in the book is that one of the limitations of the “taxing Elon Musk hard enough” approach is that it’s actually kind of tough to just take money from the rich and just transfer it directly to the poor. That’s a little more possible now with platforms like GiveDirectly and things like that. But most typically what happens is that when you tax people like Elon Musk, it gets put into institutions that symbolic capitalists control, and we gobble up most of that, and then after we’ve had our fill, we sprinkle the bits that are left on the genuinely marginalized and the disadvantaged such that the people who actually need the help the most often don’t benefit as much.

(42:48):

So, I’ll give quick example of this. One thing I do talk about in the book, at the beginning of the symbolic professions, at the time when the professions were being born in the recognizably modern form…

Patrick Lynch (42:59):

The progressive era.

Musa al-Gharbi (43:00):

The progressive era, yeah. There were these two big changes that happened at once. There was the creation of big philanthropy in its recognizably modern form, major foundations and blah, blah, blah, administrative, all these programs. And then there was also the passage of the income tax, which was successfully defended in the Supreme Court. As a result of these two changes that happened roughly at the same time, there was this massive transfer of wealth from the Gilded Age elites downwards. So far it sounds good. Okay, but where did the money go? So as Randall Collins shows in his book The Credential Society, the primary wealth transfer that actually occurred during this period was from the rich to the upper middle class, symbolic capitalists took from the rich and we gave to ourselves, and there were some programs that were created. There were some ways in which the genuinely marginalized and the disadvantaged were made better off, but not nearly as much as could have been the case, and not nearly as much as would’ve been expected given the sheer amount of resources that were transferred downwards.

(44:00):

This has been a consistent problem also in Marxist and socialist regimes throughout. It’s something that Mikhail Bakunin, a contemporary of Marx, flagged from the outset. He said, you could take the most ardent dedicated revolutionary and imbue in him absolute power, and within a week he would be worse than the Czar. It’s actually not the idea that you would have this group of people that take all of the wealth and resources in society, they get control of them, and then they’re just going to give them all out equally, not taking not one extra dime for themselves, for their own communities, for their own families, for their own institutions, and then they’re just going to step away and live among the regular people as equals. This is the kind of thing that was kind of envisioned by Marx, but Bakunin said, there’s no chance in heck that would ever happen.

(44:50):

And this has actually been the case every time that people have tried to do this kind of a thing, Bakunin has seemed much righter, much more correct than Marx on this. So this is a perennial problem. When we try to take these resources, symbolic capitalists themselves tend to be the kind of big clutch, not the super elites actually. We can take the money from the super elites, but then it ends up in our hands. And then most of it, this has been the consistent problem with a lot of these redistribution schemes. We support redistribution, because of course we would, it means that there’s going to be a lot more resources in our hands. In fact, this is one way (last thing I’ll say on this) in which symbolic capitalists actually differ policy wise from most other Americans.

(45:39):

So most Americans prefer what you might call pre distribution. So they prefer things like high wages and benefits and stuff like that that make redistribution less necessary because they have a job, they have good pay, they don’t need help from the state. This is what most people actually want. Symbolic capitalists, on the other hand, tend to strongly prefer redistribution. This is because redistribution gives us the best of all worlds. On the one hand, we get access to all of this cheap labor. We can exploit these people, pay them really poorly, which allows us to live at a lifestyle above our typical means, because we can exploit all of this service labor, and we’re the ones who exploit it the most as I show in the book. So we can benefit from all of this disposable labor provided by these desperate and vulnerable people, but we don’t have to feel too bad about it because we take money from Elon Musk and make sure they don’t starve.

(46:31):

And so we kind of get the best of all worlds here. We get to exploit the laborers, and we don’t have to feel too bad about it because we take from people who are richer than us to make sure that those people at least survive at subsistence level. So redistribution is really good for us, but that kind of approach is actually not what most workers prefer. There’s actually a lot of research as well that shows that if you just provide people money, so if you do direct transfers of wealth, that tends to work better than a lot of more structured programs. But people like us often have this sense that we know better what other people should want and should need, and that if you just give other people money, they’ll misspend it and so on. And so we like programs that highly structure how people can use the money that create all of these oversights and constraints that try to push people down the channels that we think are in their best interest. And so this is another example of how there are actually these systematic differences even on issues like resource allocation between symbolic capitalists and most other people in the country.

Patrick Lynch (47:41):

And on that Friedman-esque note, we unfortunately must bring this conversation to a close. Musa, thank you so much for taking the time to be here. I would again encourage our listeners to pick up a copy of this outstanding book. Thank you very much for being on the Law & Liberty Podcast.

Musa al-Gharbi (47:55):

It was a lot of fun. Thank you so much for having me.

James Patterson (47:57):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

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“The Meaning of Ralph Lauren Nationalism” by Samuel Goldman

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund. 

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty. Our guest today is Dr. Samuel Goldman. He is the associate professor of political science at George Washington University, as well as the executive director of the Loeb Institute for Religious Freedom and Democracy and director of the Politics and Values Program. He’s written God’s Country: Christian Zionism in America, and his second book was After Nationalism. He has a third book on higher education, right? Is that right?

Samuel Goldman (01:13):

That’s right. Conservative Critics of Higher Education.

James Patterson (01:16):

Yes, there he is. So I guess it’s too late for me to say this, but Dr. Goldman, welcome to the Law & Liberty Podcast.

Samuel Goldman (01:22):

Thanks, James. It’s always a pleasure to talk to you, but especially on a subject of such pressing national importance.

James Patterson (01:29):

Exactly. So it is summertime, or it’s about to be, and so we don’t always need to be very serious, although this is in a way very serious for certain enthusiasts. But we’ll be talking about Sam Goldman’s article, “The Meaning of Ralph Lauren Nationalism,” published on April 25, 2025, for Compact Magazine. And why don’t we start with the big picture here, which is why is it so funny or so interesting that so many people are adopting a Ralph Lauren aesthetic given what Ralph Lauren was doing when he was creating that aesthetic?

Samuel Goldman (02:10):

So the piece sort of takes us its point of departure genre of tweets or memes that can be found on Twitter and probably other places as well that are tagged “Ralph Lauren nationalism,” and they have these images of beautiful models wearing tartans and tweeds and riding horses in the desert or in other improbable scenarios. And the implication is that this is something that has been lost. I was going to say, you open up a magazine, but of course we don’t do that anymore. You open up your browser and you get this algorithm that pushes advertising on you, and it depends what you click on, but you don’t see beautiful people in this exotic, yet also vaguely American fantasy world. And this is presented as sort of a conservative or even reactionary statement that what we have now is slop. It’s ugly, it’s stupid, it’s not even cosmopolitan.

(03:24):

It’s sort of the lowest common denominator, globalized. We used to have this proud aesthetic vision. And there’s some truth to that. But it’s interesting as I go on to argue in the piece, because what Ralph Lauren was really doing in the second half of the twentieth century, and especially in the ‘80s and ‘90s, was recreating or imagining a whole vision of America that was not reality and was not derived from his own experience of vaguely old money, WASP-y life. It was something that a Jewish kid from the Bronx created from movies and books and watching people on the street. And I draw reader’s attention to this not just as a sort of pedantic corrective about what Ralph Lauren was really doing, but also to suggest that this is the sort of cultural nationalism or cultural patriotism that we need. It is optimistic, it embraces freedom as a core American value. It’s not “pluralist” in the hard multicultural sense, but it is flexible and welcoming and open-ended. That’s a lot of what I and others like and admire about this country. So Ralph Lauren nationalism, yes, but I don’t think it means quite what some of the people who are making these memes believe.

James Patterson (05:01):

Yeah, there’s a sort of a “RETVRN to Tradition,” and that return is always spelled with a V. And the tradition of Ralph Lauren is, as you point out, actually a kind of freewheeling repurposing of even older men’s wear traditions that at the time of his doing that were considered pretty subversive. And so it’s odd that something that’s subversive, not really in a political sense, but just sort of upending a lot of norms in menswear would be something that would ever become conservative. So what is it that Ralph Lauren did to menswear that made it a contemporary aesthetic people long for again?

Samuel Goldman (05:43):

Well, so Ralph Lauren emerges as a cultural figure in the late ‘60s and early ‘70s, and this is the moment of real collapse in traditional standards of dress and behavior. You look at movies or photographs from 1960 and basically every man is wearing a suit and often a hat, women are wearing dresses and gloves. Just ten years later, the world looks very, very different. And there’s a passage in Saul Bellow’s great novel Mr. Sammler’s Planet. I allude to Bellow in the piece, where he describes riding a New York City bus in the late ‘60s, and he says, you can see everything: cowboys, Indians, Siberian hunters, but no longer the traditional Western bourgeois uniform that had been pretty stable for about a century before that. So this is the moment when Ralph Lauren emerges, and what he does is make elements of traditional clothing: tweed coats and suits and ties and shined shoes. But he makes them novel and appealing, and, it’s a cliche, but sexy again by drawing on what he had seen in the movies as a kid growing up in the Bronx in the ‘40s and ‘50s, his interest in Western and Native American culture, this sort of safari fantasia that he derived, I think probably from books of H. Rider Haggard or something like that, all of which were made into films.

(07:44):

And he makes this traditional clothing that had become very staid and boring and unappealing, something that people wanted to wear again.

James Patterson (07:57):

And it was bound up in a kind of restoration of a memory for who the Anglo-Protestants WASP-y types were and points of leisure and work when the bourgeois uniform, as you put it, had essentially domesticated and worn out a sense of a type of life, right? Everyone in a gray flannel suit with a white pocket square and a TV fold, and the most that you might get is a clip with your favorite college football team on the tie. This sort of new aesthetic was exciting, but it was also very American, unlike say, the Siberian hunter of Saul Bellow’s imagination.

Samuel Goldman (08:44):

Right? Well, what’s American about it I think is the indifference to rules. So just looking at the core tailoring in Ralph Lauren’s imagination, the suits and ties shirts and sport coats, a lot of that was derived from British sartorial culture. But in Britain there were very strict rules about what you could wear in certain settings and at certain times, and there are all of these anecdotes of people who committed these terrible faux pas because they were wearing the wrong tie in the wrong place. And part of I think the rebellion against these more traditional modes of dress was a resistance to that kind of regimentation and status enforcement. What Ralph Lauren did basically was just to put it all together in any way that he wanted, whether it corresponded to the traditional expectations for setting and time or not. So I’ve been talking about Ralph Lauren mostly as a guy who sold suits, and he did. But the more interesting things in the Ralph Lauren aesthetic are the way that he combined what were regarded as casual or sports or workwear with traditional tailoring, which is something that people do all the time now. It seems intuitive, but in the early seventies when Ralph Lauren was wearing, say, jeans, cowboy boots, a denim work shirt and an English style hacking jacket, so a kind of sport coat that was designed for riding horses. That was not something that people did, and that reflected this freedom that he asserted to put together things that he liked and believed were beautiful without caring about the social conventions.

James Patterson (11:13):

It’s funny then, so if you were on that bus and you saw that person you just described in that outfit, he would actually fit in with the other unusually dressed people, but we don’t see it that way because of the great success Ralph Lauren had in developing this uniquely American aesthetic. Another element to this story, and you’ve already alluded to it, is another really sort of American feature here is that Ralph Lauren isn’t a WASP, he’s a Jewish kid from the Bronx.

Samuel Goldman (11:45):

Right? Yeah. I was discussing this with someone on Twitter when the piece came out and he said something like, well, Ralph Lauren was just producing for the mass market things that WASPs had been wearing in gentleman’s clubs and on polo fields and so on, and there’s an element of truth to that. But it’s important to remember that Ralph Lauren had no personal experience of those things. As you say, he was a Jewish kid who grew up in the Bronx. So rather than sort of developing organically from his own social experience, his aesthetic was a pastiche of things he saw. In those days, you could walk around midtown and see well-dressed people and imitate them. That’s less true these days. Of the movies he watched, of the books he read, of the magazines that he browsed. So once again, I think the way to see this is as an act of imagination, almost a kind of collage, rather than simply a mass market version of something that already

James Patterson (13:10):

Existed. Yeah, there’s a kind of comparison made to the attire of one billionaire by the name of Elon Musk here. It says that he attended a cabinet meeting in a t-shirt, peacoat and baseball cap. Why does this not work when it worked for Ralph Lauren’s pastiche?

Samuel Goldman (13:33):

Well, I think in part it’s because Musk, as far as I can tell, and whatever his other qualities seem to be, absolutely, this is a mixed metaphor I guess, but tone deaf or colorblind when it comes to aesthetics. You only have to look at the Cyber Truck to sort of wonder what he thinks is beautiful. And that I think is consistent with his background in the tech world where not just casual dressing, but a kind of defiant sloppiness became a way of distinguishing oneself and also expressing superiority to the finance guys and the lawyers who wore suits. So there’s an element of trolling in Musk that I don’t perceive in Ralph Lauren. He wasn’t trying to provoke anyone. He was trying to look good as he understood it. But also Musk just seems indifferent as so many rich and powerful people do to questions of beauty or really any distinction between public and private.

(14:57):

And maybe that’s a kind of deeper issue that we could get at. It used to be believed until very recently that certain forms of dress and conduct were appropriate when you were presenting yourselves to others, even if they were not what you might choose by yourself or among friends and family. And I think we’ve lost that sense of public responsibility, not only in dress, but also in speech and manner. And I myself have been talking about doing things on Twitter, so I’m as guilty of this as anyone else, but social media probably plays a role in that and Musk, at least in his current incarnation, is a creature of social media, and that seems to be reflected in his choice of attire.

James Patterson (15:53):

There’s this kind of Hegelian decelsionism mentioned here in fashion terms in your article, he says, “As the writer, Bruce Boyer has pointed out change in men’s clothing since the French Revolution has followed a predictable arc, garments begin as military gear or sports clothing and then are adapted for less regimented pursuits. After a period of familiarization, formerly casual items become acceptable as business dress. A few decades later, old fashioned working attire shifts to evening or ceremonial purposes. Finally, the ceremonial wardrobe is relegated to servants where it may survive in anachronistic glory for a very long time. This cycle is the reason doormen and fancy buildings as sartorial enthusiast Tom Wolfe absorbed, observed, in Radical Chic dressed like 1870 Austrian colonels.” That is a paragraph that had me actually laughing to myself to the point I actually had to explain the article to my wife, this sort of decline that follows from this sort of militaristic to sweatshirt aesthetic. What is going on here? You implied earlier that it might be actually a show of power or show of authority that you can defy existing standards. Is that what’s happening?

Samuel Goldman (17:19):

Well, I think that’s certainly following up on your last question. I think that’s certainly part of the point that Musk was trying to make. And if you look in the photos of the cabinet meetings, most of the people present are wearing traditional business attire. And of course, Musk is saying, “I’m truly important. I don’t have to wear a uniform like the rest of you drones.” And the ability to defy rules is almost always an assertion of power or superiority. So I talk in the piece a little bit about one of the great inspirations and precursors to Ralph Lauren, the Duke of Windsor, formerly King Edward VIII, who developed a lot of aspects of the modern male wardrobe. And in doing that, he was breaking many of the rules that he was subject to in Edwardian England. So all sorts of things that now seem quite formal, like the flannel suits you mentioned a few minutes ago, flannel was regarded in the nineteenth century basically as athleisure.

(18:39):

I mean it was what you wore to play tennis, it was sweatpants. So for the Prince of Wales, then the King, then the Duke of Windsor to adopt flannel as an everyday business or quasi business material was like wearing sweatpants or flees. And we sort of miss that. If we look at the pictures and say, oh, well, everyone’s wearing a suit. It’s all so formal. In a sense it is, but standards are always changing. And it’s true that there’s this pattern that Bruce Boyer, whose work not only on clothing but also on music and other aspects of American culture, I highly recommend to everyone. There’s a cycle that goes back really to the French Revolution, which is when the aristocratic court no longer set the standard for men’s dress. Before the French Revolution roughly, to be well dressed was to dress the way you would dress in the court of the King of France.

(19:48):

And for obvious reasons that became less tenable after 1789. And since then, for almost 250 years, almost every innovation in men’s clothing has come either from the military or from sports. That’s where new forms of clothing come from. And there’s this sort of cycle where they start as uniform gear or sportswear, and then men, especially men of the upper class, start wearing those things outside their intended purposes. And there’s a reason for that, which I think connects to what we were saying about Musk. It’s a way of saying you don’t have a job or you don’t have the kind of job where people tell you what to wear. If you can come to work or conduct your regular day dressed in extracted bits of uniform or in what you would wear to engage in sports, what you’re saying is, I don’t really need to be here.

(20:50):

So that’s a status move. That’s a power move. Then as more people lower in the social hierarchy, imitate these models, what had been slightly risque assertions of status are normalized as business dress. And that’s exactly what you see with something like the flannel suit, which when the Prince of Wales started wearing it in the twenties was not quite right, not something that you would wear to work in a bank or law office. But by the 1950s and 1960s, that has become the paragon of professional attire, especially in the United States. The Brits never quite reconciled themselves to flannel suits. But then there is a further rebellion where this business uniform is associated with what your dad wears to an office and job that he hates, and people who want to demonstrate their independence of that kind of life then appeal again to new sources in military or sportswear or after World War II.

(22:01):

The really novel development is work wear, looking not only to the top of the social hierarchy, but to the bottom. Wearing what a longshoreman or a cowboy would wear. And as that in turn is adopted by normies, what had been traditional business dress moves on to servants. And this it seems to me is what’s happening with the modern suit as it developed in the twentieth century. It had a good run for 75 years or more. It was the definitive uniform of wealth and power. Now, wealthy and powerful people, and again, Musk is a symbol of that, don’t dress that way. It’s something that their servants and followers wear. And what that probably means if the pattern holds, is that in, I don’t know, 20 or 30 years, only waiters or doormen or other people who are in directly servile positions will wear this remnant of the twentieth century.

James Patterson (23:19):

Yeah, you mean they’ll be wearing peacoats with t-shirts and baseball camps?

Samuel Goldman (23:24):

It may take to the end of the 20th century before we get there, but you’re right to bring that up because that is the pattern, because we all want more status and the signs of more wealth than we actually have.

James Patterson (23:39):

It seems as though the cycle has accelerated for a lot of men’s fashion, even though it doesn’t fall into menswear anymore. There was during the 2010s, I think what really put the final end to this was COVID, but it was something called “hype beast” culture, where it was all about small street wear sets of clothes that would drop in limited editions in different places. And that was the extent to which you would find people, men, especially interested in attire was primarily in having collectors items on their persons. And there would be interviews with people about how much they’d spent either in the original market or in the secondary market to acquire some of these. Is this really where menswear is going to end up?

Samuel Goldman (24:31):

Well, I think one thing that has really changed since Ralph Lauren’s era is that we no longer have a common mass culture in the way that we once did. And Lauren’s great success as a businessman was to take these things that previously you had to buy in special stores and you had to know what you were looking for and put them in the mall where everyone could buy them and make it a true mass phenomenon. And this is one of the other things that’s different when you look at just pictures of ordinary people before about 2000, I would say maybe a little bit later, everyone kind of looks the same, kind of looks coherent, and that’s a function of mass consumption because everyone is buying from the same stores that have the same basic items. So everything is consistent. What’s happened since then as a result of social media, individualized commerce, where you can get whatever you want from anywhere in the world very quickly and cheaply, is that you can really do your own thing in a way that was much more difficult and expensive in the past.

(26:07):

So people talk a lot about the casualization of dress, and of course that’s right. What’s even more striking in some ways is the growing incoherence of dress where it’s not just that different people dress in very different ways in the same settings, but also what they wear is a collection of incoherent items thrown together in a way that I think just looks terrible. And part of the reason I wrote this piece and I’m sort of sympathetic to people tweeting these Ralph Lauren nationalism memes is that we just look awful. America looks awful, and it doesn’t have to be that way.

James Patterson (26:57):

I’m very self-conscious because I’m in the midst of moving, so I’m dressed very awfully. 

Samuel Goldman (27:04):

I know, but no one can see you.

James Patterson (27:05):

Oh, that’s true. That’s true. 

Samuel Goldman (27:08):

On a podcast, no one knows

James Patterson (27:15):

One of the other pressures on the American public. It’s not just the casualization of the standards, but it’s also, as you point out later in the piece, the changing nature of production, the transition of Ralph Lauren from these kind of decontextualized repurposed British and American menswear trends was also the creation of the more casual Polo line that became one of the first street wear products that I was talking about earlier. There is a hilarious discussion of “Bury Me with the Lo On” by Thirstin Howell III–I will require anyone to go read that themselves because it was peak Sam Goldman to me. But what about the backend to production and financialization has also had such an effect on menswear and why we look so awful today?

Samuel Goldman (28:12):

Yeah, so I was very happy, first of all to have a pretext to quote the rapper Thirstin Howell III in this piece

James Patterson (28:21):

Just an outstanding name.

Samuel Goldman (28:24):

I don’t have many opportunities to do that. So that was a pleasure for me. And as you say, it is an interesting part of this story that in the late eighties and early nineties, a lot of the Ralph Lauren products and especially the Polo stuff, were adopted by rappers who just loved it, and they wore it in a very distinctive way. So instead of a tight fitting polo shirt that a tennis player might wear, they were loose and baggy and they preferred bright colors and a lot of contrast. But I mentioned that in the piece partly to dispel this idea that this aesthetic and these products were only appealing to WASPs or wannabe WASPs, they really captured the imagination of everyone. But I think that in pop culture, to the extent I can tell, just as in the rest of society, there is much less interest these days even in appropriating and repurposing and recombining traditional clothing and iconography.

(29:55):

When my wife forces me to watch the red carpet at some award show, a lot of the celebrities just look weird. And among the men anyway, it’s clear that they and the people who dress them just have no idea how things are supposed to fit. And I think that’s a feature in the increasing uglification of America. As we lose practice dressing intentionally and with some aesthetic purpose, we forget how to do it. And if you follow the menswear internet, as I’m ashamed to say that I do, there’s another genre of meme that shows male celebrities who wear suit jackets with the tag still sewn on. When you buy a jacket off the rack, there’s a little branded tag on the sleeve. They leave those on because they or whoever tells them what to wear doesn’t even know that that has to come off

James Patterson (31:05):

And they don’t open the vents.

Samuel Goldman (31:06):

Right? And the vents remain sewn. So unlike Ralph Lauren who knew how to make these elements of traditional clothing elegant and appealing today, the celebrities, the musicians, the sort of cultural figures, they are the worst advertisement because they look terrible.

James Patterson (31:32):

And one of the things that your answer made me think of immediately was that there’s a lot also of androgyny in male fashion, and maybe it’s because the people who do so much of the styling today are used to working with women and they know nothing about menswear, and so they’re just putting men in women’s clothing because that’s all they really know. And of course, the little secret to all of this is that there’s much less money than there used to be in a lot of this stuff. And so it may be also harder to find the people you need for doing publicity for films, considering the budgets for those get blown on marketing and post-production, and the publicists that used to run these things don’t know who even to go to. So maybe the whole reason for uglification might also be that the people we used to look to at reference points can no longer afford to get people to put them in the right clothes.

Samuel Goldman (32:32):

That is possible, but I still find that hard to believe. It is true that the cost of high quality menswear and especially a high quality tailoring has increased substantially beyond inflation even within my lifetime. And that’s largely due to a decreasing supply of labor. There are just not that many good tailors anymore. 

James Patterson (33:05):

There is exactly one in Naples.

Samuel Goldman (33:08):

There are very few. And my alterations tailor here in Washington just closed his business. He’s probably in his seventies. He’s going to retire and he deserves it. But I’ve chatted with him about this and he said he couldn’t find anyone who wanted to take it over. So there are fewer people with the skills, and that inevitably drives up prices. That said, it’s not that expensive, at least for people who are presumably rich. And that’s why I’m so confused, not so much by Musk, who again, I think is making a point, but by people who are in business or in politics or other areas of public life and would almost certainly afford to look better than they do, but they either just don’t care or they don’t know how.

James Patterson (34:09):

I read a couple years ago, a book by Anthony Bradley, he’s at the Acton Institute, and it was actually a defense of fraternities, which is not something you hear people defend all that often. And one of the features of fraternities, I was in one as an undergraduate at the University of Houston, was that you actually had to wear formal attire to meetings, for at least my chapter. And if you were a pledge, if you were a person who was trying to join, you actually had a class in which we taught you how to do a forehand knot and explained how the front of the tie is supposed to be longer than the back. And a lot of the socialization into menswear has just sort of disappeared. And the fact that I’m having to do this when I’m 20 years old to these guys as pledges was something that was pretty funny to me in retrospect, because I guess this has been happening for a long time.

Samuel Goldman (35:11):

Maybe I should go into that business. I could be a traveling consultant and teach fraternity brothers how to tie their ties. But of course, you’re right, which is that we have lost or are rapidly losing the social institutions that pass on this knowledge. And that means that you have to kind of figure it out yourself, which you can do if it’s something that you are interested in. But that means also that it becomes a form of hobby.

(35:52):

And there are people who have this hobby. I am among them–and there are dozens of us, as they say on Arrested Development–but it seems to be disappearing as a normie phenomenon. And again, I think that’s important because our physical surroundings matter to us. What we see and what we hear and what we wear is relevant to the way that we conduct ourselves. And it’s a broader discussion maybe for another time, but that’s again, what I think has been lost. We no longer believe that public responsibilities even exist, let alone that they are relevant and worthy.

James Patterson (36:55):

Well, unfortunately, we’re going to have to leave it at that. We started with this optimism for a return to Ralph Lauren nationalism, but..

Samuel Goldman (37:05):

It’s good that you’re stopping me because I was going to start talking about gnosticism and romanticism, and nobody wants to hear that in the summer.

James Patterson (37:13):

It’s a summer podcast. We’re not doing narcissism. My goodness. Again, the essay is “The Meaning of Ralph Lauren Nationalism.” The author is Samuel Goldman. Dr. Goldman, thank you so much for coming onto the Law & Liberty Podcast.

Samuel Goldman (37:28):

Always a pleasure, James.

James Patterson (37:28):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

Related Links

Fragile Neighborhoods by Seth D. Kaplan
Seth D. Kaplan’s website

Transcript

James Patterson:

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund. Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty. With me today is my guest, Dr. Sty Kaplan. He’s a leading expert on fragile states and a professional lecturer in the Paul H. Nitze School of Advanced International Studies at Johns Hopkins University, senior Advisor for the Institute for Integrated Transitions and consultant to multilateral organizations such as the World Bank, US State Department, US Agency for International Development, and the OECD, as well as developing country governments and NGOs. And today we’re going to be talking about his recent book, Fragile Neighborhoods: Repairing American Society, One Zip Code at a Time. Dr. Kaplan, welcome to the Law & Liberty Podcast.

Seth Kaplan:

I’m grateful to be here. Thank you so much for the invitation.

James Patterson:

Yes. So I was introduced to your work at a panel back at the Ciceronian Society in March, and I found the book absolutely fascinating and very much speaks to my own experiences. I live in a very intentional Catholic community here in Ave Maria, and some of the things that you describe as missing in many communities are very much front and center here. And so the explanation of the contrast really helped me appreciate the differences you experience in these kinds of communities. So let’s start off with a narrative, and I want you to tell me, because the book really takes this narrative on in a very detailed but also fair way. So let’s say you’re a young woman who grows up in a religiously repressive Idaho town of 5,000 people. She is smart, academically successful, and at odds with the norms of her fellow townspeople. After graduating from high school, she attends a prestigious college far from home and meets people like herself, and graduates only to move to New York and work in a large corporation that shares her values and rejects those of her town. Meanwhile, she does everything she can to never return to the place where she grew up. Is this a happy story, or is this a sad story?

Seth Kaplan:

First, I would say it’s not great to think in terms of binaries.

James Patterson:

Yes,

Seth Kaplan:

She gained something and she lost something, and we need to think about, I would say in general, our debates are good and bad, and so I’m good, you’re bad, or however we want to frame things. It’s always binaries, but the world is complicated, and so she got more opportunity. She got to do things she might not have been able to do otherwise. She got certain freedoms she might’ve ended up materially better off. Again, New York, possibly not because New York is crowded and things are expensive and probably where she came from, she could have had a big house. So it’s not clear she gained materially, but she certainly gained in terms of a certain amount of freedom, an opportunity she might not have had. And she might’ve met people that she had closer, let’s say relationship with. But you have to also think what she lost. And I think that’s a lot of what we as a country have done.

That’s almost what you gave us a metaphor I think, I wouldn’t say for the whole country, but for a part of the country, we lost this type of security blanket we might’ve had of people. If she does well in her career and she gets into the right networks and she gets the right her own personal support system and she goes step by step throughout her career with the right people around her, she could do great. There’s going to be people like her who made those choices and maybe don’t thrive as well end up without the friendships or the social support. What she lost was a support network, I might call it a security blanket that would protect her when she was down that would provide her with immediate institutions and relationships that would include everyone in that place. And she might’ve lost a sense of community.

She might recreate it on a small scale. I would call that not quite a community, but she might have lost. She has a sense of meaning and purpose for herself, but a lot of people will take the path she might’ve that she took, they might’ve ended up with less meaning, less relationships. So I would just say there’s pluses and minuses and you’re presenting sort of again, a metaphor for how much of the country has evolved. And I think what that picture misses, it misses the people who didn’t end up well from taking the same choices.

James Patterson:

I think that, yeah, that was the impression that I got from finishing this book was that story is one that we often tell, but the ending is not always a happy one, but it’s also not unambiguously a bad one that there’s a lot of people who suffer quietly or experience trade-offs they didn’t anticipate. Right. They did not all end up Carrie Bradshaw in Sex and the City.

Seth Kaplan:

I mean for me, you’ve lost again. Again, we’re a diverse country. There’s a portion of people in which you can say good plus good. They’ve ended up much better. There’s a set of people in which the result is much more mixed. They’ve lost something important and they’ve traded for something else. And then there’s a group of people I think, which maybe they have some gains, but the losses you might say clearly outweigh the gains. And so I think it’s a much more mixed picture than we want to tell ourselves.

James Patterson:

So this gets us into the book itself, which helps broaden that picture and provide more detail than I think some of the more conventional narratives we tell ourselves or people tell each other. But let’s start with the basics here. What is a neighborhood and what roles does the neighborhood play in structuring American life?

Seth Kaplan:

Well, again, there’s no fixed definition. A neighborhood has to be like this, but I roughly think of it as five to 8,000 people. Again, it could be 2000, it could be maybe 10,000. It’s not 25, 50,000. So there’s a certain human scale, it’s walkable, an ideal neighborhood. And I have to say there’s parts of America that are built up with house, house, house, house, house. And there’s no, they’re not really neighborhoods, but an ideal neighborhood, has a sense of identity, has a sense of beginning and end, has a center, has a lot of place, unique institutions. I live in a real neighborhood, so we’re surrounded on three sides by green areas. There’s only three roads that come in, one in three different directions that take us in and out of the community. We have a center, not a beautiful, I wish it was beautiful, like small commercial district, like a parking lot with a bunch of stores.

So we have the restaurant, everybody goes to the supermarket that we sort of don’t want to go to, but often end up at our own drug store, that type of, we have a dry cleaner, a barbershop, and we have lots. And so a good neighborhood has lots of institutions and activities happening in the place and you know, belong to this place. You have a feeling of community around the place. And I would say you could live in a part of America, house, house, house, no center, no beginning end, nothing that brings you together. And our neighborhood, I mean most of the kids go to one of several schools. So my daughter, my oldest is in seventh grade and probably about three-quarters of her classmates, she can walk to their home from our house 20 minutes, sometimes it’s 25, it’s a little bit longer. Closest starts literally I’m here, I go out at my front door and there’s two houses within one across the street and one, two houses down.

Those aren’t her friends to be honest, but there’s a two other classmates within literally a stone’s throw of my front door and then she’s out a couple of best friends within three blocks. And then you go a little further, but a neighborhood has those things. The neighborhood’s imported because it’s uplifting you, that network effect, you need something. My wife goes away because her mother’s ill, I need help. And I got four neighbors, two mornings, two afternoons helping me take care of my kids, get them where they have to go. If I personally don’t need it, someone needs help with the job, there’s a neighbor’s going to help me. I need someone again, got to go pick up something, can someone, I mean if you live in a good neighborhood, there’s hundreds and hundreds of examples you can give of people stepping up and doing for one another. The woman down my street who knocks on the doors of people living alone, the person who runs some sort of career support system, the program for middle-aged kids that my daughter goes to every couple of weeks, whatever, that’s all happening in my neighborhood. So you’re gaining all these benefits and you’re also giving and you, you’re shaping yourself and being shaped by your neighborhood.

James Patterson:

So what makes a neighborhood fragile versus robust? This is of course part of the major thrust of the book. The range of neighborhoods would explain to me that maybe it’s not so much that they’re not in the right place, it’s more like there’s some other features such as especially family life.

Seth Kaplan:

Yes. Yeah. So I’ll give you a big picture and then I’ll break it down. So broadly speaking, there’s two buckets. I think they’re both for me a question of social disconnection and weak institutions.

But case one is you go to a distressed neighborhood, 30 percent plus poverty levels, and you have a lot of family breakdown. You have probably outside of churches and maybe a public school, there’s no local institutions, there’s not really local businesses, there’s not really local civic associations. Families are weak, inter-family support networks are also weak. There’s a lot of mistrust, there’s not a lot of cooperation. And the places that are doing worse and have the worst social mobility is that type of place. People don’t check in on each other. It’s very isolating and material as well as social conditions are. And you often are disconnected from the rest of your city or area. Another bucket I would say is we’re materially well off. We have nice houses, nobody knows each other. No one is willing to do anything but sow their Instagram face to people. And they’re not like, I have a problem, I’m vulnerable.

I might reach out to you and talk about my challenges and have some relationship and we share and we help each other. You don’t have that much of that. And so I would say when you look at lots of social problems that appear in middle-income or upper-income homes or neighborhoods, that’s likely because there’s not a supporting system around people based on relationships. Broadly speaking, both of those are caused to me by disconnection and a lack of local institutions. Our country’s full of these big systems of services. Services can’t build relationships, companies, nonprofits, government. If you don’t have local people connecting, stewarding places, supporting people, mentoring people, even classmates, you have a lot of negative downstream effects in my opinion. And so if you think about this problem, I think you could talk about lots of specifics, but broadly what I’m trying to say here is different types of institutions don’t exist and we are disconnected isolated from each other in various forms.

James Patterson:

On page 22 of the book, you have this account of purchase care reviewing some of the research by other people and how purchase care emerged as a substitute for parental care. And this occurs around the same time. We have an increasing number of women entering the workforce and families begin to experience higher rates of divorce in single motherhood. This isn’t a chapter that I did not expect to read, it’s on how the rich suffer from fragile neighborhoods. So you often have two earners. Sometimes these families break apart and even in the intact two-earner homes, they’re not getting the kind of neighborhood that you’d expect because so much of it has been outsourced. So why is it that we see fragile neighborhoods even among the rich? Is this why?

Seth Kaplan:

Well, first of all, we have a mindset that we outsource everything and we have a mindset that everything can be transactional and bought.

And I would say I don’t want to compare the problems of the well off with the problems of the poor because clearly if you’re a child and you don’t even have a stable home, it is a different problem than if you have a stable home, but you have no care for that child. I don’t want to compare those problems because some of the kids end up on the street and their outcomes are quite different. But I would say the idea that you can have a society without love and a society without the strong social, I call it my security blanket. I walk out my door, I walk down the street, I feel a sense of joy. I literally feel a security blanket wrapping around me because I know hundreds of my neighbors, they’re not my friends, they’re like my community. Community and friends is not the same thing.

We tend to think one is the same. A community is people that you may not be friends with but are there for you. And there’s an expectation that we take care of each other and we support each other. And I would say those people who are materially well off, but they’re alone or they’re isolated, your apps can do so much, your wallet can do so much, but kids that don’t have love, kids that grow up, that they’re basically being socialized by TV or by phones and maybe schools have become very vocational and there’s not an emphasis on relationships and community. With my kids’ schools, they are so focused on having a good experience, having fun, literally doing things together. And so much time on one level you might think is wasted on holidays or things that collaborative things or even part of what they do is go out and fundraise and do things like that for different activities.

I mean that’s not very vocational, but this whole idea that we live with each other amongst each other and that we are more than ourselves, we have a greater meaning and purpose, and that we have expectations of each other’s and norms towards each other. It’s something that we forget. I think we’ve undervalued it. We see a lot of our social problems to me are downstream. Yes, we need social services, but if we don’t have strong community, strong social fabric, we will spend and spend and we will see social problems go up and up. And I think you see that I literally have a presentation somewhere where I look at all these social problems and the money goes up, the problems go up, and it’s more correlation and causation. I’m not always sure the services are causing the problems, but that means there’s something upstream from both that’s not working.

And for me it’s the loss of the social fabric, the loss of the community and neighborhoods is the one practical unit of change that you can enter as a society, examine what’s going on, measure what’s going on, have a theory of change around. So we talk about these problems for decades actually, but we haven’t tried to be, in my opinion, very practical about them and neighborhoods is the way to be practical and enter into addressing, examining, finding solutions to this problem. And that’s why my book is Fragile Neighborhoods. They’re not fragile communities or fragile cities, it’s the fragile social fabric and what can we do about it?

James Patterson:

The local state and federal governments have had programs and they have expanded very significant amount of resources to revitalize ailing communities for the last century. Maybe a little shorter than that, but what we find is that the impact of airlifting cash into communities, it’s not very good. So a lot of the money ends up not so much wasted as it feels as though it could have been spent on something with better returns. Is the problem that we’re not spending enough money or is there another problem that we’ve missed in these policies?

Seth Kaplan:

Well, I think we spend money the wrong way would be an easier argument to make than to say we’re spending too much. I don’t think we need to spend too more. I think saying we’re spending too much, then we get into politics. A much easier argument is we are spending money the wrong way and the people we’re trying to help were failing to help. And that’s why I would argue for a play space versus a siloed service approach. And we have lots of examples of neighborhoods that have gone from distress to thriving. And that is mostly, I mean there’s some that just happen because a city gets better and the prosperity spreads and it gentrifies neighborhoods. But you can find really good examples. For example, in Atlanta where there’s a systematic attempt to improve a neighborhood, but there is some investments needed. You need to change the housing mix.

You need to sometimes improve the commercial district, like the shops might make streets a little more pretty. You might have to make the local school better. And so there’s different very specific policies. The key point, when you take a place-based approach, you’re being very strategic about ensuring that place has all the ingredients to thrive. When you take a siloed service approach, what typically happens is you’re acting in a humanitarian manner by giving resources to somebody who needs it, whether it’s housing or food or whatever it might be or money. But you’re actually not uplifting people because you’re not changing their context. And so they might need this today and maybe some people will take your material resources and they’ll be okay, but what will happen the moment they’re okay, they will leave their neighborhood and the neighborhood will be worse off. And meanwhile, you’re still giving these resources to 90, 95 percent of the people who are still there.

And what this ends up happening is it ends up, I would say reducing need but failing to uplift people. And to some extent it encourages the top performers or people who do manage to do better to move to better neighborhoods. And so we have this long-term brain drain from places that are not doing well to places that aren’t doing well. And the whole social service support system. And even programs that universities, they want to identify the best students in schools, they take them out and they push them into this national whatever rat race or career track, and they never go back. And so I think what you see over and over again is one of the problems of the worst off neighborhoods, these are not the materially well off but the distressed neighborhoods is we literally have been spending money both in terms of putting in services in neighborhoods that make the neighborhoods unattractive, putting in housing in neighborhoods that makes it no one else wants to live there and taking people out. We are actually reconfiguring or moving our population around to ensure that some neighborhoods do very badly. And that to me is a failed model and it’s left tens of millions of people living in neighborhoods that are weights on your shoulder and make it very hard for you to succeed.

James Patterson:

So one of the things that’s been sort of in the background for a lot of your answers has been that when it comes to people who are practitioners or if they’re theorists on the question, they’re often ideologically coding what they want to do. So the left focuses on things like structural and economic inequalities and they’re right to do that, but that’s not the whole picture. And on the right they focus on things like religious formation and family formation, but they miss a lot that the left wants to incorporate. So is there something about bringing the two critiques together or maybe even just abandoning this kind of firefight for a better methodology?

Seth Kaplan:

Well, in general, my approach is I want to learn from everybody. I want to hear what the left says, I want to hear what the right says, and I’m very intentional in how I think and how I write. And I think if you read this book, I have people on the left who love this book and I have people on the right who love this book. They don’t love every part of it. I would say there’s pieces, I talk about marriage and family and maybe people on the left don’t want to emphasize that some people on the right maybe don’t want to talk about the fact that I do talk about racism and some of the legacies of how we’ve treated parts of our population. But I would say I think both have some legitimacy in what they say and both don’t want to have a complete picture or are unwilling to have a complete picture.

And so I like to say that I would say my whole life is about being hybrid. That’s actually, you could say I’m personally a hybrid. I do things that normal people aren’t supposed to do together. I travel the world and I’m religious, for example. And in my religious community, most people don’t go to Nigeria, whatever or so I go to places. So there’s a lot of things that I do that I would say don’t fit in a specific box. So I have tried really hard to say these are ideas on the right, which I think are great and need to be building blocks. And these are ideas on the left, which I think are important and I definitely want to listen to them and bring them in. And I want to do something that I think is the best approach. And by the way, I look at the data.

The data says that this is what we should be doing because I am looking at the data and I went and found the best research on neighborhoods and neighborhoods. The data says family structure matters, but it also says that distanced opportunity, for example, might matter the type of physical conditions in the neighborhood matter. So therefore we do need to invest to make these places better, which might be what the left says. But we also really need to emphasize the importance of family, which is what the right would say. So I do think we can learn for both. We just have to make sure we’re building a case on the data and that we’re speaking in a way that ideally we’ll appeal to a broad audience. And in my ideal future there will be a coalition of left and right that will say, enough of all this politics, let’s get back to basics, let’s get back to practical, let’s get back to the local and the neighborhood is a unit that we can all agree on, some things that we can do together and that’s how we can help the most amount of people.

James Patterson:

Social institutions play crucial roles in shaping the social dynamics of a neighborhood by either bonding or dividing, bridging or isolating. And by molding norms and values, they act as rule makers and keepers setting codes of conducts and standards both nationally and locally at the local level. Family, neighborhood associations and schools dictate patterns and norms and that is the sort of thing that consolidates a lot of the views and focuses our intention on the things that come right, but also this attempts to kind of hybridize the approaches. The way that you describe very well flows into the first case study of these people making differences. And that is the one in Detroit. So why don’t you tell me about Detroit since it captures both the family critique and institutional critique as well as the structural and economic inequality critique?

Seth Kaplan:

Well, okay, first let me say that you’ve touched upon the point is that I’m an institutionalist and I believe that local institutions, you could think family and you can also think of civic, social, religious, educational, political, all of these. We need to create a society which every neighborhood is thick with institutions and some of that is formal, some of that is invisible, informal, like parental groups or whatever it is or the norm of helping each other. That’s the type of institution. But places with thick institutions and norms will have a stronger social fabric. So if I go to the Detroit example, Detroit example, let me just go through the sequence. Here’s a guy started as a pastor in a church and said that he wanted to take his faith into the community. He didn’t want to just be in the church with the sermons. So he basically got out of the church and he tried to help people building homes, beautifying neighborhoods changing, fixing roofs and stuff like that for people.

Eventually he went from doing that as well as being a pastor to doing that work in the neighborhoods as his full-time job, carried forth by his faith or inspired by his faith. And he built an organization originally around what we called the sixth day. It was basically a six-day event once a year. He got thousands and thousands of volunteers to go around Detroit and Detroit, many places really needed this again, fixing houses, beautifying streets, just doing things and getting lots and lots of people together. So it’s also bridge building. He did this so well. Then he started doing things, helping schools and raising money and bringing his volunteers to fix places and parks and all this stuff. And then they got this great opportunity that they asked him to take over a middle school, beautiful gothic, 1920s, middle schools, the number of students were shrinking the city could not afford to run this school, gave him a long-term lease, very inexpensively condition is you got to build a neighborhood hub here.

And he says, that’s great, it’s a big challenge from a big step up. But he leaned into it and he went to that neighborhood and he announced his plans and he thought everybody would be grateful that he was doing this, but he was, to be honest, he was a white guy from the suburbs and he had been doing things for them, just a black neighborhood. Doing things for them was very different than setting up shop next door and by the way, taking over the most beautiful important place, physical place in their neighborhood. And who’s this guy coming in here and maybe they’re going to push us out tomorrow. And so he had to learn how to build trust. And his journey was that he had to learn to break bread, he had to learn to go street by street, he had to be humble, he had to listen, he had to change the makeup of the staff so it more reflected the neighborhood or the people in the neighborhood.

They had to create advisory boards. But eventually he built this trust by showing up over and over and over again, modifying the way he was doing things, localizing it. Because again, if you’re not rooted in the local, people don’t trust you. I think this is one of the big lessons about the problems of our civil side today. Civil society is no longer rooted in the local and when you’re rooted in the local you’re doing with versus doing too. And so he transformed basically his organization, his posture, and they eventually brought in 39 organizations. And then this place, literally, it’s actually not in the book because I know what happens after I publish the book, the level of crime. They don’t focus on reducing crime. But the level of crime in this neighborhood went way down. It was like the second safest neighborhood in Detroit. I think that was about a year ago.

That data I come from, and it used to be above average and now it was the second lowest because the collective capacity, the collective efficiency, the relationships, you also people, people, they did some survey of neighborhoods and this neighborhood came up and had one of the highest scores for people’s opinion about the flourishing nature of the neighborhood. They brought these institutions in, they established several institutions like an elders council, a student council. And what they’re doing again is building and bringing into a neighborhood lots of place unique or place-based institutions. And when I talk about institutions being important, here’s an example where yes, in some cases they brought them in, but by providing this space and by leading with the fact is if you’re going to be involved in this hub, you got to have the right posture, you got to be working with others, you got to be cooperating, you got to be thinking about building relationships and institutions in the place. So even if you are a government office and you’re setting up here, you need to take that posture and the end result is you go from a place that’s thin on institutions. I can’t say it’s perfect, they got a long way to go, but it’s gotten much thicker with institutions and this is transformative in terms of what is able to do to transform a place.

James Patterson:

There was, for me, a very compelling story about attempts to revivify marriage by a man named JP de Gans and Kimo. And I was surprised that it all kicks off with a divorce. And this sort of points to the fact that marriage and family formation is so important, but the norms around encouraging those things sometimes are not always good because the divorce in this case was of a woman who was subject to pretty extensive abuse. So tell me about communo family formation, but also the right way to form norms so that you don’t trap women and children in bad marriages.

Seth Kaplan:

Again, I think this is a debate that tends to be very binary.

James Patterson:

Yes, yes.

Seth Kaplan:

And I think one of our problems is we only think of two outcomes, and it’s a complex subject that requires a lot of nuance. There’s a great value for having strong families, not only for ourselves, but I think even more important for our kids. Kids are the biggest losers when families break down. But on other hand, if a relationship isn’t good at a certain level for one of the parents, you again, these are all balances. So it’s a really hard without a fixed answer because every case is a little bit different. It’s a complex subject. But in this case, talking about forming norms I would say is we often talk about the problems of, I mean our society has a caste system around family structure. If you’re materially well off, there’s a lot of data on this, there’s several good books on this, you tend to live in and come from a relatively stable two-parent family.

And if you’re poor, you tend to come from a single-parent family. In fact, there are a significant number of kids that don’t live with either parent in this country. In fact, just the data between the US and Europe, which is a comparably rich country. One of the big gaps in data on relationships is actually the presence of two parents in a home with young children, the gap is enormous. Actually, I think it was 18-19 percent gap. It wasn’t a marriage gap, even though I think marriage is important because northern Europeans don’t get married. It was a gap of simply both parents living with their kids. So in Europe, they may not always get married, but they do stay with their kids as a couple. In the United States, there’s a lot of kids, I mean literally 20 million, whatever the number is. I think it was 23 million kids that do not live with both parents.

And just think of the outcomes of those kids. We know the data. It’s quite different than if you live with both. So how do you establish norms about this? Mostly when we discuss this issue, we get stuck on policy questions. I mean, how do we change divorce? I don’t think that’s a big conversation point, but how do we promote marriage? There’s a lot of debate about that. There’s some really good books on that. And too often I think we get stuck with the idea that there’s a policy lever, maybe there’s an incentive in the tax code, maybe there’s something that can be done. And I think what Communio shows is this is much about forming norms at the very local level. So Communio works with a chain of churches across the country. That guy, JP Degan, JP is a genius, really like a brilliant guy, social entrepreneur, constantly learning, evolving, gaining, making progress.

And his organization understands the importance again, of institutions that are bringing people into an ecosystem where relationships mean something, where having kids mean something where there’s a whole narrative, there’s a whole support structure. He’s not neighborhood-focused, but he is focused on churches working within several miles of their location, which is probably a couple of neighborhoods, not a specific neighborhood. And so for me, it very much fits with this model that if you want to make change happen, yes, we could think about policy, but actually we got to think neighborhood by neighborhood. How do we norm and not only create those norms or reor, but we also have to create a support system. We have to create models and mentors. We have to literally socialize people that there’s an alternative pathway in terms of your life choices. And I’ve seen debates about the success sequence and all that stuff, but everything is thought about up here.

And really I think communion shows that if you’re going to make change happen, you’re going to have to have something like a church, make this a priority, and then go out there and reach people in a certain way and they’ll provide a whole infrastructure of learning and stories and examples and people stepping up for each other and bringing you into this ecosystem where you’re going to have a completely different understanding of what relationships are, what family is, what does it mean to have responsibility to kids. And I don’t think you get that when we just talk about changes in the tax code.

James Patterson:

Yeah, there’s this sense of not so much what works, but what is it that we can directly control? And the problem with so many people in the policy world is they want to have an answer, but a lot of the times they’re not equipped with the right abilities to provide those answers. And so a big part of the story you see among the social entrepreneurs in the book is that they’re just people with good ideas that have to actually learn some pretty hard lessons about how to manage all of this. And you actually list what those lessons are at the end because no one comes into any of these circumstances with all the answers.

Seth Kaplan:

Well, I think too much of our intellectual discussion is we’re looking for the one answer. And we’re thinking, again, if you’re a think tanker or a newspaper or an academic, we are much like, again, this is what’s in the media, what the newspapers cover. The newspapers don’t cover the social entrepreneurs. They cover the policy debates, the think tanks publish on the policy debates, they’re publishing for Congress or the White House or what have you. And so our whole ideas debate around ideas is all about the magic bullet as if we change a single or second, third policy and the world will be different. And actually when it comes to questions of family, there’s certainly a lot of evidence across countries that those actually don’t make a huge difference at all. And my argument is if you really want to make a difference, you got to roll up your sleeves, you got to focus on specific geographies, ideally start with your own, and then you got to work with other people, build institutions, change how things are.

And we are only going to fix our country’s many social ills by having tens of thousands and a hundred thousands of people become activated in various ways. You could be small businesses, it could be small civic organizations, it could be churches leaning into some of this work. It could be schools in a different way, working in terms of community. I mean, so I think there’s not an answer. There’s only tens of thousands of ventures and each of us have a role to play where we are and basically having a different mindset of how we matter and what difference we can make in the lives of our place.

James Patterson:

A great line that you have in the book to this effect, no government or philanthropic program can replace the benefits that the day in day out love of parents and the continuous support of the community provide. Social services may address material needs and they may help mitigate specific problems after the fact, but they’re rarely equipped to provide the care nurturing and targeted discipline that a supportive family and community deliver. So you mentioned in the book the problems of COVID-19 and the movement to mediated communities, especially through the online portals and meetings and the like that we experienced. And you explain that this actually helps underline how communities really are in place and that cyberspace does not provide a really meaningful alternative at best. It’s a kind of subsidizing feature. So the way that I see that in some of the things that you describe is that areas with very high level of neighborliness of community involvement also have lots of Facebook groups or WhatsApp groups, but that nobody who lives relatively unintegrated with their neighborhoods also does. Instead they tend to be isolated also online. So what is it about the role that the internet and social media play in neighborhoods?

Seth Kaplan:

So again, when we talk about technology, you’re specifically asking about technology in the last 15 years, roughly. And I would say technology has been driving us apart roughly since the sixties. And I think the biggest technology is the car, the way the car is. And then you have tv, you have air conditioning, and then you have the internet. And the phones are simply the latest wave of a series of waves of technology that disconnects people and separates them. And that’s why 1964 is the peak year for the US for the social fabric. And I mean we could talk about other technologies beyond that, but I think the key point is here is technology puts a lot of pressure on stress on the social fabric. And what that means is that places that are, this is what we saw, COVID places that are strong, that have strong social fabric and preexisting institutions and relationships and that are working strong as a community, they are much more resilient in the face of technology and the places that are very atomized and weak and lacking institutions, they’re much more vulnerable.

And actually as an example of that, we talk a lot about in the last year, Jonathan Hez spoke the anxious generation. And you look at the impact of phones on kids, I mean the data is clear. People who are embedded in strong community are the least affected by the phones and the kids who are embedded in weak community. And the religion plays some role of that, but there’s also culture on other aspects are the most affected. So the mental health issues, the depression, the self-harming is actually much worse among kids, especially girls that are not in strong community. And I think you could take those data points and that one question of the phones and you could enlarge it. And I think what you see is that again, in Covid places that in my neighborhood, what happened when Covid happened, the first reaction of people is let’s form WhatsApp groups.

Let’s organize to help people who can’t go shopping because they are older or they’re more at risk. People started putting benches. People talk about how we’ve changed the physical layout of houses because we’re less social. Who cares in I there? But everyone just started putting benches and chairs in front of their house. My neighbor out in the corner when the weather got colder, put the couches in the carport, like not a garage, but it’s a covered area and then brought the heaters outside and everyone could have a living room outdoors. And so the point is, when you’re in a strong community, whether it’s the stress from technology in the phone or it’s the shock of covid and what do we do in that situation? People come together, people support each other. I mean, we had backyard camps for kids because they couldn’t go to the regular camp.

We had some sort of joint things through Zoom with neighbors. All this stuff happened. And so first of all, we made a lot more emphasis that we would support each other, be there for each other and that we would, to be honest, that we would reopen soon because we were there for the kids, not for us. And I would say, but even if you want to get around that question, which I do think people might have a different opinion on at times, the fact that people were so oriented towards helping each other and being there for each other meant that we were much less affected by both of these scenarios than I think most people, we are not strongly affected. There’s phones like there used to not be, but we are much more protective of anything that affects the community. And technology is more of a positive.

The debate around technology, good, bad, again, it’s a binary. Technology is good and bad. And what we need to do is the stronger the social fabric, the stronger family, inter-family networks are local institutions. The more the phones actually will be a positive in my opinion, as long as you have some limits around them. We do have limits around them, but they bring us together because the folds work very place-based. And for many people, I think the phone makes us placeless and less willing to meet people and less socialized to caring for each other. And that’s the opposite of what I see in my neighborhood. To be honest.

James Patterson:

The book is Fragile Neighborhoods: Repairing American Society, One Zip Code at a Time. The author, Dr. Seth D. Kaplan. Dr. Kaplan, thank you so much for appearing on the Law & Liberty Podcast.

Seth Kaplan:

Thank you so much, James. If anyone wants to find me, the easiest way is LinkedIn, find me on LinkedIn, or you can certainly go to my website. Thank you so much.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

Related Links

Daniel DiMartino on X
Daniel DiMartino, “I’m an Immigrant and I’ve Done the Math. Here’s How to Fix Our Immigration System“

Transcript

James Patterson:

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson and our guest today is Daniel DiMartino. He’s a PhD candidate economics at Columbia University, and a fellow at the Manhattan Institute. Focuses on immigration policy. He’s originally from Venezuela, so he is motivated to address the problems that come from socialism and the way that it distorts the common good or the pursuit of the common good and political freedom.

His work has appeared in Fox News, CNN, USA Today, National Review, The Hill and the New York Post. He’s received fellowships from the Institute of Humane Studies and the Job Creators Network. He’s written on the subject we’ll be discussing today, that is immigration. But before we get to that, Mr. DiMartino, why don’t you tell us about a meeting you had at Columbia University?

Daniel DiMartino:

It’s funny, with everything going on at Columbia, them being on the public eye, because of the issues of both allowing discrimination against Jewish students, them discriminating against Jewish students and them discriminating in admissions against whites and Asians, as the Supreme Court case led to the changes in this affirmative action practices, they chose to call me into a mandatory meeting because I had been reported. I learned later multiple reports over what they allege was discriminatory harassment by me in the campus.

And what that actually meant, I asked them what that was, what was the accusation? They didn’t tell me. They said we needed to meet. We did, and it was all over just posts on X. One of the posts reads, and I can tell you, “God does not teach us that we can change our gender. Period.” How harassing of me to state the truth. That was, by the way, responding to this female pastor that, at the inauguration was lecturing about transgenderism against President Trump and Vice President Vance.

They said that it was excluding to other people to say that the decline of Christianity is because of the rise of secular ideologies like CRT, DEI, and even ethno-nationalism. It was wrong of me to praise Nikki Haley and Mike Pence for opposing gender surgery for minors. Oh, and it was of course also wrong for me to complain that gender-neutral bathrooms don’t have urinals, and therefore men have to wait longer in line. This really practical and normal opinions that I think 90 percent of the population perhaps agrees with me and certainly in the world, and this is what they chose to do.

This is what they do with their new anti-discrimination policy. They go after conservatives. They’re not going after the people who are causing problems on campus, as you would expect, really from these institutions because they have been discriminated against us for decades. And you know what? I think that they chose the wrong time to do that. And so I am not going to silence myself. I told them what I believe, that I stand by what I said. I, by the way, I’m totally open to have said something that I don’t believe in or wrong. And I did tell them that, but after they showed me the allegations, I was like, “I mean, I really have nothing to change. These posts, are my opinion, are perfect.”

James Patterson:

Oh, I’m very sorry to hear you deal with that. We’ve had an interview with Ilya Shapiro at the law school at Georgetown. His book came out detailing how he had made a single post on X that got him in tremendous amounts of trouble.

Daniel DiMartino:

Oh, I know.

James Patterson:

Is this the story now, where there’s a kind of surveillance state on conservatives that managed to find their way into elite institutions and attempt to denigrate them?

Daniel DiMartino:

It is perhaps worse because it is based on anonymous reports. So essentially there is a witch hunt where all the members of the community, even people not affiliated with the university, are allowed to report members of the university for, in this case, what they consider to be hate speech. Right? Because remember, these are people who believe hate speech or whatever they call that is not covered by the First Amendment.

And to be fair, Colombia is a private university, but it is a private university that receives federal funding. And the Trump administration has made it clear rightfully that they need to stop discriminating against conservatives and against Jewish students and of course against racial groups that they discriminated in hiring and admission and they need to stop doing all the DEI stuff that they were doing. And that’s not what Colombia did.

In fact, I know Ilya well, he’s a colleague at MI and he helped me. He was one of the first people I called after I received that email from Colombia, and so he’s been very supportive. And it’s a shame, right? Because if these institutions just let us be, and I even told them to the Colombia staff in this meeting, “I just want to live my life. You just go and live your life. Let us be, we’re not harming anyone.”

James Patterson:

That’s sort of the nature of speech is that it’s different from harm and the attempt to conflate the two has made it so that you can weaponize these policies. But I think you’re right that this policy has kind of already peaked and maybe this is an effort to kind of bring back, or maybe they feel as though they’ve kind of slipped past on this issue or that you wouldn’t say anything. But what is it that you benefited from? I saw that you also reached out to the Fire. Have they been good for you on this?

Daniel DiMartino:

Yeah, they actually sent a preemptive letter even before the meeting to Colombia, because I already knew it was about some X post because I am very mindful of my in-person interactions. I knew it had nothing to do with anything I had done. And I was right indeed after the meeting. It was all about my posts on the social media X, and Fire sent them a letter to tell them to not retaliate against me for my speech. They did tell me in the meeting they were not going to take any disciplinary action. Maybe they’ll retaliate now after my article. I don’t know. And I understand that’s a risk I took by writing that.

But what can they do to me? Expel me? Make the matters worse for them? I’m really tired. I know that this is a phrase you and I don’t like because it’s like a very non-con thing, like that they don’t know what time it is, but Colombia really doesn’t know what time it is. They don’t understand who is in power in the White House and the priorities of the administration when it comes to religious freedom, when it comes to racial discrimination, and when it comes to education. And so the best thing all these institutions can do for themselves is instead of fighting, they just need to stop discriminating against conservatives against people based on their race and uphold law and order. It’s really not that much that we’re asking for.

James Patterson:

And it’s not as though you were addressing yourself directly to a trans person in a classroom in an aggressive or challenging way. Right?

Daniel DiMartino:

Correct.

James Patterson:

This is just opining on X.

Daniel DiMartino:

Correct. I just said that I don’t believe men can become women and women can become men, essentially. And I repeated it in their faces to the staff because it is the truth, and I’m a student, that’s all I am. They said that people could feel afraid of walking on campus because of the opinions I have. And it’s funny to me because what share of the world’s population shares my opinion? Then they need to feel afraid of walking everywhere in the planet Earth because they overwhelming majority of people in the world, perhaps actually even higher shares outside the United States, believe that men cannot become women or vice versa.

It was really all about that issue. And also one post about how I said that facial tattoos should actually mean you should be screened if you’re crossing the border illegally because that could indicate you’re a gang member. And I was talking specifically about the case of a woman who was a child sex trafficker indeed from Venezuela. And I said that you just had to see her to know she was dangerous. And I very much stand by my comments, and anybody who sees her picture of this criminal would agree with me.

James Patterson:

You have experience, being from Venezuela. How many of the people in the room that were on Colombia’s side seemed to have been from Venezuela?

Daniel DiMartino:

That is a good point.

James Patterson:

I don’t know if they quite have the expertise. You do.

Daniel DiMartino:

Yeah, that’s a good point. I just wish they were, these people were normal. It’s like they lived in a parallel world where saying these things is controversial. I almost feel like a joke saying that this is what got me into trouble because it’s a stupid thing to get into trouble for. People should not be getting into trouble for saying that men or women are different and cannot become each other. This has been the truth for thousands of years.

So, well, it is what it is. Let’s see what they do. I hope they don’t do anything. And I hope that the Trump administration addresses, when they’re negotiating with these universities, the fact that conservatives in academia have been discriminated for a long time. And I’ve seen some people post on X that, especially Libertarians, that this is just DEI for conservatives. And I disagree. I disagree because this is not about them telling them that they need to hire conservatives, but universities have imposed DEI statements for hiring, for example. That’s effectively excluding conservatives, but it is by putting racist ideology as a litmus test to hire people.

I don’t think if you receive federal funding, that complies with the Civil Rights Act, right? And if the Democrats like their Civil Rights Act, then they need to uphold these things in private institutions.

Daniel DiMartino:

Then they need to uphold these things in private institutions too. So that’s, on the one hand, the DEI statements. And then the other is it’s also about religion. If you cannot be hired by a university or admitted because you believe men and women are different, then there is no religious freedom in the United States. As simple as that.

Anybody who is on the right, that’s a way to discriminate against people on the right, because that’s a belief that all of us have against people who are pro-life, against so many beliefs. And if they want to be able to do that, either they need to stop receiving federal funding or they need to repeal the Civil Rights Act.

James Patterson:

Very well said. And I hope that justice is done on your behalf rather than this continued star chamber treatment. I thought we were moving past this, but apparently not. I guess we’ll have to see. So let’s move on to the issue of immigration.

There’s been a firestorm this week already in the treatment of Kilmar Abrego Garcia, who was deported to El Salvador. And Garcia had been here as, I believe, an illegal immigrant, but had received, is it a special status? Right?

Daniel DiMartino:

Yeah, I can explain. So he first was ordered deported.

James Patterson:

Yes.

Daniel DiMartino:

He entered illegally. He remained illegally. Yes, it’s true, he married a US citizen and has US citizen kids. But after 1996, if you entered illegally the country, you cannot fix your status even if you marry an American. Before 1996, you could.

However, so he was arrested in an operation in which other people were arrested. He’s alleged to be an MS-13 gang member, and that’s what was entered in immigration court. There is no definitive proof. I can’t tell you if it’s true or not.

But what I can tell you is that he ended up being granted, this is very curious, ended up being granted something called withholding of removal, which means he should still be deported, but he can’t be deported to El Salvador specifically, but he can be deported 20 other country, because the delegation is that he will be tortured in El Salvador specifically.

But finally, the reason that they allege he could be tortured is because they would believe he’s an MS-13 member. But the law in the US did say that he could not be legally sent to El Salvador. They did send him. That was breaking immigration law. That is true. And the administration admitted it in their court filings.

However, what they’re arguing now, and in El Salvador, after he was sent, he was indeed put in a prison without trial. And he could potentially remain there for the rest of his life without trial too. I will say if he’s indeed an MS-13 member, I have no problem with that. The question is whether he is an MS-13 member.

And if he is, maybe they should do a trial. And if they do a trial in El Salvador, I would feel totally comfortable with him being there. Now, my concern is not as much with him as a person specifically, but more with the principle that the federal government is arguing in court to say that they cannot return him.

They’re saying that because he’s outside the US, not because he’s a non-citizen, the US has no jurisdiction to force him to return. Does that mean that if an American citizen is deported to another country wrongfully, oops, there is nobody who can force the federal government to return him? That is a dangerous precedent to set.

James Patterson:

And the example of MS-13 members and a lot of Venezuelan immigrants, they travel through the Darien Gap, really dangerous on foot traveling, which requires a lot of encounters with other gang or organized crime activities, how representative of the American immigration is that? Or is there another side to American immigration that doesn’t get put on the front page?

Daniel DiMartino:

So this is another problem and it’s a concern that I have with all the reporting that’s been happening by the media on immigration. They’re highlighting a lot of cases that were also happening in the past, but they’re just doing it now because it’s a Trump administration.

And so for example, I am very much sympathetic to the cases where there’s been a mistake. This happened a few weeks ago. They thought the media reported this case of this Lebanese national on an H-1B visa coming back from Lebanon on the airport or from France. And then she was deported and her visa was revoked.

And then everybody immediately said, “Oh, this is Trump. It’s an attack.” Turns out she admitted in the port of entry to the CBP officer, this was not a government, Trump ordered or Stephen Miller. No, this was an individual government employee who was told by this individual that she went to Lebanon to mourn the death of the Hezbollah leader.

That’s what she said. She volunteered the information. And then they took her phone after she said that and they found all the evidence that that was indeed the case. And so they returned her. Wow, common sense for the guy in the airport to return her, it sounds to me.

But it’s a story that was then put in the media to scare legal immigrants. That is not a representative case of what’s happening. So I’m open to mistakes happening and wrong things happening. I just think that a lot of the things the media is reporting are misleading people and we need to get to the truth.

For example, maybe El Salvador should hold a trial for Abrego. And if they held a trial that was fair and open and then they determined that he was an MS-13 member, I feel like most people would be comfortable. But instead we have democratic US senators who are saying, “I’m going to go to El Salvador, I’m going to return him home.”

No, it’s bad optics when the guy you’re standing up for in immigration fight is potentially an MS-13 member. There’s so many good cases that you could stand up for.

James Patterson:

Plus if you’re a sitting US senator, you actually have the opportunity to legislate on these issues and perhaps challenge Trump with that legislation. I know it would be quite an uphill battle for them, but it doesn’t seem as though this is why we elect senators to go to Central American countries on behalf … So we have ambassadors for that.

So the impression that you get from these stories is that immigration is primarily an invasion of violent foreigners and that their attempt to enter the country puts a drain on our law enforcement and our judicial institutions. Is that the right way to look at immigration to the United States?

Daniel DiMartino:

Of course not. And obviously, the average immigrant is very different from all of this. Most immigrants are law-abiding, on average, more than native born Americans. And I can explain why. That doesn’t mean that immigrants commit no crimes or illegal immigrants, all of them should remain. Not at all.

But one under-discussed aspect of why immigrants commit less crimes than natives is because the criminals get deported and they can’t commit crimes again. The native born get released from jail and then they keep committing crimes. So that’s why the immigrant crime rate is lower, because of the good policy of deporting criminals.

And more of them should be deported. Ideally, all of them. But the overwhelming majority of immigrants have never committed a crime, never will. They are, on average, paying much more into taxes than they receiving government benefits, especially legal immigrants, especially young, especially highly educated ones, especially people on H-1B visas.

So I have a lot of research on that. I’m continuing to do research on that. I think, though, that where the Trump administration might be misguided in the immigration approach is, for example, they fired some immigration judges. You need more immigration judges so that you can issue deportation orders.

But they still gave them the DOGE retirement option, and so a bunch of them took it early retirement because they just sent the email to all the employees by mistake. Perhaps they’re not thinking about this long term. This is the problem with doing things too fast and not thinking. So that’s one example of a mistake from the administration in my view.

Also revoking the legal status of people en masse because Biden did it. For example, temporary protected status for Haitians and for Venezuelans, the parole programs, all of those decisions have been stopped by courts.

What had happened was that Biden gave Venezuelans and Haitians who were here before a certain date, legal status temporarily. It had been extended until October 2026. After that date, they could have let it expire. The Trump administration, specifically Secretary Noem, decided to end those things early.

That is the first time in the history of this program that’s ever done. It’s probably illegal, and that’s what a US court found. And now this whole thing is stuck in a legal fight that, in my opinion, is totally unnecessary because they could have just waited until the expiration and let it go and not renewed it, but they chose to do something unprecedented.

Same thing with the parole process. The Republicans in Congress criticized that Biden, to alleviate pressure on the border, allowed Americans to sponsor Cubans, Haitians, Nicaraguans, and Venezuelans on their own dime to fly into the US for a two-year legal state period.

And half a million people did this on the Biden administration. Now, all the Cubans end up getting legalized under the Cuban Adjustment Act. Anyway, many of them ended up getting TPS, the Haitians and the Venezuelans.

The Trump administration decided to say, for the people whose two-year period hadn’t expired, we’re going to end it in 10 days. You have 10 days to leave the country.

Daniel DiMartino:

… That in 10 days, you have 10 days to leave the country, when they could have just let the two-year period expire and then them be deportable if they didn’t obtain another legal status. So I think perhaps they’re just trying to push the limits, judicially do things faster, but I think they could have just saved all these legal fights and court losses by simply waiting until things expire on their own.

James Patterson:

So about the Haitian and Venezuelan exceptions that you see here, we have a distinction between people who immigrate to the United States legally and we have a distinction of people who immigrate here illegally, and then there are people who come here for purposes of asylum. A big part of the problem that I know the Trump administration, a lot of Republicans have had is the abuse of the asylum process. How much of the asylum process is really just the result of dysfunction for the other two categories?

Daniel DiMartino:

Well, a lot, but I think the Trump administration in its first months really showed that it is indeed overwhelmingly unnecessary and fraudulent the asylum immigration that the US had under Biden. We just received the March numbers for the border crossings and they’re among the lowest in US history. They kept coming down after the January slump when Trump got inaugurated, it’s still going down. It was only, I think, 7,000 people crossed the border in the entire month. There were some months under Biden that it was over 300,000.

James Patterson:

So words out?

Daniel DiMartino:

So words out. And all of this, by the way, is mostly not because change in border policies, it’s because of rhetoric. That is powerful. And so Trump has been very effective at securing the border because he is Donald Trump. It’s amazing. It’s amazing. Signaling works. Now, my concern lies in that it’s true that Biden might have done, certainly did, many things wrong, letting in people into the country, but those people didn’t do anything wrong if they entered under the legal program that Biden set up, it wouldn’t be fair in my view to punish them or end what they were promised early legally.

When they’re working, they’re not committing crimes, let them go through the legal process, and if they end up getting order deported, then deport them, and if they don’t leave voluntarily. So that’s how I view it, especially because deportation has costs unlike securing the border, this signaling that Trump did has been free. Yes, some things have changed at the border better, they’re rebuilding the wall, continuing what Biden had stopped, that’s all good, not as costly, but each costs at least $50,000.

So the question that you need to ask yourself when you’re going to deport someone, especially somebody who was allowed in legally in the first place, even if you think it was wrong, is it worth it 50,000 plus or even perhaps over $100,000 to go through the deportation process of this person, or does this person contribute more to society than what they receive? Are they in a migrant shelter in New York City receiving free housing and free healthcare and free food? If so, get rid of them. You can’t allow the world to come to your country and then turn yourself into the welfare of the world. So that’s how I view this decision making should be.

James Patterson:

Do immigrants take American jobs?

Daniel DiMartino:

I would say that’s, no, not in general at all. I think that there are economic effects on the labor market by immigrants, but they don’t express themselves in employment but in wages. That is a very important distinction. When there was a huge influx of women into the labor market, that did not steal jobs from men. When you have a baby, does more fertility mean that the current people lose their jobs? Therefore, we should have no children. What an excellent extinction strategy. But we will have all the jobs, there’ll still be 300 million jobs even if we have 200 million people. That makes no sense.

So we will be working each one and a half jobs. We’ll just work more hours. This has no sense when you take it to its extreme, which shows you that it’s a false premise. But what does happen is that if there is a sudden influx in the labor supply, of course in a specific profession and sector and location there will be a decrease in wages, but in that specific profession, and that will lead to actually an increase in wages for everyone else. There are benefits and costs. For example, if I told you, James, that America is going to create this new visa program for one million new Uber drivers that will come to America, what do you think is going to happen to the price of Uber rides?

James Patterson:

I don’t know. Go down?

Daniel DiMartino:

It’s going to go down. It’s going to go down massively. Now, who does that harm? The current Uber drivers, but who does it benefit?

James Patterson:

Consumers,

Daniel DiMartino:

Everyone else who is not an Uber driver. So that’s how immigration affects the labor market. So if all the immigrants coming look a lot like the people already here, there’s really no effect on the wages. And if the immigrants are very low skilled, they will harm the low skilled Americans and benefit the high skilled ones. But on the contrary, if immigration is very highly skilled, meaning physicians, engineers, doctors, or people with PhDs in STEM, that will benefit poor Americans who don’t compete. A construction worker isn’t competing with a physician for jobs. They’re in a different labor market. Somebody in California is generally not competing with someone in Maine. So all of these things are connected. It’s like trade and other things, there is redistribution of some sorts, which is why I’m so supportive of high skilled immigration because it benefits the poorest Americans the most.

James Patterson:

Growing up in Houston, it didn’t occur to me as a kid but it now makes sense that a lot of my Nigerian friends were high skilled immigrants that worked in petroleum and those were some serious kids, they were extremely academically competitive and went off to really great schools. But a large number of immigrants, many of them illegals, seemed to work in what we would consider unskilled. The work is actually very skilled when it comes to doing things on farming and construction. Are these immigrants displacing of the American worker, or is there something about the compensation in those fields that makes it so that American citizens don’t want to do them?

Daniel DiMartino:

Okay, so there is another distinction here, especially on the low skilled end, so that all the listeners understand, I don’t mean to diminish skills or anything like that that different professions have.

James Patterson:

I didn’t mean to apply that either. I’m sorry.

Daniel DiMartino:

I usually use this term because it’s the common term used in the immigration literature in economics especially, but really I’m talking about high income versus low income migration, high education versus low education migration, but really talking about income, because Mark Zuckerberg is a college dropout, but you wouldn’t consider him to be a low skilled immigrant. But this is why it’s really not necessarily about education, even though education on average does predict earnings. So there are some industries that it’s not that the wages would go up if fewer immigrants were working, it’s that they would disappear, because you could make it abroad. Those are the industry’s in tradable goods.

If you suddenly have fewer Uber drivers or construction workers or, say, hairdressers, you still need haircuts, you still need to construct, you still need restaurants, you still need all these services that are localized, the cost will just go up. But for farming, for example, or for manufacturing washing machines, if the wages go up beyond a certain level, it will simply become cheaper to farm corn in Mexico than in the United States. So if you don’t allow guest workers for farms, the farms will simply go broke, they’re not going to hire Americans because they will need to pay 50 bucks an hour for people to move to the middle of a farm to work there, and the farms simply would find it cheaper to make it in another country and then bring it here.

And I guess some people will tell you, “Well, then we need to put tariffs on the imports so that they don’t move abroad,” but then you’re just going to increase the cost of things and decrease our quality of life. If there is a finite number of people, you can’t say that we’re just going to make more things in America if you don’t have more people. It’s simply like that. Unless you believe in massive automation and you can create some sort of technology, and maybe that works, but that’s not going to give jobs to Americans who didn’t go to college. Automation is going to benefit more Americans who did go to college and other highly educated people.

So you do need some immigration in the low skilled end as long, in my opinion, as its guest workers, meaning they return so that they don’t collect welfare benefits ever, because that’s the problem really with low skilled immigration in general is that they stay, then they get social security and Medicare, and they end up receiving more benefits than they paid in taxes. But legal guest workers on, for example, the agricultural visa, the H-2A, they go back to Mexico and Central America where most of them are from, and they come seasonally and they never collect any dime of taxpayer dollars, so it’s amazing.

James Patterson:

The vision that I think a lot of people have of America, its golden age, is in a period when there was still a fair amount of manufacturing, maybe even agriculture to a much lesser degree back in maybe the middle of the twentieth century. What is it about immigrants that makes …

James Patterson:

About immigrants that makes them easy targets for why that’s changed versus, say, what you were talking about with the issue of tradable goods is that it’s harder to pin that down than it is to say this person, there’s these populations that come to this country that are different from me and they weren’t here before.

Daniel DiMartino:

Well, but the thing is, if it weren’t for even illegal immigration, probably manufacturing would be even more expensive in America and we would have less manufacturing. So if you believe that the jobs went to China because it’s cheap labor, then having less cheap labor in America means less manufacturing. Right?

James Patterson:

Yeah. That was the case. There was a Turkey processing plant in Central Virginia, and I think every single person who worked there was either like a seasonal worker or maybe even had fraudulent documentation, but none of them were American citizens. And it’s rough work. It’s not the kind of thing that people would want to do instead of a regular office job.

Daniel DiMartino:

So I think people romanticize the past. So let’s talk about the past. In the past, in the fifties and early sixties, there was what was called the Bracero Program, an unlimited guest worker program legally, where people could come and it was very thorough, the vetting for diseases and things, but millions of people came, especially from Mexico legally, and it was Kennedy who ended it on the pressure from the unions because the unions never liked immigration because the immigrants don’t join unions.

It’s really that simple. And so it is a problem. I think that the key to manufacturing in the US is understanding what is the comparative advantage of America. It is high-tech industries, it is high productivity, and if you want to increase productivity, you have to focus on bringing the immigrants, who will do that? Who are those? If you want to manufacture chips, you don’t need the CHIPS Act with hundreds of billions of dollars to subsidize rich companies. You need to bring in the Taiwanese engineers who actually made chips in Taiwan. And I’m not talking about a lot of people. I’m talking about a few thousands, really. And if you do that with industries across the spectrum, believe me, we are going to manufacture all the top technology in the planet here in America. We need the knowledge, right? Knowledge is what drives productivity, and that’s what increases wages, people who invent new things. And so you don’t really need as much low-skilled immigration as people think if you have these high skilled, and at least that’s my theory. Yeah.

James Patterson:

Re-shoring American manufacturing would probably not entail the scale or the sheer volume of workers that it once did. If we were even able to re-shore because of perhaps more prudently implemented tariffs, the industries that would come here wouldn’t necessarily employ millions of people. When it comes to chip manufacturing, that’s not a high scale assembly line, like screwing and bolts kind of work, right?

Daniel DiMartino:

Absolutely. No. What manufacturing in America looks like more likely today is Boeing and Tesla, and that means a bunch of engineers who are college educated, who are making a lot of money, by the way, and who are making designs. It’s a lot of people who work in software too. That’s what manufacturing looks like today in the United States, and that’s the comparative advantage. Those are America’s exports. It’s those high-tech things. It’s not making T-shirts from cotton. That’s what we bring from Bangladesh. That’s what we bring from Vietnam. And that’s okay. That’s their comparative advantage. We get cheap shirts because of that. I would not want to pay $200 for a T-shirt in order to make it here. And what people don’t understand, it’s not just about what you pay, right? It’s that in order to make it here, you will need to move somebody from a different job to that job.

So you’re going to make less of the things that we’re good at to make more of the things that we’re bad at, and it’s going to make us all poorer. It’s this misunderstanding. The misunderstanding about immigration usually shares the same misunderstanding about trade. And so that’s why usually nativism comes hand in hand with protectionism and then isolationism, but that’s a different monster. But related.

So we have to lean in to America’s advantages, and that is being the world’s knowledge superpower. And to maintain America’s edge as the world’s knowledge superpower, we need high skilled immigrants. Remember, it’s not just about the immigrants, it’s about their children. The children of really intelligent people tend to be really intelligent. And if you brain drain China, if you brain drain Russia, if you brain drain other nations, America will guarantee being the world’s superpower forever.

James Patterson:

Just on a final note, there are a lot of Americans here that are concerned about upward mobility, and I still think that there’s always this problem when it comes to immigration where it is a visible problem, but the issue at work here is really more invisible, which is that it’s harder to move to a lot of places where the jobs are because those places have a lot of land use regulations that increase rents. And there’s also a lot of barriers to entry into trades through licensing processes, and it just doesn’t seem to really have the same level of punch. Not sure why that is, but that should really be the area of concern, I think, for people who want to be upwardly mobile, they should want to see deregulation of land use and opportunities in the service economy, right?

Daniel DiMartino:

Absolutely. We’re talking about environmental regulations that are terrible, and I think Lee Zeldin is going to do a really great job at the EPA on that. It’s also, I would say, a big disadvantage America has relative to other developed countries is on some basic quality of life issues like crime, like trash, and it’s because of bad policing. And we talk a lot about this at the Manhattan Institute, but the reality is that a lot of people who are antisocial is a really small number of people in every city of a couple hundred. If they were just put in prison, you would solve half of the crimes in the entire urban area. Serial shoplifters, serial assaulters, people with mental illness that need to be institutionalized, these kinds of cases.

And that is a big drawback for the United States in the competition for labor in opening new factories. Then you mentioned land use regulations. I would also add, especially for upward mobility, licensing for professions, America is one of the most licensed developed countries. You need a license to do everything, and especially I criticize the left because they all want to be like the Nordic countries, but then they don’t want to actually implement the policies of the Nordic countries. They don’t have all these licensing restrictions. They have much more free trade with the world, so the inputs for manufacturing are cheaper, right?

If you tariff steel at 25 percent, it’s going to be more costly to build a new factory in America. Perhaps you should be tariffing the final product, not the input to make the final product here in America. At least that would make more sense. So we need to focus on supply side policies. How do we increase supply? How do we become richer? Not how we redistribute resources necessarily inside the country.

James Patterson:

Well, thank you so much for talking to us about this issue. I had an entirely different way that I was going to do this, but both because of time constraints and because of this dramatic moment that you just had, we kind of had a different one, so we had a more compressed discussion about immigration, but I’m hoping that you’ll finish your PhD soon. I think a lot of people are asking for your time, so that almost gets put onto the weekends and evenings. People like me are getting in the way.

Daniel DiMartino:

No, no, no. Thank you so much for having me, James. This is always a pleasure.

James Patterson:

Thank you for coming on the Law & Liberty Podcast. Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts, and visit us online at www.lawliberty.org.

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The Persistence of the Ideological Lie by Daniel J. Mahoney

Transcript

James Patterson:

Welcome to the Law & Liberty podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy books, and culture and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty. With me today is Daniel J. Mahoney, Professor Emeritus at Assumption University, a senior fellow at the Claremont Institute, and a senior writer here at Law & Liberty. And he has written extensively on statesmanship, French political thought, the art of political thought of Alexander Solzhenitsyn, conservatism, religion and politics, and various themes in political philosophy. His most recent books are The Conservative Foundations of the Liberal Order, The Other Solzhenitsyn, The Idol of Our Age, How Religion of Humanity Subverts Christianity—definitely one of my favorites—The Statesman as Thinker, and now most recently, The Persistence of the Ideological Lie: The Totalitarian Impulse Then and Now. Dr. Mahoney, welcome to the Law & Liberty Podcast.

Daniel J. Mahoney:

Oh, really happy to be here, James.

James Patterson:

I can’t believe those are starting just in 2011, you were a man of great, prolific writing. How do you do it?

Daniel J. Mahoney:

Well, I’ve always been somebody who is convinced that thinking and writing go hand in hand. And so I’ve always been an extremely avid reader. So from time to time, which is every couple of years, a theme comes upon me that needs to be addressed in a more thorough and systematic way, and I pursue that subject, or I often find myself already pursuing that subject. So I’m halfway done with a book when I realize this is a book. The other thing is I like to write, and I think I’m a pretty good writer, so that makes a big difference. The writing has never been a terribly strenuous activity for me, and that helps a lot when you’re the author of a fair amount of books.

James Patterson:

That’s right. And the subject in this one is the persistence of the ideological lie. For those who even know what that is, that’s normally something we associate with communism, something in the past. So maybe explain what the ideological lie as a concept is and what it has to do with the present.

Daniel J. Mahoney:

Yeah. One of the points I make in the book, and I’ve made quite emphatically, I think since the 1990s, is we never really learned the fundamental lessons to be learned from the ideological tragedies of the last two centuries. So you might think of the period 1789 to 1989, 1991, as an age dominated increasingly by ideological threats to political civilization and the moral inheritance of the civilized world, the Western world. And I think there was a tendency on, first of all, so many intellectuals cheerleaded for these active efforts at moral and civilizational subservience. The first political pilgrim was Tom Paine. Now, Tom Paine wasn’t a complete crazy by any means, but he suffered from a syndrome, which we would see over two centuries, “pas d’ennemis à gauche,” no enemies to the left, but he was a decent man. And he goes to France and he ends up in a Jacobin prison because he thought it was an extreme measure to arrest and try and eventually execute the king and the queen and the royal children. He wanted them to come to Pennsylvania to be Republican farmers.

So we’ve always had intellectuals who thought that a more progressive and ideological version of modernity, what Eric Voegelin very suggestively is called modernity without restraint, would fulfill the promise of modernity and modern democracy. But if you look at the mainstream judgments about this ideological assault on civilization, you either had the cheerleaders who wanted democracy to become thoroughgoingly progressive. And as I say early on in the book, that was always linked to what Leo Strauss called the replacement of the perennial distinction between good and evil with the ideological distinction between progress and reaction. In other words, things were good because they were in accord with the logic of history, not because they were intrinsically meritorious or the opposite. All right, so we had these explanations. What was at stake in the age of totalitarianism, collectivism, the planned economy, dictatorship versus democracy. There’s an element of truth in all of that, but all of those explanations are superficial.

And so when we come to the revolutions of 1989, the elite consensus was that this was simply the victory of a more efficient market order over a failed planned economy or the victory of human rights over dictatorship. No one or next to no one really got to the core of what the ideological subversion of political civilization was, what thoroughgoing modernity without restraint was. And it meant when I talk about the lie, which is a concept introduced by Solzhenitsyn and others, but very widespread among thinkers in the East, Havel, Benda, even some … Boris Pasternak speaks about it and Dr. Zhivago, something much worse than dictatorship. It was the demand that human beings pretend to live in a surreal world where language had lost meaning, where facts were negated, where the distinctions between truth and falsehood and fact and fiction were essentially eliminated. And where people spoke, the French called it a “langue de bois,” a wooden language, the entirety of everyday life became permeated by lies, not lies about this policy or lies about that, but fundamental lies about the nature of reality.

So Eric Voegelin, who just happens to be better on totalitarianism than Leo Strauss, Leo Strauss, a contribution to the understanding of totalitarianism and it’s a good contribution, it’s a interpretation of a dialogue by Xenophon, the Hiero. Well, that’s a very indirect way of approaching the ideological lie. Voegelin spoke about the forcible imposition of a second reality on the only human condition we know. And I think that here we’re closer to the insights of Arendt in Origins of Totalitarianism of Orwell in 1984. Of course, the great fear all these guys had was that, in Orwell’s famous words, that the “boot” of such despotism could be stamping “on a human face—forever.” I don’t think that was ever a danger. I don’t think human nature can be fundamentally conquered once and for all, but it can be distorted, mutilated, suffocated. And I think we underestimated how long it would take for totalitarian regimes and societies to come out, to use Solzhenitsyn’s phrase “from the rubble” of totalitarianism.

And we also underestimated the, well, long and short of it, what was the dominant, or at least an effort to make sense of the age of ideology and the West’s eventual victory, which had less to do with our virtues and more to do with the intrinsic failures of totalitarianism. The major explanation was Francis Fukuyama’s, and it was that—he gave a Hegelian-Marxism interpretation—we were on the winning side of history, and history has now come to an end. And so to quote Alexandre Kojève, the Hegelian-Marxism bureaucrat and philosopher who first theorized the end of history in a Cold War context, “The universal homogenous state, the final form of government, the final form of society was liberal democracy.” So it’s kind of an inverted Marxism. We’ve arrived at the end of history, but it’s not Marxist Leninism, it’s liberal democracy. Now, that was a very troubling and superficial analysis of events, but it showed as smart as Fukuyama was and as smart as philosophically informed as his thesis was, it was just wrong in every respect.

James Patterson:

So we end up with liberal democracy all the same, and yet we still have the ideological lie, which shows, as you were describing, is that the lie is not tied to a particular enterprise or government or even a particular people or culture, rather it’s almost like a temptation, and it seems to be an elite temptation to dominate with language. How does this emerge in Western liberal democracies after we’re supposed to have learned the lesson from the collapse of the Soviet Union in the Berlin Wall?

Daniel J. Mahoney:

I think our political and philosophical discourse is very confused, and I think it’s confused in part because we continue to use words like liberalism and liberal democracy to describe a intellectual, political, cultural order that has remarkably self-radicalized over the last 10 to 50, 60 years. I’m an unrepentant defender, an advocate of liberal democracy, but not liberalism as redefined by progressives. And I think this is what all of us underestimated, the remarkable capacity and propensity of even a liberal order to self-radicalize, and that means to adopt many of the tenets and traits and assumptions and presuppositions of the totalitarian enemy. I’ve already mentioned the growing replacement, the displacement of the perennial distinction between good and evil, with the ideological distinction between progress and reaction. You’ve entered a different moral and perhaps political universe when a liberal order is accompanied informed by that kind of … Democracies, as Pierre Manent said over and over again, “Do you really have a representative regime or a liberal regime when democracy is redefined, not to mean the self-government of a free or republican people, but the non-negotiable adherence to ever more extreme understandings of human autonomy?”

The paradox of late decayed, late liberalism might be revealed in one of the mottos. The French soixante-huitards, the paradox of the new left in an extreme form in France where the Fifth Republic was almost toppled, was you had people on the one hand expressing political fealty not to the Soviet Union, which seemed boring and bureaucratic, one can’t get excited about Leonid Brezhnev, the Soviet General Secretary. So your attention was directed toward Caribbean communism, Castro, or the beautiful cultural revolution and then China. So you had these radical students, they were spoiled 21, 22-year-old bourgeois kids, privileged from with the best upbringing, privilege, with the best upbringings in the world and freedom and free state educations, screaming and yelling about the need to bring Maoism and Castroism to France. And yet, what was their motto as they were behind the barricades and they were trying to destroy the liberal university? As Raymond Aron pointed out at the time, “It is forbidden to forbid.” So imagine political totalitarianism, with this extreme cultural and moral antinomianism, and anything goes, and if you are in favor of maintaining an element of authority, not authoritarianism, but an element of authority, in the army, in the universities, in the churches, in the polity, you’re an enemy of democracy.

I think that’s been the broad direction of the West … 1968 in France was an extreme version of it. I think 2020 in the United States was an extreme version of it, when you had upper middle-class people marching in the streets in support not of the dignity of Black Americans, which is a noble cause, but in favor of a movement and a slogan dedicated to the proposition that America was an irredeemably racist nation, that the police shot 15,000 people of color a year, that the police needed to be disbanded, which really means that the innocents and vulnerable people in the inner cities and all that are left at the ravages of gangs and criminals, et cetera. And this is not a new phenomenon, as I show in the book, the Russian intelligentsia, educated society in Russia, between 1860 and 1917 succumbed to this kind of madness. So yes, it’s an old problem, but it has resurfaced with particular virulence in recent years.

And let me just add the final piece of the puzzle, and that is ideological Manichaeism. And what do I mean by that? It seems to me moderate liberalism, conservatism, biblical religion, classical political philosophy, all have in common, despite many theoretical differences, the view that human beings are imperfect, that wickedness cannot be expunged from the human condition, but only restricted within individuals and societies, that freedom needs to be accompanied by moral responsibility and self-limitation. And when that understanding comes under assault, beginning with the Jacobins in the French Revolution, continued by the Marxists, continued by various … In the twentieth century, we had these strange melanges, these mixtures of Freudian sexual emancipation with Marxist terrorism, with liberationist ideology. But it was always we know who the evil people are, and they’re evil less because of what they’ve done than because of who they are. And if you change the social system, if you get rid of those groups, classes or races … The Nazis, of course, had the obsession with the Jews and had an essentially racialist ideology. But leftist totalitarianism has always been an ideological Manichaeism centered around suspect classes or social categories.

But I think what happened is after 1990, ’91, because we didn’t have a sufficiently vigorous analysis of what this age of ideology was about, there was never any challenge to either the facile distinction between progress or reaction and its accompaniment, the ideological Manichaeism that saw guilt in certain groups of people simply because of who they were, they were ontologically guilty. People like Shelby Steele, in the late ’80s and early ’90s, saying, this will only increase, in the form of American racialism, it’ll only lead to a backlash where we’re faced with real racism. If you tell young white men for 30, 40 years that they’re ontologically guilty and the source of all evil in the world, some of them are going to fight back in very unsavory ways without the dignity and restraint, let’s say, of the religious believers.

So yeah, I think all those elements are there, but I think we have to go back to one of my opening remarks, that the utter and complete failure to really understand the totalitarian tragedy allowed ideological Manichaeism to resurge and to radicalize in ways that were perhaps as dangerous as the original forms of totalitarianism. And the disease was a disease within civil society. We’ve been very used to looking at totalitarianism in the state, oppressing civil society. But what happens when the totalitarian impulse comes to dominate so many institutions within civil society, like universities?

James Patterson:

Yeah. The problem really seems to surface in a conflation of issues that you mentioned, where we start with a principle of great moral importance, like racial justice, the establishment of due process and equal protection for Black Americans, which they had not had for a very long time under issues like Jim Crow, and conflating that to a very radical proposition about the 1619 Project. And the 1619 Project itself is tied up in this elite civil discourse, started in universities, and the worst part is that the 1619 Project forecloses the possibility of reaching this very important moral outcome, almost dooms the whole project of racial reconciliation and racial justice by condemning the country. What on Earth?

Daniel J. Mahoney:

And condemning the dream. Remember, Coats writing his book denouncing the dream? And the dream, of course, is what Martin Luther King had articulated in his speech on them all in 1963, living up to the promissory notes of the Constitution and Declaration. That became the enemy, the idea that the American proposition was in any way choice-worthy or noble or realizable.

James Patterson:

What drives people to embrace the lie when it seems like it’s such a vile thing to embrace? It seems very hard for me to imagine that one would want to believe that King is wrong about the dream, or that the Constitution and Declaration are bad. What is it that makes elite liberal democratic people want to believe something so bad?

Daniel J. Mahoney:

I think we should never underestimate the pleasures of self-loathing. “Come fix your eye upon me, I thirst for accusation,” I quote that from a 1925 poem by William Butler Yeats. And this has many manifestations. You’ve already mentioned the 1619 Project and the pleasure a large part of the intellectual class exhibits in believing and proclaiming that the United States is nothing but an irredeemably racist and oppressive and exploitative society. I also deal with it in my account of this really ubiquitous and mad settler colonial or post-colonial cult, which is so influential in the intellectual community in the universities, of course. As I was finishing up the book, I saw that Taylor Swift was giving a concert and … You didn’t think I’d mentioned Taylor Swift in this interview.

James Patterson:

No, that is definitely not on the bingo card.

Daniel J. Mahoney:

Taylor Swift was doing a concert outside Toronto, and she just ritualistically apologized for being on occupied land, et cetera. Well, if she was on occupied land and thought it was a massive injustice, she shouldn’t be doing a concert there.

James Patterson:

That’s right.

Daniel J. Mahoney:

But the moral preening and the lack of historical perspective, the transformation of all original peoples, who of course probably viciously replaced another people, that’s how, unfortunately, the world often works. But yes, there’s a view that is inculcated into the young in elementary schools and high schools, that is deepened in a ritualistically ideological way at the college or university level, that tells people that the freest, most prosperous and self-critical countries and civilization in the world is the most irredeemably evil. And I cannot help but think that there’s a certain perverse pleasure in people knowing, we hold the monopoly on evil in the world and we are part of this small intellectual elite that recognizes this. I would also not underestimate the role of cheap grace.

All the moral preening of the intellectual class is, in a way, a plea to make an exception of them. In other words, woke, white progressive intellectuals are supposed to get a pass. They, of course, occasionally have to engage in these ritualistic moments of self-criticism, public browbeating. We see this more and more with mainstream publishing. But in a way, they’re hoping that they will be exempted from cancel culture. And I don’t believe, by the way, that wokeness or cancel culture has gone away. I think it’s being contested, being very strongly, maybe not always wisely, but very strongly contested by the present administration, and it’s being contested increasingly by people that were fighting back. That wasn’t so much the case, let’s say, in 2020. But yeah, I think there’s all that going on.

In other words, I think we have to recur to one of the categories that was very influential during the Cold War, when anti-totalitarian thinkers and intellectuals tried to make sense of why so many people in the intellectual class were attracted to political and ideological movements that destroyed intellectual freedom, the so-called captive mind that Czesław Miłosz spoke about in his famous book from 1953. I think there are strange pleasures associated with the self-enslavement of the mind. Why, for example, would Black progressives and white, woke intellectuals be so attracted to a position that says to Black Americans and other minorities, so-called people of color, that you have no agency whatsoever?

If you read the 1619 Project closely, the book, which I treat in a chapter of The Persistence of the Ideological Lie, its authors say over and over again that nothing can ever change in America, and nothing has ever changed in America, because people have no freedom. They not only don’t have political freedom or civil rights, they have no metaphysical freedom, they have no free will. And somehow telling people of color that you’re playthings of an evil system, and that will never, ever, ever change, it’s demeaning, it encourages deep-seated nihilism. And that’s part of it, I guess, this strange mixture of a distant call to emancipation and revolution, with a hopelessness and a nihilism that the existing order is beyond redemption. Most people look up and say, “This isn’t the world I’m living in.”

But yeah, you ask a really wonderful question, which is it’s hard to unpack the deep human motives that would lead very intelligent people to adopt an ideology that denies the freedom of mind and that denies any attachment to a decent political order. I do think the law, political order. So I do think the lie has its attractions, but I think we shouldn’t underestimate the capacity of intellectuals towards self-destructive thinking. And there’s a difference between an intellectual, by the way, and a real philosopher, a political philosopher. They’re caught up by the winds. They’re caught up … Again, I go back to Voegelin. There’s spiritual, we called it pneumapathology. There’s spiritual illness here. I’m not talking about mental illness. I’m not talking about people repeating what the communists did and putting political opponents in psychiatric institutes, but I’m talking about sickness of soul.

James Patterson:

Yeah.

Daniel J. Mahoney:

And some people seem to admire, this is particularly true of the Nazi or fascist right, but I think it’s also true with those who indulge communist movements. There’s a strange admiration for violence, for the joy of the knife, as Nietzsche put it.

And by the way, I think American conservatives have to get over the habit of just saying, “Oh, this is liberalism.” None of this stuff is really … Decayed liberalism is a very important part of the story, but we’ve left liberalism behind. These are post-liberal and anti-liberal currents, deeply destructive of liberal democracy rightly understood. But liberalism is part of the story because liberals haven’t been very, they haven’t been admirable or energetic in defending authentic liberty against these nihilistic challenges. So anyway, we could go on and on on this particular topic.

James Patterson:

All right.

Daniel J. Mahoney:

But I will show minimal self-limitation.

James Patterson:

That’s right. Well, the word that you use towards the end of the book that I think is a word that does not get enough play. I know Aurelian Craiutu has written on this subject, but that’s the subject of moderation. This is a virtue that gets little play today. And I think it’s at the heart of a lot of the problems you were just describing, where there’s this immoderate tendency among politics; but starting with this kind of revolutionary cause on the left that wishes to impose this second reality and then this provocation of a post-liberal or an illiberal right that seeks to almost sort of nihilistically inhibits that project. There seems to be nothing creative. There seems to be nothing genuinely good. And that starts with this desire to do harm, but also it shows a lack of moderation about one’s ideas about what politics can even do.

Daniel J. Mahoney:

Yeah, I think that’s right. Mostly the post-liberal, anti-liberal tendencies on the right you’ve just spoke about are mainly, I don’t want to say it’s a marginalized phenomenon in America, but it’s often an internet phenomenon.

James Patterson:

Yeah. Definitely.

Daniel J. Mahoney:

So I don’t think it’s taken the form of a, clearly there’s some people in MAGA who are on the edge of this stuff, but mainly people like you and I pay more attention to these movements because we find them intellectually troubling, even if they’re not household currents or household names. Yeah, part of the problem about, and moderation is a fundamental political virtue, one different disagreement I have with Aurelian Craiuto, you may have seen I wrote a review essay on moderation and conservatism for the fall issue, fall 2024 issue of Modern Age. And I reviewed very sympathetically Aurelian’s recent book, A Letter to Young Moderates.

James Patterson:

It’s almost like I planned this question.

Daniel J. Mahoney:

And John Kekes, the Hungarian Émigré, well, must be close to 90 now, very intelligent, analytic political philosopher wrote a book in defense of moderate conservatism. I do take Aurelian to task a bit in my review because I think he has a tendency to confuse moderation with geographical centrism. I think the spectrum has moved so far that things that are highly questionable from the point of view of authentic moderation have become part and parcel of what moderates consider to be moderation, let’s say abortion on-demand or let’s say a fundamental change to the nature of marriage. Marriage, when you separate marriage from any link to human nature, that’s a revolutionary act. You’re not expanding marriage to people who’ve been left out. You’re redefining marriage as simply a contract with no basis in human nature. That’s hardly moderate.

Now, we could debate it and disagree about it or whatever, but there are many other examples like that. Most soi-disant moderates today consider abortion on-demand to be an accomplishment of late liberal society. Many people who call themselves moderates or very hesitant to challenge trans ideology and stuff like that. These are radical, radical innovations. And then, 73 genders, boy, that’s a long way from God created the male and female or the so-called sexual binary.

So I mention all of this, and a lot of soi-disant moderates are very good at pointing out the threats of autocracy or some of the dangers with populism. I think they generally tend to see more overt hostility to political democracy in most populist movements that are there. But there’s a very heightened awareness of right-wing populism or authoritarianism, but are a little tepid in standing up to wokeness. In other words, a certain kind of moderation can go hand in hand with, I don’t want to say aggressive pas d’ennemis à gauche, but with a sort of moderate version of that. You know?

James Patterson:

Yeah.

Daniel J. Mahoney:

So I am a partisan of moderation as one of the four cardinal virtues and essential to decent politics. But I am also reminded Burke in the 1790s when fighting certain British liberals who were blind to the menace of Jacobinism said, “We don’t need a full,” and all Burke did was talk about moderation as a dire political career and prudence. But he said, “Don’t confuse it with a false reptile prudence,” a kind of prudence that is so prudent that it doesn’t see what’s before. And again, there’s room for reasonable disagreement on what’s the most pressing threat at the present moment and all of that. But I do warn in principle that moderation should not mean a slightly slower accommodation to what is perceived as inevitable.

James Patterson:

There’s that, our preoccupation with post-liberal illiberal currents in the right actually draws a lot of its energy from that process of a conservative saying, “Well, I’m against left issue X.” And then, there’s the conservative case for left issue X, and then there’s beyond the left issue X wars. Right?

Daniel J. Mahoney:

Yeah.

James Patterson:

And so, it’s that, “I will put up no fight, and when I lose, I will accept the terms of the opponent.”

Daniel J. Mahoney:

And that’s why a lot of populists have turned against so-called liberalism in a virulent way because they associate it with a lack of principle and a lack of spirit. And they’re not altogether wrong. But on the other hand, I think you and I in our different ways were quite alarmed by the willingness of some people who we were close to or close to at one point, or still remain close to, who just were willing to throw out, to proclaim with a certain alacrity the Founding has failed, or liberalism to core has failed. I think, and I’ve always thought that part of what we’re defending, what we conservatives are defending, is liberalism.

I agree with Sir Roger Scruton, who was a major influence on my own thinking and writing, that one thing conservatism does is it saves liberalism from itself. In other words, there are many liberal goods, but the liberals don’t know how to defend them for many of the reasons that we’ve talked about today.

And so, I don’t reduce conservatism to liberalism. I think that would be folly. And I don’t reduce the American Republic to liberalism, even though there’s powerful liberal elements. But any viable conservatism in the modern world, truly anti-ideological, anti-totalitarian, will be a liberal conservatism. It will safeguard what’s best in liberal civilization without giving into the ideological temptation.

One reason I subtitled my book The Totalitarian Impulse, I do think the rhetoric of a totalitarian temptation is a meaningful and necessary one. But I don’t want to fall into the trap of saying, “We’re living in a totalitarian country.” We’re not.

James Patterson:

Right.

Daniel J. Mahoney:

But the totalitarian impulse is alive and well. Those are two different statements and two different recognitions.

James Patterson:

So you earlier mentioned that you don’t think this totalitarian impulse and things like wokeness or other terms like that, especially after the new administration took over, it’s really on the decline so much as it’s almost maybe like retrenching. And so, what is it that you see is necessary in order to constantly keep it at bay or even further push it back? What is it maybe about the present reforms to government or what have you that have seen maybe its decline, at least in the short term?

Daniel J. Mahoney:

Look, I know people can disagree with this, like let’s say how one judges or approaches something like DOGE. But I do think it’s been an American form of glasnost to know some of the stuff that, let’s say, I think a once very useful and admirable institution like USAID was funding. There was a lot of stuff that was highly questionable, that was promoting an extremely progressivist view of democracy and of human nature and of sexuality, and doing so globally in an aggressive way. And I do think the federal government, at least for a time, this is all … Executive orders can be reversed by other executive orders we have to remember. But yes, I have always thought of wokeness and the totalitarian impulse in late modern societies as a phenomena that primarily exists within a self-enslaving civil society. But I think under the last administrations, it had some help from the federal government.

So to break that nexus is an important development, but I think it’s also the case that woke modes of thinking and acting are deeply ingrained in higher education, deeply ingrained in the intellectual community, deeply ingrained in the entertainment community, deeply ingrained in parts of social media. And they’re not going away. These modes of thinking are not going away.

In November of 2024, if you read the center right media, there was a ton of foolish stuff written like, “Woke is over, it’s all over. It’s all collapsed.” And I’m thinking to myself, “What’s changed? An election.” And elections make a difference, but I think there was a certain giddiness in elements of the right that, and I think maybe that giddiness is linked to the fact they don’t know the intellectual and academic worlds like we do.

James Patterson:

That’s right.

Daniel J. Mahoney:

These were people who were very slow. I went to a Roman Catholic, a Jesuit college between ’78 and ’82, where the chaplain was writing pay-ons to Maoist China and saying the kingdom of God was alive in Cuba. When Alger Hiss came to my college campus in 1979 or 1980, I was the only one in an audience of 500 who got up and challenged him, because I had read Witness and I had read Alan Weinstein. Because I had read Witness and I had read Allen Weinstein and Sidney Hook on the case, and I knew how fraudulent his was. But this stuff’s been going on for a long, long, long time. And Conservatives didn’t notice. I mean, there was some talk about PC, there was some … But why didn’t they notice? Because they were too economistic. They confused winning elections with winning the culture. They were blind. They were anti-intellectual to some extent. And how many times did we hear the mantra, “Well, they’ll graduate and go into the real world?”

James Patterson:

Oh my goodness. Yeah.

Daniel J. Mahoney:

Well, in the summer of 2020, the New York Times newsroom was the real world. These people who had graduated with highly tendentious ideologized educations, “America’s the root of all evil, Western civilization is intrinsically guilty,” some narrative about colonialism being the equivalent of the Holocaust, an antinomian sexual morality, a deep and growing distrust for freedom of speech. Biggest change in my lifetime as a professor and writer has been the collapse of the American consensus in favor of free speech. We used to argue about pornography or maybe out now totalitarian organizations in the ’50s, whether they had a right to exist, but about political speech there was a real consensus in this country, and that is gone. I would say the other consensus that has broken is a consensus in favor of Zionism in the state of Israel. But that’s broken on the left and in a few quarters of the internet right.

But anyway, Americans on the center-right were very slow. I mean, David Ackman cuts off his money for the University of Pennsylvania, but this stuff had been going on at Penn for 40 years. I think it was five, seven years ago I remember seeing a story. There was this big ritualistic event to the Department of English at the University of Pennsylvania. They all got together and they put a towel over a portrait of William Shakespeare. They made him a nonperson. Shakespeare would be at the center of any … No wonder no one majors in English anymore.

People who want to read real books, want to learn about the human condition, they want self-knowledge. They want to learn the richness that literature has to offer the soul. They’re not there to hear the same speech about settler colonialism day after day. And so they walk with their feet and notice the lefties and the POMOs blame it on the market. Well, it is the market. These people are voting with their feet and their bucks, but they wouldn’t be voting that way if the humanities departments actually talked in a serious way, in an inviting way about the great and enduring and permanent questions.

James Patterson:

That is one of the most frustrating aspects of dealing with this as a cultural phenomenon, where a lot of people who are conservatives that have supported traditional universities, especially elite universities, maybe they’ve pulled their money from those universities, but where did they put it? And they could be funding more traditional curriculum at other universities or starting centers that do that kind of university work. And instead, there seems to be this kind of, “Well, the market will sort this out,” as you said, this kind of economists view. And what this underestimates, and I think we’ve seen this with a lot of the exposure of the grant money that goes to places like Columbia, is that there’s a very large amount of money that subsidizes the bad behavior in these departments that they’re not going to be able to influence just by pulling their own money.

Daniel J. Mahoney:

No, I think in this sense, the alum are critical of the movement toward intellectual authoritarianism and wokeness in universities, they have to think much more creatively. In many cases, they have to make breaks with the universities for whom they … Look, everyone has an attachment to the friends and deeds and misdeeds they did between 18 and 22. It’s a formative part of life. You don’t want to remember-

James Patterson:

No comment.

Daniel J. Mahoney:

You don’t want to remember all the drunken evenings and misdeeds. But to sort of say, “Look, that’s not all that important now given what’s happening in the country, that there are promising institutions and initiatives that are going to do a much better job of promoting and supporting and sustaining the things I care about,” I think that’s going to take some education. Way back in the ’70s and eighties with groups like IEA … Irving Kristol tried to do that, advising conservative-minded philanthropists where to spend their money and not wasted it on institutions that were no longer committed to their founding purposes. And I think more of that is happening, but it’s still a little too ad hoc. James, let me just add one more thing so we don’t leave it out of the conversation.

One thing I do talk about in the book, and that has fascinated me in recent years is the resurgence of positive interest in evaluations of communist regimes among the young and among scholars too. I think most of us thought by the mid-’90s that the allure of communism had been buried, but not really. I mean, there are many young people who don’t know anything resembling the fundamental facts about communist totalitarianism of the twentieth century. And it’s really frightening. A friend of mine who is much more technologically capable than me showed me these Reddit pages that are dedicated … Mainly twenty-somethings, praising North Korea. “Everything that the West says about North Korea is propaganda. North Korea is a progressive society. The Kims haven’t killed anyone. It’s a society dedicated to social justice, fighting American imperialism.”

How many years did we hear about the beautiful medical system in Cuba? The electric grid has collapsed in Cuba. Those hospitals were always prestige projects in Havana for the foreign visitors and the party elite. 93% of Cubans live in abject poverty. A million Cubans have left in the last year and a half on top of the millions who had left before. I had a student at Assumption University before I retired who when reading about the persecution of religion in totalitarian society said, “I didn’t know communism was hostile to Christianity.”

And these might sound like anecdotes, but in the academic literature, there’s a growing tendency to normalize Lenin and Stalin and Mao in a way one would never normalize Hitler. So that is deeply concerning. I say somewhere in the book that I used to hear from students, “Communism was good in theory, but bad in practice.” And now I hear from them, “It’s good in theory and not so bad in practice.” My little chapter on Marx where I say, “Good in theory … Second part of the Communist Manifesto, the four abolitions, property, family, religion, and the nation, is that a good theory? Is that based on a real knowledge of the workings of human nature?” And add to that Marx saying, “I will address no questions. I will refuse to respond to any objections to communism made in the name of religion, philosophy, or natural justice,” that gets to the heart of the ideological lie.

The Socratic questions, the natural interrogation, the what-is questions, “What is justice? What’s the good?” have to be shut down. And yet, we have intellectuals and young people telling us this is some kind of admirable ideal. And by the way, we do have a few nuts on the right who think Nazism wasn’t so bad. And you remember when Ross Douthat said some years ago to some New York Times readers, “You go at the religious right. Wait till you face a really pagan or atheistic right.”

James Patterson:

Yeah. We faced it before and it wasn’t very good.

Daniel J. Mahoney:

As we like to say, it wasn’t pretty.

James Patterson:

No. No, it wasn’t. And there’s something sort of terrifying about the prospect of the kind of rehabilitation of communist regimes that invites that same kind of rehabilitation of fascists and Nazi ideas where, “Well, if we’re going to engage in intellectual malpractice on the left, well, why don’t we do the same? Because it’s working for them.” And there’s this kind of arms race to extremes and damn the facts.

Daniel J. Mahoney:

At the end of the book when I have this final word to the left, right, and center, and kind of warn about some of the pagan temptations in the new right, I say about opposing the totalitarian impulse, “Resist, but do not emulate.” Now, of course, when one fights one sometimes has to use neutral weapons, but emulation means adopting … This cult of Carl Schmitt, for example, making enmity the fundamental truth of the human condition. No, no. I mean, to fight the totalitarian foes of civilization is not to establish a political order where struggle or enmity is the moral basis of civic and political life. Quite to the contrary.

James Patterson:

The book is the Persistence of the Ideological Lie, The Totalitarian Impulse then and now, the author, the one and only, Daniel J. Mahoney. Dr. Mahoney, thank you for appearing on the Law & Liberty podcast.

Daniel J. Mahoney:

Well, great fun, James.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

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Ignorance and Bliss by Mark Lilla

Transcript

James M. Patterson:

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Our guest today is Professor Mark Lilla. He’s professor of humanities at Columbia University. Today, we’ll be talking about his book, Ignorance and Bliss: On Wanting Not to Know. Many of our listeners may be familiar with other works by Professor Lilla, including The Stillborn God and The Reactionary Mind. He has been prolific and influential in many of his works, and I don’t doubt that today, our discussion will show that his most recent work deserves as much attention as his previous. So Professor Lilla, welcome to the Law & Liberty Podcast.

Mark Lilla:

Very good to be here. Thank you.

James M. Patterson:

So, Professor Lilla, the book has a very provocative subtitle, “On Wanting Not to Know.” What is it about knowledge that poses a threat to human beings and why is it that sometimes we misunderstand that, especially those of us who are in what we might call the knowledge business?

Mark Lilla:

Yeah, well, as I try to suggest in the book that the struggle between wanting to know, curiosity, and wanting not to know, which is a resistance to knowledge, that those two forces are present in our minds all the time. And we go through life on the one hand, pushing on the accelerator, on the other pushing on the brake. And there are some good reasons for that that seem to be embedded just in the nature of human life and social life.

But there are also ways in which it becomes pathological and it becomes pathological if we are resisting knowledge that’s important to know to make public decisions, for example. And it also can be threatening if it leads us to entertain various fantasies of finding an alternative to reason and also the fantasy of going back to an older utopia or a forward utopia rather than to confront the present. So it begins with us and it begins with our struggle over recognizing what we ourselves as individuals are.

James M. Patterson:

On page 14 of the book, you have a great typology of these sorts of figures. You say that one such illusion is a secret, esoteric way of being in the world that gives access to previous truths. Another is the vain hope of preserving our original innocence. And a third is the scape of the historical present to an imagined past bucolic simplicity. So let’s start with this secret, esoteric way of being. In what sense is this ignorance? Isn’t it supposed to be that there’s some sort of exclusive knowledge?

Mark Lilla:

Yeah, no, that’s the right question. And I see it as, in fact, a way of avoiding the hard work of sorting through our experience and coming to our own conclusions and also being skeptical of our own hypotheses and testing them. And so the mystical idea, and it takes on many forms, but the mystical idea is that reason is the problem and that the knowledge you think you have up to now is all error.

And the reason is you, as a simple human with weak reason, are incapable of understanding fundamental things about human existence, about the cosmos, about ethics, or anything. And therefore you have to go through a process of emptying yourself of the false opinions that you have, shutting off the reason machine and then opening yourself to a revelation which can only enter if everything else is off. It’s like a hydraulic system. You can’t have both.

And so on the one hand, the draw of the mystical experience is that it will give you truth once and for all, but truth-seeking is not a … You can’t retire from it. That to seek knowledge is also to test it and to keep trying to see if what you think is the case actually matches your experience and evidence and so on, whether it makes any logical sense. And so it’s a way of declaring victory and walking home. And that is not the way that you live a life in the light of truth, which requires a skeptical pursuit of it.

James M. Patterson:

One of the passages in the book that really got to me was this discussion. Now, make sure I get this right. Is it misologues? Is that how you wanted to?

Mark Lilla:

Mm-hmm.

James M. Patterson:

Yeah, whose sort of expression you give to Thrasymachus in Plato’s Republic, saying about him, Thrasymachus has snapped in his conversation with Socrates and the Republic, and he says that like many people, misologues are like many people in Thrasymachus, they like telling their own conversion stories. I once was naive about the world, but after X, the last election, the recent war, the endless scandals, the world’s indifference [to] fake news, I got wise. What’s so bad about this in terms of doing philosophy, these misologues, what do they do that’s so harmful?

Mark Lilla:

Well, the term misologues was actually coined by Plato in these dialogues to describe a certain sort of person. He makes a likeness with misanthropy and he says that the reason we become misanthropic is that we have various bad experiences with people and we put our hopes in them and they’re disappointed. And at a certain point we crack and we give up on the human race. And he said the same thing can happen with the exercise of reason. That if we try to understand something in the world and think that we do, only to discover that it’s false or some argument someone convinced us of also turns out to be false, we begin to think or we might start to begin to think that the enterprise itself is pointless, that all of this arguing and reason-giving and examination of evidence really is just undergone or it takes place because people want to occlude what is actually happening in the world.

And so this character Thrasymachus is hearing arguments about justice and whether justice is worth choosing for its own sake. And Thrasymachus throws up his hands and he says, “This is a ridiculous conversation. We all know that justice is the advantage of the stronger.” And so then they go and have an argument about that and then Thrasymachus sort of pouts and shuts up until later on in the book.

And so it’s when we lose faith in our quest for knowledge that we become susceptible to just any sorts of falsehoods and simply standing our ground, shutting the doors and windows of our little cabin, putting a barking dog outside the door so no new information can come in. And what connects these two things in Socrates’ view is what we lack is an art of judging the things that we’re engaged in. So for example, the reason we did get disappointed with people is not that people are somehow presenting themselves differently from the way they are, but rather that we lack the art of choosing and seeing which people are worth putting our trust in, even our love in, and won’t be disappointed. So there’s an art of an investing our emotions.

Similarly, when it comes to arguments, people who engage in a little philosophy and throw up their hands and say it’s just a crock, don’t have the art of shaping arguments and understanding what they can and can’t do. And for Socrates, the most we can do is set out a hypothesis, put our chips on that to keep questioning it, keep looking for evidence that disconfirms it. And when we discover that it’s wrong and that there’s a superior argument or way of looking at the world, we should rejoice. But something in us doesn’t want to rejoice. We get attached to our arguments. And so it was very difficult to follow through in practice that philosophical art in the way that Socrates described it.

James M. Patterson:

That’s very true. When it comes to our attachments, there’s a sort of honor that comes with defending the position even to your own sort of intellectual death. There is also this great discussion here of veil snatching. I’m not sure how much this relates to the idea of a misologue, that’d be actually an interesting thing for you to talk about, but veil snatching is this story about being bound up in a desire to rip the veil off the statue of Isis in order to learn the truth. What happens when you rip that veil off?

Mark Lilla:

Well, the story is quite extraordinary, and it was fictionalized in a poem by Friedrich Schiller, the German poet, eighteenth century poet, and he imagines that a young man from Europe goes to Africa to Egypt and he wants to go to Sais, which is where apparently there’s a statue of the goddess Isis, who’s the holder of wisdom, but there’s a veil over her eyes because to see the truth, the whole truth, it had nothing but the truth all at once would be paralyzing and we’re not prepared for it.

And therefore you have to go through, in the cult of Isis, you had to go through all sorts of training and learning different practices. You had to pay money to learn secret things. It was sort of a devotion in your life to this cult, hoping to be introduced slowly to wisdom. Well, this young man comes down and fired up by the ideas of the enlightenment, decides he wants truth with a capital T. That is, he thinks there is such a thing and he wants all of it all at once.

And so he goes to this temple and the guardian there lets him in. And the young man says, “Have you never been tempted to pull the veil off?” And he was told by this shocked guardian that, “Oh, no one has never done that. The goddess has forbidden it, and terrible things will happen.” So that night, the young man goes to bed and can’t stand it anymore, runs to the temple, climbs over the wall, goes in, pulls up a ladder, goes up and pulls off the veil of Isis.

And in the next morning, the guardian finds him on the floor unconscious and he’s finally able to wake up and he just babbles from then on. And he was never able to live a happy day thereafter and could not talk about the experience. And so it’s a fantastic story about taboos, how we in our cultures, establish them, both establish them and then try to tear them down at the same time. What’s going on there psychologically in relation to obtaining truth? So that’s another one of those examples like the mystic one of wanting everything all at once, but not wanting to conduct a philosophical life, which is a way of life and it’s a way of intellectual behavior. It’s not a single epiphanic experience.

James M. Patterson:

In these moments, our will to knowledge undergoes a subtle change no longer aimed at some practical end or inspired by wonder, no longer about the knowing. It is now entirely about the willing, the right to assert ourselves. That’s what you say about the veil snatcher, it has a rush of liberation. Is this what you mean when you talk about the people who wish to find a way to escape to our original innocence or feel free from tragic knowledge?

Mark Lilla:

Well, those things are all linked in those last chapters that when I talk about the myth of one-stop shopping for knowledge and obtaining it all at once, that’s one myth that tempts us to escape the hard work of coming to know. The second one is to idealize innocence and to somehow persuade ourselves that it is when we as individuals, were in our youngest state, that not only were we better because of it because we had no knowledge of good and evil, but also we were somehow also knowing more. We somehow lose something by growing up is the myth, I think.

And so there’s a lot of projection onto children historically in ancient cults that use young children’s in their rites because they were thought to be a perfect medium between the gods and the believers. And it shows up in the story of Heidi, for example, and the way she is treated as a font of wisdom and changes a nasty old man’s life. And he starts smiling and singing and it’s a Hollywood ending.

James M. Patterson:

That was a surprising addition, I was going through all of this grand literature and Schiller and the Bible and suddenly Heidi shows up. That was a good moment for me.

Mark Lilla:

Yeah, well, it’s a good example. And then the last myth is that by returning to our social or cultural innocence, before the rise of the enlightenment, before the rise of modern technology and so on, we can make a leap back and restore everything to what it was, and life will be simpler and easier for us to understand. So these are escape hatches really out of the cave, but the image of the cave and the person who is being pulled up out into the sunlight to see in Plato’s Myth of the Cave, you can imagine there might be side doors on that path going up that seemed like an easy access, but they aren’t. They aren’t.

James M. Patterson:

One of the details in this, I should have actually opened with this now I think about it, there’s this very compelling retelling of the Plato’s Myth of the Cave at the beginning of the book, talking about someone escaping the cave and bringing someone with them. In this case you choose it’s a boy and the boy wants to go back. Did you choose the child for this reason that there’s these mythologies around children?

Mark Lilla:

Yeah, yeah, in part. And also, yeah, no, for that reason and also because he was less experienced. So for your listeners, the way I retell the story is that in the classic story, these people are in a cave looking at a wall. They see shadows, they think it’s reality, they’re shackled in a way that they can’t see anything else. And I update it by saying that they all have sort of virtual reality glasses around them. And someone comes in and taps them on the shoulder, pulls off the glasses, and they suddenly see where they are and realize in a flash that what they took to be reality is not reality and find themselves in this humiliating position.

And so this person is invited to make the climb up into the sunlight where the forms are and so on. And in my version, he decides, he sees a little boy next to him and out of pity brings the little boy along too, saying that he should be able to see the light and they go up and they spend their time doing whatever one does out in the sunlight. Plato doesn’t tell us what happens up there, part contemplation and looking at the sun and some divided line and it’s all very mystical and obscure, but at a certain point the man is asked to go back down and bring someone up just as he had been brought up.

And then the whole drama of that part is his eyes are used to the sun, he has to stumble down into the darkness. He doesn’t understand the darkness, he can’t see, people think he’s a fool. So that’s a picture of the philosopher when he goes back among the ignorant. And so knowing it was going to be difficult, the man told a little boy, well, he could stay up in the sunlight and the man would be back with someone soon. And the young boy immediately begins to cry and he falls on his knees and pulls at the cloak of the man and says, “I don’t want to leave. I can’t leave. I hate it up here.”

And he proceeds to recount what he misses. “It’s sunny all the time. There’s never any shade. The forms are what they are.” He now understands reality and he knows that nothing else will ever be different. There’s no reason to play or imagine something else. There’s no reason to think you have something to discover in meeting someone else, establishing a friendship, or falling in love because you know everything. And so he misses, the little boy does, he misses dreaming of adventures. He misses his pixelated friends that he saw on his little screen. And so he begs to stay and he does.

James M. Patterson:

A very, very tough thing to read, especially at the opening of a book, but in a way that’s really depicting sort of the single human soul, right, the desire to know, but the desire not to know that launches the discussion and the varieties we have here. We have this desire to liberation we mentioned before, is the idea behind liberation, this willing that you described, is this what informs a lot of radical politics that we see historically, both on the left and the right, that there’s some sort of truth in the willing itself?

Mark Lilla:

Yeah. Well, the part that you were mentioning earlier where I talk about willing is where a conversation in which we are trying to discuss something, seeking the truth with someone somehow turns bad and we get invested in it and suddenly it’s about victory or death. And so that’s one way in which it plays the role. But maybe you have something else in mind.

James M. Patterson:

Yeah, I’m sorry if that wasn’t clear. I was thinking still in the same chapter, Veils, where you talk about the narrative about the progressive triumph of human curiosity developing out this fascination, enlightenment optimism. Are these related ideas, this desire for innocence that one can secure through some kind of willing of the truth found in the enlightenment into history?

Mark Lilla:

Yeah. Well, again, I think in that chapter where the will comes in is that somehow as human beings, we put veils over things and someone nails a do not enter sign on a door, and there’s something in us that not just wants to know out of curiosity, but suddenly wants to break through the door because we feel that someone, a person has put a barrier before us. And rather than respecting that, rather than thinking, “Well, there probably is a good idea,” at least some of us, at least some of the time want to rattle the door and we want to get in. And it’s no longer about finding the truth, it’s about asserting your will to dominance against someone who’s dominating you by telling you not to go in.

James M. Patterson:

Oh, okay. I think I get that now. Honestly, I probably should have saved that for the end when I was trying to sort out some of my own questions. Another archetype to bring up is the prophet and the prophet especially as the empty vessel, the person who sort of achieves a kind of divine stature, not by being divine himself or herself, but by being the proper vessel for the divine to communicate somehow. What is this kind of knowledge? Is this a kind of knowledge that a person has directly given to them or is the person securing this knowledge instead listening to the divine that’s inhabited?

Mark Lilla:

Well, yeah, that’s always the question. Every society that makes room for a prophet in its religion finds himself in a dilemma. So if a prophet goes up a mountain, says he has a revelation and comes down with a tablet of laws, what are we supposed to do with that? Well, one thing we can ask ourselves is has the prophet got the message right? And one way of finding that out is to test the laws and to see whether they’re good laws or not. And if they’re good laws, then it would seem to be a genuine revelation. If not, well then it may be that we have a faulty prophet here.

The next step though is where it becomes complicated because if we can reason about prophecy and test it, it sounds like that means we don’t need prophecy at all. We just need to reason and test things for ourselves all the time. So that leads us to think that, well, what makes it prophecy and what makes the prophet a genuine one is that what he says is unquestionable and that perhaps its very irrationality to us shows that it’s an important hidden truth that we in our limitations either have to accept or learn something about.

And so in the traditions of Judaism and Islam in particular, there are big debates over whether the prophet is someone who is unknowing and simply becomes a conduit for a divine message, in which case that would just have to be accepted or whether the prophet has to be the smartest guy on the block. And that’s why God chose him to give the message. And this prophet will have reasons for the prophecy he makes, and you will then be able to reason about it. And so there’s this tension with divine revelation between having to think about it and reason and perhaps be independent of prophecy on the other hand, or to just accept it.

A next reason why this problem of prophecy is so important is that each of them, these two models, give us a different picture of what it is like to live not only a holy life but an intellectual life as such. And on the one model, we accept the prophecy and simply apply it to life. So what we’re reasoning about is how to apply it. The other is that we also are meant to understand it in some deep sense or to understand why it’s good. We have to understand that God not only made the world, he said it was good. So that invites us, you would think, to look at the things that God delivers to us and ask and think about whether they are good.

And so on the first model, there’s a simple-minded way of applying the law, which is to take it literally, a la lettre. And if it says, “You don’t do this on a Saturday,” you don’t do this on a Saturday, but the other wants to think about how to apply the law in a larger sense. So let’s say that the commandment says to honor our fathers and mothers. Well, what does that mean? What do our parents think honor means? What would be meaningful to them as honor? And honoring them, one would think would mean trying to keep them healthy. And if you want to keep them healthy, you have to know something about health and therefore something about medicine. If that’s the case, you want to live in a world where there are doctors and doctors would need to be trained. Therefore, you would need schools that teach medicine and that also do research on their own in order to understand nature by itself.

So it turns out that this very simple commandment requires a whole way of life for the society in order to fulfill it. And so honoring our fathers and mothers might require living in a world in which there’s modern medical technology if we can develop it. And we have scientists doing basic research and we have philosophers thinking about scientific method.

James M. Patterson:

Are these sorts of prophetic imaginaries what help inspire some people to will to the past or to retreat to some period when things were better understood, a period when people were more faithful to the law? Is that what inspires that or is there more to that story?

Mark Lilla:

No, no, you’re absolutely right because one way in which someone can agitate politically is to treat him or herself as a kind of historical prophet. And we can see how that works in revolutionary terms. So a prophet who writes something or declares something that sets people out to undo the current order in order to move into some glorious future. You can imagine in the other direction too, that you could look through scripture for example, and find elements in the prophetic books that, put together, might give us a sense that we have a duty to move back to a certain kind of society that we left.

And so when we’re discussing these things, what’s interesting and important to note is we’re not discussing what is good and bad to do. The question of good and bad has somehow become transferred into a question of forward or backwards. And so you end up with political movements that really want to capture history and master history rather than simply understand human nature and how we might structure society in order that human beings might flourish.

James M. Patterson:

You describe in the chapter called Legion how obsessions with demons tend to appear in moments of historical or religious crisis setting off panics and then fading away. The modern enlightenment and the scientific revolution took their toll on these superstitions, and by the nineteenth century demon panics became rarer. Is this something that you anticipate reversing as people become more skeptical of scientific reason or the progress of the enlightenment? Do we expect to see, as you described, an unexpected wave of occult spiritualism sweeping through?

Mark Lilla:

We’re in the middle of one. I mean, if you look at the numbers of people who hold beliefs like this, they keep growing. And it’s in part what you say that there’s a distrust of authority and there’s skepticism, but behind that also lies something else. And that is the difficulty of mastering anything in the world right now, that we live in a world where things are changing constantly, not only our economy, but our values, our families, views about sexuality, all of these things. And we’re getting bombarded with arguments now that we have the internet. We’re bombarded with arguments on all sides about this.

And so it’s very easy to get yourself into a kind of misological position and to just want to either accept one position as true and refuse to think about it anymore. We see a lot of that politically now or to think there’s got to be a better way to figure this out or figure out what I should be doing in my life because the world has become illegible. There’s so much change, so fast that we never feel like we’re standing on ground anymore. We feel like we’re on surfboards and just trying to meet the next wave, and it’s hard to order our values and plan our lives if that’s the feeling. And so it would be understandable in such a situation that people going through a rough spot or simply wanting to understand would turn to some of these occult sources, thinking that since it’s impossible to make sense of things by ourselves, we need to get help from another realm.

James M. Patterson:

There’s a real sense, I get a very dread-filled sort of sensation when reading this book in places because on the one hand, there’s reason to suspect some of the people who claim to possess this scientific authority, they’re kind of advancing their own agendas sometimes. But if the alternative is to embrace this weird occultism, then really what’s happening is the people are becoming marks. They’re becoming subjects of scams. They’re the ones who are driving past on the freeway, they see the psychic reader and they’re like, “That’s the person with the answers. That person clearly is not scamming me.” How is it that in a public life where there’s skepticism about legitimate authorities and instead only option is to essentially allow yourself to be scammed? What rescue is there for such a population?

Mark Lilla:

Boy, I wish I had a good answer to that. It’s so much the question of our time. You put it very, very well. The first thing is in our educational system, it’s important that we teach our children, one, how the scientific method works, and two, how the institutions of government work. Given the need to address multiple issues in real time with limited information, with conflicting interests, and also conflicting goods, being in government is hard.

Being a scientist is even harder because essentially you’re in the position, especially if you are a scientist who then is giving advice to a government, you as a scientist know that everything you say is tentative. That, “The best research we have tells us X, but I wish we had better research.” And if we get better research, we may come along and tell you, “Well, now the research says not X.” And the reaction of the public now as one saw during the pandemic was to say, “Well, how can we trust these people? They tell us to do one thing one day, they tell us to do something else another day. We got to wash our hands. No, it’s our masks. Our kids have to stay home from school. Now they don’t.”

Well, that’s a scientific life, baby. I mean, it’s just the way it works. And our public has become really ignorant about this, and it makes them very, very susceptible to demagogues who want to exploit their ignorance. And the same thing happens in dealing with public authorities. The drop in trust in public institutions is not, in my view, that these institutions have become extremely less trustworthy, but that there’s been a rise in expectations because we feel we know everything about government because we could turn on a podcast and hear about it, that we don’t put ourselves in the shoes of real people who have to make real decisions under all the constraints I mentioned earlier.

So when it comes to this question, I’m in a scolding mood.

James M. Patterson:

Now you’re the prophet, right? But the story that I had in mind as you were describing the fate of the American people comes towards the end of the book and a chapter or a sort of unit called Lambs, and that’s the very rich hours of Samuel Pickwick in which Pickwick has to learn about how little he knows and how it requires him being constantly the victim of all kinds of exploitation for him to finally discern what’s actually in the world rather than as he believes it should be.

Mark Lilla:

Yeah, it’s a beautiful Dickens novel that I read every few years. If you’re ever feeling blue, pick it up. That’s what I do, because it’s a description. It was Dickens’s attempt to do an English version of Don Quixote. And what you have is a very simple-minded, good gentleman. He’s been in business, doesn’t know much about the world, is not psychologically complex. He’s just basically a very good and trusting person, and he never makes moral mistakes, but he does make lots of mistakes. And that’s because he doesn’t realize the degree to which other people in the world are not as good and innocent as himself, or they’re more psychologically complex and can be moved to do irrational things. Like an old spinster sister who runs off with some actor who passes through town. Pickwick doesn’t understand any of this.

And eventually because of that, he finds himself in a lawsuit and for idiotic reasons, and he finds himself in this terrible jail, the Fleet, the worst jail in England, where Dickens himself spent some years when he was a child with his family, and suddenly he’s with all these criminals and he’s having a kind of epiphany about these other people and his servant who’s very wise to the world, not innocent at all, gets himself arrested to get into the prison and to get poor Mr. Pickwick out.

And so the end of the story is that Pickwick now is a little more cognizant of the possibility of mixed motives or evil in the world, but he hasn’t taken it so much to heart that he’s lost his happiness, his generosity and those things. And his servant who was very cynical about everything, has encountered this beautiful innocent creature and has learned something himself that you can have a kind of moral beauty in the world. And so it’s a story where a kind of innocence and a knowingness come together and rather than come into conflict, they kind of teach each other something.

James M. Patterson:

And to me, the reason why I thought to bring that up is that it parallels the discussion you had about the way educators are supposed to explain to the American people the more complicated nature of these things. It’s not either a story of rank exploitation or full understanding, rank exploitation by bad actors or full understanding by scientific experts, that there’s mistakes, that people make mistakes. There’s imperfection in all these outcomes. You can’t always attribute a uniform motive to everyone to acts in government.

And it’s a peculiar feature because you don’t suspect that ordinary people when speaking to them that they will go out onto the basketball court and try to play against LeBron James or run track against Usain Bolt. But when it comes to doing this sort of stuff, when it comes to doing intellectual or political work, there’s this presumed equality that maybe they shouldn’t have. Maybe there should be a certain degree of deference, but then the trust gets broken because of either perceived or real sort of violation of the informer, the educator. How does one navigate all of these pitfalls?

Mark Lilla:

Yeah. Well, one of them is to, in my view, be skeptical at the outset of stories that somehow a scientist who spent all these years learning very complex science, has experience in dealing with diseases around the world, has somehow waited for this moment to somehow diddle you. It makes no sense whatsoever. So to begin with, I would not give in and just say, “Well, if you perceive it, you perceive it.” If you perceive it, it’s not there, you’re wrong.

But on the other hand, it is a problem because you point to something that Tocqueville is very, very deep on, and it ends up being connected to the tyranny of the majority. Because he says, if you remember sort of in the first half of the book, that Americans believe that we’re all equal on the one hand in the first sentence, and therefore we are all equally endowed with reason, and we can figure things out ourselves.

On the other hand, they run into problems that they don’t know how to solve and they become ashamed. And it’s shame that plays an important emotional role in this rejection of experts because you know that you don’t know and you want to assert that you do know, but you don’t. But then what happens is, and here, there’s a nice twist in Tocqueville where he says, so let’s say you wanted to look for an expert, and you look to your neighbor and you discover he’s just like you. And in fact, if you’re all equal, there can’t be experts. And to be an expert is to kind of violate the social contract by putting yourself above other people. So the principle of equality and the principle of being able to know things yourself come into conflict, and Tocqueville sees that as a deep tension in democracy. There’s not an easy way of solving this.

Certainly making, teaching the scientific method. Sometimes it means either more transparency or less. I think decisions were easier in the past because government prior to the sixties or the seventies actually, when there were all these sunshine laws and so on, a lot of decisions were made behind closed doors. And so that goes back to the chapter about veils and a disadvantage, which we learn is that people are talking to themselves in a bubble and make very bad decisions, as in Vietnam.

The other danger though is that by not being able to go to a closed room and work this out with people who understand what things have to be weighed in order to make a good decision, then you’re protected against political grandstanding and people trying to benefit politically by treating the whole thing demagogically. And so that too is a tension. Some things we may need to make more public, so it’s clear to people what went into the decision-making and they feel may be involved. And in other things, it may be that we just need a closed door to make these decisions.

James M. Patterson:

That’s right. After all the basketball court does now allow the audience. And the same way you could say that we don’t necessarily need cameras in every session of Congress and in every committee meeting, or frankly, thankfully, we don’t have this too often in the classrooms where now we would conceivably surveil professors who have to sometimes ask provocative questions that might get them in trouble just so that the students might learn something. This has been one of the frustrations I have when people take out of context course titles and say, “Can you believe they’re teaching this?”

Mark Lilla:

Yeah, no, exactly. Well, I used an example early in the book where in the beginning of the book I’m talking about how all the time with ourselves, we’re playing with the will to know and the will not to know. If you’re getting bald and getting heavy, you sort of avoid mirrors or you turn in a certain way and suck in your stomach. You want people to flatter you so you have more courage to do something else. There are all sorts of ways in which we keep knowledge from ourselves in ways that are good for us.

And one of the examples I use is to imagine a world in which everyone had an LED screen embedded in their foreheads. And just imagine what it would be like living like that. You go out into the street, someone looks at you and you immediately see what they think. You then think a thought, “Oh my gosh, she thinks I’m hideous.” And then she sees that. And so you would end up simply paying attention to what other people are thinking while they’re doing the same thing. And it would be impossible to become a self, a self that’s autonomous, that is not so in constants, heteronomous, driven by society. So even the philosophical demand that we know ourselves depends on not knowing what people think of us all the time.

James M. Patterson:

Just as we kind of come to an end here, there are some heroes in this book. I think one of them very clearly to me was Socrates, but also the status of Freud. You sort of come to his defense. We’d actually just did a podcast on Philip Rieff, so Freud didn’t come off great in that one. So maybe you can do some Freud defense.

Mark Lilla:

Yeah. Well, I mean, I’m very sympathetic to a lot in Rieff, and I guess Rieff’s concerns are downstream from Freud’s basic insights and so downstream in the sense of how Freud then ended up elaborating them, and then how they were applied in social life and how we ended up with a therapeutic culture and the rest.

For me, the reason I brought Freud in was simply to talk about his discovery of how transference could be used therapeutically. Imagine a situation where someone goes in to a shrink, to Dr. Freud and says, “I’m feeling fine, but my wife demanded that I come here.” And the doctor says, “Well, tell me about yourself.” And the person tells him about himself, and happens to not mention work. And so the doctor asks them, “Well, and what is it like with your work life?”

And suddenly the guy gets a little annoyed and clearly there’s something going on there. And then they start talking some more. And the man happened to say that, “I just find I’m washing my hands a lot all the time now.” And so the doctor has something to probe with and not a cure, but to try to get the patient to step outside of himself, to see him behaving in the therapeutic setting in a way that points to some psychological, dark places. And that the art of therapy is to slowly make the patient feel comfortable enough not to have to lie to himself in front of you.

And that’s by transferring onto you a kind of trust and acting out the struggle in yourself with this other person in the room and discovering that the world doesn’t fall apart. And when that happens, you can start to talk about things that you are unable to look at straight in your head. And slowly, the hope is, that the neurotic behaviors or self-destructive behaviors that arise from that will get better.

So that was the original insight because I think Freud saw that neurotic people are the kind of people. A neurosis is a cage, and you go into a cage and convince yourself you can’t come out because it’s not safe, and it’s the job of the therapist to gain your trust, and to help you to walk out. And so that part of the book is on how safely we might think about moving from toxic ignorance about ourselves to non-toxic knowledge of ourselves without harming ourselves.

James M. Patterson:

So there is hope, despite the book sometimes filling me with dread. The book is Ignorance and Bliss: On Wanting Not to Know. Professor Lilla, it’s been a real pleasure.

Mark Lilla:

This was great fun. Thanks for having me on.

James M. Patterson:

Of course. Thanks for listening to this episode of the Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

Related Links

Who’s Afraid of Christian Nationalism by Mark David Hall
Religion and Republic by Miles Smith IV
The Politics of the Cross by Daniel K. Williams

Transcript

James Patterson:

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund. Hello, you are listening to the Law & Liberty Podcast. I’m James Patterson, a contributing editor at Law & Liberty.

Today we have a panel of guests to talk about whether Christian nationalism is in the past or if the subject matter still remains relevant, as well as to discuss what exactly the ideas of Christian nationalism are and how dangerous they are, if at all.

And our first guest is assistant professor of History at Hillsdale College, Miles Smith IV, recently published, Religion and the Republic: Christian America from the Founding to the Civil War. It’s also a 2025 finalist for the Herbert J. Storing book prize.

Our second guest is Mark David Hall, professor of government at Regent University. He just published not too long ago, Who’s Afraid of Christian Nationalism: Why Christian Nationalism Is Not an Existential Threat to America or the Church, so he gave away his position already.

And of course, our third guest, Daniel K. Williams, visiting assistant professor at Ashland University and senior fellow at the Ashbrook Center. He’s written on the subject of the religious right. There’s God’s Own Party in 2010, The Pro-Life Movement Before Roe v. Wade in 2016, and The Election of the Evangelical: Jimmy Carter, Gerald Ford, and the Presidential Contest of 1976. What’s your most recent one? The Politics of the Cross: A Christian Alternative to Partisanship. 

These are people who have a very deep knowledge of this subject matter, starting with the founding through the Civil War, up to the present. With that long introduction out of the way. Gentlemen, thank you so much for coming onto the Law & Liberty Podcast.

Miles Smith IV:

Thanks, James.

James Patterson:

All right. I’ll start with a very basic question, but one that still seems to be difficult for people to answer. And I’ll start with Miles and then have Daniel and Mark chip in, which is what is Christian nationalist?

Miles Smith IV:

I don’t think it exists. I really don’t. I think that it’s a polemic that really has a lot more to do with partisan politics and any meaningful movement on the ground. And there’s a wonderful book about it written by one of my scholarly big brothers who I’m looking at right now, Mark Hall, who I think gives a good explanation of what it actually is. I think that if there is a big unitary idea of Christian nationalism, it doesn’t exist. I think there are people who claim the title for sure, but their views are really disparate. For example, you’ll have neo-Establishmentarian Calvinists claim the label.

At the same time you’ll have some revivalist Pentecostals who have a completely different conception of church and state from those self-same Calvinists claim the title. And so it’s a bit like one of those words that’s gotten so big is to be essentially meaningless. And so I think it’s actually a useless definer. If eight different people who have eight pretty disparate visions of politics and call themselves something, I doubt it’s a useful term. I think a better term might be religious illiberals. And my friend Jerome Copulsky has written a very good book about this, and Jerome has, I think tapped into a better way of understanding what people are seeing than the myriad numbers of breathless books about Christian nationalism.

James Patterson:

We just had Jerome as a guest with Mark Noll, so we’re on the same page here. Sorry, Daniel and Mark.

Daniel K. Williams:

And I like that book too by Jerome Copulsky, American Heretics. I think it’s well worth reading. I’ll push back a little bit against Miles’s statement. I think that I do understand that this has been used very much as a pejorative term, a term of abuse, that’s its origins. And so anytime we see a term like that, we definitely need to be suspicious of it. And it has been used more to write people out of the conversation than to try to understand their point of view, so with all those caveats, which I think Miles’s statement reflects and that I would endorse, nevertheless, I would say that if we’re going to understand what people mean by Christian nationalism, I would want to try to understand what the people writing against it have said. And I think that we could say that broadly speaking, the Christian nationalist label has been applied to any group of people who see a Christian founding of the United States and want to return to that founding.

Now, that of course encompasses a wide variety of perspectives. And as Miles pointed out correctly, I think in his own recent book, for most of the early nineteenth century before the Civil War, this was not a particularly controversial idea among most Protestants, that is most Protestants believed in church disestablishment. At the same time, they believed in a generically Protestant-based moral foundation for public virtue that should inform public life. And I think that most of what has been labeled Christian nationalism in the last 20 years is more akin to an attempt to revive something along those lines than to impose a true theocratic regime or even a Christian reconstructionist regime. And that said, the people who have openly embraced the label Christian nationalism as a protest have as Miles suggested, maybe moved beyond that early nineteenth century conception to something that is more akin to a category in Jerome Copulsky’s book of people who are rejecting the liberal order.

But originally this idea of Christian nationalism as something to be feared, originated among people who had accepted the premise of a secular pluralism. That is they believed that in order to preserve a religiously diverse nation and a strong place for nonbelievers in that nation, that one had to separate all forms of religion from the state. And when they saw what they believed as a blurring of that very strong wall of separation idea, they labeled it as Christian nationalism. Since then, I think a number of progressive Christians, I would say, especially progressive evangelicals, have also begun using the term Christian nationalism as a way to push back against a particular conservative style of evangelical politics that they disagree with on the grounds that they would say, this is idolatry. That’s a common critique saying that Christian nationalists are people who have confused the kingdom of God with the United States of America, and they are therefore guilty of exalting the flag above Jesus or making Jesus into an American conservative. All those things have been expressed.

Does the term have value? I think it definitely has had a place in public discourse over the last few years and even to a certain extent over the last 20 years, so I think it’s imperative for us to try to understand the various ways it’s been used. And if we don’t necessarily use the term ourselves all of the time, we can nevertheless try to make sense of the particular critiques and the presuppositions for which those critiques are proceeding that are expressed in this use of the term Christian nationalists to label other people.

Mark David Hall:

I’ll jump in if I may. I think it’s important to recognize that literally no one in America is using the phrase Christian nationalism until about 2006 when a steady stream of books started coming out by Michelle Goldberg, Katherine Stewart and Andrew Seidel and others. And they were describing a complete toxic mix, a mess. It’s Christians who want to take over America for Christ and favor white Christians above all others, so we want to bring back Jim Crow, we want to have religious illiberalism, we want women to be in the house and barefoot. And it’s literally that’s what book after book says, and these are mostly, I call them the polemical critics, often journalists or activists, but when we get academics involved, someone like a Whitehead and Perry define Christian nationalism as an ideology that idolizes and advocates a fusion of American civic life with a particular type of Christianian culture that includes assumptions of nativism, white supremacy, patriarchy, heteronormativity, divine sanction for authoritarian control and militarism and on and on they go.

These are two academics that are purporting to measure this phenomenon they call Christian nationalism. And lo and behold, 51.9 percent of Americans fully or partially embrace this racist, sexist, toxic stew. And so I think the way in which it is so often used is just ridiculous. Now, Christians never cease to amaze me, and I’m a Christian myself. After Christian nationalism has been used in this way for almost 15 years, 2022, for the first time, you get people saying, “Oh, yeah. I’m a Christian Nationalist.” Marjorie Taylor Greene, Stephen Wolf, Torba and Isker, what a dumb decision. Why embrace this label that is simply a negative thing? One of the ironies of this is none of those academic type advocates actually are nationalists, they’re all localists. They don’t see any hope for the United States of America. And so I think the term is generally so misused that it’s almost useless. But I do want to agree with Daniel.

In my book, I come up with what I think is a responsible definition of Christian nationalism, and I define in the American context, a Christian nationalist is one who believes that America was founded as a Christian nation and today that governments, state governments and the national government should favor Christianity above other religions. We should do things like have distinctively Christian prayers in public schools. Congress should formally declare America to be a Christian nation. They certainly support having a God we trust in their coins and things of that nature. And if this is what we mean by Christian nationalism, about 20 percent of Americans are Christian nationalists. And I’m against all those things I just mentioned, but let me point out that they have nothing to do with racism, sexism, militarism, and that sort of thing.

James Patterson:

We have a bit of a dispute over whether Christian nationalism even exists, but to the extent it exists, it doesn’t seem to be the primary mover behind what we might call Orthodox Protestantism broadly understood in politics. And we get a sense more of what that looks like and each of your works, Miles from the early Republic, Daniel and more contemporary activists and the alternatives that Mark David Hall puts forward. What is the kind of politics, if it’s not Christian nationalism? And I’ll start again with Miles because he has this tempting phrase about, was it religious institutionalism?

Miles Smith IV:

Yeah, I say Christian institutionalism. I think that I’ve got … Davenant and I are going to do another book to continue off this, but on the military is what the next one’s going to be on, Christian soldiers.

James Patterson:

Just for a second, could you say what Davenant is for the people at home?

Miles Smith IV:

Yeah, it’s The Davenant Institute, a Protestant think tank that I’ve been fortunate, we’ve done good stuff together. And so I published my work with their press and the cover was really pretty. The book may have been poo, but the cover was really pretty. But I think that one of the things that’s lost in this conversation, James has hinted at it, is the extent to which we associate religion and the church together. One of the things I liked about Mark’s last definition there is it’s really, there’s a desire … In as much as Christian nationalism is a thing, I think there’s a desire for a churchly nationalism that some of these folks are looking at. There’s this sensationalist pastor in Tennessee, his name’s Greg Locke, and a lot of the folks who look at this stuff zoom in on him because I think he has some sizable Pentecostal church that he pastors. But he one time said, “There’s no reason why the church shouldn’t govern America.” And I think that’s actually what people are seeing.

There’s this implicit understanding that when people hear Christian nationalism … For example, if I were to say that, well, Christians naturally govern the United States, that might sound sensational, but in as much as I think somewhere in the order of 65 to 70 percent of the country identifies as Christians, it’s actually not that strange for me to say, well, Christians will probably govern the United States. When I change that to the Catholic Church should govern the United States, or the Presbyterian church should govern the United States, or the Baptist Church should govern the United States, that becomes a very different proposition. And so I think the churchliness of this conversation is something that gets missed. And I think it gets missed because for so many evangelicals, the church, an older understanding of the church gets blurred with what they do socially as religion and the nation broadly. And so I know that’s not necessarily answering your question, James, but I think it gets to at least why there’s confusion on it.

And I think that what people are actually wanting for most of the people who would may flirt with Christian nationalism probably actually aren’t wanting the church to govern. They want some sort of Christian socio-moral order that they think is just normal society.

Mark David Hall:

I know almost no one who actually articulate this idea that the church should govern and not even our advocates of Christian nationalism think, I’m thinking of people like Stephen Wolf, Torba and Isker. They aren’t arguing for the church to govern. They clearly embrace an ocean of having a civic authority, maybe a Christian Prince who will rule over the church. The Christian Prince will be able to call church synods and judge their outcome and punish the lazy minister and that sort of thing. Ideas that I think are just horrific.

To get at what you’re getting at though, Miles, I do think a lot of people respond affirmatively to this statement, “The federal government should advocate Christian values.” That’s one of the six statements that Whitehead and Perry used to measure Christian nationalism. And I think the vast majority of Christians would say yes, but they might mean different things by it. I cannot imagine that the Reverend Dr. Martin Luther King Jr. wouldn’t say yes to that statement, but of course you would be thinking about civil rights legislation. I would say yes to that statement, and I’m thinking about the protection of innocent unborn babies and religious liberty. And so I think a lot of people have no problem with the government acting to legislate Christian values, but they probably have … Well, we know what they have, very different understandings of what those values are.

Daniel K. Williams:

About two years ago I was asked to write a short piece in an encyclopedic handbook article on Protestant politics in American history. And I was trying to think, okay, in just a few thousand words, how do I cover all of Protestant politics for more than two centuries and do this justice? And so in reflecting on this, I thought I’ll start out with a couple paragraphs that first of all, acknowledge the great diversity of Protestant politics in the US and also note that most politics in the US period for most of American history have in some way been Protestant politics or Protestant-influenced politics, so we’re really covering most American political history. But then I began to think, okay, are there certain beliefs that are generally typical of Protestantism in the American context that would more or less unite the left and the right?

And I think so. I think that one of those I argue that has been characteristic of almost every Protestant-influenced political movement or Protestant thinker from people like Martin Luther King to Jerry Falwell, to William Jennings Bryan, to any number of others, is that they do believe that religion plays, Christianity in particular plays a vital role in moral thinking, thinking about morality. And that politics should it take a stance on moral questions at some level, that there are moral imperatives that should influence the type of legislation that we advocate for, whether it’s socially progressive legislation or whether it’s legislation that’s viewed as very conservative. It’s all in that broadly based category of morality. And secondly, the vast majority of Protestants, especially over the last two centuries, but to a certain extent even in the colonial era, believed very strongly in some sort of separation between church and state. That’s even true of the Puritans in the seventeenth century, and that has generally characterized Protestantism in the United States.

And so I would hope, or I wish that people who would write these screeds on Christian nationalism as Mark mentioned, would take into account both of those things. And I think so often when people scream Christian nationalism, there’s a conflation of Christian-influenced morality, which has been true of both the Left and the Right, that that’s just a pervasive theme in American political history influenced by Protestantism with the idea of theocracy, which the vast majority of Protestants would resist at some level. The challenge I think in recent years that has made this more challenging I think, is that as we have moved away from what seemed as late as the 1960s, as late as the early-1960s to be more or less a given in the United States, that there were certain shared values that maybe there were deep points of disagreement as Martin Luther King would be the first to acknowledge on very important issues like race and other things.

There was nevertheless a shared set of values that you could appeal to in making a reasoned argument in the public square that did not appear to be Christian nationalist, even though it was drawing on a shared language of Christian-inspired morality. And as the perception has been, whether real or not, and to a certain extent, I think it is real, that we have become more fragmented as a country in terms of our ability to engage in a shared moral language, a shared moral reasoning. I think that has heightened demands among certain people or willingness on the part of certain people to embrace things that would’ve been mostly unthinkable just a couple of generations ago that is maybe we need a more overt Christian influence or on the Left, maybe we need even a more radical purging of all Christian language from the public square.

And I think that has contributed not only to polarization, but also to these charges of Christian nationalist ideology labeling your opponents to Christian nationalism or at the extreme on the Right people even embracing this saying, actually, I do believe that there should be this much closer relationship not only between moral principles in the state, but maybe even of Christian faith principles themselves, the point where traditionally so many American Protestants in the United States have been afraid to go and have been very wary about movements that try to push for that.

Miles Smith IV:

This is a good point and I agree with everything that Daniel just said. I think the only thing I might, it’s not disagreement, but add is I think it’s maybe even more recent than the 1960s where all this has changed. I was thinking about when I went to … I was a kid and first time I went to New York City in the 90s, it was still very much the New York City of the late John Cardinal O’Connor, who was not by any means a Republican partisan, but New York in the 1990s was not Left coded. And I think there’s a tendency on the Right to just look at our major cities and be like, well, they’ve always been these liberal hellscapes or something like that. But I was thinking about the way the Catholic Church effectively police neighborhoods in New York, and it was very much a reality in the 1990s even.

And so this is I think far more recent. And I think that thinking about in the 1990s, the Mayor of New York pitched a fit over a painting that was perceived to be disrespectful of the Virgin Mary. And so I think this is far more recent and I think because it’s more recent, the intensity prompted a backlash that we saw really beginning in the decade of the second Obama administration. I think what people maybe have mistaken is one, the longevity of the craziness, and two, because the intensity of a lot of the excess ideology was so intense, I think the answering intensity on the right tended to be very acute as well. And I think that my thought is that Trump’s election will probably take a lot of the juice out of a lot of the post-liberalism on the Right because there’s just no need for it, especially as a branding tool. There’s just doesn’t seem to be the need for it in 2025 like there was in 2017 or 2018 or even 2020.

James Patterson:

Funny you brought up how late we can actually chart this. Where I thought you were going to go with New York was when Sinead O’Connor said, “Fight the real enemy.”

Miles Smith IV:

Of course.

James Patterson:

And tore up Pope John Paul II’s picture, and then Joe Pesci comes on the next week.

Miles Smith IV:

Yeah, that’s right. To wild applause.

James Patterson:

To overwhelm the SNL audience. Not exactly who you’d normally associate with big fans of the Pope. This actually, when you guys were talking about this, the other thing it made me think of was in the days after the inauguration of Donald Trump to the Presidency, we also had this mini-story of the bishop at the National Cathedral, a woman named Mariann Budde who gave an impassioned plea for LGBT children and racial minorities. And in a way, we’ve got this national Cathedral, it’s not an established religion, but it’s a calling back to a period in which the first among equals was really an Episcopalian church. And something significant about Budde is that I think her diocese is all of Washington and there’s only … I think there’s fewer than 40,000 people who belong to it.

Miles Smith IV:

About 38,000.

James Patterson:

And so there’s this rump of the old mainline Protestants who still wish to hold this position as being the caretakers of a national religious consensus, but seem to have been marginalized from it. Is what they do christian nationalism?

Daniel K. Williams:

What I would say is that what they’re doing is very much a continuation of what Gene Zubovich wrote about in his book Before the Religious Right. There was a mid-twentieth-century liberal consensus of sorts that was very much a direct political imprint of mainline Protestantism. And I think that gave rise to decisions like Brown versus Ward. I would say it also gave rise to decisions like Roe v. Wade, all of that was part of a particular reading of American history, of the American Constitution, of American Christianity. And the view was that human rights are very much at the center of this, that originally in the 1940s, the view among most was that the rights are rooted in Christianity, that you will lose a foundation for the human rights that give rise to the Democratic project. And in some ways you’ll lose a basis for democracy itself if you lose that Christian foundation interpreted through liberal lenses.

I think now there’s probably among a lot of the liberal Protestants, more emphasis on religious pluralism than there would be on the Christian specificity. But that’s a change I think that started really in earnest in the 1960s and I’ll concede something to Miles and say maybe it played out over the course of time and by 1970 we couldn’t say everything had changed, but you could definitely see the seeds of a growing shift among at least the more progressive liberal Protestants in the late 1960s towards something that was arguably more pluralistic than traditional Christian liberalism had been. But I think even in that most progressive form, as long as it was still proclaimed in churches or in the setting of say Christian Century magazine or the equivalent that it never entirely lost its religious roots. And I think that it has played the role of a civil religion.

And while civil religion is drawn on a number of different strands, I think by far the greatest contributor to American civil religion from the Cold War era onward was mainline Protestantism. I think there have been some who have wanted to say maybe we should call this Christian nationalism. Obviously most adherence to this liberal Christian ideal would strongly resist that notion. But there was definitely this historic belief in the mid-twentieth century that in order to preserve the values of the nation, you needed to trace the historic grounding and the actual philosophical grounding to some sort of liberal Christian consensus, however generically it might’ve been presented.

Mark David Hall:

Christianity and politics have definitely been interwoven from the early colonies to the present day and how exactly they should be interwoven or influential is a subject to great debate. On the Christian nationalism though Pew asked a simple question in 2022 and 2024, “Have you even heard of the phrase Christian nationalism?” Half of Americans hadn’t. Of those who had something like 20 percent of Americans, that is of all Americans had a negative view of it. Only 5 percent of Americans have a positive view of it, so I don’t think there’s much of a constituency out there actually advocating for Christian nationalism and a handful of people actually writing books, your Torba and Isker, Stephen Wolf, Doug Wilson, this represents a very tiny slice of American Christianity. It’s an idiosyncratic, reformed post-millennial Calvinism that almost no Americans and certainly not most evangelicals don’t adhere to. Let me change the perspective a little bit and suggest that maybe something like the phenomenon we’re talking about is here to stay.

If instead of talking about Christian nationalism, we talk about religious populism these movements seem to be gaining speed in places like France, Germany, Italy, Hungary, Turkey, and I think you could argue for something like that in America. There’s a German scholar I really like Tobias Cremer who has a book, The Godless Crusade. And so what he points to is if you look at the religious populist parties of far-right parties in France, in Germany, and throughout most of Europe, the people running them are not particularly religious at all, and yet they claim part of what it means to be a Frenchman is to be Catholic. And that’s very important to them, even though they themselves are not practicing Catholics. And when Tobias looks at America, one of the things he points out is that in 2016, Trump’s most active supporters were non-religious Americans. Evangelicals were going for anyone other than Trump, Ben Carson, Marco Rubio, Ted Cruz.

It was only after Trump got the nomination that they shifted over and of course eventually ended up voting for him. There’s no question about that. But even so looking at … Thinking Whitehead and Perry show this, The Everyday Crusade, the authors of that book show this as well. Many people that indicate they have some interest in Christian nationalism in America aren’t themselves actively religious. They don’t go to church, they don’t read their Bible. And so I think what we’re talking about is something more of a conflation of God and country into some sort of blood and soil nationalism that doesn’t really have anything to do with the lived faith of Christianity.

Miles Smith IV:

I just want to, and not purposely complicate things, but I think that one of the things that strikes me is the term evangelicals and politics a lot of times means Southern Baptists. I just want to asterisk that for a minute. But this speech made by the so-called Bishop, I think that one of the things that’s worth thinking about is the degree to which … We have this idea there was a liberal consensus, and my thought is that liberal consensus wasn’t very long. We treat it as this like it lasted eons. And it’s not that long. And even within that liberal consensus, it’s interesting to me that the single most listened to radio figure in the 1950s and 60s is Carl McIntire, who is very much not a figure in the liberal consensus. We say liberal consensus because we’re academics. How much of a liberal consensus was there for people on the ground in churches in the 1950s? How much are they participating in the liberal consensus? That’s one thing to think about.

I think we’ve overstated the durability and the influence of the liberal consensus outside relatively elite academic circles. The other thing too is, it’s pretty clear to me that something like the Episcopal Church is not so much religious as it is just a wing of the state. I don’t want to use the term regime politics because that’s very coded, but it is basically an institution that views itself as primarily responsible for propping up a socio-political regime. How often do prominent bishops when they get to get in front of presidents talk about the sacrament or baptism? No, they’re talking about politics and so in as much as they participate in the life of the nation, they’re participating politically, not sacramentally and not in a churchly fashion. I hesitate to think of what they’re doing as even liberal Protestantism, because in my mind, Protestantism should be reserved for some sort of civilizational or churchly action, and not necessarily a political one. In as much as politics means elections and partisanship in the United States, certainly in a democratic order.

James Patterson:

And Miles, in your book you bring up, there’s a kind of interpretation of church history in the United States that is prominent among Baptists other more evangelical or low church style that seems to overlap with a more secular understanding of the American founding. And I had this funny idea in my head of David Barton and Martha Nussbaum together because of course, this view of religious liberty and rights of conscience often flows through certain figures of the more religious side. You have people like Roger Williams on whom Martha Nussbaum’s written, but also people like Thomas Jefferson and James Madison. What is it about that period that they miss? Or what is it that they maybe exaggerate?

Miles Smith IV:

That’s a great question. I think that one of the fundamental commitments of Protestant, Dan alluded to this earlier, but one of the fundamental commitments of the Protestant reformation was to actually get the church out of politics. You have Martin Luther is complaining about the popes and interfering with the Holy Roman emperors and something. And so there is a sort of, I don’t want to say latent Caesarism because that carries it a bit too far, but there is a certain sense in which Protestants want the state to be able to do what the state does without any churchly impositions on it. And so I think for evangelicals, they want the state to be a little churchy. We want the socio-moral configurations that you use in church life to inform the state. And I think that’s the evangelical meets broad liberal tie you’re talking about. We want the state to be a particular type of religious actor. And I think that it’s important to know that for a lot of Protestants, they actually did not want the state to be a religious actor. They want the state to not do religion at all.

The state can go order the temporal realm. The church should order the spiritual realm. My colleague Darrell Hart has written on this. There’s a sizable number of Protestants and influential Protestant intellectuals who actually want maybe even more space than mere non-theocracy. They want church and state and particularly religious politics to go away. And the idea is that nature is really, what can order politics more effectively than the church? And so I think that in a lot of, especially Protestant and particularly high church Protestants of the era who are worried about the state imposing particular religious expressions on them, they go down this road. I think the early Catholic Church in the United States is very comfortable with this establishment precisely because we don’t want the American government telling us what to do with church, neither do these Dutch reform guys or Lutherans or anything because impose a particular Bible on us, et cetera, et cetera, et cetera.

I think there’s in a lot of, at least Protestant intellectual life, a much more capacious place for separation, even as that separation is a Protestant cause. There’s something particularly Protestant about this type of separation of church and state I’m talking about.

Mark David Hall:

I’ll highlight that in a fun fact that a lot of people aren’t aware of. If you go to early Massachusetts Bay, clergy are banned from holding civil office and excommunication does not affect a civic office holder. The Puritans did excommunicate people, but if you were the governor of Massachusetts Bay and were executed, you’re still governor. And so there’s a separation of church and state, which in some ways is greater than what we have today. We have no problem basically with the clergy, or at least many of us don’t have a problem with clergy running for and be elected to office. Some states tried to ban that for a while in the founding era, but most of those bans were of course repealed in the nineteenth century. So there is a separation. On the other hand, I think there is an expectation that the state will support Christianity. Sometimes it’s made its way into an established church. In all cases, it made its way into laws banning vice and encouraging virtue. Every state had those and still has many of them to the present day.

Daniel K. Williams:

It’s interesting to me when we talk about church-state separation, that the way that most people use that term actually doesn’t have very much to do with church because for most American Christians today, church is a very weak institution and they’re not necessarily trying to make it stronger. I suppose there might be some Catholics that would have a different framework for this. But among most American Protestants today, first of all, a near probably record number of evangelicals since at least in the last century, maybe there were times in the nineteenth century that were similar to this, but a record number of people placed in the evangelical category don’t attend church very regularly. And secondly, the largest contingent of Protestants now is non-denominational. Non-denominational has surpassed the Southern Baptist Convention as the nation’s largest “denomination” in quotes. While non-denominational churches of course vary quite a bit, and they may have some similar worship styles and maybe similar expectations about the pastor, though even that can vary.

There is no church hierarchy, there is no traditional denominational lobbying office. You cannot have the equivalent of the United Methodist Church political arm located across from the Supreme Court building, which existed for several decades in the late twentieth century. Suffice it to say there is no structure in American Protestantism today to have the true church-based theocracy that maybe some people fear in what, Miles, I think maybe some of your comments were trying to address to a certain extent. But most of the people writing about what in the early two thousands, go back to what you said, Mark, were called Christian fascists or Christian nationalists as terms were sometimes used interchangeably at the time, were now people fearing the evangelicals who supported Trump. What they’re fearing is more of a movement outside of church. When people talk about the church-state divide, they don’t really mean church as an institution, but more of church as an idea.

And as I’m sorting through this in my mind, I am returning to what you said just a few minutes ago, Mark, about the Christian identity movements in Europe in recent years. And I’m reminded of a Ross Douthat column, which I really like from I think it was December 2015 when there was still some doubt as to who would win the Republican primary, presidential primary. And he said that it would … The various contenders represented different political visions and that Trump represented something that was much more akin to European far-right conservatism, so the Christian identity movements, the French anti-emigration parties, that’s what Trump represented. And one of the things that characterizes those movements is unlike the Christian right, it was not based on a particular set of moral policy objectives. In other words, it was not based on the idea that we have to make abortion illegal or at the very least, overturn Roe v. Wade.

And we have to defend traditional marriage or things that they characterize the Christian right, but rather an assertion of an identity. And I think the current Trump coalition is a hybrid of sorts. There were people who did sign onto this because they had particular policy aims, but there was a much larger group perhaps that signed on because they had certain identity concerns. They wanted to reassert the identity of Christianity, however vaguely that was defined in American life. And so I know James, you had convened this panel partly to answer the question of where we go from here. And my answer to that would be I think there’s a tension between the traditional moral aims of the Christian right, which for some people could be defended on grounds other than Christian identity and a Christian identity movement. And I’m not entirely sure how that will play out, but right now I see the Christian identity wing of this uneasy coalition in the ascendancy being stronger than those traditional policy objectives.

Mark David Hall:

It’s striking that Donald Trump pretty much came out and said abortion should be left up to the states, and if California wants to have abortion up to the minute before the birth, it can do so. And evangelicals still flock to him in 2024, so I think there’s a lot of truth to what you’re saying.

Miles Smith IV:

I’m glad Dan brought up where do we go from here thing. I’m not sure we go anywhere because … And this, I don’t mean to say that Trump isn’t novel, but I think there’s been a little bit of a forgetting, again, to go back to the politics of the 90s, I think there’s been a little bit of a forgetting of what type of men were in public office in the 80s and 90s. I’m from North Carolina, one of my senators was Jesse Helms. Forgive me if I’ve never been quite convinced. Oh my gosh, we’ve got a real revolution next door where I went to college was Strom Thurmond. And so I think there’s, especially in the type of folks who are involved in the historiography of conservative religion, I think this is just something to be honest about. People adjacent to Wheaton or institutions in places like Grand Rapids, Michigan or suburban Chicago or what, where I’m sure Republican politics did reflect an almost semi-pietist kind of, dare I say Yankee, that’ll be my mean word for the day, Yankee Puritan pietism.

But that wasn’t the case for Republicans, certainly in the Post, really not just post-war, but the post-1920s south, you have Republicans begin to have some relational conflation with what you can call fundamentalist religion. I’m not even sure if that’s useful, but none of this is as new as advertised. And so I think that what’s perhaps happened is less so much has been a change on the Right and more that there’s been a similar institutional weakening on the Left. I think about the loss of Catholic constituencies in the Democratic Party. That’s a big deal I don’t think we talk about. I remember growing up, my first … I grew up in the South, I remember our first state senator who was a Republican, and my parents were surprised because she was a Catholic and a Republican. And even this is something that’s really new.

I think we tend to … Because a certain, especially for academics, there’s a certain exoticism to evangelicals, they’re weird. They do low churchy stuff, they pray over you, but I think so much of the energies turn there and there’s all these other things moving that perhaps shape the relationship between politics and religion as much. But for whatever reason, evangelicals tend to interest our academic class. And I think some of that’s geography and some of its culture. People trained in places like Harvard and Yale are probably not used to seeing Southern Baptist or political Southern Baptist. And so I think there’s a novelty there that means we just focus on this and we haven’t focused on, for example, the Democratic Party hemorrhaging Catholics for the last 30 years.

James Patterson:

That is a very good point about the aesthetics of praying over Trump, which I saw people flip out over, and I’m Catholic, but I grew up in Texas, and I saw that all the time. And honestly, there was a fairly large contingent of primarily Latin American charismatic Catholics, and they were about that as much as anyone else. And so-

Miles Smith IV:

Tony Barrett who is-

James Patterson:

That’s right.

Miles Smith IV:

… not a Catholic.

James Patterson:

To me that’s very normal. And it speaks to the kind of parochialism of what people like to consider cosmopolitanism, which is that we like cosmopolitanism, which means we like the same things we can get in New York to be in places like Tokyo and London.

Miles Smith IV:

There’s just a Park Slope nationalism-

James Patterson:

Oh, no.

Miles Smith IV:

… that exists that I think is as much of a show as Christian nationalism. And so you really have two equal and opposite things here, not just one show.

James Patterson:

The phrase Park Slope nationalism is going to haunt my nightmares. We have to do one last question. I cannot pick one very easily because on the one hand I want to talk about the curious outlier of Black church discussions here because you brought up Catholics. They have a odd position in this story. I do a lot of work on Catholic integralism, but one of the things about them is they’re not terribly interested in nationalism. But there’s also the other thing, which is that there’s some discussion of what kinds of policies Christian nationalists want and whether they’re actually policies that are really terrible. We have ideas of Sunday closure laws and school choice. And the third thing I want to ask about is why is Christian nationalism such a problem given that the rate of church attendance is going down? It seems like you’re kicking a religion in its decline. I just decided to ask all of them and decided to let you guys figure out what you wanted to say before we close.

Mark David Hall:

I would say Christian nationalism, as I define it, that is someone who believes that America was founded as a Christian nation and who wants governments to favor Christianity above other religions. I would say that it is a problem and I’m very critical of even that version of Christian nationalism in my book. But if that gained the ascendancy, I think in effect it would return America to where we were in the 1950s minus the racism and minus the sexism. You might have prayer in public school, you might have Congress declaring America to be a Christian nation, in God we trust gets put on our money and under God gets put in the pledge. Again, these are things I can make good prudential biblical and other arguments, constitutional arguments against, but it’s hardly an existential threat to our country. And that’s what people like Sam Perry and Andrew Whitehead go around saying that Christian nationalism is an existential threat to our constitutional order and to the Christian Church. And that’s where it just becomes ridiculous. It’s claiming that something is a big, huge, scary monster when in fact it’s just problematic, in my humble opinion.

Miles Smith IV:

I think that I agree with everything Mark said. One thing that strikes me, is you mentioned kicking a … James, you mentioned kicking a religion in its decline. I think there’s something to this, and I think that one of the things that’s interesting is a lot of the energy about this, I admit I’m part of the energy perhaps, is coming from the humanities, a field that’s into the decline. Is this something that mentally historians or politics people or religious scholars have done precisely because our fields are in decline? No one really cares about what we’re up to anymore. And so guess what? The constant threat of religious nationalism is something that actually we can make our fields relevant again. We can be useful again. And so I wonder is … You’re right, is religion in decline and is it because the academy’s in decline that we’ve taken on this relatively … I think Mark’s statistics are probably correct. And so I’m not sure there’s any existential threat here. It doesn’t mean you have to like it, but I think that fundamentally most religious people are rather boring.

And most of religious life is rather boring and it’s meant to be that way. If you can make religion something that is so powerful in the history of our planet, if you can turn that into something spicy, you can get people’s attention about it, to read on it again. And we’ve all benefited from that spiciness. But I think there’s a lot of different things coming together. I’m not sure actually, religion and politics or even the primary show, because I keep wondering how much has American politics really changed? Is there a significant difference in the type of people who were hired into high office in the United States? It seems like the Ivies still just send their kids into government and a few people from State U … I just don’t know how much has changed.

I don’t even know, so let me put it this way. If Trump is the victory for Christian nationalists, I don’t know what they changed. And so where is the Christian nationalism? Is it getting rid of USAID? I don’t know. Let me put it this way. I’m going to need to get help on figuring out where the Christian nationalism is because it’s very sneaky and I can’t find it.

Daniel K. Williams:

I guess my answer to the question about, is Christian nationalism a problem would be to say that we are in the last few years, the last decade especially, but to a certain extent the last two decades, we have seen increasing partisan polarization in the United States by multiple measures. And to the extent that Christian nationalism exists, it is I think both a sign and an exacerbating factor in that polarization.

Miles Smith IV:

Can I ask, I’m not meaning to be contentious, but is politics polarized more now than it was 10 or 15 years ago? Trump’s election was the most diverse racial coalition, I think in 60 or 70 years. By what standard are we saying things are polarized?

Daniel K. Williams:

There are a couple measures I would say. One is that if you ask people their opinion of the other party, Democrats are much less likely to have favorable views of Republicans than they were 20 plus years ago and vice versa, that is they’re more likely to object to their child marrying a member of the other party. In fact, they object to that more than the person marrying someone of another religion.

Miles Smith IV:

Is that polarization or is that that now you have epistemological commitments that mac bond to parties?

Daniel K. Williams:

Well, the two are related, I would say, that politics has become a moral identity. Partisanship has become a moral identity for people in a way that was not as true 30 years ago as it is today. The other measure I would say is that if you look at crossover votes in Congress, there is significantly less of that than there was 30 years ago. 30 years, and especially 40 years ago, 40 years ago the most conservative Democrat was not only more conservative than a great number of other Republicans. The most conservative Democrat was arguably more conservative than almost all Republicans. Larry McDonald of Georgia was the most conservative person in Congress in the early 1980s. And conversely, Jacob Javits of New York was pretty close to the most liberal, even though he was a Republican. Both parties spanned a huge ideology.

And at a certain point in the early twenty-first century, I forget the exact year, but at a certain point we got to the point where even the most liberal Republican who I think may have been Susan Collins at the time in the Senator or someone like Susan Collins, but I think it was Susan Collins, was still more conservative than the most conservative Democrat. And that was a new phenomenon that had not been true in many decades, so I think the parties changed. Now, there are other phenomenon that you’re looking at. I would argue that what we’ve seen with Trump is a complete remaking of the Republican Party, so it has become much more of an anti-establishment party. And it’s therefore losing people who are pro-establishment people like David Brooks, for example, very much endorsing the Democratic candidate because they’re pro-establishment and bringing in a significant number of more working-class voters, less likely to have a college degree or certainly a graduate degree.

And many of those people for the first time in 2024 are not white, unlike what we’ve traditionally seen from Republicans in recent years, so the parties are being remade, but those current parties are still very much at odds with each other that we are experiencing a polarization that I think could contribute to the continued cultural fragmentation of the United States. My final plea would be to find a way to work together, to find a way to understand other people. I think the greatest concerns that people have had about Christian nationalism, who are strong critics of it is this fear that it’s anti-pluralist. And so if we believe in a place for Christian-influenced thinking in public life, we need to find a way to talk about that in ways that will affirm the pluralistic country that we are. If we don’t do that, and if we say we don’t need to do that, then I think it increases the fear among those who don’t fit into this, that if this other party gains power, it’s all or nothing.

And that’s why I think we saw such apocalyptic warnings on both sides in 2024. If the other party takes power or if the other party keeps power, it’s all over for the United States. And there are a significant number of Americans, I’m not sure what number, I’m not sure that they’re a majority, but certainly a significant number who really do believe that there’s a sizable group of people out there, largely associated with the other party who are going to destroy America and leave it so changed that we will have no recourse through the Democratic process to fix it. That’s a serious problem.

James Patterson:

Well, this has been a wonderful discussion, and I’m sorry, it almost feels like I’m cutting off the discussion just as it gets started, but unfortunately, we have run out of time today. I want to thank our guests, Mark David Hall, his book, Who’s Afraid of Christian Nationalism, Miles Smith, Religion and the Republic, and Daniel Williams, God’s Own Party, Defenders of the Unborn, The Politics of the Cross, among others. Gentlemen, thank you so much for coming onto the Law & Liberty Podcast.

Mark David Hall:

Thank you.

Daniel K. Williams:

Thanks.

Miles Smith IV:

Thanks, James.

James Patterson:

Thanks for listening to this episode of the Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

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The Philosophy of Philip Rieff: Cultural Conflict, Religion, and the Self

Transcript

James Patterson:

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund. Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty. With me today are my guests, William G. Batchelder IV, and Michael P. Harding. They are co-editors of a new edited volume titled The Philosophy of Philip Rieff: Cultural Conflict, Religion, and the Self.

It’s just come out on Bloomsbury Press and we’ll be talking at length about why we should take an interest in Rieff and what insights he has to contemporary life. Drs. Batchelder and Harding, welcome to the Law & Liberty Podcast.

William Batchelder:

Thank you, James.

Michael Harding:

Thank you.

James Patterson:

I should mention that we are all very good friends and know each other from many meetings of the Ciceronian Society. So if things get a little informal, it’s because of my lack of self-restraint. Drs. Harding and Batchelder, who was Philip Rieff?

Michael Harding:

I’ll let you take it, Bill.

William Batchelder:

All right. Philip Rieff was the Benjamin Franklin Professor of Sociology at the University of Pennsylvania. That was his highest professional attainment. He was born, I think, in 1922 and died in 2006. As a young man, before he’d even finished his doctoral dissertation, he was teaching at the University of Chicago, where he met his first wife, the young Susan Sontag. He was actually married to, of course, one of America’s leading cultural critics. It was a short and tumultuous marriage. They were divorced, I think … Was it eight years later, Michael? Six years later?

Michael Harding:

It was relatively a short order, yeah.

William Batchelder:

And he was the author … He arrived on the scene intellectually with the publication of his first two books. The first was Freud: The Mind of the Moralist. And the second was The Triumph of the Therapeutic: Uses of Faith After Freud. The first of those was published, Michael, 58?

Michael Harding:

I think so, yeah.

William Batchelder:

Then, in the early ’60s for The Triumph of the Therapeutic. It was those two books that first made his name as an expositor of Freud. The second was an exposition of Freud, but also a departure from Freud in a couple important ways as he limbed other intellectuals who had departed from Freud, focused most particularly on Wilhelm Reich, on Carl Jung, and to a lesser extent on Adler and some other people who found Freud to be unsatisfying in the deliverance he could offer the afflicted in one way or the other. We can get into what that was to him. He turned his guns as it were on the academy in a work called Fellow Teachers, which I think is, Michael, 1973?

Michael Harding:

72, maybe 74.

William Batchelder:

And after Fellow Teachers he had a poet who admired him, called his great silence. It wasn’t really silent because there were three major articles that he published and a book review that somehow was half of My Life Among the Deathworks. He really did not … He had been on top of the world academically. He’s at Ivy and an endowed chair with two major publications, and a lot of people regarded Fellow Teachers as deliberate professional suicide. He didn’t divide it into chapters. He certainly didn’t divide it into subheadings or subchapters. As one of his essayists wrote about him, “He hid most of the important arguments in the footnotes.” Why did he deliberately do this to himself? There are a lot of different arguments about why he did this, but at any rate, save three or four important articles.

He was silent until the year of his death in 2006, when the first volume of what we call the Sacred Order/Social Order trilogy came out. That first volume is My Life Among the Deathworks. It’s hard to sum up one thing that My Life Among the Deathworks is about, but we can talk about Deathworks. Then, after he passed away, they published as the second volume, The Crisis of the Officer Class. The third volume, The Jew of Culture, came out the year following, and around the same time, posthumously, his students, bless them, put together and edited and put out the work that he had been doing apparently on and off for decades on Charisma, where he goes after Weber in one of Weber’s most important concepts, and revisits the idea and demands a correction in our conception of Charisma.

And this came out shortly after his death as well. We had this great silence, and at the end, really, what Sacred Order/Social Order is doing is offering his fully developed theory of culture. I think it’s fair to say that was the purpose of those books, particularly the first two volumes. Particularly Deathworks and Crisis of the Officer Class. Michael, would you add anything to that?

Michael Harding:

All right, I would add one little thing to it, yeah. In Crisis, chapter six, toward the fourth culture, he does make a comment that seems to apply to the entirety of his … At least his later work. He says, “These reading exercises have been an experiment in preparing the way for the teaching and symbolic institutions of a fourth culture.” One hesitates to call it a practical intent, but there is this … I guess we will call it a practical intent behind it or political intent, right? He’s not just saying, “Well, here’s my theory of culture.” He’s trying to actively shape the future to some degree, albeit with a lot less optimism about the possibility of doing it than somebody like Nietzsche.

James Patterson:

This is an interesting account because I suspect most of the listeners are only somewhat dimly aware, if at all, of Rieff. Did Rieff have any major students? Why is it that maybe he’s become more obscure? And why bring him back the way that this volume intends to do?

William Batchelder:

My favorite way to illustrate this, if students ask me about it, is to go to the third edition of Freud: The Mind of the Moralist. The third edition was published on the 20th anniversary of the original publication of his first book. It was 1978. And in the third edition of Mind of the Moralist, you have the original forward to the book and then you have a second forward and an epilogue that he wrote on the occasion of the release of this 20th anniversary edition. And it reads like it’s written by a different person. He adopted a style of prose which can charitably be described as impenetrable. And if you look at Mind of the Moralist and The Triumph of the Therapeutic, you’re dealing with a very erudite person wrestling with very difficult concepts, but it’s traditional academic writing.

When you look at beginning with Fellow Teachers, but then especially everything after that, he deliberately adopts a prose style, which is absolutely forbidding. Both his publishing pattern and the manner in which he was writing suggest that he is deliberately being off-putting, that he is deliberately shunned. The popular success that his ex-wife had, Susan Sontag. Michael, would you add anything?

Michael Harding:

Yeah, the obscurity partly, I think. You’ve already addressed it. The man did make a deliberate choice to commit what Zondervan refers to as academic suicide with Fellow Teachers. From an academic perspective, it is a somewhat bizarre book. Then there is the difficulty of his work. And then I think there … I’m tempted to say he really did need to think more than he needed to write. I think that his turning away from the academic industrial complex activities that a lot of us are compelled to do, I think for him that was necessary for formulating this theory of culture. The manuscript history of Deathworks, I want to say, traces back to the ’80s. Parts of it were written in the ’80s, and there are, I guess, multiple different versions of it that were found in his files, if I remember correctly. In his papers.

James Patterson:

Oh wow. The prominence of psychoanalysis of Freud, something that seems very hard to recapture, but it was such a major phenomenon in the twentieth century. What is it that he had to say about Freud: Mind of the Moralists? Also, the nature of the therapeutic as it began to transform the culture?

Michael Harding:

I’ll leave that to you, Bill. You know the Freud element.

William Batchelder:

Well, in essence in our book, The Philosophy of Philip Rieff, one of the things that we say is that the reason that Rieff is interesting is he is a Freudian who has developed some serious problems with Freud. I think we used the word descents seriously from aspects of Freud and that he’s a modern who comes to regard modernity as a catastrophe. This is one of the things that’s so rich about his thinking. In the case of Freud, he accepts the Freudian economy of the soul. The idea that you have an ego, which is the self that you experience as yourself. You have these deep-seated drives that are part of you since birth, right? The id. Then when these desires run into the demands of family and community, you develop the super ego. And the superego is the cop inside your head.

And remember, a lot of people confuse superego for conscience. But, of course, in Freud, the superego is irrational and persecutory and reactive. It’s not a conscience in the sense that you want to activate a conscience by going to a Catholic confessor. Any rationality you have is in the ego. It’s not in the superego. Rieff accepts that economy of the soul. He accepts the importance of repression … He ratifies the importance of repression in works early in weight. He believes in the process as Freud understands it. In that sense, we have someone who’s Freudian and, who, a lot of his terminology harkens back to Freud. However, very often the most interesting thing about Rieff is how he will simultaneously honor a thinker while dissenting from him. Or learning from a thinker and then … the most distinctive things about Rieff are very often the places he departs from his most important influence.

In the case of Rieff and Freud … there are different places that you could say he departs. For example, one of the places that Rieff, along with other critics of Freud, seems to depart from Freud is that Freud is very much the therapist and the patient are a negative community. And if things go well, the patient can resume being a more or less rational individual with no need of the therapist, right? The point is that you don’t need even the therapist anymore. And obviously you have transferences, it’s complicated, but what Rieff believed was, in fact, that your community, that your social group is actually really important to your well-being. That’s one place very different from Freud, but I think the most important place is that Freud said, “Every renunciation of instinct becomes a dynamic source of conscience.” Let me say that again. Every renunciation of instinct becomes a dynamic source of conscience.

And you might say, “Well, that sounds almost Christian.” Right? But, of course, what Freud believed was that when you renounce the instinct conscience, which he does not regard as moral or rational, but as persecutory, increases your suffering. That’s where your neurosis comes from. It’s a bad thing. Freud believed that it was going to be necessary to relax the requirements that society, that the group has of the individual, in order to ease that individual’s suffering. Rieff agreed that’s probably where suffering comes from. But he thought it was a good thing, not a bad thing. That is to say when you suffer because of renunciation, you aren’t necessarily contributing to neurosis. Instead, you may very well be contributing particularly in a culture which is functioning correctly. You may very well be contributing to the strengthening of your own character. Sometimes he calls this inwardness. In other places he calls it soul-making.

And this departure from Freud, there’s a deeper one. Freud believed that the primary process in the psyche is the drives, is the desires. Zondervan’s book, which is just outstanding, and everyone who’s interested in Rieff should read Zondervan’s book, and I endorse it wholeheartedly. Zondervan actually corresponded with Rieff about this because Rieff never made it super clear in his own work. But what Rieff argues is, “No, the primary process can’t be the drives because the drives are not only irrational, they’re utterly disordered. If you want to know how conscience is ordered, you can’t start with chaos.” What he believed is that conscience is ordered by what he calls a primary cultural process. That the culture which is around you, when it’s functioning, when it’s working correctly, sinks deep into you and orders your conscience rightly, and conforming to this right order strengthens your character and makes you a more graven person, that he called the idea of being carved into stone.

That your character is developed precisely because you come up against the desires of the id and don’t give into them. It doesn’t necessarily make you sick. If you’ve got a functioning culture, you don’t get neurosis from that, you get character. He’s sort of departing from Freud in thinking about what is most fundamental about the ordering of our own psyche. From this departure then, if he’s going to think that culture is primary … First of all, he obviously doesn’t mean being able to recite Lord Byron and go to the opera. That is high culture. Sure, that’s a form of culture, but that’s not what he means. What he means by culture is the morally restrictive demands of the group sunk into you early and reinforced by what’s around you, and then you reinforce it yourself by obeying. The technical term he used for this no is interdicts.

And the culture which functioned best, clearly in his view though he never puts it that bluntly, is the Jewish and Christian culture. He said that when the Jews met God, the first thing they had to learn is what they were not allowed to do to each other. That culture is conveyed by this sacred no. What’s interesting is while he accepts … Much of Freud’s economy … I shouldn’t say economy of the soul, because Freud doesn’t believe in one, economy of the person. He accepts much of Freud’s economy of the person on really fundamental grounds. He turns it upside down. And the relationship to Freud is one of both acceptance and rejection.

James Patterson:

This is heavy stuff. This is a redeployment of Freudian concepts in a way that returns to a more traditional anthropology. And maybe this explains partly why his own colleagues, especially people who worked in the same sort of study as him, didn’t like him. Right? In many cases what they see Freud as partially or entirely dismantling, he’s part of the big three with Nietzsche and Marx, right? The three moderns that will undo modern life. What accounts for the rise of the therapeutic and Rieffs concern for its displacement of a more traditional religious culture?

William Batchelder:

Well, I think what’s happening with the rise of the therapeutic, and you and I get into this some, James, in our article about Martin Luther King and Stokely Carmichael for the book, and Chris Anadale does a beautiful job in the book where he talks about Self-Knowledge after Rieff. He has a chapter called Self-Knowledge After Rieff, and he really gets into this in a way, frankly, Chris made me understand it better than I understood it before I read Chris article. It’s really quite good, but in a sense if the idea is the only way to help people deal with their neurosis is to lower the demands of culture on them. So to lower the moral demands, lower the restrictive demands, lower the group demands. However, it is that you want to think of it. If you have a truly therapeutic character, that character gradually becomes unbound by any of these demands.

They’re largely artificial and understood self-consciously to be artificial. Well, it’s only … It’s not much distance at all before you go from that to the idea. And Rieff was deeply disturbed with this. Carl Trueman, in his article or chapter in this book, talks about this too. You get to the idea that it’s forbidden to forbid. The idea is that you can’t forbid anything at all. Now, if it’s forbidden to forbid, then the problem that you’re going to have, and it’s a pretty serious one, is that contra Rieff who thinks that interdicts and prohibitions and their obedience grows character, if it’s forbidden to forbid, how do you get character at all? And Rieff says, “Well, you don’t. You get an actor.” He says, “The triumph of the therapeutic is a person who can self-consciously remodel herself or remodel himself.”

In one place, I think, he calls it an amoral form of knowing, but that might be Christopher’s phrase. That doesn’t mean that this person is a monster. That doesn’t mean that this person is any more wicked than someone with a traditional worldview. They may or may not be. But they simply are not bound by any unchosen obligations or strictures. And having been so unbound, they can’t form a graven self. Because in Rieff’s view the graven self is formed by the denial of the instincts, which carves character into something that is more permanent and more unmovable.

James Patterson:

This seems like something admitted by at least some of the people who have no issue with this sort of new culture. Camus advocates in The Myth of Sisyphus for people to adopt an actor’s approach or … What are the three? There’s the actor, there’s the dawned one, and then there’s a third. And these are the people who best approximate living in a therapeutic culture in which it is forbidden to forbid. He doesn’t use those terms. But he uses those same paradigms. The therapeutic culture, does it have any kind of explanation for a lot of the infusion of therapeutic language and contemporary discourse?

Michael Harding:

One of the things that comes to mind is that for Rieff, I think, part of what leads to this rise of the therapeutic is the collapse of second culture. We haven’t quite talked about this yet. But one way to understand what Rieff is concerned with is what happens to human beings when that authority with a capital A is no longer recognized. It’s forbidden to forbid, precisely because there is no principle which one would appeal to in order to judge what is to be forbidden. What Rieff talks about is he talks about the primacy of possibility. And the primacy of possibility is what we might call the complete range of possibilities open to human beings. If we want to use moralistic language, we could talk about it in terms of the heights of virtue and the depth of all imaginable depravities. And what culture does is culture kind of says, “Well, we do this. We don’t do that.” Right?

Culture forbids. Culture helps us shape character by saying, “This is a desire you don’t act on. This is a sentiment or a thought you don’t pursue.” What the therapeutic does is in the wake of the collapse of that authority with a capital A, which is a very big complicated issue for Rieff, the nature of this authority. In the wake of the collapse of that authority with a capital A, the therapeutic doesn’t give you something to replace it. The therapeutic doesn’t give you some principle by which you would limit yourself. Does that sound fair to you, Bill?

William Batchelder:

Yeah, he says that a religious man is born to be saved, but therapeutic man is born to be pleased.

Michael Harding:

Yeah. And you can see this. I think that you can see a lot of this today, even in the way we structure political and social debates in our society. A lot of it comes down to, “Well, if somebody wants to do this, what is the possible objection? As long as they’re consenting adults, why should we care?” Rieff … There’s a point in … It’s either in Deathworks or Crisis of the Officer Class where he says something like, “Consent seems to me to be the same as no principle at all.” Because what you’re really doing is saying there really isn’t a limit to what you can do. There was a case in Austria, maybe 20 years ago, where … I think it was Austria. It might’ve been Germany, where one gentleman went on Craigslist looking for someone to consume his flesh. He wanted to be killed and eaten, and this other guy wanted to kill and eat.

And if we accept that consent is the only principle, we can’t look at that and say, “Well, wait a minute. Something’s gone very wrong here. We need to have some principle other than mere consent.” Which is part of the point Rieff is driving at. The primacy of possibility is this truly dangerous thing? And what culture does is culture … Or at least first and second culture, put restraints on that. We defined ourselves. We’re the ones who don’t do this. We’re the ones who don’t do that. And that, in turn, leads to the establishment of this graven character and everything Bill’s been talking about.

William Batchelder:

And maybe we should talk about the synchronic, what he calls the three synchronic cultures so that your listeners aren’t lost. Essentially, he said that all three exist at the same time, but all three also can be attributed to particular times in history. He is a historicist in this sense. The first culture is the culture of pagan antiquity, and essentially what he says is the primacy of possibility to them is the meta divine. It’s this immense energy from whence spring the gods, even themselves. First-culture people understand and respect and fear the meta divine as it is a menacing power, right? It’s my favorite phrase in all of Rieff, he refers to it as the … What is it? “The constant energy of menace.” That’s how he refers to this primacy of possibility. It’s the constant energy of menace.

And the way you wall that off is by taboos. Taboos are not the same as the interdicts that come from the Jewish God, because they’re not always so easy to explain in mutual moral terms. But you obey the taboos so that you do not touch the constant energy of menace. You don’t touch … Again, even the gods are subject to the meta divine. If you think about polytheistic myths, the Aesir will be destroyed in Ragnarok. Zeus is limited by the fates. There are powers even above the gods that the gods have to respect and fear and how much more human beings need to respect and fear those. He calls that it’s a ethic of fate. Then he says, the second culture, which is born in Jerusalem and then through Christianity goes all over Eastern Europe and the near East. The second culture is the culture of faith. In the culture of faith there is no primordial meta divine.

The absolute highest power and authority is God himself, who speaks the whole world into creation, so there can’t be anything above him. And instead of taboos, you have interdicts. You have direct thou shalt nots, that build a moral order. And Rieff is absolutely insistent that the beginning of culture is always the no, the what you can’t do. Over and over, he insists on this. This held for a very long time and only begins to come apart with the dawn of the third culture. Now, Rieff says, because they’re antecedent, in other words, human nature can make any of these available to itself, in a sense. But the third culture as a force historically comes into being in the late nineteenth century, and it’s ushered into being by what he calls an officer class, which is why his second to last book is called The Crisis of the Officer Class.

And this officer class that he has in mind are principally that the most important are Nietzsche and Freud and Weber. Artists like Duchamp, in particular, Picasso, James Joyce in literature, and what they’re teaching is that there is no final authority. There is the interdicts are false. And that it is essentially forbidden to forbid. But because they cannot offer any highest authority anymore, their whole purpose is to dethrone that highest authority to end the interdicts. To say that’s forbidden to forbid, what you end up having with the third culture are intellectuals who are in Rieff’s words, “God threatened.” That so much of the third culture is dedicated to some very often creative and brilliant and stunning and often trashy and absurd ways of tearing down the second culture. What you see is over and over and over an adversarial address to the second culture and to the authority above it without really offering anything at all in its place.

You have this kind of hammering negative culture that emerges. If it’s forbidden to forbid, then it’s only tearing down. Whereas the old function of culture, again, it goes far beyond some piece of art you might create, and is the demands of the group sunk into the individual internalized very young. Then to the extent that it’s obeyed and understood, that character is strengthened. It’s a really profound mutual arrangement in the second culture, right? The group in some way sinks these interdicted demands into the person. Each time the person obeys those, he is strengthened. But also the society around him is strengthened by its obedience. When they make an address to authority, those addresses to authority, cathedrals and poems and Psalms and proverbs, those also strengthen the interdicts. You have this constant building and strengthening and thickening of these interdicts through lived experience and through artistic expression.

Well, in the third culture, that ain’t the function of high art, but it’s also not the function of the group which is increasingly individualistic. And really what’s left to artists is either politicized art, which we see a very great deal of. An attempt to have this weak sauce version of an address to ultimate authority where it becomes politics, or you just have the nihilistic hammering of the culture which came before it, as Serrano’s piss Christ. These kinds of blasphemous attacks. Joyce’s mockery of the liturgy. And, of course, a thousand absurd Norwegian black metal debased versions of the same thing. Just the unending assault on the old culture. And you think, “Why is it that it’s so astonishingly negative?” But again, if you understand as Rieff does, that culture is essentially interdictory and you don’t believe in interdicts, then you’re not building anything. And all that’s left is to tear down the culture that came before.

James Patterson:

We talk about this in our chapter where we mark the moment … Ours meaning Bill Batchelder’s mind, where you see a transition in the civil rights movement from a figure like Dr. Martin Luther King, who’s a man of interdicts, at least in his professed belief. But somewhat attracted to therapeutic language, right? He has this temptation to use that language … Especially because it’s very evocative. People are rhetorically moved by addressing the kind of experiences of people rather than making claims about violations of duty or moral law. Then the rise of the opposition in the figure of Stokely Carmichael, who is a man of tearing down. Not just rightfully wanting to tear down the authorities of Jim Crow, but also the authorities that Martin Luther King uses to demand justice. Why don’t you explain how Rieff works out that distinction between the two and how it’s a good example of why Rieff’s ideas deserve a closer attention?

William Batchelder:

The text to look at for this is Charisma: The Gift of Grace, and How It Has Been Taken Away from Us, which is published posthumously around the same time as the end of the Sacred Order/Social Order trilogy. And they actually did a paperback version. It is like his other late work, a daunting and unfriendly text, in many ways. It starts out in a more traditional academic approach. By the middle, it’s even more impenetrable than parts of Deathworks. I offer that as a caution, but he has profound things to say regardless. And one of the things that he has to say is that Weber misunderstood charisma, which is like saying Marx misunderstood class struggle. It is an ambitious charge to make. And essentially what he said … Again, one of the reasons that Michael and I love Rieff so much is the respect and honor he shows to people even when he’s disagreeing with them. The respect and honor he shows to Nietzsche when he disagrees with them. The respect and honor he shows to Freud when he departs from him. The respect that … And he does the same thing with Weber.

He basically says, “Look, Weber got to this idea before me, but his intellectual commitments were such that he couldn’t admit it, so he turned away.” Rieff basically says, “I’m not even saying something that Weber didn’t deep down know.” But essentially Weber makes charisma dependent upon recognition. That is to say, at the end of the day, the charismatic can be identified because the people around him identify him as someone to honor, respect, follow, obey, and look up to. It’s purely the phenomena of their recognition that makes them charismatic. And, of course, Rieff points out how nihilistic that is. Imagine a category, if we just look at Rieff’s mid-century … Or look at King’s mid-century contemporaries, imagine a category which would include Mao Tse-tung, Sonny Barger, Mick Jagger, and Martin Luther King.

Now, every one of them has been described as charismatic, and that shows that the modern use of the term is utterly meaningless. They are nothing alike and in some ways morally opposite. What Rieff says is, “If you want to understand charisma as it functions in …” What he calls, “A working symbolic.” In other words, a culture that hasn’t failed, “Then the purpose of the charismatic is …” I think this is an exact quote, “To ignite the fire of a new no.” That is to say the purpose of the charismatic is to bear the burden of the no on himself, on his body, in his character, in his actions. We think of ascetic saints in the Middle Ages, right? Saint Wulfric, for example, in England in the twelfth century was visited by King Stephen. He spit in his face and slapped him and was unpunished. Why? Wolfric was a holy anchorite who is known for his devotions and for his miraculous ability to weave chain mail and give little links as holy gifts by his hands.

And because he embodied the thou shalt not in his self-denial, when the king himself showed up, Wolfric lets him have it. And this is accepted, right? Because he has embodied the sacred no. Whereas if you take Jesus, some people misunderstand Jesus and they think, “Well, what’s charismatic about him is that he overthrew the ritual law.” Very often in Weber, and then much worse later as this idea is popularized. The charismatic is a rebel and overturning of old moral structures. And Rieff says quite the opposite. Jesus may seem like he’s overturning old moral structures, that is parts of the ritual law, say for example. But only because Jesus is moving those demands from the outside to the inside where they’re even more demanding. Where they’re even more rigorous, so that real charisma upholds the sacred order by embodying the interdicts. It’s not simply a person who is recognized by others as being somehow persuasive or beautiful or moving or whatever.

And if you look at King, the argument for his being a true charismatic is his beautiful commitment to nonviolence. Anyone who refuses violence even when his own home is bombed by white supremacists. And when his children and his wife were home, right? And says, “Yeah, still no violence. Still no violence, even when this nearly cost me my family, and had I been home, my life.” That is the mark of a charismatic. Now, it’s not so easy as James and I argue in the chapter. The problem is that Rieff adds a further stricture to his definition of the charismatic, which is, “No one may speak of sacred order, who is not living it.” And, of course, the problem we’ve learned about King’s private life is that it was disordered, even though his witness to nonviolence was heroic. And Rieff, I think, would argue that he was not a true charismatic, but he is what a true charismatic would look like.

Carmichael, on the other hand, is the consummate therapeutic. His own biography who admires him very much, and there’s much to admire about Carmichael, says over and over, “Look guys, the consummate actor.” Wherever he is, he summons the character he needs to be, sometimes down to the accent. To be the person that people around him need him to be. He never commits to a worldview. Grows up Methodist. Comes into his intellectual maturity around communists in New York. Never adopts Methodism. Never adopts communism. Goes off to school. He is introduced to King’s Christian nonviolence. Uses as a tactic. Never adopts it as a immovable principle. Later on, becomes interested in Marxism. Completely throws off nonviolence. Stokely Carmichael, for all his heroism, 27 times arrested, beaten, friends killed, everything else. Carmichael will not commit to unchosen bonds. He will not submit to these disciplines outside himself, which are unchosen.

Whereas King, nonviolence comes from agape love. It’s set forth by God. It’s not a choice. And he’s not in a position ever to disobey it. That’s the difference between a therapeutic character. It’s not that King is a better person and Carmichael is a bad person. That’s not what James and I argue. What we’re arguing instead is that Carmichael’s character remains unbounded as the modern therapeutics must. Whereas King for all his faults, has things that absolutely cannot be changed. Nonviolence as example.

James Patterson:

I wanted to ask Dr. Hardy, Michael, what is a deathwork? And it doesn’t sound like something I want, right? I don’t want to … It sounds bad. You were the one who said unimaginable depravities, and then literally told us about one in Germany.

Michael Harding:

Yeah, I used that as a footnote in my chapter. All right, a deathwork. Obviously the term itself is provocative.

James Patterson:

Right.

Michael Harding:

And I’m tempted to say that just like subversion of the reigning order is bad when it’s a good order and good when it’s a bad order. A deathwork is bad when the order it’s aimed at is good, and good when the order it’s aimed at is bad. But there’s a handy little definition for anyone who has deathworks handy and who wouldn’t really. This is on page seven of My Life Among the Deathworks, and he writes, “My life as deathwork. By deathwork I mean an all-out assault upon something vital to the established culture. Every deathwork represents an admiring.” And that’s I think the key word here, “An admiring final assault on the objects of its admiration.” People familiar with Nietzsche might remember there’s a point where he says he only attacks those people and causes that have done him some good, right? He admires them.

You think about his presentation of Christianity and beyond good and evil. He clearly admires Christianity for all of his objections to it. Rieff says, “Every deathwork represents an admiring final assault on the objects of its admiration. The sacred orders of which there are some expression in the repressive mode. As part of my futile effort at a disinterested work, and as part of my severely limited talent for lying, from which any deathwork separates itself at the peril of its aim, I shall merely number the established culture here and everywhere in the West, at least.”

Third, which we’ve already talked about. “This, my own life work as deathwork is intended to strike a fatal blow at the culture I consider now established. Deathworks are battles in the war against second culture and are themselves tests of highest authority.” He’s saying that what he’s doing, his life and his work, is meant to be a death work against third culture. Third culture is the outcome of the success of death works against second culture, so he’s going to try to make a death work against third culture, which as I mentioned earlier is going to try to set the ground for the emergence of a possible fourth culture. Oh, go on.

James Patterson:

What is a fourth culture? Do we even know or does he know?

Michael Harding:

Yeah. Well, in very vague terms.

James Patterson:

Right.

Michael Harding:

Let’s see. Where is the passage I’m looking for?

William Batchelder:

While you’re looking for that passage, the stakes couldn’t be higher. One of the things that Rieff emphatically says, he defines culture as the form of fighting before the firing begins. This isn’t something like, “Well, I like Mozart, but I don’t like Bach.” These are not the idle hobbies of the wealthy and highly educated. He believes it’s, I guess we could use the term, existential, but it shapes the whole way people are in the world. Did you find it?

Michael Harding:

Yeah, I found the passage. I had it marked and completely ignored the mark. He writes, and this is on 168 in Crisis of the Officer Class. He says, “The orthopraxis of the fourth culture in no way different from the unbridled individualism of faith, can only occur in a culture devoted primarily to teaching the interdicts first and every skill after that supreme one is acquired. No skill, no knowledge need be feared once the interdicts are inseparable.” From what Freud called the body ego. “This fearless mass demands an inversion of the present teaching of the interdicts.” Which is aimed at abolishing them. “And aim no more achievable than living without paying the price of life.” Which is death. “There are ample examples of how to go about creating the fourth culture. Fences must be built within which people are clamoring to live in order to escape the consequence summed by the least canonical of teachers, Ecclesiastes, he who breaks the fences bitten by the snake. Surely, the snake will bite without enchantment.” Then there is, of course, the other passage where he speaks of Christians and Jews becoming united in their orthopraxis.

William Batchelder:

In essence, what he argues is that Christians need to be become more like Jews in being very mindful of the interdicts and very thoughtful about Orthopraxis. And Jews must become more like Christians in the intense inwardness of their faith. And he actually calls for reunification almost, a union of two, which is very interesting because in his early writings he’s very hostile towards Christianity, and almost equates Christianity with anti-Semitism. But in Deathworks, he’s speaking of Judaism and Christianity very, very early in the book and he just says, “We.” As though Jews and Christians are the same people. He seemed to have had a journey there himself in his attitude toward Christianity and Judaism over time.

Michael Harding:

And I think maybe it’s important to maybe make explicit that what he’s talking about here is not a return.

James Patterson:

Yeah, it’s not return with a V, like return to tradition.

Michael Harding:

Right. Fourth culture is not going to be second culture. We can’t go back. He says we cannot repeat the mythic truths of the first culture nor the historic truths of the second nor the psychological truths of the third. Whatever fourth culture is going to be, it’s going to be something new in this historical scheme.

James Patterson:

It’s a shame because that fourth culture might’ve been TikTok, which will be banned. No, okay, that’s stupid.

Michael Harding:

It’s going to affect you a lot more than me.

James Patterson:

No, how dare you. My joke has always been, “If the Chinese want my data, they have to buy it from Meta.” A good American company. Let’s get a little bit more gossipy at the end of the podcast. What on earth was this marriage between Philip Rieff and Susan Sontag?

William Batchelder:

I think the intense attraction of two absolutely brilliant people.

Michael Harding:

Yeah.

William Batchelder:

If you look at how it’s written about … Moser writes this book about Sontag, and he decides to make Rieff the villain of the piece. Kevin Slack and I get into that in an article for VoegelinView, but clearly he decides that Rieff has to be the villain of really the whole book, which is, of course, absurd. It wasn’t that long a marriage for one thing. But she, of course, is absolutely brilliant. If you’ve ever seen her speak or if you’ve read notes on camp, right? To imagine these two absolutely brilliant people in the same space, apparently the attraction was immediate and overwhelming.

It’s also fair to say that while we correctly identify Sontag with the left. She’d be the first to say that. Rieff, at one point when he and Sontag were together, they were roommates with Marcuse. Rieff as a cranky and pessimistic conservative culturally. That was the development of a lifetime. Kevin Slack talks about this a little bit in his chapter of our book called Rieff, Strauss, and Heidegger. I think Kevin believes that Rieff was always a man of the left right to the end. It’s not as unlikely as it might seem to read History backward and see where they both ended up, ideologically.

James Patterson:

Yeah, it’s always been one of my … I guess just puerile interests about what that must’ve been like. And now that you’ve added Marcuse to the mix, I can’t even fathom. What do you think it’s going to take for people to become students of Rieff, at least his works? We’ve seen successful introductions of some of these figures like … Leo Strauss being one of them. But he had a large number of students as acolytes. And you see this with public choice people working out of the University of Virginia, Buchanan, but Rieff didn’t really seem to have much in the way of students. Is there a way maybe that there’s people who were not even working with him or his colleagues might be able to introduce this? Is that the idea behind this book?

William Batchelder:

Well, he does have students who are immensely loyal to him and to his memory. Also, colleagues are near colleagues. I think of Jonathan Ember. I think of Stephen Grosby, both of whom have been immensely kind and helpful to us. I think one of the troubles Rieff has is we just heard recently from a student of his who may not be crazy about our interpretation of his work. But he and, I think, probably others as well. I know for sure of at least one of other as well. They became full-time therapists or psychologists. They didn’t necessarily stay in the academy. And Rieff didn’t probably do his students any favors by practicing a form of sociology so unique, that apparently he was never more pleased than when someone would approach him at a conference and say this is from Ember’s memory of him, “But is it sociology, Philip?”

When you have someone who’s that idiosyncratic, I think the problem is a school of Rieffianism would have to have a home and a discipline. And that’s awfully difficult for him, and I think for some of his students too. I don’t know, does that make sense? I think that might be some of the answer about why we don’t have … Because we’ve been very impressed with the Rieff students that we’ve had an opportunity to talk to and to interact with and of the people that knew him that we’ve had the opportunity to talk to and interact with. But I do think he had some challenges. Whereas Leo Strauss, he may have reinvigorated political philosophy, but what he was doing is at least very easily recognizable as political philosophy. And I think Rieff created as disciplinary challenge for himself with his unique genius. I don’t know. Mike, what would you add?

Michael Harding:

Yeah, the thing that struck me about Rieff, and I’ve talked about this before. I got interested in Rieff because, I guess, maybe about a decade now. You sent me My Life Among the Deathworks as a Christmas gift.

Michael Harding:

And I read it very quickly. I kind of devoured it. And one of the things that caught my attention was at a certain point in your academic life, you reach a point where you can say, “Okay, I see where this argument or this text or this thinker fits into this kind of narrative I’ve built up for myself of my discipline and how things relate to each other.” And when I was reading Rieff for the first time in a long time, I was excited because I felt I didn’t know where it was going to go, when I was reading Rieff for the first time.

And I think one of the difficulties Rieff faces is that he was ostensibly a sociologist, but he wrote his master’s degree for the political science department and his dissertation on Freud for the political science department. He ends up in sociology. And if I’m being perfectly honest, I tend to read him as engaged more than anything in a philosophic project. And I think this is part of the difficulty. He is an idiosyncratic teacher and what he’s doing, it’s not quite sociology. It’s certainly not sociology in the sense that I think most of our colleagues in sociology today would recognize it. It’s a weirder and I would say much more deeply philosophical project, and accessing what is really going on has made that much more difficult by Rieff’s prose. I think it might’ve been Rick Brookhiser who compared it to chewing marbles as though Rieff is saying, “I am as difficult and dense as Heidegger.”

I think a Rieff resurgence or a Rieff school is made much more difficult by the fact that Rieff is very deliberately off-putting. In a way that someone like Leo Strauss is not. Strauss writes, let’s say for multiple audiences, but he also writes very well and in very eloquent, accessible language. You can pick up Strauss and you can read him very easily and it’s not the difficult thing that Rieff is doing. Rieff is using a lot of the tropes of the high post-modernism of the ’80s and ’90s. He loves the up-level pun. He loves the deliberate obscurity and he’s using these in a way as an attack on post-modernity. But that makes him much more difficult to read.

James Patterson:

My guests today have been Dr. Bill Batchelder of Waynesburg University and Dr. Michael Harding of Montgomery College. The book is The Philosophy of Philip Rieff: Cultural Conflict, Religion and the Self on Bloomsbury Press. Thank you both of you for coming onto the Law & Liberty Podcast.

William Batchelder:

Thank you so much for having us. We really appreciate it, and …

Michael Harding:

Thank you very much.

William Batchelder:

Yeah, we’re very grateful.

James Patterson:

Thanks for listening to this episode of the Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts, and visit us online at www.lawliberty.org.

Related Links

American Heretics: Religious Adversaries of Liberal Order

“Challenging the American Creed” – Mark Noll

Transcript

James Patterson:

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty, and this podcast, are published by Liberty Fund. 

Today we will be speaking to Jerome Copulsky and Mark Noll. The subject will be Jerome’s most recent book, American Heretics: Religious Adversaries of Liberal Order, published last October.

And a review that Mark published for us at Law & Liberty last November of the same book. We figured this would be a wonderful conversation about a really remarkable book, so I’ll just introduce our guests. First is Jerome Copulsky, scholar in residence at the Department of Philosophy and Religion, as well as a research fellow at the Berkley Center for Religion, Peace and World Affairs. Mark Noll is Professor Emeritus at the University of Notre Dame and has written numerous books on the same subject as today’s discussion, perhaps from different valences. So, gentlemen, welcome to the Law & Liberty Podcast.

Mark Noll:

Thank you.

Jerome Copulsky:

Thank you, James.

James Patterson:

So I’ll open by asking Jerome to give us the elevator pitch, or the summary of the book, and then maybe have Mark explain what the sort of mainline of his review was. So Jerome, why don’t you go ahead and lead off.

Jerome Copulsky:

Great, thanks James. And again, it’s really delightful to be here with you and with Mark, to discuss the book and sort of the general set of issues about religion and politics in America. I guess the best way of framing it is, the book really attempts to provide a new way of thinking about perennial conversations or debates, about the relationship of religion and politics, through church and state, in the United States of America. And there’ve been two, broadly speaking, camps in this debate. One camp, we might call them believers in the idea of a Christian nation. They argue, in some way, that America was founded to be a Christian nation, that the founders were pious Christians, that the Declaration of Independence and the Constitution of 1787, were meant to establish a Christian order. Maybe not explicitly, but at least implicitly. And that was generally accepted until the mid-twentieth century when that began to be eroded into a secular, humanist order. It is sometimes described that way.

On the other hand, there are people who argue that the founders envisioned a secular republic, that one of the most important things about the United States of America was this break from church-state traditions that prevailed in Europe, and this notion of the separation of church and state enshrined in the First Amendment, as well as the regime of religious liberty. Which extended not only to Protestant Christians but to all religions, right? So, these two conflicting views of what the founding was, what the founders intended, and what kind of nation we ought to become. American Heretics looks at, I’ll call it a third tradition.

These were people, they were religious leaders, they were politicians, they were intellectuals who agreed with the secular story to a certain extent. They believed that the United States was not founded as an explicitly Christian republic but that it ought to have been. That somehow, the founders failed in either properly constitutionalizing religion or the very political ideas that had animated the American project were not truly Christian. So I begin at the time of the revolution with Church of England loyalists, and as I work my way up to contemporary post-liberals and national conservatives, to describe the ways in which these figures dissented from what I call an American orthodoxy.

James Patterson:

So Mark, this book covers a lot of ground. When you reviewed the book, what were your takeaways?

Mark Noll:

I thought that the project was very well executed. I tend to be someone who favors larger synthetic works myself, if they are well grounded in a wide range of primary sources and expert secondary sources, which is the case with this book. So they range from, as Jerome said, the loyalists in the 1770s, who rejected the American Revolution through a kind of miscellaneous crew in the nineteenth century, who wanted to see either what they thought was implied in the American founding made explicit or actually thought that the American founding had not had a kind of religious or Christian framework that it needed. And then right up into the twentieth century, and particularly after World War II, where we get actually quite a long list of people who either, like John Courtney Murray, the Catholic theorist in the 1950s and 60s, who said, “Well, if we just interpret Catholic theology correctly, we’ll see that it supports, in a kind of theistic way, the American founding.”

And then to a long list that Jerome expertly pulls together. Some of these people I’d not heard of, but I thought expertly showed why they rejected the liberal tradition and thought that the American polity, American society, and American nation needed, in all of the cases that he cited, a firm Christian grounding. So, the synthesis ranged widely. And obviously, with such an extensive range of protagonists, there are questions that could be raised about some of them in minor ways, but I thought the book was entirely successful in showing a continuous tradition of Christian-oriented thinkers who felt that either what was implicit in the American founding needed to be made explicit, or who felt that the American founding lacked entirely what it needed by way of a Christian framework, a Christian foundation. So yeah, to me, it was a really good book.

James Patterson:

Jerome, first of all, getting that kind of praise from Mark Noll makes me very envious. Second of all, what holds this tradition together? What Mark just described as one, I think you did too. But what’s weird is that you’re looking first at Anglicans. Is it that many Anglicans actually regarded the republic that the patriot cause wanted was Presbyterian, and then the Presbyterians don’t like the republic once they get it. And then the Catholics, I noticed there’s one funny line from L. Brent Bozell, about a Calvinist interpretation. And so these very different religious denominations, very different sense of political theology, how is it that they hold together so well?

Jerome Copulsky:

Yeah, I think that came out in the research, and a lot of the connections, the root structure of the book, developed organically. So I knew certain people I wanted to talk about, or certain traditions I wanted to talk about when I started the book. There are a lot that I discovered along the way. But I started with Church of England loyalists. It seemed like an obvious place to begin, at the beginning. And the argument of the loyalists, on the one hand, they saw the revolutionaries as essentially the next iteration, so to speak, of the revolutionaries of the English Civil War. So sometimes told, right? The Presbyterian Rebellion. And a lot of the loyalist Church of England propaganda against the patriot movement and the war was that, this was kind of essentially hardwired into the Presbyterian dislike of monarchy. But at the same time, they had to actually look at the ideas that were being enunciated in the Declaration of Independence, that were broader than the ideas coming out of Presbyterian or Congregational New England.

The ideas that are articulated in the second paragraph of the Declaration of Independence, which is where I start, where human beings are created equal and endowed by their creator with certain unalienable rights, and that governments are instituted to protect those rights. So this Lockean social contract theory, which, from the point of view of the loyalists, undermined their understanding of the cosmic order, with the king as God’s sort of vice-regent on earth. So they were both critical of the New England Congregationalist establishments, but they were also deeply critical of the revolutionary ideas that were being articulated. Now, when we turn the chapter to the early republic, and we look at some of the Scottish Presbyterians or the Covenanters, who supported the war, but were then disappointed with the Constitution that came out in 1787, the reason that they were disappointed was not because of the republican structure of the Constitution, not because of the architecture of checks and balances.

Their argument was that the Constitution failed to acknowledge God and failed to acknowledge Jesus as Prince of Nations. They believed that the article six, section three, the prohibition of a religious test oath on federal officers, meant that a federal magistrate, including the president, could be an infidel. And that the First Amendment separated church and state, but also protected religious liberty, which to them, was a protection of religious infidelity, of false worship, of false religion. Right? So for these reasons, and for another reason, they believed that the Constitution was a pro-slavery document, and they were early abolitionists.

So for all of these reasons, they essentially decided to become conscientious objectors to the United States of America. In fact, this was what defined the reform Presbyterians as a denomination, alongside other Presbyterian denominations. So they wouldn’t run for office, they wouldn’t vote, they wouldn’t serve on juries, they avoided the militia. They would pay taxes, but they believed they had no other choice. And they hoped that American citizens would come to their senses and change the Constitution by means of amendment, but they would not participate in that amendment process because they would not participate politically, at least until The Civil War.

James Patterson:

So Mark, when talking about the book, you actually pose a question about the nature of heresy, as stipulated in the book’s title, and its sort of operative term for the book’s argument. You say, “What does it say about the categories of heresy and orthodoxy, to observe that reformed, Presbyterian heretics on the separation of church and state, were among the very few white Americans who today would be considered Orthodox, and insisting that all Black, as well as white, were created equal?” What is it about this question in the nineteenth century, that makes the covenanters such an odd case?

Mark Noll:

Yes, I did in my review, draw attention to the covenanters, partly actually, as a way of affirming the strength of the book to roam in different places, in and indirect way, but then more direct at the end, makes a challenge to those who wanted to see a Christian framework. Well, what kind of Christian framework? Who would be allowed to set it? Would, for example, the Covenant Review of the necessity of honoring Christ as king have allowed Catholics to function in the societies? One of the interesting things about the Covenanters, which I’ll get to in just a moment, is that they were not only from the period probably 1800 to 1830, the nation’s most ardent, clearly spoken, theologically and ideologically rooted opponents of slavery, but they were also among the most vicious anti-Catholics in the United States. So you have a group that … I mean, actually, Jerome did a nice job in the book, in just a limited time, to sketch these people. But they’re really, really complicated.

He quotes in the book from Alexander MacLeod, who is one of the individuals who articulated the position Jerome has just mentioned, “If Christ is not honored as King, and deference is not paid to him in the Constitution, then we can have no part in this nation.” And in 1802, MacLeod published an extensive attack on slavery, biblical, philosophical, republican, that for the period, with just one or two other instances, was the most ardent defense of the full humanity, the full civil potential of Black Americans. So the heresy label does fit for Covenanters’ opposition to the liberal Lockean regime established by the Constitution. But from the standpoint of 2025, these covenanters look like the Orthodox party, because they are affirming the full humanity, the full civic potential of people who, in the early nineteenth century, very few other Americans did. So this is really not a criticism of the book per se, but it was to say that, the very sound tracing of a single theme does leave some complexities that remain to be discussed.

Jerome Copulsky:

Yeah, and I’d like to underscore that. When the Covenanters actually decide to get involved politically during The Civil War, they set up a number of meetings in Washington. And shortly after the Emancipation Proclamation is released, they send some ministers to meet with the president, to meet with Lincoln, to congratulate him on this and to push him forward, to make sure that the government follows through on the promises of the Emancipation Proclamation. So when they looked at The Civil War, they understood The Civil War through theological terms, as a punishment by God for the nation’s sins, for the sin of the Godless constitution on the one hand, but also for the sin of American slavery.

Mark Noll:

Mentioning Lincoln and the Emancipation Proclamation does lead me to a question for Jerome. And that is, the incident that he mentions, Lincoln handled characteristically. He was friendly, he engaged in some discussion, he indicated a kind of indirect approval for what the people were doing, but when they left, he left their document on the desk and did nothing about it. But the question is, do you think that Lincoln was as far from these Covenanters, in the sense of being Orthodox and they were heretical … When you read particularly the Lincoln documents from the mid-part of The Civil War onward, there’s an awfully strong theistic, if not exactly Christian, there’s awfully strong theistic background to what he wants to say about the future of the United States.

So someone who would want, in our day, a much more secular day, someone who’d want to say, “Well, Lincoln dismissed the Covenanters and therefore, is not heretical, in Jerome’s sense.” But boy, he sure looks, if not heretical, he looks like he’s pushing the boundaries of what a public official in the United States wants to say about the rule of God over the nations, and including the rule over the United States. So what I’m asking for, Jerome, is a little bit of Lincoln exegesis for us.

Jerome Copulsky:

Well, I would say that one of the things we can do is, we can look back. The Covenanters had a report of this first meeting with Lincoln, where they kind of reported back, they got into a kind of theological exchange. And the Covenanters were very sure of their position and very sure that they understood God’s providential working in this particular context. Lincoln himself was a bit more, I don’t want to say skeptical, but he wasn’t as willing to say as emphatically his position, or as his understanding of his position as the Covenanters were. And I think this goes back … If you reread the Second Inaugural, which is probably the most important theological, political document in American history, it’s not an Orthodox … It would not be a position that would necessarily bring joy to Covenanter ears. It certainly is not one that would bring joy to contemporary Christian nationalist ears. This notion that, well, God is here, but God’s purposes are not necessarily the purposes of either side of this conflict, and they may not be ever completely understood, or adequately understood by American citizens.

Mark Noll:

Yes, the way I put it toward Lincoln, in a couple of different places, I guess if you think you have a good idea, to repeat it, is Lincoln’s theism stands really closely aligned to the kind of providentialism that Jerome describes the Covenanters. But his sense of human capacities to understand the ways of God are very different from the Covenanters. And actually, for almost everybody else who was speaking publicly with great confidence about how they knew the Lord was determining American as … Lincoln is one of the very few people of his time who said, “No, I just can’t do that.” Jerome’s entirely correct that, on that score, he is very different from the Covenanters.

James Patterson:

In fact, Jerome’s book actually points to this very problem because one of the chapters is on the pro-slavery divines. And so when Lincoln refers to both, “Read the same Bible and pray to the same God,” he’s making a very clear statement about what’s going on, not just a rhetorical flourish. Who are these people, Jerome? Why is it the Presbyterians again?

Jerome Copulsky:

And here, it’s the group that becomes the Southern Presbyterians. And here I should say right off about how dedicated I’ve been to Mark’s scholarship, both in the amazing, enormous book, America’s God. And also in the smaller book on The Civil War as a theological crisis. So I focus on mostly Southern Presbyterian divines. The most influential one was John Henley Thornwell, South Carolina, but also Benjamin Morgan Palmer and Frederick Ross, and their understanding of what a Christian republic would look like. And I begin by, when the Confederate government comes together and drafts a constitution, one of the key differences between the Confederate constitution and the Constitution of the United States of America, is the fact that the Confederate constitution both directly acknowledges God, and also directly acknowledges the institution of slavery. And for Thornwell, this was a good thing, but he felt that the Confederate constitution didn’t go far enough, that the acknowledgement of God was not enough to ground the Confederacy as a true Christian nation.

And so he submitted a proposal to the Southern Presbyterians in 1861, that they tweak it a bit, to make it more fully Christian. And what’s interesting about that is he does make pains to express that this would not undermine the religious liberty of other white people living in the Confederacy, and that even a Jew could possibly rise to become chief magistrate. Now whether he fully believed that or whether that was an acknowledgement of the important role that Judah Benjamin was playing in the government, I don’t know. But the other issue that I look at with the pro-slavery theologians, was their argument that in a sense, the American Republic was set off on the wrong foot because it was animated by false theological ideas.

Those false ideas about the nature of human beings and the nature of civil government that were articulated in the Declaration of Independence. So in a work, entitled Slavery Ordained of God, by Frederick Ross, who’s arguing against Albert Barnes, who’s a prominent northern abolitionist, Ross argues that the claims made by Jefferson, which were now being used by abolitionists against the safeholding south, those claims were in fact unbiblical, were infidel arguments. And that in a way, the republic, a truly Christian republic would have to be set on biblical notions of natural hierarchy or providential hierarchy.

Mark Noll:

Just one footnote to expand upon what Jerome said is that, the Albert Barnes that Ross was arguing against was the Northern Presbyterian’s most ardent attacker, most ardent abolitionist, who did so with the full confidence that he was reading the scriptures correctly in supporting his abolitionism.

James Patterson:

Yeah. This ends up sort of justifying Lincoln’s whole reticence to make distinct claims, right? It’s when you have entirely antagonistic ideas proposed as God’s word, it starts to look like one of these people has to be wrong, and maybe the whole venture is mistaken. And the years that follow The Civil War, there’s an important transformation where, instead of there being an attempt to instate in the Constitution a sort of existing reality, which is a kind of Christian people, right? There’s a broadly Protestant America. There emerges a kind of newly secular institution. So this is the National Liberal League, a man named Abbott helps put together, and essentially tells the story that a lot of twentieth century, post-liberals believe was the real story, as you said earlier, Jerome. So why don’t you give us a sense of who they were?

Jerome Copulsky:

Yeah. So Abbott, Francis E. Abbott and the Liberal League, were essentially conjured up by this movement for religious amendment, which begins during The Civil War in the north, but then is reignited in the early 1870s. And it’s reignited because of major demographic and cultural changes that are happening in the United States, particularly the rising power of Catholics in cities, immigration of Jews, the rise of Mormonism, and the revelation of Mormon polygamy in Utah. And all of these things were challenging this de facto Protestantism that you described. And Covenanters then became the vanguard of a bigger tent movement of Protestants, and a fairly wide tent. It included not only Presbyterians, but Methodists, Baptists, I think there were even Unitarians involved in this movement. That were decided that a religious amendment was necessary, in order to protect and preserve this Protestant Christian heritage of the United States. And a heritage that was playing out in institutions, like Sabbath laws, the fact that there were chaplains for Congress, and the military and so forth.

So there was this fear that American Protestantism was going to be undermined. And the cause of that was not only these demographic changes, but also that non-Protestants were able to exploit the achilles heel in the Constitution, which was the First Amendment. So the fact that the country, that the nation could not establish a religion and protected free exercise, became a weapon for those who would try to, either on the one hand, assert their own religious rights, but also undermine or push out this longstanding, cultural Protestantism. So they form a movement which becomes known as the National Reform Association, the first NRA, to lobby Congress and the states to change the preamble of the Constitution to explicitly mention God, Jesus as a ruler of nations, and the Bible as the source of law. And from this, comes a counter movement, which is Abbott’s Liberal League. And the literary organ of that was something called The Index. And Abbott’s argument, and those who were affiliated, the leadership of the Liberty League, was that the founders had actually established a secular republic.

And the separation of church and state was one of the foundational things that they did, and he meant it in a very strong way. And so he looked at things that we just mentioned, prayers at the inauguration, for example, Sabbath laws, the chaplains at the Congress and what have you. And he saw these as abuses, that these were not innocent traditions, but they were actually abuses of the system that the founders had set up and that they needed to be suppressed, in order to preserve the legitimacy of the republic as they understood it. And so they promoted their own amendment, the religious freedom amendment. And what the religious freedom amendment would’ve done, would’ve taken the establishment clause in the First Amendment and applied them to the states as well. So it would not be, “Congress shall make no law,” but, “No state could make a law respecting establishment of religion or restricting the free exercise.”

But really, when it came down to it, Abbott believed that Christianity itself was a political problem, because Christianity promoted or imagined a political view that was at odds with the idea of the republic. The idea that, if God is king or if Christ is king, your citizens are naturally going to incline towards monarchy and away from republicanism. And so in some sense, what Abbott really wanted was not the removal of Christianity from the civic space, but something much more radical.

James Patterson:

Mark, what’s going on with Protestants during that same period? It’s just for the purposes of listeners. Because I know Jerome can’t address all of that and the book at the same time. Protestantism actually does a fair amount of pluralism in order to counteract this, which is something ironic, given Jerome describing that as kind of the orthodoxy that these heretics are revolting against.

Mark Noll:

The period between The Civil War and say the new deal, it is a trying time for American Protestants. The kind of reaction to Catholics, immigrants, Jews, that would lead to the formation of the American Protective Association, lead to Nathan Strong’s book, Our Country, 1880 something, shows a kind of nervousness, of fear that what had once been a securely Protestant place was not much of a Protestant place anymore. And internally, I think I trace it back to The Civil War, others trace it to the coming in of European biblical criticism and other things. Internally, Protestants are fragmented. So even though there’s a stronger movement to try to Christianize the public space, internally, Protestants are beginning to divide in the ways that they continue to be divided until now. So that maybe lobbying was becoming more effective for those who wanted a Christian amendment, but the resources in the Protestant world were actually being diminished.

James Patterson:

So we have a post-war environment in which American conservatism emerges as a response to the new deal, and then to radical social change in the case of racial, and then later, sex and gender politics. We get, during that period, one of my favorite heretics in the book, and this is my Catholic bias coming out. And this is L. Brent Bozell and the people behind Triumph. And in an important way, Jerome, they actually articulate what our contemporary post-liberals say about this country. So why don’t you tell us a little bit about these curious offshoots of National Review, and their sojourn in Spain? Franco’s Spain.

Jerome Copulsky:

Yeah. So Bozell … L. Brent Bozell Jr. was William F. Buckley Jr.’s debating partner at Yale. He then marries William F. Buckley Jr.’s sister. With Buckley, he writes a book defending McCarthy. He writes some articles for the National Review when it’s launched in 1955. He is tapped to be the ghostwriter for Barry Goldwater’s Conscience of a Conservative. He’s really one of the leading conservatives, new conservatives in America. And as he’s doing this, he is prepping a book on the Warren Court, critical book on the Warren Court. And I think his brother-in-law suggests that, “You want to live cheap and live well while you’re researching this book. I got the place for you to go. Go hang out in Spain for a while.” And he does. He takes that advice. And while he’s there-

James Patterson:

A faithful mistake.

Jerome Copulsky:

Buckley would certainly say this was probably a mistake. While he’s there, he falls in love. And what does he fall in love with? He falls in love with the Catholic thing and Franco’s regime. And he comes back to the United States. And this is during the time that Buckley and Frank Meyer are stage managing this fusionism at the National Review and in the American conservative movement, trying to find a way, both practically and philosophically, to bring libertarians, cold waterists, traditionalists together, in a united front against American liberalism. And Bozell begins to see that as a failing project. And it’s a failing project because, on the one hand, he thinks that the traditionalists are really serving just as fig leaves for this other project. But more deeply, that American conservatism, as it was coming to be, was really just a right-wing liberalism, that the founding project of the United States, as articulated in the Declaration of Independence, and then in the Constitution, in the Federalist Papers, this was not a continuation of Christian Europe in another key, but it was a break.

It was a radical break. And that radical break, the fact that the United States was founded on liberal principles, was the reason for its contemporary woes. And so by the mid-sixties, he breaks from the American conservative movement. He starts this magazine called Triumph. And by the late-sixties, Triumph takes a kind of radical turn against American regime as such. And he begins to publish a number of articles arguing for this position that the United States was founded, not as a continuation of the Christian tradition, but as a rejection of the Christian tradition. And if you go and you look at those articles which he’s publishing in 1967, 1968, and you compare them to Patrick Deneen’s, Why Liberalism Failed, you can see very clearly the idea is being reflected in this later, post-liberal work. The idea that the liberal ideas and the liberal regime that it sets in motion, is based on a false anthropology, based on a rejection of tradition. And that false anthropology sets in motion a regime which will then undermine itself and lead to contemporary decadence.

James Patterson:

Hey, Mark, what’s going on here? The Catholics get it in the teeth all the nineteenth century, they’re let in the door, and next thing you know, they hate the place. Why was this happening?

Mark Noll:

Well, post-war history is not where I feel really comfortable at home, except to say that there is a very interesting Protestant parallel to Bozell and Triumph, with the group spearheaded by a Rshtuni named Gary … His son-in-law, Gary Nash called Theonomy-

Jerome Copulsky:

Gary North.

Mark Noll:

Which is a fairly strong Protestant way of rejecting the liberal tradition altogether, and arguing parallel to Bozell, that the nation to preserve American freedom needs to be established on a reinvigorated reading of the Old Testament as a legal device. Now, interestingly, and maybe this would be parallel, I’m interested in what Jerome would think, at the same time, there are other Protestants, and I’m thinking particularly of Francis Schaeffer, who also appears in the book, who wants to assert a very strong Christian founding for the United States. But does that saying, “Well, the founding really was Christian, but it wasn’t acknowledged as such.” So Schaeffer wants to go back to the Reformation as the secret for the American success, with John Locke and companies as a very minor, secondary figure.

Now, since the sixties and seventies, I think it’s been the Schaeffer Protestant approach that has gained publicity, pointing toward the Christian America, Christian nation movements of our day, rather than the Rshtuni, which is to say that the American founding needs to be replaced by something directly Judeo-Christian. And I think we maybe see that with Catholics. I’d be interested in what Jerome says. And those who are willing to say that the American system as we have it today, simply needs to be strengthened by recognition of divine authority, as opposed to being replaced by something acknowledging a different kind of divine authority.

Jerome Copulsky:

So the story of the Reconstructionists is fascinating. And the link … One of the things I found in the course of the research was that Rshtuni actually published an article in Triumph.

James Patterson:

Yeah, there’s that crossover that my former student, Max Bodak, discovered. I couldn’t believe it.

Jerome Copulsky:

So there was that. And Rshtuni and North claimed, and I think there’s good evidence to this, that a lot of Schaeffer’s ideas, political ideas, were coming out of Rshtuni’s work. And there was a lot of grumbling on the side of Rshtuni that this was not acknowledged in his book, The Christian Manifesto. And North and Gary DeMar, in a response to that book by Schaeffer, essentially attack him for failing to follow through with his understanding of Reformation theology. That Schaeffer kind of ends up saying, “Well, I want the first amendment. I want the separation of church and state. I just want to halt the advance of secular humanism.” And for North, this is a failure of nerve. Now, this is where, I mentioned earlier my reliance on Mark’s scholarship in the chapter on the pro-slavery theologians.

And at this moment in the book, I think, Mark, you make a brief cameo. Because of your own work, your own sort of intervention in this debate, in 1983, where I think you, in that book, A Search for Christian America, you see how these political ideas are entering into the Protestant world at that time. Now called the New Religious Right. And the book is a kind of warning that A, there’s some bad history going on here and there’s some problematic theology going on here. That this desire for a Christian nation is not only historically problematic, but maybe doesn’t allow for the way in which Christians ought to engage in the political system that’s there. And so maybe I can sort of pitch this back to you for a moment.

Mark Noll:

Yes, that book which I did with a couple of colleagues was an effort to say, well, if you’re going to claim some kind of Christian origin for the US, you need to do it responsibly. And my own sense then and now is that, it’s very easy to find Christian elements in the founding of the United States, and that those who want to say we have a godless constitution or something entirely secular, just are overstating their case.

Yet, overstatement also pertains on the other side, to take a few random comments or a few statements made in the heat of the revolutionary struggles, as if they proved a distinctively Christian founding for the United States, just does not hold up to even preliminary historical inquiry. I must say, however, as a check to any kind of egoism and pride as an author, that our book did sell a few thousand copies, not like the few million that have been sold, however, by authors who want to find a very strong, explicit Christian founding the United States. So I live in relative comfort, but not in the kind of wealth that has come to people who make the much stronger argument.

James Patterson:

And that’s because it’s hard to resolve that ambiguity. You either want the certainty that the particular religious faith you have is in charge, or that it can never be in charge, and therefore, we must replace the regime where you will be in charge. And that seems to be a big problem that all of them are dealing with. And that’s kind of how you can go from Anglicans to Presbyterians, to Catholics. There’s this desire to allow people to be in charge atop a hierarchy. And in the absence of that, there’s this real fear that people are just going to go crazy. So what holds all these together? Is that right, Jerome?

Jerome Copulsky:

Well, first, I think on the question of ambiguity, it reminds me of some analysis in Mark’s book on The Civil War, on the theological crisis leading to The Civil War, which you had a pro-slavery reading of the Bible, you had an abolitionist reading of the Bible, and then you had, I think the Covenanters were in this space, a very careful, nuanced, contextual reading of the Bible. Which probably had the strongest arguments but was hardest to hear. Given the desire for absolutes, the contextual, careful reading of the slavery issue in the Bible was not heard. And I think that the careful, contextual reading of the religious influences and on the American founding, is something that is harder to hear in a particular environment where you want absolutes, where parties want absolutes. It was a Christian founding, it was a Merger-Dale Christian founding, or a secular founding. And to kind of get in there and to look at the different layers of the story, is harder to do.

Mark Noll:

That push for complexity, I think we referred to Abraham Lincoln’s very complex vision. It does make it hard to make those, I would say, genuine historical conclusions, a foundation for action, particularly in an internet world where something snappy, quick, uncomplicated is what seems to be driving public discussion. And on this question, driving it toward wanting to assert something very Christian. And on the other side, wanting to assert something very, very secular. And I think much of the history Jerome shows is that the debates were never that way of that kind of all or nothing. But were often debates as to what would be the best strategy to preserve what is good in the American founding. And the best strategy, some people said, “More explicit Christianity.” Some people said, “No.” But the nuanced positions were the ones that were easy to set on the table and forget about.

Jerome Copulsky:

On this note, it’s kind of ironic that the words, “Under God,” that get put into the Declaration of Independence in 1954, as part of a way of asserting America’s Judeo-Christian heritage and affirming that in the context of the Cold War, that’s taken from the Gettysburg Address. The Gettysburg Address is a much more nuanced claim. And the Second Inaugural is a much more nuanced understanding of America’s political theology than, “One nation under God indivisible, with justice for all.” So even Lincoln as a model, there’s the temptation to reduce it to something more palatable by the public.

James Patterson:

So we shouldn’t be surprised, given this analysis, that there is a resumption of this question in contemporary politics. We’ve seen this in the much published about Christian nationalism and Catholic integralism. So do you see these as just part of the same pattern, with the same kind of explanations? And what do you make of them, Jerome?

Jerome Copulsky:

Well, as I indicated earlier, I think that the post-liberals are, in a way, a contemporary iteration of the positions held by L. Brent Bozell and people around Triumph. I think that you can hear some of the echoes of Church of England loyalists, I think, and some of the arguments of the national conservatives and their desire for public-

James Patterson:

Just to interrupt, all the discussion of magisterial relations to the church, are straight out of some of the more erudite Christian nationalists, and their talk about magisterial Protestantism. I forgot to include that in the question, but that’s a great connection.

Jerome Copulsky:

And if we’re continuing to write the book today, I would turn to this relatively recent phenomenon of neo-reform, Protestant thinkers. I think it shows a continued frustration with not only a secular regime. I think that’s part of it. We’ve been talking a lot about secular versus religious. But I think on a deeper level, a frustration and a hostility to religious pluralism. So what the Reconstructionists wanted, what Catholic integralists want, what the Reformed Presbyterians really wanted, was not a kind of a broadly Judeo-Christian, religious society. They wanted something which they believed to be much more authentic.

They wanted a kind of religious monopoly. And to give an example of this, with the Christian amendment movement, on the one hand, some people who participated in that movement saw this as really a defensive measure. This would just shore up those long-standing practices. But the Covenanters believe that it would do something more radical, right? So if you have an explicitly Christian … Not only Christian but kind of Covenanter theology, in the preamble of the Constitution, when you make an oath to that constitution, you are making a religious oath, if you take it seriously. If you’re making an oath to the Constitution, it is now a religious test. So article six, section three, whether it is explicitly taken out or not, is rendered inoperative by that, I think. And I think that that’s what they wanted.

They wanted America to become a Christian republic through and through. And to be a Christian republican through and through, as they understood it, meant to suppress non-Christian religions, suppress infidelity. And if you go and you watch some of these theo bros on TwitterX, right? But you look at their postings, that’s what they want. They don’t simply want to be able to pray in schools or at football games. They want to create a thorough going, Christian nation and a thorough going, Christian society. And that’s a rejection not only of secularism, that’s a rejection of the very fact of pluralism that this country was founded upon.

James Patterson:

A friend of mine likes to say, “It’s liberalism when they do it to us, and the common good when we do it to you.” Mark, any last thoughts you want to give us about maybe either the question that, or the issues that Jerome has put forward? Or maybe the state, the discipline of studied American religion? You’re a person on whose opinions I rely very heavily, so I’d like to know.

Mark Noll:

Well, I did raise in the review, the very last paragraph in Jerome’s book, which is an interesting one. The first sentence of the last paragraph is, “If it is to endure, Americans’ liberal democracy will have to be sustained in the absence of a moral consensus or a clear cut, spiritual foundations.” I actually agree with the clear cut, spiritual foundations. More or less in line of what he’s just said, that the aspirations often foreseeing a Christian foundation are not really a kind of loose desire to have space to do what I think needs to be done, but actually a stronger sense that everyone should be doing what …

But then the absence of a moral consensus, I think that’s a harder bridge to cross because of how deeply ingrained, and you can find it in different ways in George Washington, and even in Madison and Jefferson, Joseph’s story, Abraham Lincoln, Reinhold Niebuhr, Martin Luther King Jr., right up to the present, the sense that the United States project does have a transcendent, moral backing. However, it’s wrong to over-particularize it. And I think if the desire to not over-particularize moves to saying, “Well, we can get along without a transcendent, moral canopy of some kind,” I just don’t think that’s right. I don’t necessarily believe that. So I’ll let Jerome have the chance to defend the last paragraph, or at least one part of one sentence in the last paragraph of his book.

Jerome Copulsky:

Yeah, I wasn’t writing a book that was defending a particular kind of non-foundational liberalism. I think that that statement is meant as a descriptive rather than a normative statement. I think that, for better or for worse, we live in a country that … We have 320+ million citizens and non-citizens, who don’t agree. And if we are to continue as a functioning liberal democracy, we’re going to have to find ways of agreeing without those metaphysical agreements. And I hope we are able to do it. What the book shows is that there’s been that strain of disagreement from the very beginning. This is nothing new.

It just may feel more widespread now. And I think I would go back and reaffirm what we were talking about with Lincoln, who in a way, maybe provides a model of the civic language, the civic, moral language that we should consider taking very seriously, maybe returning to. Which is a kind of civic humility, a belief in the project of liberal democracy, as we call it now, but a civic humility in the exercise of that project. So I guess that’s how I would come back and try to defend where I land at the end of the book.

Mark Noll:

Jerome, would it be possible, do you think, to write a comparable book, American Heretics: Progressive Adversaries of Liberal Order?

Jerome Copulsky:

Absolutely. And I think one of … I didn’t say this explicitly in this conversation, but I think it should have come out in the writing, that Abbott himself is a heretic. The reason why I spent so much time outlining Abbott’s argument against the National Reform Association wasn’t because I think he was right, but I think he was also, in his way, attacking the foundations of the American Republic. Now, again, he felt that the amendment was needed to protect his understanding of the republic, as did some of the people in the National Reform Association Coalition. But at the end of the day, they were both interested in taking out that plank of pluralism, whether it is pluralism that allows for people to live secular lives, or pluralism that allows people to live lives within their own religious communities.

James Patterson:

Is that the next book, Jerome?

Jerome Copulsky:

I don’t think it’s the next book. But the book focuses on political theology. We could write a book that focuses on secular ideology, against liberalism.

James Patterson:

Outstanding. The book is American Heretics: Religious Adversaries of the Liberal Order. Jerome Copulsky, Mark Noll, thank you so much for appearing on the Law & Liberty Podcast.

Mark Noll:

My privilege. Thank you.

Jerome Copulsky:

Thank you so much. It was great.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.

Related Links

Books by Ilya Shapiro:
Lawless: The Miseducation of America’s Elites
Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court

Transcript

James Patterson:

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. Today, my guest is Ilya Shapiro, a senior fellow and director of Constitutional Studies at the Manhattan Institute. He was executive director and senior lecturer at the Georgetown Center for the Constitution, and before that, vice president of the Cato Institute and director of Cato’s Robert A. Levy Center for Constitutional Studies. Today, we’ll be talking to Mr. Shapiro about his forthcoming book, Lawless: The Miseducation of America’s Elites, which should be coming out very soon after this podcast, so be sure to look it up on Amazon-

Ilya Shapiro:

Actually, by the time this airs, I think it’ll already be out. January 14 is the pub date, so Lawless: Miseducation of America’s Elites. Go get it in any and all formats.

James Patterson:

That’s right. For those of you who need a little bit of schooling about self-promotion, Mr. Shapiro has provided you excellent example. Be on top of all this stuff. Anyway, welcome to the podcast.

Ilya Shapiro:

Good to be with you, and it was good to recently hang out with you and talk deep thoughts at a Liberty Fund retreat about the future of fusionism, and I’m happy to discuss the illiberal takeover of hire and especially legal education here.

James Patterson:

It was a great event. Fusionism, as always, a topic I love to talk about, and it was great to hear your thoughts about it as well, but that’s all kept hush-hush. What’s spoken at Jacksonville stays in Jacksonville. This is a book that’s not merely addressing a public policy problem, but it’s one that has a bit of a personal touch to it. Why don’t you tell the audience who’s not aware of your experience with cancel culture about what maybe was part of the motivation for this book?

Ilya Shapiro:

Yeah, Lawless uses my so-called lived experience as a jumping-off point for discussing problems with ideology, bureaucracy, failed leadership, all of these. The morass of pathologies in higher ed, and especially legal education. I focus on that not simply because I’m a lawyer but because, while it’s sad and unfortunate for human civilization, if English or sociology departments go off the rails, law schools train the next generation of the gatekeepers of our legal and political institutions, so that’s very important, if they start disbelieving in the objectivity of truth and the rule of law is illegitimate and all these. … We’ll get into that. Anyway, my personal experience, what launched this endeavor. I had been at the Cato Institute for nearly 15 years, and the opportunity presented itself to take my career in a new and exciting direction and join Georgetown Law School’s faculty to direct their Center for the Constitution, which is an important center, as we’ve learned, because the rest of the law school is the center against the constitution.

Randy Barnett hired me, he founded that center, a giant in the legal academic world, especially in the libertarian legal academic world. Hired me to run the center, to teach some classes, have an inward-facing focus as well as an outward-facing focus to proselytize about originalism, and so forth. A few days before I was due to take that job, I was due to start February 1st, 2022, was when Justice Breyer’s retirement news broke, and my day job, my bread and butter is as a follower and advocate before the Supreme Court. My previous book, Supreme Disorder, also still available both in hard and soft cover. It talks about the politics of judicial nomination fights and all the rest of that. I was doing media that day, I think it was January 27th, and I was on the road, happened to be on the road in Austin, Texas.

If I was at home, this probably wouldn’t have happened, the book wouldn’t have happened, because that night, when I got back to my hotel room, I was doom scrolling Twitter, not a best practice, and becoming more and more upset about President Biden hewing to his campaign pledge to appoint a Black woman to the Supreme Court. Now, there’s nothing wrong in the abstract with appointing a Black woman to the Supreme Court, but I thought and still think that the president should consider people of all backgrounds and not limit their candidates for any job, whether it be janitor or Supreme Court justice, based on race and sex. I was stewing it in that upset and fired off an ill-advised hot take on Twitter, as we all tend to do, I think, from time to time.

I said, “Look, if I was a progressive Democratic president, I think I would appoint the chief judge of the DC Circuit, the second most powerful court in the land. A man by the name of Sri Srinivasan, happens to be an Indian American immigrant as well, but under today’s hierarchy of intersectionality, that won’t fly, and so we will be left with a,” quote, “Lesser Black woman.” Meaning that, if it’s not Srinivasan, as I was positing, everybody else was less qualified, but in the limitations of Twitter, the character limits and so forth, it came out as “Lesser Black woman.” Then I went to bed and things blew up overnight. My ideological enemies called for my head, an investigation was launched. It was four days of hell for me, personally, I wouldn’t wish it on anyone other than the Twitter troll who launched all of this cancellation attempt against me, Slate‘s legal correspondent, Mark Joseph Stern. I felt my entire professional life crumbling before my eyes. Everything that I’d worked for decades, my parents’ sacrifices in taking me out of the Soviet Union.

It was terrible, it was God-awful. Then the Dean of Georgetown, Bill Treanor, after slandering me with his initial statements about how what I said was appalling and we can’t tolerate his saying that no Black woman can ever be qualified for the court, which is not what I said. Anyway, instead of either firing me or vindicating me, saying, “Well, that’s protected by our free speech policy, even if I don’t agree with what he’s saying,” or what have you, he took a middle course. He punted, as, as I’ve come to learn, higher ed officials, law school deans tend to do. Punted it to the DEI office and the human resources to investigate me for whether I violated Georgetown’s harassment and anti-discrimination policies, which was bizarre, because it was an investigation of a tweet, and you apply … these policies are very short and straightforward, so you sign that to some junior law professor to look at it for half an hour and come up with a conclusion.

No, it ended up being a four-month so-called investigation with Zooms with these HR and DEI people with just banal questions, and what have you, which I detail in the book. At the end of which, these four months of purgatory, if you will, that followed the four days of hell, some junior associate in the big expensive DC law firm that Georgetown hired to advise them, Wilmer Hale, looked at the calendar and realized I was not an employee of Georgetown when I tweeted, and therefore, these policies don’t even apply to me. They don’t have jurisdiction, as it were, and so I was reinstated on that technicality. It wasn’t a vindication of free speech or anything else. I celebrated that, but then I read the fine print, this 10-page report from the Office of Institutional Diversity, Equity, and Affirmative Action, which said that if I were to say something equivalent that caused offense, then I would be creating a hostile educational environment and I would be back in the star chamber.

Taking advice of counsel and Professor Barnett and my wife, who’s a better lawyer than all of us, I realized I simply could not continue. It was untenable, I would not be able to do the job I was hired for, whether in terms of writing op-eds or commenting in the media about, say, the challenge to Harvard’s affirmative action program that was ongoing in the Supreme Court at the time or other cases involving, I don’t know, a graphic designer who didn’t want to create a web page for a same-sex wedding, or any of these sensitive, controversial, political, legal issues. Somebody would call offense, there’d be another letter-writing campaign, and away we’d go. I realized that I had to quit, I had to resign, and as we lawyers do, I made a loud exit. I published my resignation letter in the Wall Street Journal, as one does.

Announced my next move to the Manhattan Institute on Tucker Carlson’s show on Fox News, as one does, and I’ve been using this platform I’ve been given ever since to shine a light on the rot in academia and sound the alarm about these weaknesses in ideology, bureaucracy, leadership. Never intended to be a poster boy for cancel culture, but they tried to cancel me, I canceled them, and here we are.

James Patterson:

A big question I always had for you about this experience was, to what degree did you have, really, any confidence in the ability for a DEI office at Georgetown to actually promote diversity, equity, inclusion? Because it seems to me that its true operation was to enforce a ideological monoculture or compliance, and do so by creating a process-is-the-punishment situation where you’re going through all of these meetings. Is it really even trying to promote real diversity, equity, and inclusion, or is it just, like you said, a star chamber meant to extract judgment without due process?

Ilya Shapiro:

Well, as I write in Lawless, this is based in good intentions. I’m not saying that these inquisitors have malevolent motives. I mean, they might not have liked me, because they didn’t like my comments that didn’t fit into their rubric of privilege hierarchy, or whatever, but they want to make America a better place, they want to make Georgetown a better place, and so forth. But globally speaking, these DEI offices fail on their own terms. That is, campus climate surveys. … Now, I’m no statistician, so I can’t say it definitively, but there’s no correlation between the size of a DEI office or the number of staff, or its budget, and an increase in student feelings of belonging or comfort with diversity. In fact, there’s some indication articles that I’ve read that seem to say that there’s an inverse relationship. Far from failing, they actually cause harm in the very things that they would be doing.

Certainly my experience with this office, it was … After a while, after the shock of whether my whole professional career would crumble, and I started getting speaking invites and job offers and writing invites and things, my lawyer gave me the green light eventually just to keep doing my job, speaking about the Supreme Court and legal issues. Not talking about the investigation or Georgetown, but do my normal job. It became clear, the longer this went, that it was just a farce. Not that I was expecting very much of it going in, but I mean, to drag on for months and months, and it became apparent that the dean was just waiting for the students to get off campus, so when he made his eventual announcement, there wouldn’t be mass protests and what have you, is another aspect of this profile encouraged that’s a problem.

No, I mean, these DEI offices are just … Again, I’m not saying these actors are all evil or what have you, but the whole institution … They even have an industry group. The association, I forget what the actual name is. It’s something like the Association of Human Resources Professionals for Diversity Offices, or something like that. Thousands of members, and like the great political economist, Mancur Olson liked to say, “The growth of bureaucracy is the decline of nations.” Similarly, this educational bureaucracy, whether with private schools or public schools, is very much to the detriment of the core mission of an open inquiry advancing human knowledge. In this case, teaching lawyers.

James Patterson:

Yeah, the cultural climate of academic research is supposed to be one of relative openness and tolerance, because of the diversity of views and the multiplicity of disciplinary approaches, but it seems like there’s an attempt to enforce a orthodoxy here. Maybe not with, like as you said, bad intentions, but at least with unintended consequences. Did you find that your colleagues at Georgetown were at all concerned about these restrictions on them, or were they advocates for them?

Ilya Shapiro:

Very few people who supported me at Georgetown took public positions, or even emailed the faculty listserv. Nick Rosenkranz is one, Randy Barnett was in a delicate situation. He was working on the dean, there was no need him, he was hiring me. He necessarily played a different role, but no, the Georgetown faculty, they were the attack dogs who said I should be fired. David Cole, legal director of the ACLU, who’s always also on faculty at Georgetown, said that what I said was definitely terrible, maybe racist, but I shouldn’t be fired over it. Okay, that process argument is perfectly fine, but most people just … As you say, this toxic climate on campus, most people are just trying to keep their head down and not get caught in the cancellation crossfire.

James Patterson:

Yeah, that is something I’ve really worried about, because the purpose of university administrations, especially at universities as prestigious and long-lived as Georgetown, is to preserve the academic climate for faculty research and for student learning, and from what I gather, that is the opposite of what they’re interested in here. They’re really much more interested in sacrificing those two ends for the purposes of avoiding bad press and avoiding potential lawsuits, and it seems to me that sticking to your guns and showing that you will so is probably better for both of those purposes, both the academic mission and for avoiding lawsuits. If you’re willing to say that, “I’m going to play this game too,” I will defend myself, I’ll defend my faculty, I’ll defend my students who actually discourage people from coming after you, but because of all the caving, people know that it works, and so they’ll push even for something as absurd as trying to go for your ouster and then succeed. It’s maddening.

Ilya Shapiro:

Well, to be clear, they didn’t oust me. You have a black eye to Georgetown and to Dean Treanor and everyone involved there, alumni still question him. There’s an impact on donations, I understand. He apparently curses my name and things like this.

James Patterson:

As it should be.

Ilya Shapiro:

Right.

James Patterson:

This is unacceptable behavior, they don’t deserve it.

Ilya Shapiro:

Karma is real. Apparently, this is not confirmed, but I was speaking at Fordham Law School soon after all of it concluded, and the scuttlebutt is that Treanor lost out on Fordham’s presidency, in large part over how he handled my case. He had come to Georgetown from being Dean of Fordham Law, and then he was up for the presidency and lost out on it. Anyway, all I did was right. Not quit right away and not grovel and bend the knee. I did apologize for poor communication. I said, “That was a poorly phrased tweet, I should have said it a different way,” and that’s it. I was invited to apologize further and start talking about systemic racism, and all these other tropes. I declined to do that. Just by holding out and saying, “Nope, I’ve got nothing.” Just by holding out until they had to make a decision one way or another ended up being the right thing, but you’re right, that university administrators, whether law school deans, department chairs, or provost presidents, these are largely not woke radicals or social justice warriors.

James Patterson:

Right.

Ilya Shapiro:

They’re careerist bureaucrats, and what they have to do to … Actually, they could do well by doing good, that is the right thing to do. Would help them both with PR, donations, all these other things if they have a policy and an established enforcement practice of not allowing these cancel culture inquisitions, what have you, to go on. To actually promote a culture of open inquiry and discourse and academic freedom, then that’s better on all sides. You see that from, say, the late Bob Zimmer at the University of Chicago, or the University of Chicago more broadly, which has been largely immune from these controversies. That happens to be my law school alma mater, so I’m proud of that. David Diermeier, the Chancellor of Vanderbilt, who’s gotten national plaudits for kicking students out of his office who took it over during the pro-Hamas encampments, and all of that.

Or Ben Sasse when he was president of the University of Florida, how he handled certain protests, versus say, what happened at Columbia. I mean, it is not a high bar. It’s not rocket science, you don’t have to develop whole new complicated theory or new policies to deal with these sorts of issues. It’s just apply existing rules. Georgetown’s free speech policy does not need fixing, it’s great on paper.

James Patterson:

Yeah.

Ilya Shapiro:

On pixels, but Dean Treanor the whole time was wringing his hands through his final statement when he reinstated me, wringing his hands about how difficult these issues are, because it presents a tension between our core values of free speech and equity. Well, no. I mean, who exactly was I harassing? Joe Biden? I’m not exactly sure how all of that is supposed to work. These careerist bureaucrats turn out to be, in large part, spineless cowards, and that weakness encourages a further breakdown in the campus community. I’ve kept speaking in law schools and other academic settings, and university leaders come up to me and say, “What should we do?” I’m like, “Well, enforce your rules. Create a culture … You’re very good,” university leaders are very good at sending emails, having trainings, just establishing cultures to advance, whether it be public service, environmentalism, entrepreneurship. “Whatever your values are, of your institution,” they’re good at doing that. Well, free speech, academic freedom, these sorts of things, tolerance of views you don’t agree with. They can do that, but in so many cases, they just don’t.

James Patterson:

Yeah, and it’s also an immense waste of everyone’s time. You would think these people would have more vacation days available to them if they didn’t make everyone sit in Zoom calls. They could just take the afternoon off instead.

Ilya Shapiro:

Actually, you mentioned Zoom calls and the meetings with the inquisitors, this is the other extra perverse dimension to all this, or bizarre or ridiculous. This is spring of 2022, and Georgetown still had heavy COVID restrictions, so I never actually met in person with Dean Treanor, with the DEI officer, or anybody else, because we would’ve had to been wearing masks if that was the case. All of this was done over Zoom.

James Patterson:

Which makes it all the more surreal and disembodied, literally. This isn’t just about your particular case, but also how this case prompted you to take a very hard look at legal education, big part of what you’ve written here. Why don’t you talk about the law school as an institution in the United States and how this approach has really made its way into forming its graduates.

Ilya Shapiro:

It used to be, if anyone’s watched the movie The Paper Chase, which I encourage, it’s a movie from the ’70s about Harvard Law School and Professor Kingsfield, this very old-school professor, uses the Socratic method, asking questions of students to get to the ultimate point of his teaching. Law school used to be … The first year, you ran this cursus honorum, everybody takes torts and property contract, constitutional law, criminal law, legal writing. That’s it. Everybody takes the same thing, you run that rigorous gamut. For me, personally, that still was the case when I was at 1L. For me, I don’t think I necessarily got it, but 1L ended, and I passed and I survived. Then you go into your second year and you take more doctrinal elective. Securities, law, other topics in constitutional law. International law, these standard things.

Then the third year, it’s more wide-ranging. You either do independent studies and writing papers, or you take these more esoteric subjects. Sports law, say, entertainment law, advanced security. Whatever, things like that. It was all to understand and inculcate how our institutions work, the post-enlightenment tradition that the founders established, how our system of government work from a legal perspective, how to advocate zealously from your client, understand different perspectives. All of these sorts of things. That has shifted. Now, in many ways, students are taught to question the legitimacy of the law and the legal institutions itself. It’s bizarre, it’s dangerous, because if all of our institutions, say, are irrevocably imbued with racism, sexism, patriarchy, all of these different things, they need to be deconstructed and reconstructed in a year-zero revolutionary zeal. It’s very much like the Chinese Cultural Revolution or the French Revolution, or what have you.

That doesn’t say good things about these graduates, whether they’re going to be prosecutors, public defenders, judges, general councils of companies, nonprofits, what have you. I mean, it undermines the whole basis of American freedom, prosperity, equality, what have you. I mean, the notion that equality under the law is a white supremacist dog whistle, these things that these postmodern theories come up with. I’ll tell you, when I was in law school in the early 2000s, these … This comes from critical legal studies, from which critical race theory and queer theory are offshoots. We thought of these crits as a spent force. That was something from the ’80s, early ’90s, these weird flare-up of theories that had been long relegated to the sociology departments, or what have you. But it turns out that, as one of the chapters in my book, Lawless, is called, “Critical Theory Returned with a Vengeance.”

Especially in the last 10 years or so, the Obama Administration’s worsening of race relations, the Ferguson Effect from 2014, social media and the work that Jonathan Haight and Greg Lukianoff have documented about how that generation approaches things differently, is culturated differently. The election of Donald Trump, COVID, the killing of George Floyd, all of these things changed … Well, changed all of society, but really affected law schools in that particular way, in a very negative way. That is to the point where, as I write, Derek Bell and Kimberly Crenshaw, the founders of critical race theory, have replaced Louie Brandeis and William Blackstone as avatars of legal education, which is very dangerous.

James Patterson:

Yeah. This is something I’ve thought about a few times, which is that the critical approach is really just one theory that you can apply from a bunch of different vantages, right? It can be critical race or critical queer, or whatever. It’s actually easier than the cursus honorum that you just mentioned. That’s hard, it’s hard to teach and it’s hard to learn. This might actually reflect a desire from both the faculty and the students just to have to do less work. Is this maybe what’s going on here, or is it that there’s a demand for this education rather than demand for someone who does securities and torts?

Ilya Shapiro:

Never discount the laziness of either students or professors, for sure.

James Patterson:

As a professor, I never discount it. I know myself too well.

Ilya Shapiro:

Yeah, there’s an intellectual laziness and there’s also just a lazy laziness in general. I think that’s part of it. Another part of it is bureaucracy, because … We’ve just been talking about the theory and the ideology from an academic perspective, and what’s taught, which gets covered a fair bit, but something that is less sexy is the bureaucratic growth and how there are now, in every institution, more non-teaching administrators staff than teaching faculty. Whatever is going on with the faculty, in terms of ideological discrimination in hiring, types of courses that are offered, how law is taught, the fact that, even though a majority of the Supreme Court and half the judiciary in general are originalists, but originalism is, at best, taught as in some sneering, snide way that really is a detriment to the students. Setting aside that academic intellectual part, the fact that the bureaucracies have exploded and, in the last decade, most of that bloat has come in the DEI space really does a further disservice, and it’s made these non-teaching staff who are not imbued or raised up in academic virtues or academic values is really troubling, because you have these structures.

Again, these deans who are inculcating culture, and what have you, having trainings, having all sorts of organizational sessions, orientations, handholding the safety-ism and the therapizing of education of higher ed, where students need a crying room to process the trauma of not just exam season, which is how all this started off 20 years ago, or what have you, but elections that didn’t go their way or the presence on campus of someone like me or someone else. Judge Kyle Duncan at Stanford, who got shouted down because … It’s just these bizarre trends, which are driven by bureaucracy, even beyond, again, the concern that definitely exists from the academic faculty perspective.

James Patterson:

Students certainly know how to respond to those incentives, where a bureaucracy that’s mostly afraid of liability or complaint will leverage that administration against their own faculty members, so the faculty will end up caving lowering standards, and this is occurring even at elite institutions. What does this mean then for the next generation of attorneys and judges that are forthcoming?

Ilya Shapiro:

Right. I mean, even the deans of elite law schools cow at their supposed underlings who run the DEI offices or the university-wide ones. What it means is that students are not well-prepared to execute their jobs if it’s triggering and unsafe and improper to teach, I don’t know, the arguments against gay marriage, say, or about the graphic design or the cake baker that doesn’t want to work a gay marriage, or what have you, or the pro-Second Amendment arguments. In all of these spaces, the so-called politically incorrect positions, just so you can understand them, so you can be a more effective argument for your progressive side, “No, we can’t do that.” It makes for less-effective lawyers. It also makes for legislators and developments in the criminal and civil justice space that is really detrimental to society. For example, sentencing based on race in Canada, for example.

Certain places in California, you’ll get different sentences for the exact same behavior between two criminal defendants, the same behavior, same criminal record, they’ll be sentenced differently depending on what race they are. It’s the antithesis of equal justice under the law, for example. One other thing here I should mention. We’ve been talking about the head deans, we’ve been talking about DEI offices. The admissions office is also a component here in that, especially at the elite places, your Yales, your Stanfords, they screen for activists rather than scholars. If you write in your personal statement, “I want to change the world, I want to radically restructure these illegitimate institutions,” what have you, that’s going to give you a leg up versus if you say, “Well, I want to prosecute child molesters,” or, “I want to work on corporate antitrust to make corporations, American free enterprise, more efficient and fair for the consumer,” or something like that.

Sometimes they make headlines or somebody wrote, “Black Lives Matter,” 250 times in their personal statement, and then they got into … I forget whether it was Stanford or Yale, but these sorts of things. Admissions offices are also to blame in this degeneration of our system.

James Patterson:

There’s a weird problem with this, where you have … In the law school market of students and faculty, the most elite universities are experiencing even higher rates of application, and then lower-ranked ones are actually starting to kind of starve. But the question then becomes, are these elite institutions receiving high-rates application? Are they really elite if they’re not doing the job that you said they do and they’re producing inferior attorneys, people who … We could even joke that it’s a vast right-wing conspiracy to make the left’s attorneys worse, but that’s not it, right? It’s actually like internal incentives, as we talked about before. Would you really call Yale Law School an elite institution if it doesn’t even teach towards its first year and can’t even comprehend defending the Second Amendment rights that Constitution currently upholds?

Ilya Shapiro:

Well, we’ve seen, society-wide, the decline in respect and confidence in, well, institutions generally, but certainly higher ed more than most institutions. This has been especially highlighted since October 7th. How is it that the heart of antisemitism in our country is based in the most progressive, so-called educated spaces, and where, as Bill Ackman wrote in his evocative essay that came out the same day that Claudine Gay resigned the presidency of Harvard, “The antisemitism is the canary in the coal mine, the tip of the iceberg that signals pathologies that are there underneath.” The crisis in higher ed is very much in our national public discourse now. You’re right, the places that don’t merit respect are declining in respect. Conversely, places that … Again, it’s a low bar, where their leaders are actually doing their job and preserving the core truth-seeking mission of any institution, or preserving the teaching of law and respect for the rule of law, and things like that, are relatively rising.

They’re playing money ball. Your University of Chicago, your UVA, your Scalia Law School at George Mason are able to hire a professor, are able to entice students that perhaps they wouldn’t if your Harvard, Yale, Stanford, Columbia were less pathological.

James Patterson:

You saw the appointment of the first non-Yale/Harvard Supreme Court Justice with Amy Coney Barrett. Is her appointment kind of a sign that we’re no longer being held hostage to this duopoly, because the products of that duopoly aren’t really what they used to be?

Ilya Shapiro:

I think there has been a bit of a vibe shift, if you will, and indeed, in general, the last decade, more students from below the top 10 or so schools have been hired to be clerks for the Supreme Court, for example, and other similarly prestigious positions, which makes sense, because your top person or your top 5 percent at Notre Dame or Alabama or any number of schools that are still good, but US News doesn’t consider them to be top 10 or whatever, are going to be better than your average person, say, at Yale or Stanford. I think that recognition is out there. A bit of a democratization, if you will, a bit of a decline in the fetishization of these other schools, but I’m seeing some green shoots even at these properly-maligned schools. For example, Heather Gerken, who is the dean of Yale Law and isn’t one of these careerist bureaucrats who does want to climb that greasy pole even further to become president of one of these Ivy League institutions.

She has seen the hits that Yale law has taken, and so recently hired Keith Woodington away from Princeton to … Given him a bunch of money to do a free speech, academic freedom center and other programming, and not just senior established faculty. Hired a young junior professor who had clerked for Alito, of all things. I believe in the same year that Dobbs even came down, the overturning of Roe V. Wade. Something like that would not have happened had it not been for all of this bad publicity or, for that matter, the dozen or 14 federal judges that said, “Because of your bad free speech climate at Yale, we’re not going to be hiring clerks from there.” My friend, Judge Jim Ho at the Fifth Circuit, and Lisa Branch of the 11th have led that effort, and then added Stanford after the shouting down of Kyle Duncan.

Added Columbia after their terrible policies with regard to antisemitism. Those things are having an effect, and I’m an all-of-the-above person, so we should try lots of different things, both internally and, as economists would say, exogenous shocks to try to force reforms in these institutions.

James Patterson:

I’ve heard more than once from people who’ve worked in the judiciary that it’s actually very difficult sometimes to take traditional elite 1L or 2L students into their summer clerkships. You essentially have to reteach them or even engage in a new teaching that they didn’t get, but were supposed to get in order for them to be qualified clerks. Judges don’t always have time for that, so it makes sense that they would do this not just because of a kind of ideological counterattack, but because they need to get their jobs done, and these clerks aren’t doing their jobs. It’s breathtaking that it’s taken this long for law schools to respond to these incentives, but it’s one thing to get negative write-ups in the conservative press, but it’s another when federal judges won’t take your students anymore. That’s really hitting them in where they live.

Ilya Shapiro:

Or employers. After October 7th, the 100 top law firms, 200 top law firms in the country had an open letter to the deans of law school saying, “We can’t hire people who protest in favor of Hamas and baby killers,” and all the rest of it, “I don’t know what you’re doing, what culture you have, but you have some problems. Go fix it.” These are not right-wing institutions, the nation’s leading law firms, 95 percent donate to the Democratic Party, et cetera, but they recognize that, A, they want students that actually know how to write a memo, and B, are not going to be just inveterate bigots of that sort. That’s heartening to see, because there is a bit of a problem otherwise, in the sense that there’s some thinking that ​… Well, like in the ’50s and ’60s, law firms would say that, “Well, we would love to hire Black lawyers, but our clients don’t want them.” That excuse is hard to maintain these days.

James Patterson:

As we wrap things up, what is really the future for all of this? One theory I’ve heard many times is that this a heavy administrative bloat, DEI-focused university was a product of 0 percent interest rates, and as things actually become more expensive and we start to hit a cliff in student enrollment, because of a population decline after the housing crisis, the justification for having all these effectively unproductive administrators on staff really goes down the tubes. But on the other hand, they’re the ones who make a lot of the hiring decisions, so you end up with maybe law schools without faculty. What do you think is going to happen here? There’s a pretty wide-open situation here.

Ilya Shapiro:

Well, who was it that said that, “Something that can’t go on, won’t”? Is that one of Herbert Stein’s maxims?

James Patterson:

Yeah.

Ilya Shapiro:

I think Ben Stein’s father. Yeah. I mean, at a certain point, it’s going to take ​… We haven’t talked about the Department of Education, but they can do various steps in terms of investigating and actually withholding funds, not having these sweetheart settlements, as we’ve seen from the Biden administration as it’s going out the door, of places that deny their students their civil rights, their free speech rights, and all the rest of it, or removing the ABA’s accreditation monopoly, for example. There actually is some accreditation competition among, say, liberal arts colleges, but there’s not in law schools. The ABA is the only game in town, and that’s bad. I have a whole chapter in my book, Lawless, on the perversions and foibles of the ABA. The education department could get rid of that, you don’t need new legislation to do that.

I think, as there’s a recognition that some institutions are better than others, both from students, from employers, we are going to have probably some shifts, and state legislatures for that matter, with respect to public schools at least, have a role to play not in dictating what gets taught in the classroom, but in eliminating offices that are counterproductive and not funding structures that are value-subtracting. Just like they can decide that this school is going to focus on STEM, that school is going to focus on liberal arts, we don’t want these DEI structures, we don’t want diversity statements in hiring. There’s certain things that there’s a role to play for both the public and private sectors.

James Patterson:

Actually, before we go, I want you to say something about the ABA since you do have a whole chapter on it, and I’m skipping that. This problem with the monopoly and the ABA in terms of its accreditation, what would be an alternative? Or is there an emerging alternative potentially for accrediting law schools?

Ilya Shapiro:

Well, within any state, the state bar, which typically answers to the state Supreme Court, can, for purposes of practicing law within that state, say, “You don’t have to go to an ABA-accredited law school.” I think that’s only in place in California, ironically perhaps. Other states could do that, but other states could also ​… If the education department removes the accreditation monopoly, they could find other ways to accredit. Surely, there would be other accreditors or certifiers that would spring up, and schools could say, “Well, I’m approved by the Liberty Fund,” or, “I’m approved by this other new accreditor.” The state Supreme Court could figure out who exactly they want to allow to practice law to get a law license in that state. States can get together in a interstate compact to have reciprocity in that regard, but you would have a burgeoning market, a competition in accreditors that simply can’t exist right now.

James Patterson:

This is something I didn’t know. I did not know that this was a federally-backed monopoly through the bar. Am I understanding this?

Ilya Shapiro:

Yeah, yeah. The Education Department accredits accreditors, if you will. Gives their stamp of approval that, “You have the right to accredit these institutions,” for them to get federal funds and things like that.

James Patterson:

Fascinating. This is actually a really great idea.

Ilya Shapiro:

Just so neither I nor anybody else needs to reinvent the wheel, the Defending Freedom Institute, my friend Bob Itell over there has been doing great work, has put out a couple of studies about reforming accreditation. It’s a really wonky, really nerdy subject, obviously, but the work is all there.

James Patterson:

The book is Lawless: The Miseducation of America’s Elites. The author is Ilya Shapiro. Thank you so much for appearing on the Law & Liberty Podcast.

Ilya Shapiro:

Well, thank you. In case your listeners want to find me, I also have a Substack, Shapiro’s Gavel. You can also go to the website of the Manhattan Institute, which is simply manhattan.institute. You might not be aware that .institute is a suffix, you don’t need org or com, or whatever, and you can find me on X, formerly Twitter, @ishapiro.

James Patterson:

The man himself, thank you so much. Thanks for listening to this episode of the Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts, and visit us online at www.lawliberty.org.

Related Links

John Wilsey, “Peter Viereck’s Unadjusted Conservatism,” Law & Liberty
Peter Viereck, Conservatism: From John Adams to Winston Churchill
Peter Viereck, Conservatism Revisited
Peter Viereck, Unadjusted Man in the Age of Overadjustment
John Wilsey, Religious Freedom: A Conservative Primer (pre-order)
Claes Ryn, “Peter Viereck: Traditionalist Libertarian?” Law & Liberty
Robert Lacey, Pragmatic Conservatism

Transcript

James Patterson:

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

John Grove:

Hello and welcome to the Law & Liberty Podcast. I’m John Grove, the editor of Law & Liberty. And I’m filling in today for regular host, James Patterson. Today I’m joined by Dr. John Wilsey. John Wilsey is Professor of Church History and Philosophy and Chair of the Department of Church History and Historical Theology at Southern Baptist Theological Seminary. He also serves as the book review editor of the Southern Baptist Journal of Theology. He’s the author of several books, including American Exceptionalism and Civil Religion: Reassessing the History of An Idea. Also God’s Cold Warrior: The Life and Faith of John Foster Dulles. And coming this April, Religious Freedom: A Conservative Primer. Last May, he contributed a piece to Law & Liberty called “Peter Viereck’s Unadjusted Conservatism,” which we will link to in the show notes. And I thought we would talk a little bit more about Viereck, who is a very interesting and unique kind of conservative. So John Wilsey, thanks for joining us.

John Wilsey:

Thanks, John, for having me. It’s great to be with you.

John Grove:

All right, so first, why don’t you tell us a little bit about Viereck, his background, his career, his influence, or maybe lack thereof, influence such as it was, and a little bit about his personality because he had a bit of a unique personality?

John Wilsey:

Yeah, he was a fascinating person. He was born in 1916, and he died in 2006. So he lived … I don’t think he made it to 90. I think he made it to 89. So he lived a long life. He was one of the first in the new conservatism movement of the postwar period. He wrote a piece for … Oh, I think it was The Atlantic. I have it somewhere. It was a piece for … I think it was the Atlantic Monthly. I could be wrong about that, but he wrote it in 1941. He was just a young man, and he said … The title of the piece was “But … I’m a Conservative.” And as you know, back in those days, he observed that the word conservative was not a term that a lot of people used to describe themselves. In fact, the term conservative was a term that was received a lot like, people might say, reactionary today.

It wasn’t a really positive term, it was kind of a negative term, but he embraced the term. And Klaus Wren, I believe, gave him the credit for sort of reinvigorating the term conservative and popularizing it so that people use it and they’ve used it for a long time since the fifties, since certainly The Conservative Mind came out in 1953. But Peter Viereck was apparently one of the very first to identify himself proudly as a conservative in the post-war conservative movement. He was a historian. He got his PhD in history from Harvard, and he wrote his dissertation on an intellectual history of Nazism.

His dissertation was published under the title of “Metapolitics.” He dedicated the work to his brother, who he says on the front matter, he says, “To my brother, who died fighting the Nazis.” So, a fascinating situation there. His brother went into the army and fought and was killed in Italy during the war. His father, George, had a really interesting background as well. George had been a pro-German figure. He lived in America, but he was very pro-German. During World War I, he was sort of a partisan for the Kaiser during World War I and during America’s involvement in World War I. And then, in the rise of Hitler, he became an apologist for Hitler and for fascism and was an unapologetic fascist all the way through the thirties and the forties, despite the fact that both of his sons had joined the army.

Peter joined the Army as well, but he never saw any combat. So, the father was actually imprisoned. I can’t remember exactly what the circumstances were, but he was imprisoned for his Nazi sympathy during World War II and suffered a great deal of disgrace in regards to that. The two were also estranged. Didn’t speak to each other for several years-

John Grove:

Can imagine.

John Wilsey:

Over this, but they did have a reconciliation. For years, Peter tried to get his father to read his doctoral dissertation, Metapolitics, and his father refused to read it, but at the end of his life, he finally did consent to reading it when he was quite old and declining in health. And he read the book … And this is all a story that Klaus Wren relates that after he read the book, he said, “Peter, you were right.”

John Grove:

Wow.

John Wilsey:

So George, the father, not only did he reconcile with his son, but he also recognized how wrong he was.

John Grove:

Well, there’s influence for you.

John Wilsey:

Yeah. Oh gosh. It’s incredible. I wish I could have such influence over my children.

John Grove:

Right.

John Wilsey:

Anyway, so his family background is quite compelling, but as I say, he was born in 1916 and died in 2006. He was a historian. He was a specialist in Russian history and also wrote on fascism. He was a continental European historian, and he taught for many years. I think he taught for just under 50 years as a full-time professor. But then he stayed and continued to teach classes at Mount Holyoke College in Massachusetts. I think he taught for a year or two at Harvard as well when he first started teaching. But he taught the bulk of his career at Mount Holyoke. And there are really interesting stories about him at Mount Holyoke. I have two sources. One is Lisa Bradford who teaches at Seattle Pacific University. She is working on a biography of Viereck, has been working on it for quite a few years now. And she was really helpful in my research on Viereck. And then also my own freshman advisor from my undergraduate days, Marion Strobel, who took him for several classes when she was an undergraduate at Mount Holyoke.

My professor, Dr. Strobel, had him in the sixties, and then Lisa had him in the eighties. And listening to them tell stories about him as a professor was fascinating. I also got to talk to George Nash a little bit about him. George Nash was friends with Peter Viereck and George Nash has interesting insights on him as well.

John Grove:

What are some of those eccentricities as a professor because you’ve told me about these in the past?

John Wilsey:

Yeah, they were funny. And you just try to think about, “Could a professor survive today?” I don’t think he could. Okay, so he enjoyed climbing the trees on campus and the students would walk past and see Professor Viereck sitting up in a tree. He was late to class. Every time class met he was late. He was always about 15 minutes late and classes were 50 minutes to an hour or something like that. So he didn’t come for block classes. Sometimes I’m 15 minutes late to my class, but I have a three-hour class. When you have an hour class, it’s a little bit different, but he was always late. He never gave any feedback when he graded papers. He never returned any papers. Found out that-

John Grove:

You don’t get that today.

John Wilsey:

Yeah, yeah. They’ll get you on that one. You would find out how you did in the class when you got your report card at the end of the semester.

John Grove:

Yeah. I actually had a high school algebra teacher that was kind of like that, but fortunately for me, your grade was always higher than you actually deserved.

John Wilsey:

Yeah, yeah.

John Grove:

Which is probably how he got away with it.

John Wilsey:

Yeah, right. That’s exactly right. What else? He would wear a scarf, like a muffler, all year long even during the warm months.

John Grove:

I’ve seen a picture of him with a scarf on.

John Wilsey:

Yeah. Yeah. He was an eccentric guy, but the students loved him. One group of students that my professor told me about had invited … She was among them who invited him to dinner at someone’s house. I don’t know. It was at a home in town, and he was an hour late. They weren’t really surprised that he was late. But the reason why he was late was funny. Daylight savings time had passed about a week earlier, and he had forgotten to change his clock. So he had been an hour late to everything.

John Grove:

It could just be like he just doesn’t do daylight savings time.

John Wilsey:

He’s one of those people that just doesn’t … He can’t even, you know what I mean?

John Grove:

Yeah, right. So it sounds like, essentially, we might say he was an individual and-

John Wilsey:

He was.

John Grove:

Part of what sort of piqued my interest in this piece that you wrote and interest generally in Viereck is that specifically what you wrote about him really speaks to this question about the conservative and the individual, and I’ll get to that a little bit more directly as we go, but that’s something that sort of runs through some of his writing and some of the things that you’ve written about him here, that he appreciates rootedness, he appreciates formation of people by social authorities and so forth, like most conservatives do. But at the same time, he definitely has this powerful sense of the individual and he doesn’t lose sight of that at all. So let’s start maybe by just talking a little bit about what conservatism is for Viereck, and what it means to be conservative, I guess.

I’ll pull out this quote that you quoted in the Law & Liberty piece, which I think is a really beautiful quotation and I’ll see what you have to say about it. So this is Viereck, says, “The conservative principles par excellence are proportion and measure, self-expression through self-restraint.” That’s an interesting phrase right there, “self-expression through self-restraint.” “Preservation through reform, humanism and classical balance of fruitful nostalgia for the permanent beneath the flux.” That’s also a phrase I really, really love in this quote, “a fruitful nostalgia for the permanent beneath the flux.” “And a fruitful obsession with unbroken historical continuity. These principles together create freedom, a freedom built not on the quicksand of adolescent defiance, but on the bedrock of ethics and law.”

So I thought we might just use that quote as a jumping-off point to say a little bit about Viereck’s understanding of conservatism, his understanding of freedom, and how freedom relates to continuity and order, because he seems to value all of these things, which today increasingly people talk about as if they’re very divergent and don’t go together. You have to choose one or the other.

John Wilsey:

Yeah. Yeah. I love … That’s one of the most beautiful statements, one of the most beautiful definitions of conservatism that he gave there.

John Grove:

I agree.

John Wilsey:

I’m just looking at it again. “Self-expression through self-restraint, preservation through reform, humanism and classical balance, a fruitful nostalgia for the permanent beneath the flux—”

John Grove:

I love that phrase in particular because it’s got this word nostalgia that I’m going to bring up again in another context in just a second but that word nostalgia is in there, and yet it’s this nostalgia for the permanent beneath the flux. It’s not like nostalgia for just the flux of a hundred years ago or just sort of the surface-level stuff that you can find maybe somewhere in the past, but it’s nostalgia for something permanent that’s sort of beneath the surface of things. It seems to me like that kind of gets at his notion of the freedom that a person experiences is that you have this sort of flux going on around you at all times that you can kind of get swept up in? And some people associate freedom with that, but then there’s also this permanent underneath. What do you think about that?

John Wilsey:

Yeah. So one of the things he talks about a lot and reflects on a lot is change, the nature of change in the world in time. He’s a historian, so he’s very interested in change. Change is part of the nature of things. It’s part of the nature of the universe. It’s not something that we try to resist as conservatives. It’s not something that we don’t like as conservatives. A lot of times, conservatives are regarded as people who don’t like change. Actually, I think it’s human nature anyway. This is me talking. I think it’s human nature that we don’t like change. Nobody likes change. Certain kinds of changes. I wouldn’t want my house to burn down; that’s a change. Nobody likes some kind of changes; everybody loves the familiar, and that’s sort of a conservative impulse is to love the familiar and to be drawn to the familiar.

But Viereck’s ideas were interesting when it comes to tradition. He talked about the difference between tradition and traditionalism, that conservatives revere tradition, but they don’t receive tradition uncritically. They receive tradition through a critical lens. So some traditions, because of change, are no longer workable, they’re no longer pragmatic, and they may be immoral. And so those traditions you jettison. But you keep the traditions that, as we will talk about in a second I think, that are those things that are rooted in who we are as a civilization. And I think that’s what he means when he talks about the permanent beneath the flux. There’s always going to be change—circumstances will change, technology will change, and culture will change. But as those changes take place, you have a bedrock, sort of a river bed underneath that the water flows over that river bed, but the river bed stays the same. Those things are the roots that we have that make us who we are and that we conserve.

So he does; he identifies the fruitful nostalgia for the permanent beneath the flux as one of the conservative principles par excellence. And getting back to your original question about his individuality, the individual and the community, the society, shouldn’t ever be seen as these … It was seen as isolated for one another, I should say. Viereck was big on that. He thought that there needed to be a balance between the individual and the society, the public and the private, you might say. He was very Tocquevillian in that regard. When you strike the balance between the individual and the society, the individual and the community, then you have the conditions for freedom that are all set up for you.

John Grove:

And this sort of gets to the title of the book that you’ve focused the most on in this piece, The Unadjusted Man in the Age of Overadjustment. I think what you’re saying now is sort of getting to that question of unadjusted and over-adjusted. So in that book, he has these three sort of paradigms, the maladjusted man, the over-adjusted man and the unadjusted man. And I think this is where you’re going. So why don’t you kind of say what are those different types of people and why is the … I know one version of the book said that the unadjusted man is like a new hero for the twentieth century or something like that-

John Wilsey:

Yes. That’s right.

John Grove:

What are those three maladjusted, unadjusted and over-adjusted?

John Wilsey:

Over-adjusted, yeah.

John Grove:

And then why is the unadjusted man his sort of ideal?

John Wilsey:

He was very cautious about how the culture embraced technology and consumerism and post-war, as they say today, affluenza, we might say today. Especially with something like technology, he was fond of quoting Walt Whitman describing the railroad when Walt Whitman said, “We don’t ride on the railroad. The railroad rides on us.” In fact, I think he quotes that at the beginning of Unadjusted Man in the Age of Overadjustment. Yeah, “We don’t ride the railroad; the railroad rides on us.” He thought that if we simply receive all kinds of these movements in technology and in affluent post-war life, we lose something of our humanity. When we become over-adjusted to the culture, then we lose our roots, we lose our humanity, and we become sort of isolated from those who went before us and no good to those who are going to come after us.

John Grove:

And when you say the culture, this is sort of the flux in the line we were talking about before?

John Wilsey:

Yeah, that’s right. That’s right. I hadn’t quite made that connection, but I think that’s a fair connection. Very Burkeian in the sense that he saw society as a contract between the dead, the living, and the yet-to-be-born. He was fond of citing that line and Burke in his book on the revolution.

John Grove:

So, the unadjusted man is kind of able to keep some of the daily distractions at bay and not let that sort of define them. It would make sense then what the over-adjusted person is, the person that’s just kind of flying around. Just their entire existence is sort of defined by the forces around them.

John Wilsey:

That’s right.

John Grove:

But what would it mean, though, to be maladjusted? Because that one’s the one that sort of sits out.

John Wilsey:

Yeah, maladjustment; he didn’t like that either because maladjustment was being something like a misanthrope. Somebody who rejected society, who lived on an island. And he had those geographic metaphors. He said that a maladjusted man is a man who lives on the island, isolates himself from society, rejects society wholesale like a misanthrope, like someone who just doesn’t … He’s just not feeling it, as the kids say.

And then there’s the over-adjusted man who lives on the mainland. So the one who is defined by the culture, who takes his cues and his entire identity and just is blown by the winds of culture. The unadjusted man lives on a peninsula that is still connected to the mainland but far enough away, distant enough to where the man is able to know the culture be seen in the culture, but not of the culture. In the same sense as John 17, the high priestly prayer, “Be in the world, but not of the world.” The reference to the Lord’s high priestly prayer, I think is the best description or the best analogy to the unadjusted man. Certainly, Viereck didn’t advocate being a Luddite or completely withdrawing from the culture, but he was very suspicious of the new technology of television, for example. He didn’t like television. He thought that television would have deleterious effects on the culture. He wasn’t wrong about that.

John Grove:

Add him to the list of mid-century people that we read today that we sit back and think, oh my goodness, what would they say today-

John Wilsey:

Right. Exactly.

John Grove:

… if they say this about radio or television?

John Wilsey:

Yeah. He also didn’t like the mass construction of neighborhoods. He didn’t like that. I can see why. I can see why, looking back. And I’m kind of like that too whenever I see drive past places on the countryside that I’ve driven past many times and they’ve been farms and fields and I see that there’s bulldozers out there, they’re building a new subdivision. I don’t like that. I think that’s tragic. And I think that he had the same kind of a view.

So adjustment to the culture was also … There’s a subtitle to the book that he wrote, Unadjusted Man, you indicated a second ago when he first wrote the book in 1956, it was published under the title, The Unadjusted Man: A New Hero for Americans. And then it was reprinted in 2004 under a new title, The Unadjusted Man in the Age of Overadjustment, and then there’s a subtitle, Where History and Literature Intersect.

And I want to say real quick, I think it’s important to note, he was a historian, but he was also a poet and he wrote several collections of poetry during his lifetime. In fact, after about 1956, maybe, maybe 1960, he didn’t write any more works on history or conservatism at all, he wrote poetry. And he won the Pulitzer Prize for Poetry in 1949 for his collection, Terror and Decorum. So that’s just a side note, something that is fascinating about him.

And that’s one other thing about the unadjusted man is that he is a person who loves aesthetics, loves the beautiful things like poetry. That’s one of the reasons why he climbed the trees on campus was because they were beautiful and he wanted to drink in the beauty of the earth around him and climb the tree and look up at the sky and get up close to the tree and be part of it. That was something that he loved. He loved beauty for its own sake. People thought he was strange for that reason, and that was making his point. He wanted to be someone who loved beauty for beauty’s sake and in the world that’s moving in haste, chasing the almighty dollar, fascinated with the latest technological wonder, you don’t have time to stop and appreciate truth, beauty and goodness for their own sake.

So he wrote poetry for that reason, and he loved beautiful things for their own sake. That’s part of being unadjusted to the culture, is that you’re paying attention to the right things, the things that are true and good and beautiful, and recognizing that culture is passing, it’s flux as you said a moment ago. So he advocated for us to be unadjusted to the culture.

John Grove:

So that description, I think a lot of people would probably expect then his politics to be something that might get described as reactionary. And yet, in your sort of biographical sketch of him earlier, you mentioned he had this background of studying right-wing ideology, extremist ideology, of course right and left don’t work perfectly on Nazis and so forth—but what is usually described as a sort of right-wing ideology. And a lot of the book is actually very critical of what we would usually term as sort of reactionary politics. So he’s very critical of what he calls Americanism, and I think what he means is a really robust nationalist identity.

In particular, I wanted to pull out this one section of the book; I have the 2006 edition, which we should also warn our listeners about what we were talking about earlier. The 2006 edition published by Routledge has some strange editorial, or not editorial omissions, seemingly just accidental omissions, including the first three chapters of the book are not in it.

John Wilsey:

They’re just gone.

John Grove:

Which you have to go find somewhere else. So fair warning to anybody who’s about to go drop 45 bucks or whatever it is on Amazon.

John Wilsey:

Fair warning.

John Grove:

You’re not getting the whole book. But anyway, one of the chapters of that book hits very close to home in terms of the sort of ideological debates going on in conservatism today. It’s called the rootless nostalgia for roots. And this was written in 1956, and his target is a lot of first generation figures in the conservative movement, a lot of people that are sort of well regarded by people like you and me today. But this is what he says about the danger that a certain strand of what he calls the new conservatism might fall into.

So he says, “The main defect of the new conservatism threatening to make it a transient fad, irrelevant to real needs is its rootless nostalgia for roots. Today’s conservatism of yearning is based on roots that either never existed or no longer exist. Such a conservatism of nostalgia can be of high literary value. It is also valuable as an unusually detached perspective toward current social foibles.” So that kind of gets, I think, maybe to what you were just talking about, the sort of ability to rise above the noise of modern culture. But he says it does real harm when it leaves literature and enters short-run politics, conjuring up mirages to conceal sorted realities or to distract from them.

And so then he goes on to mention a whole lot of familiar movements and familiar people in that section. He mentions, for instance, an interesting discussion he has there is about the southern agrarians where he says that they’re a fantastic literary voice, like an essential literary voice, but if you use them as a starting point in politics, you’re going to fail. And then he also, then also, that’s where he uses the phrase “Americanist” as a sort of robust nationalist, he goes after McCarthy and McCarthy’s defenders. So there’s this sort of distinction he seems to make between … There’s this sense in what you’ve just described of the person who really wants to have a critical eye on the modern world, who does not want to be defined by the passing cultural fads. But at the same time in politics he seems to be saying you have to be able to live in the world that you inhabit. Is that his, don’t be maladjusted. You have to accept where and when you live, find a way to make your way, but don’t be defined by it.

John Wilsey:

No, I think that nails it. I think that nails it. And that’s-

John Grove:

You kind of talk about that. I’ll introduce this, then I’ll let you go. But you talk about it in this other phrase that he uses where he says the, by trying, I think this is connected to the rootless nostalgia for roots. These are people who don’t have actual real roots in their life today that they’re building on, but instead they’re sort of manufacturing pretended social roots from a hundred years ago, 200 years ago or something that they’re just making up and trying to build something around that. And I think that will lead then to the discussion that you made of what he calls the Ottantotts, O-T-T-A-N-T-O-T-T-S-

John Wilsey:

The Ottantotts.

John Grove:

So what were the Ottantotts, and why was that approach to politics not productive for Viereck?

John Wilsey:

Yeah, the Ottantotts, the Ottantotts. I tell you what, he’s a poet, he’s a poet.

John Grove:

That’s very true.

John Wilsey:

He can turn a phrase like no one can. I love this one phrase from that chapter that you were reading from where he says, he’s talking about Americanism, sort of of the America Firsters of his day, the isolationists.

John Grove:

We don’t hear that anywhere today.

John Wilsey:

Yeah, and I think he’s talking about the Robert Taft wing of the Republican Party, “In the name of free speech and intellectual gadflyism, they are justified in expounding the indiscriminate antiliberalism of hothouse Bourbons and czarist serf-floggers.”

John Grove:

Yeah, yeah. I highlighted that, too. I’ve thought about putting that one as well. Yeah.

John Wilsey:

Oh, man. It’s just, he can turn a phrase. He’s wonderful reading. I tell you, it’s sad that his works are not in print and we have to rely on these very imperfect-

John Grove:

He’s very flawed.

John Wilsey:

Yeah, but going back to the Ottantotts, the Ottantotts, he talks about this in his book Conservatism: From John Adams To Churchill that he wrote in, I think he wrote it in 1956 as well, the same year as this one. Okay, so the Ottantotts: he gets that word ottantott from the Italian word ottant­otto, which means 88 in Italian. And he’s referring to the King of Sardinia in the late eighteenth, early nineteenth centuries during the French Revolutionary period, who was an ultra-royalist who was a follower of Joseph de Maistre’s sort of radical right-wing conservative ideology. And he tells an anecdote about how the King of Sardinia would go around muttering, “Ottant­otto, ottant­otto, 88, 88,” as if to say that if we can just go back to the world of 1788, the year before the revolution, then all would be well. So-

John Grove:

I quoted this, by the way. I quoted you in a piece I wrote a month or so after you published this. I quoted that very line.

John Wilsey:

Hey, well, thank you.

John Grove:

Yeah.

John Wilsey:

Yeah, it’s an amazing quote.

John Grove:

Mumbling 1788.

John Wilsey:

Yeah. People who do that are not rare. If only we could go back to 1960, prior to the 1960 election, and if we could only go back to before the hippies and whatever, pick something. If we could only go back to 1861.

John Grove:

Or 1788, or the referendum-

John Wilsey:

Or whatever.

John Grove:

Or whatever it is, yeah.

John Wilsey:

Just pick something. That desire to go back in time and have a perfect world, have this perfect setup before things got really bad, and all would be well, that’s an Ottantott expression. And he uses the word, the term ottant­otto to describe these traditionalists, these authoritarians, these rootless rightists in search of roots. That chapter is fascinating because he’s talking about … He has certain people in mind. And I find it interesting that in his critique of the hard right, he talks about romanticizing conservatives like the Southern Agrarians. He takes shots at Russell Kirk.

John Grove:

He does, yeah. Which is we’re going to get to why he was and remains a controversial conservative in just a second here, and that’s one of them

John Wilsey:

At one point in here, and I’m trying to find where it is there, maybe you can help me. He is talking about new conservatives; he doesn’t name them, who start new magazines, and it’s just clear who he’s … I’m pretty sure he is talking about National Review and William F. Buckley.

John Grove:

Well, maybe this is a good time to turn to that since our minds are going in this direction. So he called himself a conservative. He was pivotal in bringing that term up out of the ashes. But boy, he criticized a lot of people that I’m kind of inclined to like. I mean, Russell Kirk.

And we were talking about this earlier before we recorded that he has good things to say about Russell Kirk too. It’s not as if he was just blasting Kirk left and right, but he has some heavy criticism of Kirk and a lot of other … We see that first wave of movement conservatives. And by and large, they, I think reasonably enough given what he said about them, they didn’t particularly like him either.

John Wilsey:

No, they didn’t like him either.

John Grove:

So he did not fall into the mainstream of twentieth-century conservatism. And as you say, he’d even stopped really writing about politics and conservatism for a long, long time. So what’s the key difference between Viereck and somebody like, let’s say Kirk, let’s not say Buckley maybe, but at least Kirk, because Kirk, maybe you do a quick read of both of these guys. They seem somewhat similar. I mean, Kirk’s going to-

John Wilsey:

They do.

John Grove:

Most of us would certainly not read Kirk as a sort of really actionary, although there are people, Frank Meyer also sort of criticized him for being that way. But instead as somebody who maybe is pretty similar to what we were just talking about with Viereck, you have to be attuned to the permanent things, don’t get swept up by society around you, but at the same time you do live in this world. So what would you say, why was there this big break? What kept Viereck from being a voice in the mainstream conservative movement?

John Wilsey:

Yeah, that quote that he has about Kirk that … He’s quoting Clinton Rossiter, who said, “Unfortunately for the cause of conservatism, Kirk has now begun to sound like a man born 150 years too late and in the wrong country,” and-

John Grove:

Which I’m pretty sure Kirk … Didn’t Kirk say something like that about himself once?

John Wilsey:

Probably, I don’t-

John Grove:

Like, “I was born in the wrong century,” or something like that. I don’t know, maybe. We would have to look that up, maybe he was riffing off these people saying that about him, sort of embrace it.

John Wilsey:

As you said, Kirk, I think he has more good things to say about Kirk than bad things. He was critical of Kirk in that he didn’t think that Kirk was tough enough against McCarthy. But then I sort of think that’s a little bit unfair because Kirk was not in the United States during the height of McCarthyism, and it’d be kind of hard for him to be a partisan against McCarthy from Scotland when he was writing Conservative Mind. So I don’t know. They had these disagreements, the two of them, but there’s so much more that they have in common than things that they didn’t agree on.

To read Kirk, to read say, Roots of American Order, for example, and then to read Conservatism: From John Adams To Churchill, certainly Viereck talks a lot more about European conservatism in that book. But to read the two, they really are complementary works. It’s difficult to see a lot of distance between them. However, when it came to Buckley, I think Buckley and Viereck did have some political differences, but they had some strong personality differences also.

John Grove:

I could see that.

John Wilsey:

When Buckley wrote God and Man at Yale, Viereck wrote a review of it for the New York Times, I believe it was the New York Times, and he said, “The book is valuable,” but, “Someday being intelligent and earnest, Buckley may give us the hard-won wisdom of synthesis.” Someday, be intelligent and earnest. Wow, that’s pretty rough. That’s not good. So he wrote a blistering review of God and Man at Yale, and Buckley was immediately anti-Viereck after that. So Buckley was an eccentric as well. He was a weird bird too in his own way. He could be quite elitist. And if you weren’t an East Coaster, then something was wrong with you, and so forth.

So the fact that Viereck was such an eccentric, I can’t remember if it’s [inaudible 00:39:32] or somebody who relates a story about the two of them we’re walking down a street talking and Viereck ran into a signpost or something like that, and it really threw Buckley off. It was very off-putting. You would never find Buckley running into a signpost. So Buckley didn’t like his eccentricities, he was put off by them. But the biggest thing, I think, and this was something that Frank Meyer said, Frank Meyer accused Viereck of being a fake conservative, a wolf in sheep’s clothing because he supported Adlai Stevenson in 1952 and in 1956, and he was also someone who did not support the jettisoning of the New Deal.

John Grove:

So I’m going to jump in right now and say, okay, I like a lot of what I read with Viereck, but gosh, I don’t know. Some of this stuff he says about the New Deal, “Well, there’s nothing like …” I look at the New Deal, I kind of … I mean, I’m sort of on the same page as some of those mid-century conservatives that say, “Well, this is the centralized state taking over what has traditionally been the purview of civil society, of families. People get old, guess what? Now, the government takes care of you. You don’t have families.” It seems like a very strong conservative in the Viereck vein, the conservative argument that the New Deal really does undermine the sort of cultural social authority that he seems to value.

So, one, why did he not see it as so bad? I’ll put another one out there: another conservative who seems to be very similar to my mind with Viereck is Robert Nisbet. I don’t know what their relationship was, but Nisbet, of course, is very critical of that New Deal direction. So, I wonder why Viereck does not see it as such a big deal. And secondly, I think I know the answer to this, can somebody like me who, I’m more on Nisbet’s wavelength on that, can I still value and find a lot of good stuff in Viereck, even if that’s a sticking point?

John Wilsey:

Yeah, I think you can. I think we all can, because we may disagree with Viereck on this, just as you’ve articulated, but Viereck had conservative reasons for supporting Stevenson and I wouldn’t say he supported the New Deal, but he did think that it was a mistake to get rid of it, to jettison it. And it goes back to what we were talking about with regard to the flux, the change, by the 1950s, the New Deal had been in place for 20 years, and the country had gotten sort of accustomed to the New Deal being a part of society, being an ingrained part of society. And he was a realist in that sense. He said that this is the world we live in, the New Deal is part of our world, and it’s a futile sort of position to take to say, let’s get rid of this because you can’t get rid of it.

It’s not realistic to pass legislation to divest the country of the New Deal. As complex as it is, and as far-reaching as it is, it’s just not realistic. It might be a similar kind of thing to talk about Obamacare today. You can’t get rid of Obamacare because it’s so ingrained in society now. It’s been around for a long time and people depend on it and so forth and so on. And so you can’t support an unrealistic set of policies. So his solution was to localize the New Deal, to take the New Deal and reform it and make it a bottom-up kind of a system instead of a top-down sort of a system. So to get rid of that—

John Grove:

So that sounds a lot better.

John Wilsey:

Yeah, to get rid of the centralizing impulse of the New Deal and to reform the New Deal in a way that the institutions of the New Deal would serve local communities, instead of being a 10,000-mile-long screwdriver from Washington, DC. He supported Adlai Stevenson, but he talks about this in that chapter, Rootless, Establishment for Roots, about how, for example, James Madison was somebody who was a dear friend of Thomas Jefferson, ultimately would join the Democratic-Republican Party, as he describes, became a liberal. And yet he wrote Federalist Number 10 and wrote pretty much half of the Federalist Papers. And the Federalist Papers is a conservative document and one of our roots in the American constitutional order.

So what he describes is that here’s Madison, who is a liberal, and he is sort of joining the cause of the Federalists in advocating for the Constitution. So you have someone, how should I say it, he’s from the other side. He’s not a conservative, but he’s joining the conservatives for this particular purpose. He talks about Adlai Stevenson as being a liberal, but he’s actually much more conservative than Dwight Eisenhower, who Adlai Stevenson was someone who could do good for the Democratic Party to keep the Democratic Party from rushing to the left and becoming radicalized. And he said that it’s also good for a liberal to come into the Republican Party to keep that party from rushing to the right and becoming extreme on the right.

John Grove:

That’s interesting because people talk about that very much today, that both parties have really sort of just been purged by and large of anyone that’s not pretty solidly in line with John Fetterman’s aside and a few other handfuls of odd ducks, but yeah. Well, that’s interesting and a little bit more nuanced than what I had gotten from a sort of glancing look at Viereck. So before we move on from Viereck then, what would you suggest to a listener if they want to read the first thing to read for Viereck. Would it be Unadjusted Man, or would it be the conservatism book, or what do you think is the best introduction?

John Wilsey:

I would say the best introduction is Conservatism from John Adams to Churchill.

John Grove:

And we’ll link to that in our show notes.

John Wilsey:

And that’s a reprint as well, but I think that reprint is a faithful reprint.

John Grove:

Yeah, it has all the charges.

John Wilsey:

I believe it’s Transaction that did it as well. Another one that’s great, and I think if you’re new to Viereck and you read Conservatism and you enjoyed it, the next step then to take would be to read his Conservatism Revisited. He wrote that in—

John Grove:

Right. I looked at that. 10 years ago I looked through that, I think.

John Wilsey:

Yeah, he wrote that in 1949. I think it was his first book that he wrote. And the edition that’s available to us now has a beautiful introduction by Klaus Wren. Very lengthy. I think it’s about 70, 80 pages where many of the stories I told I got from that introduction by Klaus Wren. Not the stories from his Professor days, those were from other sources, but Klaus Wren gives a really beautiful biography of Viereck. There’s also a book called Pragmatic Conservatism by Robert Lacey, in which he has a quite lengthy chapter on Viereck, I believe. I’m pretty sure it’s that book.

John Grove:

That’s a relatively recent book, I think.