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	<title type="text">Library of Law &amp; Liberty</title>
	<subtitle type="text">Law and Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.</subtitle>

	<updated>2026-09-25T10:47:12Z</updated>

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	<entry>
		<author>
			<name>Elizabeth Grace Matthew</name>
					</author>

		<title type="html"><![CDATA[Progressivism&#8217;s Imposter Syndrome]]></title>
		<link href="https://lawliberty.org/progressivisms-imposter-syndrome/" rel="alternate" type="text/html"/>

		<id>https://lawliberty.org/?p=78825</id>
		<updated>2026-09-25T10:34:01Z</updated>
		<published>2026-09-25T10:02:00Z</published>
		<category scheme="https://lawliberty.org/" term="Law &amp; Liberty Essays"/><category scheme="https://lawliberty.org/" term="Anthony Fauci"/><category scheme="https://lawliberty.org/" term="Barack Obama"/><category scheme="https://lawliberty.org/" term="David Axelrod"/><category scheme="https://lawliberty.org/" term="elizabeth grace matthew"/><category scheme="https://lawliberty.org/" term="imposter syndrome"/><category scheme="https://lawliberty.org/" term="Jason Arday"/><category scheme="https://lawliberty.org/" term="Progressivism"/><category scheme="https://lawliberty.org/" term="Rand Paul"/>
		<summary type="html"><![CDATA[<p>It’s been a rough end to summer for a whole bunch of mainstream progressive narratives.&#160; “The science” has taken blows to the person of Dr. Anthony Fauci, whose myriad self-serving lies about coronavirus have now been publicly revealed in congressional hearings. The trendy bluff of gender identity has been called by two former NBA players [&#8230;]</p>
<p>The post <a href="https://lawliberty.org/progressivisms-imposter-syndrome/">Progressivism&#8217;s Imposter Syndrome</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></summary>

					<content type="html" xml:base="https://lawliberty.org/progressivisms-imposter-syndrome/"><![CDATA[
<p data-beyondwords-marker="df8bf994-b7fd-46ea-9b67-c2f9e4424e60">It’s been a rough end to summer for a whole bunch of mainstream progressive narratives.&nbsp;</p>



<p data-beyondwords-marker="e9cba11e-66c8-47e6-884c-a1ad93bff65d">“The science” has taken blows to the person of <a href="https://www.theatlantic.com/books/2026/07/anthony-faucis-embarrassing-revealing-diary/688107/">Dr. Anthony Fauci</a>, whose myriad self-serving lies about coronavirus have now been <a href="https://www.thefp.com/p/anthony-fauci-senate-hearing">publicly revealed</a> in congressional hearings. The trendy bluff of gender identity has been called by two former NBA <a href="https://apnews.com/article/wnba-enes-kanter-freedom-royce-white-4b23db1f7817caa2a5de018fa7c94b86">players declaring for the WNBA draft</a>, in turn forcing the WNBA to confer about its (<a href="https://www.nbcchicago.com/wnba/wnba-denounces-transgender-debate-eligibility-issues/3974654/">as yet ambiguous</a>) eligibility requirements.&nbsp;</p>



<p data-beyondwords-marker="3393c605-230d-4bfb-8be6-819f7992ffa5">Meanwhile, the dream of critical race theory’s final triumph has been shattered. There is <a href="https://www.thefp.com/p/jason-arday-cambridge-academia-mediocrity">the tragic story of Jason Arday</a>. The young, Black Cambridge professor took his own life after being outed as an academic fraud whose career was predicated on credulity and tokenization so outrageous as to be racist in its own right. And, flanking that tale like some sort of prophecy, there is <a href="https://www.theatlantic.com/magazine/2026/09/elite-academia-leadership-hypocrisy/687969/">that viral essay</a> by Tyler Austin Harper, the young, Black former Bates professor who left the tenure track when he got tired of his own tokenization. Harper argues that the academy elevates DEI around race in part to deflect attention from the broad class inequities that it not only ignores but perpetrates. Many of DEI’s apologists have been left spluttering.&nbsp;</p>



<p data-beyondwords-marker="1394c3de-ce3e-4608-8530-fabaaf0acdb0">For some on the online right, these are just more chances to “own the libs.” But for those conservatives and moderates who operate in better faith, the successive toppling of these idols—trust in “the science,” gender ideology, and “antiracism”—seems like a moment for hope. One can be forgiven for thinking: <em>Surely now they’ll come around, acknowledge the facts, join the rest of us on turf where reality reigns. Perhaps not all the talking heads and the Democratic strategists, but at least some of them … and maybe my nice lefty neighbor.</em></p>



<p data-beyondwords-marker="7968820c-d35f-4ef5-b6f0-fa56cee94c78"><a href="https://www.usatoday.com/story/news/politics/2026/07/31/anthony-fauci-praised-hero-public-health-workers-amid-senate-hearing/91120699007/">But</a>, <a href="https://www.nytimes.com/athletic/7536618/2026/08/25/enes-kanter-freedom-wnba-ejection-fever-transgender/">nope</a>. As most of us probably know by now, that hope is <a href="https://www.theatlantic.com/ideas/2026/08/jason-arday-innocence-racism/688408/">mostly unfounded</a>.&nbsp;</p>



<p data-beyondwords-marker="a6039295-e363-4873-8b65-863d7ffe721b">Contrary to prevailing conservative opinion, though, I think that those who continue to profess an unfathomable belief in things like Dr. Fauci’s integrity, swimmer <a href="https://www.cnn.com/2025/10/17/sport/swimming-lia-thomas-interview-intl">Lia Thomas’</a> womanhood, or Jason Arday’s scholarship are afflicted less with venality than with an anxiety so profound that it precludes all rational thought. In other words, the mainstream left’s lack of any reality principle has less to do with <em>morality</em> than with <em>psychology</em>.</p>



<p data-beyondwords-marker="35d72bb8-c8b4-496a-8f78-e317be5ce65e">What we are witnessing, I believe, is a kind of mass “imposter syndrome,” wherein the drive not to be found out is so profound as to obliterate absolutely everything else. As I will discuss, the eradication of any common culture has left Americans with far narrower options for ascendancy to elite status via much more curated in-groups. With the disintegration of communities centered on family and faith, these politicized factions now defining American social life and personal identity demand constant (and ever more ridiculous) affirmations of tribal loyalty.&nbsp;</p>



<p data-beyondwords-marker="518e774c-7a7a-4308-a1fb-e5aa66ab7481">The big winners in this charade? The social media companies and foreign powers that make money off of our ever-wider divisions. The big losers? All the rest of us.&nbsp;</p>



<p data-beyondwords-marker="50ed6dfa-93f4-4cb1-b132-e25c951b7e6d"><strong>The Emperor Is Wearing a Dress—and a Mask</strong></p>



<p data-beyondwords-marker="be1f4d64-f445-485f-9c2b-8a6a14682ce4">Former Obama chief of staff and current CNN political correspondent David Axelrod is among the sanest Democrats around. Amidst allies who have become almost entirely detached from reality on gender identity and critical race theory (not to mention Covid), Axelrod often keeps his feet on or near the ground. </p>



<p data-beyondwords-marker="9a1e0b8c-faca-46e3-b050-3155c5420b15">Yet on X, he <a href="https://x.com/davidaxelrod/status/2082545497882169637">offered this take</a> on the recent congressional hearings where a preemptively pardoned Fauci pleaded the fifth over and over (in slick self-assurance that his allies and defenders would never believe his <em>own written words</em> if they came out of a Republican senator’s mouth): “There was plenty senators could have asked Dr. Fauci about what lessons he learned, and the country should, from the COVID pandemic. Instead, they engaged in an obvious attempt to demonize and entrap the 85-year-old.”</p>



<p data-beyondwords-marker="7dfff7ba-e7fe-4626-8568-64ee68f01255">It’s “demonizing”<em> </em>and “entrapping” a person to point out what he himself <em>admits</em> to having done?<em> </em>Does Axelrod want to know next why Simba is “demonizing” and “entrapping” Scar at the end of <em>The Lion King</em>, when he exposes the <em>reality</em> that Scar murdered Mufasa?</p>



<figure data-beyondwords-marker="96ddd106-32b1-4a46-ba98-08d7a7ba6d35" class="wp-block-pullquote"><blockquote><p>It’s “some emperor, somewhere, is wearing an elephant on his head” vs. “this clearly naked emperor is wearing beautiful vestments that only the smartest people, like me, can see.”&nbsp;<br></p></blockquote></figure>



<p data-beyondwords-marker="869e54b5-9c62-44be-8ed6-1d9bb03fc9cf">What manner of credulity is this, for such a smart man and so many smart people just like him? Why this maddening deflection, rather than any kind of direct response to the facts at play? </p>



<p data-beyondwords-marker="733def6c-96db-4dc9-8dad-c6735abffa97">The only explanation is a kind of mass imposter syndrome wherein actually engaging directly with the damning facts is disqualifying from the inner circle claiming both intelligence and integrity. To share, say, Senator Rand Paul’s view of Dr. Fauci would be to forfeit credibility among the formidable (albeit shrinking) group of influential people whose identities <em>depend</em> on sharing absolutely nothing with Rand Paul.&nbsp;</p>



<p data-beyondwords-marker="9fca98f2-512c-4613-a690-16ea38c84597">This insistence that anyone who states that the emperor is wearing no clothes is doing so out of holistic inferiority and/or meanness—when you, too, can see full well that he’s naked—is undertaken mostly out of fear.</p>



<p data-beyondwords-marker="74571008-07b3-45b5-acc0-b725d4885cd4">No doubt Axelrod, along with millions of otherwise sane Americans, can see perfectly well that Fauci is a less-than-honest broker—among other realities that are considered anathema. So, they deny their lying eyes, pretending—and influencing others to pretend—that they share the vision of the ostensibly worthy few rather than that of the honest many.&nbsp;</p>



<p data-beyondwords-marker="c987ade1-091f-49b3-a81b-c073f9ab76c1">Because the honest many are, well, many.&nbsp;</p>



<p data-beyondwords-marker="c52f84ca-a762-465e-b0e7-88fba60360bf"><strong>The Cult of “Smart”</strong></p>



<p data-beyondwords-marker="2545ac1e-ba39-44b9-8cae-d314e6745ce0">In his 1965 <a href="https://www.bing.com/videos/riverview/relatedvideo?q=lbaldwin+v+buckley&amp;mid=D9309E2BF6556C8EEB27D9309E2BF6556C8EEB27&amp;churl=https%3a%2f%2fwww.youtube.com%2fchannel%2fUC88WrCBH7BJi1je9q5AMf4Q&amp;FORM=VIRE">Cambridge University debate</a> against Bill Buckley, James Baldwin explained that the racism of many working-class and poor white Southerners was rooted largely in status anxiety. The “one great consolation” in the otherwise bleak life of a poor white storekeeper, Baldwin argues, is that “she is not Black.” In other words, struggling white Southerners in the early and mid-twentieth century rooted their fragile sense of stability and self-worth largely on their socially sanctioned and legally enforced “superiority” to Black people. However (as memorialized in Harper Lee’s <em>To Kill A Mockingbird</em>), many poor white Southerners were abundantly aware that they were culturally as well as economically superior to no one; professing virulent racism helped to sublimate that insecurity. Incredibly enough, none other than Vice President JD Vance picks up on this strand of Baldwin and Lee in <a href="https://www.amazon.com/Hillbilly-Elegy-Memoir-Family-Culture/dp/0062300547"><em>Hillbilly Elegy</em></a>, explaining how downwardly mobile white men in Appalachia resent President Barack Obama not because they believe him to be inferior to them but precisely because they know he isn’t.&nbsp;</p>



<p data-beyondwords-marker="6a20ca0c-d337-4f47-9e82-2970ca2eccf7">In his 2018 essay “<a href="https://www.nationalreview.com/2018/08/great-white-culture-war-race-political-divides/">The Great White Culture War</a>,” David French makes a similar argument about progressive, college-educated white Americans, the distinction being that they are looking to signify their distinction not from racial minorities but from non-college-educated white Americans who are not progressive. In this need to achieve distinction from their less educated counterparts, white college-educated progressives are not unique. Brittney Cooper, a Black feminist, illuminates the ways in which <a href="https://www.salon.com/2013/12/17/a_deeply_personal_beyonce_debate_should_she_get_to_be_a_feminist/">cultural divisions</a> predicated on educational differences similarly divide even a far more politically unified group, namely Black women.&nbsp;</p>



<p data-beyondwords-marker="708038d9-2c11-41b0-afb6-eb17fb623730">Baldwin’s insight about how a codified, categorical construction (in this case, race) can be used for one group to separate itself as superior to another <em>regardless of any evidence to the contrary</em> is as relevant today as it ever was. Only now, it is a multiracial elite separating itself from multiracial “normies” by virtue of the one “immutable” characteristic everyone respects: (alleged) intelligence.&nbsp;</p>



<p data-beyondwords-marker="0ce5cd29-90c9-40f1-afb6-14ab4efa1da9">In order for this ostensible line of separation between <a href="https://lawliberty.org/book-review/questioning-the-oppression-olympics/">enlightened elites</a> and <a href="https://lawliberty.org/podcast/woke-delusions/">everyone else</a> to stand in for virtue, as race once did, it (like race) has to be divorced entirely from truth. In other words, it is only by <em>denying</em> the banal facts that suffice for less brilliant minds—say, the fact that there are two sexes—that one can prove her belonging in this elite club, where sacred cows stay that way.&nbsp;</p>



<p data-beyondwords-marker="ee875509-e814-4232-a403-c71b475a6a74">In what Princeton professor Robert P. George has called our “<a href="https://robertpgeorge.com/articles/the-age-of-feelings-recovering-the-truth/">age of feeling</a>,” it is <em>sentiment</em>—that is, the <em>conviction </em>that we should “trust the science,” but never the actual science <em>itself</em>—that suffices for enlightenment. And that, by extension, serves as a ticket into a post-reality elite.</p>



<p data-beyondwords-marker="5d7b7168-6f5c-48c0-a422-7b3b2388f3ef">To those captured by this mindset, any break in that post-reality cartel serves only to ratchet up its intensity. Every defection proves only the rare virtue of those who remain—<em>especially</em> as the ranks continue to thin.&nbsp;</p>



<p data-beyondwords-marker="df4a1392-da78-4f6f-be65-15169d56fcca"><strong>The Waning Power of “Cool”</strong></p>



<p data-beyondwords-marker="b0a2ddd5-86e3-4702-822a-bc6e476926fc">In the late 1990s and early 2000s, as I was coming of age, the leftward march of the culture succeeded in large part because those leading the march were <em>cool</em>. And those opposing it were <em>not</em>. I still remember a late-90s issue of <em>Girls Life</em> magazine that quoted one of the Spice Girls as saying that “feminism has become a dirty word; girl power is just a nineties way of saying it.” Even at 11, I got the gist of that comment. Old-school feminists were into burning their bras and hating men; now, feminism would encompass showing off bras for men, à la <em>Sex and the City</em> and all the other popular culture that was, well, popular.</p>



<p data-beyondwords-marker="0971487e-abe0-40a6-a2dc-8a949c3d160b">Back then, the left controlled pretty much all the mainstream media and culture—along with, of course, the universities. But its excesses were, counterintuitively enough, disciplined by its very popularity. <em>Sex and the City</em> did not appeal <em>only</em> to liberal, sex-positive feminists. It was too high-quality a show for that. Ditto for nearly everything else that was mainstream. The “tenured radicals” may have been radical enough, sure. But it was also a boom time in a higher education landscape populated almost entirely by people who, radical or not, could not conceive of eradicating <em>all</em> universal tastes and standards. Their radicalism, in other words, depended upon the solidity of their broader institutions and a broader society that still had some trust in meritocracy; that’s what gave them something to push against. That leftward march (still within reality’s realm) continued all the way through about 2013.&nbsp;</p>



<p data-beyondwords-marker="0afd11d7-3511-40f4-b16c-bec4888ef860">Then came the siloing effect of individualized technology, instigated by the smartphone and its social media apps. Once every individual person could (and did) curate and project a digital “identity,” the fissures that already existed between secular, leftist elites and more traditional, less “enlightened” normal people became chasms. The left retained its hold on “cool” for a time; its preferences and tastes continued to shape the popular culture. (The predominantly religious right, in a posture of resistance, may be many good things; but “fun” doesn’t tend to be one of them.)</p>



<p data-beyondwords-marker="68432481-4bd7-4fd6-841f-42fde480382d">With Trump’s election in 2016, followed by our pandemic response in 2020, came the total eradication of what remained of a common culture. There is no universal “cool” now. We have largely traded actual stars (whose popularity rests on broad appeal) for influencers in various fields and on various platforms (whose little niches are the name of their games).&nbsp;</p>



<p data-beyondwords-marker="bc8e9679-9b64-462a-b446-d6117897f739">A common conception of what’s <em>cool</em> may have been our last tenuous hold on any common reaction to (or even acknowledgment of) what’s <em>true</em>. Now, we have arrived at a point where being able to easily tell the difference between boys and girls is<em> beneath</em> those whose <em>in-group coolness</em> is predicated on their ostensibly superior intelligence.&nbsp;Reality as we acknowledge it is now curated for our validation and entertainment.&nbsp;</p>



<p data-beyondwords-marker="bd557f6d-8203-415c-b113-7d49a88e3a6c">This happens on the right, too, of course; but what’s cool in that cohort seems to be predominantly the invention of fantastical conspiracy theories that can’t be technically <em>disproven</em>—rather than the willful denial of facts that have already <em>been</em> proven beyond any reasonable doubt. It’s “some emperor, somewhere, is wearing an elephant on his head” vs. “this clearly naked emperor is wearing beautiful vestments that only the smartest people, like me, can see.”&nbsp;</p>



<p data-beyondwords-marker="dfcd3ac9-58a5-490c-9fe0-f6ff2dae557c">It is not clear to me where this outright denial of ideologically inconvenient realities fueled by rampant imposter syndrome ends for today’s elite left. But it is quite clear that we should stop assuming it ever will.&nbsp;</p>
<p>The post <a href="https://lawliberty.org/progressivisms-imposter-syndrome/">Progressivism&#8217;s Imposter Syndrome</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></content>
		
			</entry>
		<entry>
		<author>
			<name>Itxu Diaz</name>
					</author>

		<title type="html"><![CDATA[Scholia for a Free Society]]></title>
		<link href="https://lawliberty.org/scholia-for-a-free-society/" rel="alternate" type="text/html"/>

		<id>https://lawliberty.org/?p=78696</id>
		<updated>2026-09-25T10:47:12Z</updated>
		<published>2026-09-25T10:00:00Z</published>
		<category scheme="https://lawliberty.org/" term="Law &amp; Liberty Essays"/><category scheme="https://lawliberty.org/" term="Columbia"/><category scheme="https://lawliberty.org/" term="G.K. Chesterton"/><category scheme="https://lawliberty.org/" term="Itxu Diaz"/><category scheme="https://lawliberty.org/" term="Joseph de Maistre"/><category scheme="https://lawliberty.org/" term="Liberalism"/><category scheme="https://lawliberty.org/" term="Liberty"/><category scheme="https://lawliberty.org/" term="Nicolás Gómez Dávila"/><category scheme="https://lawliberty.org/" term="Reactionaries"/>
		<summary type="html"><![CDATA[<p>The dialectical battle between traditionalists and lovers of liberty has given us brilliant debates over the past few centuries, but also countless missed opportunities.&#160;The battle for freedom must be fought continuously, because whenever it is not being fought, freedom retreats; it is always under threat. We see this often these days. In confronting that threat, [&#8230;]</p>
<p>The post <a href="https://lawliberty.org/scholia-for-a-free-society/">Scholia for a Free Society</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></summary>

					<content type="html" xml:base="https://lawliberty.org/scholia-for-a-free-society/"><![CDATA[
<p data-beyondwords-marker="0970f3c0-4526-45c0-b734-afa9eff94e14">The dialectical battle between traditionalists and lovers of liberty has given us brilliant debates over the past few centuries, but also countless missed opportunities.&nbsp;The battle for freedom must be fought continuously, because whenever it is not being fought, freedom retreats; it is always under threat. We see this often these days. In confronting that threat, beyond the work of the usual figures, it may be useful to reconsider the work of those who called themselves “authentic reactionaries” and who, in reality, also offered fruitful arguments in defense of freedom.</p>



<p data-beyondwords-marker="4d2a25c3-bc17-4f60-a5e8-7091ca8c98f5">The Colombian thinker Nicolás Gómez Dávila (Bogotá, 1913–94), though certainly not the best known, has stood the test of time surprisingly well, and may have particular value to twenty-first-century conservatives seeking to reconcile reactionary and libertarian currents without ending up in an irreconcilable limbo of contradictions. I use the expression &#8220;authentic reactionaries&#8221; because it is how Gómez Dávila described himself. He never considered himself a &#8220;conservative.&#8221; In his view, the conservative seeks to preserve what exists, whereas the reactionary believes the modern world has already lost what is essential. Like many traditionalists, he embraced reaction because the world, the culture, and the values they wished to preserve had been demolished by the modern age, marching to the cadence of the Enlightenment and the goddess Reason.</p>



<p data-beyondwords-marker="23b89a67-4ad3-4ac2-bc60-1e91b2741175">Joseph de Maistre, Juan Donoso Cortés, Charles Péguy, Léon Bloy, and, of course, G. K. Chesterton and Hilaire Belloc belong to the essential constellation of traditionalist and reactionary thought. Some, like Chesterton, have been enthusiastically reclaimed by the political right in recent years, while others, such as Péguy, Maistre, or Léon Bloy, remain largely forgotten, sometimes because of their fierce attacks on capitalism, and at other times because some of their ideas were later embraced or adapted, in their own ways, by authoritarian movements; their religious dogmatism, too, can make some contemporary conservatives uneasy.</p>



<p data-beyondwords-marker="12ed9b77-d9e0-4e73-a84a-fd8dc3ccde02">In Nicolás Gómez Dávila we find a similar reaction against modernity, with the added advantage that his work is as accessible as it is intellectually fascinating. But his criticism of modernity never swung to the opposite extreme; it was never an apology for authoritarianism or a turn toward fascism. Perhaps this is because his deepest concern was not political but something more profound and spiritual. The Columbian thinker left behind no lengthy treatises, only a vast collection of what he called “<a href="https://www.amazon.com/dp/958883600X?lv=shuf&amp;language=he&amp;channelId=500&amp;plpRedirect=mhFallback">Scholia to an Implicit Text</a>,” brief aphorisms on countless aspects of life, politics, sociology, and culture. In just a few words they condense the substance of weighty essays, thanks to his extraordinary command of language and his remarkable ability to make ellipsis into serious discourse.</p>



<p data-beyondwords-marker="ea00174e-3294-48b8-8cac-ff381309133a">We should not ignore the fact that much of the traditionalists&#8217; work is explicitly anti-liberal. They attack classical liberalism and communism with equal force, regarding both as different manifestations of the same modern worldview. Donoso Cortés&#8217;s “<a href="https://archive.org/details/cu31924029402439">Essay on Catholicism, Liberalism, and Socialism</a>”, which profoundly influenced later traditionalists, revolves around the controversial claim that classical liberalism is not socialism&#8217;s antidote but its intellectual precursor. This understandably raises suspicion among many contemporary conservatives, but at the same time, we should avoid the mistake of assuming that an author like Cortés had the liberalism of Milton Friedman or Friedrich Hayek in mind. Both were born long after the death of the nineteenth-century Spanish philosopher, and the world they inhabited was entirely different.</p>



<figure data-beyondwords-marker="304c3246-03a3-43df-9b96-45187b877aa8" class="wp-block-pullquote"><blockquote><p>Gómez Dávila expressed with remarkable subtlety the thin line separating left-wing utopias from crime: &#8220;A simple fit of impatience soon erases the distance between utopia and murder.&#8221;</p></blockquote></figure>



<p data-beyondwords-marker="68407d5f-b31e-4c79-83e9-0acdf071ca5a">Cortés writes against European liberalism because he rejects the secularization of the state and the exaltation of individual autonomy, long before the rise of the welfare state or American libertarianism. De Maistre, for his part, uses the word “liberalism” to describe the immediate legacy of the French Revolution: anticlericalism, popular sovereignty, rationalism, and the destruction of the Ancien Régime. The criticisms these authors leveled against liberalism are better understood if we consider in detail what the European liberalism they knew actually entailed. They were not attacking the liberal order that would later take shape and flourish in the United States, but the political upheavals of Europe, where the language of liberty was often accompanied by attacks on other traditional institutions, such as religion and the existing social order, and where the development of liberal ideas and the establishment of liberal institutions in the real world involved mistakes and excesses. These are authors who must always be read and understood within their historical context.</p>



<p data-beyondwords-marker="146760d6-a82f-4549-83d1-8aa841b833fe">As important as that context is, however, it’s even more important to recognize that the value of the great traditionalists’ work also lies in the fact that it often arrives at conclusions surprisingly close to those of liberal conservatives, even while starting from very different premises. Reading Gómez Dávila today does not require embracing his entire worldview, which he never laid out in a systematic treatise in any case. He was a brilliant polemicist with no political affiliation. Just as a traditionalist reader may find inspiration in Hayek without becoming a classical liberal, lovers of liberty can disagree with many of Gómez Dávila&#8217;s views and still discover extraordinarily fertile insights into power, the state, revolutions, egalitarianism, technology, and political utopias.</p>



<p data-beyondwords-marker="2ad752db-2732-4608-8ba3-9c9a8efded52">As a twentieth-century thinker,&nbsp;Gómez Dávila was well acquainted with contemporary economic liberalism, which he openly condemned, yet his criticism was never focused on the economic sphere, which lay outside his field of interest. His focus was always theological and philosophical. The starting point of his thought is perfectly compatible with modern libertarianism: the imperfection of man. Libertarians do not trust in the inherent goodness of human beings, while traditionalists ground human imperfection in original sin. Consequently, the former seek to prevent any individual from accumulating excessive power to impose his own vision of society, whereas the latter uphold the need for an objective moral order, tradition, and authority. Yet, paradoxical as it may seem, the point at which their views most clearly converge is in their rejection of the omnipresent state and, more broadly, of every form of unlimited power.</p>



<p data-beyondwords-marker="a1820c39-9462-4bb4-a644-3f5e692e63d1">&#8220;As the state grows, the individual diminishes,&#8221; wrote Gómez Dávila in a scholium Ronald Reagan himself might have signed. &#8220;Wise politics is the art of strengthening society and weakening the state,&#8221; he added later. And later still: &#8220;As the state entangles all human activities in its threads, governing becomes increasingly difficult, commanding increasingly easy,&#8221; a remark that seems almost to anticipate the sprawling bureaucratic web of the twenty-first-century European Union. With characteristic irony, he even observed that &#8220;the three enemies of man are the devil, the state, and technology.&#8221; When he argues for robust checks and balances, he begins to sound positively liberal: &#8220;A soundly constituted state is one where innumerable obstacles hinder and obstruct the freedom of the legislator.&#8221;</p>



<p data-beyondwords-marker="c0ab9ca0-7874-4f25-863a-254db6fe01cb">Technology is one of the great obsessions of the author of <em>Scholia to an Implicit Text</em>. Although he was no Luddite, he relentlessly attacked what he called &#8220;technocracy,&#8221; and often seemed to be speaking directly to our own age, repeatedly warning of the dangers of a world in which technology seizes power, while power in turn places itself at the service of technology. &#8220;Technology would pose fewer dangers if its manipulation were not so easy for the fool and so profitable for the thief,&#8221; is a scholium that could easily have been written today, amid profound moral debates over AI, Big Tech, algorithms, and transhumanism.</p>



<p data-beyondwords-marker="02b9a3cf-c9e7-4ff3-9a91-1bbbb0619c0f">Traditionalists of a liberal persuasion hold appeal for conservatives in part because of their struggle against common enemies, such as socialism, communism, and the various forms of totalitarianism. Gómez Dávila, for instance, captures the essence of the communism of our own time, as seen in the Castro brothers, or in Chávez&#8217;s socialist revolution inherited by Maduro. &#8220;A communist,&#8221; he wrote, &#8220;is one who struggles to have the state guarantee him a bourgeois existence.&#8221;</p>



<p data-beyondwords-marker="9dee5a99-6fed-48b7-a336-6901896b47c9">The Colombian writer devoted a large portion of his work to denouncing revolutions. One of his briefest, sharpest, and most melancholic aphorisms reads simply: &#8220;Useless, like a revolution.&#8221; Elsewhere he observes that revolutions &#8220;are not the locomotives but the derailments of history,&#8221; adding that &#8220;every revolution aggravates the evils against which it erupts.&#8221; Yet he carefully distinguished revolution from reaction, and from rebellion: &#8220;Revolution is progressive and seeks to strengthen the state; rebellion is reactionary and seeks its disappearance. The revolutionary is a functionary in embryo; the rebel is a reactionary in action.&#8221; This subtle distinction is particularly interesting today, when some adventurers on the right, sympathetic to an old-fashioned populism, in their impatience with the progressive order that has culturally dominated the West, go too far and risk becoming revolutionaries in their own way.</p>



<p data-beyondwords-marker="d15121c7-56ea-461d-93ba-d5b7fc407034">When contemplating the disaster of the Soviet Union, the widespread barbarism of Mao&#8217;s China, or the endless poverty of Cuba, one still hears nostalgic revolutionaries such as Bernie Sanders and his followers stubbornly insisting that the experiment failed only because it was badly implemented, while the recipe itself remains sound. Communism, or socialism, is probably history&#8217;s most frequently repeated failed experiment, in open defiance of the elementary scientific principle of trial and error, which learns from failure instead of endlessly repeating it. Gómez Dávila immediately exposed the trap by reminding us that &#8220;after every revolution,&#8221; the revolutionary will claim that &#8220;the true revolution will be tomorrow&#8217;s&#8221;: &#8220;The revolutionary explains that a scoundrel betrayed yesterday&#8217;s revolution.&#8221; Thus it has been through more than a century of bloody revolutions, all carried out in the name of left-wing ideals.&nbsp;</p>



<figure data-beyondwords-marker="467ec185-d36e-4a38-b209-cac32b76c9d4" class="wp-block-pullquote"><blockquote><p>Gómez Dávila approached the family more fragmentarily, but he regarded it as a fundamental natural and moral institution, and saw it as a refuge from the State’s intervention in matters of personal conscience and culture.</p></blockquote></figure>



<p data-beyondwords-marker="7ba87833-caa8-41e9-88f0-e2ae544487ca">Behind many of these revolutionary projects lay an ideal, now much abused: equality. This is one of Gómez Dávila’s greatest themes.&nbsp;Traditionalists generally recognize only one form of equality: spiritual equality, the equality that comes from all men being children of the same God. Their critique of modern egalitarianism, however, is every bit as devastating as their critique of rationalism. &#8220;There is no such thing as man in the world,&#8221; De Maistre famously remarked. &#8220;I have seen Frenchmen, Italians, Russians, etc.; I even know, thanks to Montesquieu, that one can be Persian; but as for man, I declare I have never met him in my life; if he exists, it is entirely without my knowledge.&#8221;</p>



<p data-beyondwords-marker="cdcaeff3-7c99-4513-815b-195dd50c7816">Gómez Dávila was even harsher toward egalitarians, those vain utopians whom he regarded as incapable of understanding human nature, always driven by envy, and always willing to commit crimes in pursuit of an end that neither justifies the means nor can ever be achieved except cosmetically or in theory. Today, when the left has become overwhelmingly identity-driven, that postmodern left he never lived to see, his scholium on the subject resonates even more powerfully, almost as a prophecy: &#8220;Even if inequality were not indelible, we should prefer it to equality for love of diversity.&#8221; So convinced was he that egalitarianism is impossible, even if it were desirable, that he wrote: &#8220;He who favors equality without being envious can only do so because he is a fool.&#8221;</p>



<p data-beyondwords-marker="361f6c82-42c2-4f04-bff2-9620d2fa62f2">The writer from Bogotá usually made his scholia explicit enough to prevent their brevity from degenerating into ambiguity. Thus, when discussing equality, he drew an important distinction: &#8220;The notion of economic equality raises a purely technical question that should be resolved by examining the universal consequences of its realization. The notion of equality that denies the existence of hierarchies, on the other hand, must simply and plainly be rejected.&#8221;</p>



<p data-beyondwords-marker="10e58e06-bf8e-4bbb-b7da-72d6cf5f83be">As we know, there is nothing wrong with aspiring to equality before the law, nor with, as we have noted, recognizing a certain degree of moral or spiritual equality. Material and social equality, however, are another matter: there is only one way to impose them (and even that fails): by force. That imposition may come through the state&#8217;s monopoly on violence or, more characteristic of today&#8217;s Western culture wars, through social engineering. Gómez Dávila expressed with remarkable subtlety the thin line separating left-wing utopias from crime: &#8220;A simple fit of impatience soon erases the distance between utopia and murder.&#8221;</p>



<p data-beyondwords-marker="cac1f8f7-abce-4d5c-ba75-3ec7dc3766c8">Of all the traditionalists discussed here, Gómez Dávila was perhaps the one who most effectively confronted the different forms of social engineering promoted by the left, even though he never used that specific expression, which only became widespread after his death. &#8220;The progressive dreams of the scientific stabling of mankind,&#8221; he wrote, observing that behind every leftist stands someone who, given the opportunity, would attempt to improve humanity by applying to men and societies the same scientific methods that have increased the productivity of livestock farming. He went even further, acknowledging an uncomfortable truth through his characteristic blend of transcendence and provocation: &#8220;Why deceive ourselves? Science has not answered a single important question.&#8221;</p>



<p data-beyondwords-marker="7d2845e2-e4d6-4e56-9c17-71fb8cbe39c0">In Gómez Dávila’s image of humans stabled like livestock, we can imagine Friedrich Hayek himself, already elderly, when he dismantled the errors of planning in his final work, <em>The Fatal Conceit</em>: &#8220;The curious task of economics is to demonstrate to men how little they really know about what they imagine they can design.&#8221;</p>



<p data-beyondwords-marker="c5d4747b-f902-4d79-82fa-804d3e1e86d4">This concern is of course deeply connected to another recurring conservative criticism of twenty-first-century progressive social engineering. It destroys traditional intermediary institutions, such as marriage, the family, and the church. Traditionalists fervently defend these institutions and set them against the omnipresent power of the state as bastions of freedom. Perhaps the most inspired traditionalist apostle of the family was G. K. Chesterton. For him, the family was a “test of freedom,” because he regarded it as the one thing “the free man makes for himself and by himself.” He also saw the family as a kind of refuge, an oasis of freedom in which to shelter from the excessive power of the State and what we might today call “globalist elites.” Gómez Dávila approached the family more fragmentarily, but he too regarded it as a fundamental natural and moral institution, and saw it as a refuge from the State’s intervention in matters of personal conscience and culture.</p>



<p data-beyondwords-marker="96ba530b-78a9-45a8-aad3-3ff0c8989960">However, the attachment to family, voluntary association, guild, and homeland also points to something deeper in Gómez Dávila: his distrust of social engineers who seek to remake societies and artificially reshape individuals from above. In this respect, his work comes even closer to the conservative defense of inherited institutions and the classical liberal suspicion of concentrated power.</p>



<p data-beyondwords-marker="98ec07cd-199c-440d-9976-288b959c5dbe">Gómez Dávila once again portrays socialists and Keynesians in just a few words, recognizing the need for civil society to hold the reins of a nation: “Asking the state to do what only society should do is the error of the left.” Few sentences better illustrate the common ground between his traditionalist instincts and the classical liberal defense of a society capable of limiting the reach of the state.&nbsp;A good illustration of the vast common ground where the ideas of traditionalists, conservatives, and libertarians coexist and reinforce one another can be found in that famous scholium by the Columbian thinker.</p>
<p>The post <a href="https://lawliberty.org/scholia-for-a-free-society/">Scholia for a Free Society</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></content>
		
			</entry>
		<entry>
		<author>
			<name>John O. McGinnis</name>
					</author>

		<title type="html"><![CDATA[Data Centers and the Liberal State]]></title>
		<link href="https://lawliberty.org/data-centers-and-the-liberal-state/" rel="alternate" type="text/html"/>

		<id>https://lawliberty.org/?p=78878</id>
		<updated>2026-09-22T14:07:13Z</updated>
		<published>2026-09-24T10:01:00Z</published>
		<category scheme="https://lawliberty.org/" term="Law &amp; Liberty Essays"/><category scheme="https://lawliberty.org/" term="data centers"/><category scheme="https://lawliberty.org/" term="John McGinnis"/><category scheme="https://lawliberty.org/" term="Technology"/>
		<summary type="html"><![CDATA[<p>A liberal state does not distribute privileges or impose burdens according to popularity. Yet in recent years, data centers have been alternately privileged and burdened. When they were popular because of their promise of jobs and growth, states showered them with tax breaks. Now that they have become unpopular because of growing recognition of their [&#8230;]</p>
<p>The post <a href="https://lawliberty.org/data-centers-and-the-liberal-state/">Data Centers and the Liberal State</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></summary>

					<content type="html" xml:base="https://lawliberty.org/data-centers-and-the-liberal-state/"><![CDATA[
<p>A liberal state does not distribute privileges or impose burdens according to popularity. Yet in recent years, data centers have been alternately privileged and burdened. When they were popular because of their promise of jobs and growth, states showered them with tax breaks. Now that they have become unpopular because of growing recognition of their demand for electricity and water, states and localities have rushed to impose peculiar regulations or even moratoriums on their construction.</p>



<p>Recently, New York State provided a <a href="https://www.governor.ny.gov/executive-order/no-62-establishing-temporary-moratorium-data-centers-new-york-while-state-develops?utm_source=chatgpt.com">prime example</a> of how data center opponents can go too far with its selective moratorium on their construction. It pauses certain state permits for building or expanding data centers that can consume 50 megawatts or more, pending a special environmental review. At the same time, it exempts facilities primarily devoted to other activities, such as manufacturing and health care, even if they have the same electrical demand. But why should the same demands on electricity and water be disfavored when they support politically unpopular activities and accepted when they support politically popular ones? Exemptions should reflect only demonstrable differences in harm, not the political connections or popularity of those receiving them. This issue differs somewhat from simple NIMBYism, a political tendency that generally wants to stop or slow down all construction in the interests of incumbent homeowners or businesses, as discussed in the latest <a href="https://lawliberty.org/forum/the-nimby-prisoners-dilemma/"><em>Law &amp; Liberty</em> Forum</a>. The focus here is on targeting particular enterprises.</p>



<p>An enterprise’s demand for resources is not, by itself, evidence of market failure that the state needs to correct. Indeed, the market allocates resources to those willing to pay for them. If the poor need subsidies, they should be supported through taxation, not by special regulations that prevent profitable activity. Enterprises should be allowed to build under neutral rules. A liberal state protects the market economy because it reflects the voluntary choices of millions of its citizens.</p>



<p>Of course, data centers, like other enterprises, might harm others by imposing externalities like noise and pollution on their neighbors. But neutral laws can handle these effects too. There is no need to single out data centers for special regulation or a moratorium. One virtue of common-law torts is that they apply equally to all polluters and noisemakers. If these restraints are thought too weak, other laws can supplement them, such as permit requirements. The key is to apply all the laws based on common conditions.</p>



<p>The way regulation works should also give pause to supporters of New York-style policies. Utility regulations can allow the costs of new infrastructure to be passed on to all customers, effectively shifting some of the cost of serving a new customer onto existing customers. Higher market prices caused by additional demand are not themselves a subsidy; making existing customers pay for facilities built to serve a new business is. Data centers should pay the costs attributable to serving them, rather than shift those costs or investment risks onto captive customers. A well-known solution in utility rate regulation is to require businesses to pay the cost of new dedicated infrastructure. But this requirement should apply regardless of the business’s identity. The solution again is classical liberalism’s insistence on neutral laws.</p>



<p>These principles should address the specific complaints against data centers. They do increase demand for water, but the resulting price changes are the market at work. If new infrastructure is needed, data center businesses can pay for it or construct it themselves. While data centers may need water during periods of peak demand, when it costs more to supply, appropriate metering and rates that are sensitive to time allow extra charges to reflect that timing. If water is not now correctly priced at times of such demand, that is the reform needed. Correct pricing will encourage new supply, <a href="https://www.linkedin.com/pulse/case-increasing-water-prices-critical-analysis-christos-charisiadis-zp39c/">such as reclaimed water</a>, as well as better cooling systems.</p>



<p>The answer is much the same with electricity. Infrastructure costs should be allocated according to the demands that they create and the benefits they provide. Neutrality does not require identical treatment of enterprises that impose different costs. A customer requiring a substation for their own use should make infrastructure payments that a household does not. But the relevant distinction is the burden imposed, not the business&#8217;s identity. Making an enterprise bear its costs is not discrimination.</p>



<figure class="wp-block-pullquote"><blockquote><p>Hard questions deserve our political and civic energy. The debate over data centers redirects that energy elsewhere.</p></blockquote></figure>



<p>Higher prices should prompt new ways to increase supply. In many localities, excessive government regulation is one of the biggest constraints. If localities streamline permitting for new transmission, everyone can benefit from greater supply that brings down rates. <a href="https://www.georgiapower.com/news-hub/press-releases/contract-openai-approved-part-portfolio-delivering-950-million-annual-savings.html?utm_source=chatgpt.com">Georgia Power recently announced</a> that its contracts with new large users, including data centers, are expected to lower residential electricity costs beginning in 2029.</p>



<p>Some data centers cause noise pollution, and a <a href="https://jlarc.virginia.gov/pdfs/reports/Rpt598-2.pdf?utm_source=chatgpt.com">Virginia audit</a> in 2024 on the issue suggests that continuous low-frequency noise is not subject to sufficient regulation. The solution is more comprehensive noise regulation that data centers, like everyone else, must follow. Federal and state law can address air pollution and carbon emissions if they are considered harmful. Those laws should also be applied neutrally to data centers. More generally, opponents of data centers should be challenged to identify externalities that existing law does not address. Those externalities can then be debated as a general matter rather than by focusing on data centers.</p>



<p>The liberal state should be as neutral in its privileges as in its regulations. When data centers seemed to be just a source of jobs and investment, states gave them tax breaks. The Virginia audit identified almost a billion dollars in these tax savings in fiscal year 2023 alone. But such selective subsidies undermine the liberal order. They invite political favoritism. They create a business culture in which enterprises compete for government favors rather than customers.</p>



<p>And the government does not have the knowledge to choose which industries will be winners in the long run. Economists <a href="https://www.aeaweb.org/articles?id=10.1257%2Fjep.34.2.90&amp;utm_source=chatgpt.com">Cailin Slattery and Owen Zidar</a> found no strong evidence that tax incentives for specific firms produce broader economic growth at the state or local level<strong>.</strong> That does not mean states cannot promote business investment generally, but they are not qualified to choose particular kinds of enterprise.</p>



<p>The one exception for special privileges is facilitating national security. AI and the infrastructure that supports it are important for improving our military technology, particularly because our greatest geopolitical rival—the People’s Republic of China—is also our greatest rival in the AI race. National interests may support a case for federal subsidies. They are not a license for states and localities to compete to provide special benefits for particular business sectors.</p>



<p>Why has the sharp turn toward data center moratoriums occurred? One reason is the general movement toward economic illiberalism. Rent control has become a very popular cause. To be sure, rent control and data center moratoria have different effects. Rent control distorts market prices; data center moratoria suppress market entry. But both share the error of assuming that political direction of economic decision-making will improve social outcomes, rather than trusting decentralized market decisions.</p>



<p>Opposition to data centers may also serve as a proxy for opposition to AI. But local moratoria are a blunderbuss. They burden ordinary computing as well as AI and may redirect investment in centers abroad without controlling dangerous capabilities. An international restriction on computing infrastructure could conceivably form part of a justified policy promoting AI safety. But it would need to be defended on that basis. An argument about water use or electricity prices is a smokescreen.</p>



<p>Moreover, any restrictions would have to address issues that do not come up in the data-center discussion. Slowing AI in the United States does not mean AI will slow elsewhere. As a result, our geopolitical adversaries, like China, would benefit and our national security would suffer. Even apart from risks posed by other nations, one danger of AI is that it can empower malevolent nonstate actors. Advanced AI may also strengthen defenses against AI-enabled attacks. A policy that delays defensive tools while leaving attackers access to powerful models could make us less safe. The question is which arrangements best combine technical expertise, incentives for safety, and public accountability. A local moratorium does not begin to answer it.</p>



<p>Which approach would best address these risks—existing product-safety law, industry self-regulation, or AI-specific regulation? The answer will be found in the arrangements best combining technical expertise, incentives for safety, and national accountability. A local moratorium is not a sensible response along any of these dimensions.</p>



<p>A full assessment of AI must weigh its potential benefits as well as its risks. Recent breakthroughs in mathematics show AI’s capacity to transform science. It will boost medical discovery and longevity. It will likely help develop better solutions to other pressing problems, like climate change, and help invent technologies to prevent natural disasters. The AI balance sheet is only complete once we calculate its likely benefits.</p>



<p>These hard questions deserve our political and civic energy. The debate over data centers redirects that energy elsewhere. Classical liberalism limits government’s role to preventing external harms and providing domestic public goods where markets and civil society fall short. A politics entitled to address everything will likely fail to solve our most pressing dilemmas.</p>
<p>The post <a href="https://lawliberty.org/data-centers-and-the-liberal-state/">Data Centers and the Liberal State</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></content>
		
			</entry>
		<entry>
		<author>
			<name>Robert G. Natelson</name>
					</author>

		<title type="html"><![CDATA[The Slippery Constitutionality of Open Primaries]]></title>
		<link href="https://lawliberty.org/the-slippery-constitutionality-of-open-primaries/" rel="alternate" type="text/html"/>

		<id>https://lawliberty.org/?p=78846</id>
		<updated>2026-09-22T21:49:49Z</updated>
		<published>2026-09-24T10:00:00Z</published>
		<category scheme="https://lawliberty.org/" term="Law &amp; Liberty Essays"/><category scheme="https://lawliberty.org/" term="Elections"/><category scheme="https://lawliberty.org/" term="Federalism"/><category scheme="https://lawliberty.org/" term="National Republican v. FEC"/><category scheme="https://lawliberty.org/" term="open primaries"/><category scheme="https://lawliberty.org/" term="Robert G. Natelson"/>
		<summary type="html"><![CDATA[<p>Since the early days of the American Republic, political parties have been vehicles through which people of modest means can participate effectively in politics. Like churches, families, associations, and corporations, parties are mediating organizations between the individual and government. And like other mediating organizations, parties have come under fierce attack from the left. One form [&#8230;]</p>
<p>The post <a href="https://lawliberty.org/the-slippery-constitutionality-of-open-primaries/">The Slippery Constitutionality of Open Primaries</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></summary>

					<content type="html" xml:base="https://lawliberty.org/the-slippery-constitutionality-of-open-primaries/"><![CDATA[
<p data-beyondwords-marker="d90daf7a-360b-4988-bebe-d185b5cf6612">Since the early days of the American Republic, political parties have been vehicles through which people of modest means can participate effectively in politics. Like churches, families, associations, and corporations, parties are mediating organizations between the individual and government.</p>



<p data-beyondwords-marker="f491ad36-5fce-4756-a086-9df732b47a87">And like other mediating organizations, parties have come under fierce attack from the left. One form of attack has been promotion of state election laws allowing non-party members to vote for party nominees.</p>



<p data-beyondwords-marker="faba6ce0-fdb9-42db-98dd-b5aa35d13fa1">But on June 30, the Supreme Court issued a case that brought it one step closer to ruling that such laws violate the Constitution’s First Amendment, as incorporated against the states by the Fourteenth. The case was <em><a href="https://natelsonrob.com/wp-content/uploads/2026/08/2026-Nat-Republican-v.-FEC.pdf">National Republican Senatorial Committee v. Federal Election Commission</a></em> (hereinafter <em>National Republican</em>).</p>



<p data-beyondwords-marker="0173bb5f-f1bb-4c01-a8e3-c3ae6e24538e"><strong>Party Primaries Explained</strong></p>



<p data-beyondwords-marker="03588992-ea71-4920-a585-62b831d3fb27">In the traditional closed party primary, party members vote on which candidates to nominate for the general election. But fourteen states require <a href="https://ballotpedia.org/Open_primary"><em>open</em> primaries</a>, which permit all electors—even those belonging to hostile parties—to vote in any party’s primary. The Republican Party of Texas has launched a lawsuit challenging that state’s open primary law.</p>



<p data-beyondwords-marker="2a0bd36a-f3aa-4d76-81ae-c6d9a27f4b84">Ten other states mandate <em><a href="https://ballotpedia.org/Semi-closed_primary">semi-closed primaries</a></em>, also called <em>semi-open primaries</em>. (We’ll use the latter term.) These allow unaffiliated electors to vote in any party’s primary. The Republican Party of Colorado has filed a lawsuit challenging that state’s semi-open primary law. In that case, a federal district judge gave the Republicans a partial, but significant, <a href="https://natelsonrob.com/wp-content/uploads/2026/08/2024-CO-RepParty-v.-Griswold.pdf">victory</a>—although in further proceedings his conduct has been painfully slow.</p>



<p data-beyondwords-marker="66b5056f-0f57-49c7-94fc-82f8bf6a2ad5">Of course, these laws are different from those that permit, but do not require, parties to conduct open or semi-open contests. The latter do not suffer from the same constitutional difficulties.</p>



<p data-beyondwords-marker="50bcc33f-78e3-49a7-af42-2536c5ab6a45"><strong>Reasons for Open and Semi-Open Primaries</strong></p>



<p data-beyondwords-marker="ed673bf1-08ec-4ef7-acd9-417694ca624a">Open and semi-closed primary laws have been around for some time. However, in recent years they have proliferated, promoted mostly by <a href="https://philanthropy.org/990/who-funds/820842659/open-primaries-education-fund">center-left organizations</a>.</p>



<p data-beyondwords-marker="3f3be768-ff5f-4b4f-8b73-bed37ae117a7">The most salient stated goal for promoting these laws is to favor “moderate” candidates who “appeal to a wider portion of the electorate” over more “extreme” and “partisan” candidates. The promoting organizations contend that parties must accept such restrictions in exchange for state financing of primary elections. Constitutional wonks may recognize that the latter argument disregards the Supreme Court’s <a href="https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-unconstitutional-conditions-doctrine">unconstitutional conditions doctrine</a>: A state may not force you to give up a constitutional right in order to receive a government benefit.</p>



<p data-beyondwords-marker="336fae7e-4fca-487a-a6d4-31adc5559621">I suspect that the sponsors’ primary goal is to affect GOP primaries. Outside a few regions where socialists can win intra-Democratic Party races, most Democrat primaries display few real policy differences. It is in Republican contests where the real debate happens. The goal of the promoters seems to be to prevent strongly conservative or government-cutting candidates from getting to the general election ballot—or, if they cannot prevent that, to force those candidates to temper their message.</p>



<p data-beyondwords-marker="6e1e3a33-8d9b-4fd1-9c59-54fa662c81b5">An instance of the latter effect recently came to light in the Colorado lawsuit, where several Republican candidates <a href="https://natelsonrob.com/wp-content/uploads/2026/09/Colo-GOP-candidate-declarations.pdf">asked the court</a> not to mandate an immediate change back to a closed primary because they had fashioned their nomination campaigns for an electorate that included liberal independents as well as Republicans.</p>



<p data-beyondwords-marker="c498a444-56b8-4180-8b79-a04ec340e2fc"><strong>Previous SCOTUS Decisions</strong></p>



<p data-beyondwords-marker="10c3943b-1ca2-467c-bdea-2db593811b63">In a November 6, 2025 <em><a href="https://lawliberty.org/are-open-primaries-unconstitutional/">Law &amp; Liberty </a></em><a href="https://lawliberty.org/are-open-primaries-unconstitutional/">essay</a><em>—</em>written well before the new SCOTUS decision in <em>National Republican</em>—I contended that open and semi-open primary laws were likely unconstitutional. Here’s why:</p>



<p data-beyondwords-marker="4d4cf159-a9e2-40e5-b449-fe9e67650b47">In considering the validity of a state election regulation under the First Amendment, the Supreme Court initially determines whether the regulation imposes a “severe” burden on First Amendment freedoms. If the burden is not severe, the rule survives if it serves “important regulatory interests” (a form of intermediate scrutiny). But if the burden is severe, the court subjects the regulation to strict scrutiny: The state must demonstrate that it is necessary for promoting a compelling state interest (or compelling governmental purpose).</p>



<p data-beyondwords-marker="6b39410b-b3ea-4e15-9bc3-0adf2dd8368a">Two cases illustrate the constitutional problems inherent in open and semi-open primary laws. The first is <em><a href="https://www.oyez.org/cases/1980/79-1631">Democratic Party v. Wisconsin ex rel. LaFollette</a></em> (1981). There, the Supreme Court reviewed a Wisconsin measure that required each Wisconsin delegate to a national party nominating convention to vote for the winner of a previously held open state preference primary.</p>



<p data-beyondwords-marker="2831187a-261d-4627-8a46-a4b070cefa36">Writing for his colleagues, Justice Potter Stewart acknowledged that the Democratic Party’s right of association included the prerogative of excluding non-members from its decision-making processes. He found no relevant compelling state interest to support the measure, and ruled it unconstitutional.</p>



<p data-beyondwords-marker="a3976850-7952-4a30-a765-2de84e1c215c">In <em><a href="https://www.oyez.org/cases/1999/99-401">California Democratic Party v. Jones</a></em> (2000), the court examined California’s partisan blanket primary law. A <em>partisan blanket primary</em> is a version of an open primary, where instead of the elector choosing a single party for the particular election, the elector may enter a different primary for each office on the ballot.</p>



<figure data-beyondwords-marker="220df97c-b889-4294-b95a-6a9ebf2cf6e2" class="wp-block-pullquote"><blockquote><p>Justice Kavanaugh recognized that government intervention has helped create the very polarization cited as a reason for government infringement.</p></blockquote></figure>



<p data-beyondwords-marker="d4f2923a-e4fc-4b43-b86f-6a3ae337c53b">Justice Antonin Scalia wrote the opinion for the court. He affirmed that “a corollary of the right to associate is the right not to associate.” He added that because of the central role nominees have in promoting the party’s message and obtaining political power, “In no area is the political association’s right to exclude more important than in the process of selecting its nominee.” As for the California law’s goal of changing the parties’ message, “We can think of no heavier burden on a political party’s associational freedom.”</p>



<p data-beyondwords-marker="a7c14a50-e5bd-40dc-9706-128e1fcafd7a">Justice Scalia next inquired whether the purposes behind the blanket primary law were “compelling.” He ruled that favoring moderates or centrists over alleged “extremists” is not a compelling state interest—or even a legitimate one. He also dismissed as non-compelling (1) the wish of non-party members to vote in the primaries of parties they refused to join and (2) the minimal reduction of privacy entailed in registering with a party. As for the law’s purported goal of promoting fairness, Scalia wrote that excluding non-members “seems to us less unfair than permitting nonparty members to hijack the party.”</p>



<p data-beyondwords-marker="14a427d8-7696-468a-b671-642d7b31e848"><strong><em>National Republican Senatorial Committee v. Federal Election Commission</em></strong><em></em></p>



<p data-beyondwords-marker="759750b6-036a-4eec-a1b5-dffcecaa199b">On June 30, the Supreme Court issued its decision in <em>National Republican</em>. The decision addressed the constitutionality of federal limits on expenditures coordinated between a candidate and his party. It ruled that those limits violated the First Amendment and overruled a 2001 case holding that they did not.</p>



<p data-beyondwords-marker="71d7f5bb-89a4-4c0c-ae99-4b7fbb8a84fd">Although <em>National Republican</em> did not address primary elections, much of its language is relevant to that subject. <em>National Republican</em> demonstrates that the Court remains committed to the values expressed in the <em>Jones</em> case, and perhaps even more so.</p>



<p data-beyondwords-marker="dca4436a-0a56-4e4e-8a03-36a097956c6c">Justice Kavanaugh began the relevant part of his opinion by observing that “The First Amendment’s protection of free speech has its ‘fullest and most urgent application precisely to the conduct of campaigns for political office.’” To address the severity of the campaign expenditure restrictions at issue, “one must first appreciate the important and traditional role of political parties during campaigns.”</p>



<p data-beyondwords-marker="bfe5c5fa-fcbc-4b97-839d-49c16f53c101">That role, he wrote, consists of three functions:</p>



<ol data-beyondwords-marker="7528adb5-cd04-4135-8e7e-305fd26c8404" class="wp-block-list">
<li data-beyondwords-marker="66551faa-3963-44d1-aca9-bf2e94b9a434">Parties “articulate policy positions and platforms,”</li>



<li data-beyondwords-marker="2f252b00-519c-43d3-90cd-3d920bb6e604">they select candidates by primary or caucus, and</li>



<li data-beyondwords-marker="90ba74ce-56f9-4361-b193-f936c219072b">they support their candidates in general election campaigns.</li>
</ol>



<p data-beyondwords-marker="15019f4f-8f18-45a4-8fd2-477f2c3f5dbb">Justice Kavanaugh then explained how the limits on coordinated expenditures severely impaired the ability of parties to perform the third of these functions. As Justice Scalia did in <em>Jones</em>, he next examined the purposes behind those limits to see if any were compelling.</p>



<p data-beyondwords-marker="809549a9-9391-49b3-9698-47ad06810627">In defense of the limits, the government offered four purposes. Justice Kavanaugh accepted only one as compelling: preventing actual or apparent quid pro quo corruption. As Justice Scalia did in <em>Jones</em>, he specifically rejected the principal stated goal of those advocating open and semi-open primary laws:</p>



<blockquote data-beyondwords-marker="98b7b6fd-4fe0-40e0-abb8-785f7f5908d5" class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
<p data-beyondwords-marker="8eab13ed-9d8e-4438-9f2f-4da42f0c6841">Nor may Congress restrict campaign spending so as to level the electoral playing field, or to enhance or diminish the relative influence of certain groups or views. … The “concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”</p>
</blockquote>



<p data-beyondwords-marker="fb06facf-1745-4681-b65c-d746c59a86bb">He also recognized that government restrictions on political parties have done much damage. In particular, they have facilitated the rise of billionaire-funded “dark money” PACs:</p>



<blockquote data-beyondwords-marker="2bf27729-6fd2-4cf6-8cdc-7a43f1100ab9" class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
<p data-beyondwords-marker="97ed6cb1-518e-4be4-becb-54f1b33585cf">Since 2001, political parties’ relative power has substantially diminished in comparison to outside groups. … The political-party coordinated-expenditure limits impose a “stifling effect on the ability of the party to do what it exists to do.” … Meanwhile, donors can and do send their funds to Super PACs and other outside groups that have a First Amendment right to receive and spend unlimited money to support their independent political speech. … In the 2024 election cycle, PACs raised over $15.7 billion, as compared to $2.7 billion by political parties. …</p>
</blockquote>



<blockquote data-beyondwords-marker="25775016-c038-4446-8f84-f4aa0e4c8965" class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
<p data-beyondwords-marker="0165e984-a770-4109-b848-666f993955ba">To uphold the political-party coordinated-expenditure limits here could therefore help consign political parties to continued second-tier status as compared to outside groups. Weakened political parties distort the political system. And in the views of many, the relatively diminished political parties have ushered in increased political polarization and fragmentation.</p>
</blockquote>



<p data-beyondwords-marker="ea9c488d-e4b1-4c4f-93cd-f04b8108071c">Thus<strong>, </strong>Justice Kavanaugh recognized that government intervention has helped create the very polarization cited as a reason for government infringement of political parties’ right of free association.</p>



<p data-beyondwords-marker="5833629a-7b40-49ac-9203-e58b53f55e08">In conclusion, <em>National Republican </em>and the cases challenging open and semi-open primaries—such as those now proceeding in Texas and Colorado—all address laws burdening parties’ core functions.</p>



<p data-beyondwords-marker="30dc3dde-15f8-4bab-afa8-7a588822f861">To be sure, they are different core functions: <em>National Republican </em>dealt with the function of candidate support, while challenges to open and semi-open primaries address candidate selection.</p>



<p data-beyondwords-marker="bb180869-04c6-4d14-be86-14ae911d3485">But it is difficult to see why the difference should matter—particularly since, as Justice Scalia wrote in the <em>Jones</em> case, “In no area is the political association’s right to exclude more important than in the process of selecting its nominee.” In other words, candidate selection is at least as important as candidate support.</p>



<p data-beyondwords-marker="b47d07d7-ffef-443f-b888-0bfde68e9bf3">So consistent application of the principles enunciated in <em>National Republican</em> should render open and semi-open primaries unconstitutional.</p>
<p>The post <a href="https://lawliberty.org/the-slippery-constitutionality-of-open-primaries/">The Slippery Constitutionality of Open Primaries</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></content>
		
			</entry>
		<entry>
		<author>
			<name>James Wallner</name>
					</author>

		<title type="html"><![CDATA[Diagnosing Congressional Dysfunction]]></title>
		<link href="https://lawliberty.org/diagnosing-congressional-dysfunction/" rel="alternate" type="text/html"/>

		<id>https://lawliberty.org/?p=78833</id>
		<updated>2026-09-21T13:25:51Z</updated>
		<published>2026-09-21T10:00:00Z</published>
		<category scheme="https://lawliberty.org/" term="Law &amp; Liberty Essays"/><category scheme="https://lawliberty.org/" term="Congress"/><category scheme="https://lawliberty.org/" term="James Wallner"/><category scheme="https://lawliberty.org/" term="Politics"/><category scheme="https://lawliberty.org/" term="science"/>
		<summary type="html"><![CDATA[<p>Americans are frustrated by politics. According to Gallup’s latest survey, just one in four are satisfied with the way things are going in the nation. Their dissatisfaction has stayed around 80 percent for most of this year, making the current mood among the most pessimistic Gallup has ever recorded. They are especially frustrated by Congress. [&#8230;]</p>
<p>The post <a href="https://lawliberty.org/diagnosing-congressional-dysfunction/">Diagnosing Congressional Dysfunction</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></summary>

					<content type="html" xml:base="https://lawliberty.org/diagnosing-congressional-dysfunction/"><![CDATA[
<p data-beyondwords-marker="0c40d773-f2ad-43ce-8cc8-1fbd12acb0ad">Americans are frustrated by politics. According to Gallup’s <a href="https://news.gallup.com/poll/1669/general-mood-country.aspx">latest survey</a>, just one in four are satisfied with the way things are going in the nation. Their dissatisfaction has stayed around 80 percent for most of this year, making the current mood among the most pessimistic Gallup has ever recorded.</p>



<p data-beyondwords-marker="8473ac31-7c52-4afc-8acb-667e4fb52387">They are especially frustrated by Congress. Only 10 percent of Americans approved of the way Congress was doing its job in Gallup’s <a href="https://news.gallup.com/poll/708722/disapproval-congress-ties-record-high.aspx">April survey</a>. Eighty-six percent disapproved, tying the highest disapproval Gallup has ever recorded for the institution.</p>



<p data-beyondwords-marker="c00f01ca-fd31-410d-8df4-37cb3e3307e7">Their frustration is understandable, especially given that they have witnessed extraordinary progress elsewhere in their lives. Americans’ dissatisfaction with Congress has deepened significantly since 2007—the year in which the iPhone made its debut. During the same period the pace of scientific discovery, technological advancement, and medical innovation has been remarkable. Scientists have photographed a black hole. Researchers have built artificial intelligence programs capable of doing things we once thought required human intelligence. And doctors have developed cancer treatments that harness a person’s immune system to attack tumors with increasing precision. Progress appears to be accelerating everywhere except in the House and Senate.</p>



<p data-beyondwords-marker="915874b7-8ff3-48fb-8677-ad02a0c35df9">Against that backdrop, Congress’s recurring inability to perform comparatively ordinary tasks is striking. Progressives elect lawmakers who support Medicare for All and wonder why Congress can’t enact it. Conservatives watch Republican majorities struggle to advance priorities like the SAVE America Act. Americans in the middle watch Congress repeatedly struggle to fund the government on time. The contrast invites an understandable question: if institutions elsewhere in American life can overcome seemingly impossible problems, why does legislating remain so difficult for the House and Senate?</p>



<p data-beyondwords-marker="4ee06276-8753-4c0a-a8ab-e1a7edc18793">Reformers respond to this frustration by treating Congress like a technical problem. They search for the political equivalent of a better operating system—the procedural rule, institutional arrangement, or electoral reform that will finally make lawmakers behave correctly. The result is a proliferation of sophisticated proposals: biennial budgeting, automatic continuing resolutions, fiscal commissions, redesigned committee structures, new floor procedures, larger congressional staffs, and reforms intended to help Congress reclaim policymaking authority from administrative agencies and the courts.</p>



<p data-beyondwords-marker="48ada95a-fd86-448b-9836-6cde26fe49ca">To be fair, these proposed reforms are designed to solve different problems. But they share the same underlying assumption that Congress’s persistent dysfunction is a technical problem susceptible to a technical solution.</p>



<p data-beyondwords-marker="059667a6-824c-4ca0-ad2f-1bdab5e61cf4">That assumption gets the problem backward. We can’t fix Congress by applying expertise to engineer outcomes because politics is not the source of its dysfunction. The effort to insulate Congress from politics is. What ails Congress isn’t too much politics. It is a way of thinking about politics that makes it unnecessary.</p>



<p data-beyondwords-marker="2e047b5b-62cc-46ba-b0cf-db8c395d10bf"><strong>The Scientification of Politics</strong></p>



<p data-beyondwords-marker="fbe5fa37-1ab1-463d-88ba-021256b2eb4a">Lawmakers and their constituents are creatures of their age. And the current age is dominated by science. Scientific thinking therefore influences how Americans understand the natural world and what they expect knowledge and decision-making to look like in the political world.</p>



<p data-beyondwords-marker="b11f71eb-177f-4ccc-a04f-c7f6352b0bb4">Science seeks increasingly exact knowledge about natural phenomena. Scientists make assertions and then test them against observable evidence to verify or falsify them. Mistaken assertions are discarded. Successful ones become the basis for further inquiry. And knowledge accumulates over time.</p>



<p data-beyondwords-marker="e897ccb6-f0a6-4db5-af40-f07095d114e0">This method works extraordinarily well when the object is the natural world. The problem arises when Americans expect politics to work the same way.</p>



<p data-beyondwords-marker="34ef34e7-ba9e-462e-9542-ca86cb18a3ef">The scientification of politics does not mean that politicians suddenly became certain of themselves or that lawmakers should ignore expertise. It describes the tendency to treat political disagreements as if they were technical questions with objectively correct answers that can be discovered independently of the political process.</p>



<p data-beyondwords-marker="53e50cd2-bfea-457e-8a6a-6adf1232db00">That tendency is evident in the way political arguments are framed today. Lawmakers do not merely argue that they prefer their policies to their opponents’ policies. They often invoke authoritative studies, empirical models, and expert consensus to argue that their preferred policies are demonstrably correct.</p>



<p data-beyondwords-marker="af454209-ad8d-4554-b4c2-dd482ddb6239">Expert analysis itself is not the problem. Lawmakers have used—and will continue to use—evidence to support their policy arguments. And they routinely rely on the expertise of institutions like the Congressional Research Service and the Congressional Budget Office to inform their deliberations. The problem arises when evidence is treated as capable of resolving the political judgment that remains after the factual questions have been considered.</p>



<p data-beyondwords-marker="b4fe1662-64b5-45ba-bb96-70de38f72983">Legislative deliberation becomes a liability when that distinction disappears. If one side in a debate understands itself as possessing the objectively correct answer, there is little reason to engage, much less bargain, with opponents other than to compel their acquiescence. When the correct answer is already known, compromise looks like error and delay appears irresponsible. Conflict ceases to be the medium through which a free people governs itself and becomes instead a pathology to be cured.</p>



<figure data-beyondwords-marker="6e977284-a940-4eca-a6a9-0e4503849e4f" class="wp-block-pullquote"><blockquote><p>The more problematic reforms are those aimed at removing disagreement from the legislative process altogether.</p></blockquote></figure>



<p data-beyondwords-marker="cce285f0-f36f-423e-82ce-4cd701f8d9fa">Moreover, this is not simply polarization. Polarization describes the distance between political positions. The scientification of politics describes how lawmakers understand their disagreement. Two legislators can disagree intensely and still bargain if each recognizes the other as a political equal pursuing a legitimate end. Bargaining becomes much harder when one understands the disagreement as a contest between truth and ignorance. Politics then begins to resemble administration, or the application of expertise to a problem to solve it.</p>



<p data-beyondwords-marker="91644f77-a721-4daa-84de-2d2c900b7c5b">The temptation is ancient. Plato’s <em>Republic</em> entrusts rule to philosopher-kings because they have escaped the cave and apprehended truths inaccessible to those who remain inside it. But Plato’s city is not a self-governing republic. It is a rulership. The philosopher-kings do not practice politics in the American sense. They administer what they know to be true to achieve intended outcomes.</p>



<p data-beyondwords-marker="7f8195ad-def4-4e6a-a5ef-ed23a0aa94f5"><strong>Political Judgment Is Different</strong></p>



<p data-beyondwords-marker="e7082949-f494-4190-8cdc-2aa11c447d29">Scientific thinking cannot fix Congress because political judgment does not work the same way as scientific fact. For example, consider the proposition that the sun rises in the east. Its validity does not depend on whether Democrats and Republicans agree. Political activity adds nothing to its truth. It remains true whether Congress votes on it or not.</p>



<p data-beyondwords-marker="4c8408e3-7f23-4e57-8fd1-72b7cff4889b">Now consider the proposition that the minimum wage should be $15 an hour or that carbon emissions should be reduced by a specified amount. Science can inform lawmakers about the likely consequences of those choices. That is, economists can estimate the effects of raising the minimum wage on employment. And climate scientists can model future warming and make forecasts based on the amount of carbon in the atmosphere. But neither group of experts can tell Americans and their elected representatives whether they believe that the expected benefits of a policy justify its costs or how to prioritize competing policy demands.</p>



<p data-beyondwords-marker="2975e096-db68-42e3-ac78-db7c3f0fe179">Those are political judgments. They do not exist independently of politics waiting to be discovered by experts. They emerge from the activity of citizens and their representatives adjudicating their disagreements and deciding what they are willing to do together.</p>



<p data-beyondwords-marker="3f75a073-42c9-40a9-91cb-32d942a3dc07">That is why political legitimacy differs from scientific legitimacy. Scientific legitimacy results from the method used to establish whether an assertion is valid. Political legitimacy arises out of an activity in which political equals deliberate, bargain, negotiate, and make collective decisions despite their continuing disagreement. Politics is unnecessary where genuine consensus already exists. But it is needed when people disagree and no one has authority to make a final decision unilaterally.</p>



<p data-beyondwords-marker="47adabe2-4630-4f4c-b2ee-c2bf8c02a888">Politics is therefore needed to make compromise possible. Its disagreement creates the conditions that result in compromise. Participants in public debates do not have to agree about the truth of every proposition before acting together to adopt it. Each may retain his own understanding of what the outcome should be and still accept an outcome that they would not have chosen at the outset.</p>



<p data-beyondwords-marker="fd00ca9a-f24d-4cec-9597-8cb96b29c0ad">Congress’s dysfunction stems from the loss of this understanding among lawmakers and many of their constituents. Lawmakers increasingly avoid the conflict and uncertainty inherent in legislative politics and instead substitute stage-managed proceedings designed to keep them at bay and produce predictable results. Reformers outside Congress who advocate for procedural silver bullets reflect the same impulse. Both groups assume that the right mechanism, properly designed, can eliminate the need for difficult political choices.</p>



<p data-beyondwords-marker="b5093401-01f2-43fd-966d-ccffd4c55b69">Institutional design matters. The Constitution demonstrates that. But institutions should facilitate political activity, not substitute for it.</p>



<p data-beyondwords-marker="65fdc0b4-9a20-47ad-99f5-94196934c0ed">That does not mean that procedural reform itself is useless. Rather, it means that reforms aimed at making the legislative process more fluid and participatory can reduce Congress’s dysfunction more than those seeking to make it more efficient. Procedural reforms that give lawmakers a space to adjudicate their disagreements by offering amendments and forcing votes on issues in committees and on the House and Senate floors are needed to create the institutional conditions needed for Congress to work.</p>



<p data-beyondwords-marker="2f3cfe8a-d9b8-4536-b61d-bc65802056bf">The more problematic reforms are those aimed at removing that disagreement from the legislative process altogether, like putting government funding on autopilot and delegating difficult choices to experts and commissions. The critical question is not whether a reform makes Congress more efficient at producing certain policy outcomes. It is whether a reform helps lawmakers engage in the debate over what those outcomes should be in the first place.</p>



<p data-beyondwords-marker="dd783425-3941-48c6-b98d-c77f13cbd242"><strong>Congress Needs More Politics</strong></p>



<p data-beyondwords-marker="534a68dd-b10f-497d-bba3-288e46833978">The Constitution’s separation of powers and bicameral legislature depend on diversity and disagreement to function. James Madison understood the extended republic to be an advantage because it contained people with different interests, passions, and opinions. That activity matters because no one lawmaker can determine the public good by themselves. The imperative of politics requires them to confront their colleagues’ perspectives instead of ignoring them. Compromise reflects something no individual participant possessed at the outset—a broader understanding about what the public wants and will tolerate</p>



<p data-beyondwords-marker="fb4844a5-0e6d-44e9-9bee-38861dc2f004">None of this is efficient in the scientific sense.</p>



<p data-beyondwords-marker="9b49ff40-32c7-4763-a322-60af95136f91">Politics is unpredictable. It takes time. It often produces outcomes no expert would have designed in advance. But that is not evidence of its failure. It is an inevitable consequence of governing ourselves. The scientification of politics obscures this reality. It encourages lawmakers to understand their task as discovering the objectively correct policy and ensuring its efficient implementation. When agreement on that policy proves impossible, Congress does nothing.</p>



<p data-beyondwords-marker="51414c64-61dc-4e7e-8a68-e09502fbda2c">Congress is not supposed to operate like a scientific laboratory or factory. Its purpose is to provide a place where Americans, through their elected representatives, confront their disagreements and decide what they are willing to do together in the name of the public good. Scientific expertise can tell lawmakers a great deal about the world in which they make those decisions. It can’t make those decisions for them.</p>



<p data-beyondwords-marker="9680dfe4-4d71-4efa-bc68-27351bb395f6">That distinction points toward a different standard for congressional reform. Congress should not be judged primarily by whether it produces predetermined outcomes more efficiently. Reforms should instead be judged by whether they make it easier for lawmakers to participate meaningfully in the process—to debate and amend legislation—and compromise.</p>



<p data-beyondwords-marker="cdccbc55-ef45-4bc6-acb2-5215dcfb1450">Americans are right to be frustrated when Congress fails to act. But they misunderstand the problem if they assume Congress doesn’t act primarily because it lacks the right procedure or sufficient technical expertise.</p>
<p>The post <a href="https://lawliberty.org/diagnosing-congressional-dysfunction/">Diagnosing Congressional Dysfunction</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></content>
		
			</entry>
		<entry>
		<author>
			<name>Elizabeth Grace Matthew</name>
					</author>

		<title type="html"><![CDATA[The Tangled Legacy of Gloria Steinem]]></title>
		<link href="https://lawliberty.org/the-tangled-legacy-of-gloria-steinem/" rel="alternate" type="text/html"/>

		<id>https://lawliberty.org/?p=78754</id>
		<updated>2026-09-14T18:39:22Z</updated>
		<published>2026-09-18T10:01:00Z</published>
		<category scheme="https://lawliberty.org/" term="Law &amp; Liberty Essays"/><category scheme="https://lawliberty.org/" term="Disney"/><category scheme="https://lawliberty.org/" term="Elizabeth Matthew"/><category scheme="https://lawliberty.org/" term="Feminism"/><category scheme="https://lawliberty.org/" term="Gloria Steinem"/><category scheme="https://lawliberty.org/" term="Jill Filipovic"/><category scheme="https://lawliberty.org/" term="little women"/><category scheme="https://lawliberty.org/" term="Lousa May Alcott"/><category scheme="https://lawliberty.org/" term="Second-Wave Feminism"/><category scheme="https://lawliberty.org/" term="The Little Mermaid"/>
		<summary type="html"><![CDATA[<p>Jill Filipovic has written perhaps the most incisive—and, not unrelatedly, most personal—of many tributes to the recently deceased Gloria Steinem. Filipovic rightly credits Steinem as the founding mother of second-wave feminism. The driving ambition of that movement was to help every woman “do what she wants to do with her life,” not just in the [&#8230;]</p>
<p>The post <a href="https://lawliberty.org/the-tangled-legacy-of-gloria-steinem/">The Tangled Legacy of Gloria Steinem</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
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					<content type="html" xml:base="https://lawliberty.org/the-tangled-legacy-of-gloria-steinem/"><![CDATA[
<p>Jill Filipovic <a href="https://www.throughline.news/p/glory-to-the-greatest">has written</a> perhaps the most incisive—and, not unrelatedly, most personal—of many tributes to the recently deceased Gloria Steinem. Filipovic rightly credits Steinem as the founding mother of second-wave feminism. The driving ambition of that movement was to help every woman “do what she wants to do with her life,” not just in the sense of offering adult agency but also in the sense of militating against the interdependency of traditional family life. By any measure, this regnant iteration of feminism has accomplished its end.&nbsp;</p>



<p>This has been to the great and grave detriment of women and of society more broadly.&nbsp;</p>



<p>Not because it’s bad to offer women the legal and cultural respect due full persons and citizens. And not because it’s wrong to accord women the same personal agency and moral responsibility accorded to men. These objectives, common to both <a href="https://undpress.nd.edu/9780268200824/the-rights-of-women/">nineteenth-century proto-feminism</a> and Steinem’s <a href="https://www.nationalreview.com/2026/09/gloria-steinems-legacy-is-a-rejection-of-womanhood/">twentieth-century feminism</a>, are good and right. <a href="https://www.dailywire.com/news/the-real-legacy-of-gloria-steinem">Steinem’s critics</a> are largely right about her troubled legacy more broadly, but that does not make their antifeminist worldview defensible or correct.</p>



<p>The problem is that Gloria Steinem’s iteration of feminism, and the popular women’s culture for which it was the catalyst, militates foundationally <em>against</em> the aim of women’s full and equal dignity.</p>



<p>Filipovic rightly argues that Steinem’s legacy is inextricable from her early life choices. Upon finding herself unexpectedly pregnant at 23, she left her engagement ring under her fiancé’s pillow, obtained an illegal abortion, and spent her life fighting for other women to be able to legally do the same. This fork-in-the-road moment, Filipovic contends, evinces Steinem’s extraordinary bravery. From her perspective, today’s women should be grateful to the late Steinem for leaving us a society in which women less brave than Steinem (Filipovic self-effacingly numbers herself among these) are nevertheless able to achieve self-determination through abortion access and broader norms that treat marriage and motherhood as morally neutral lifestyle choices.&nbsp;</p>



<p>Since we’re purportedly talking about women’s rights to legal and cultural equality with men, this question is worth asking: What do we think of a man who abandons his fiancée and child in service of his own fledgling ambitions? Words like selfish, shallow, and infantile come to mind. Indeed, the misogynistic manosphere, rightly deplored by progressive feminists like Filipovic, is filled with stories of faux-macho neo-bums celebrating exactly this kind of banal self-centeredness. When men evince solipsistic irresponsibility, we justly deem it immoral and unseemly. When women do the same, we’re supposed to consider it empowered, brave, and heroic.&nbsp;</p>



<p>Talk about the soft bigotry of low expectations.&nbsp;</p>



<p>Unfortunately, thanks in large part to Steinem’s exceptional wit and charm, a patronizing, sexist view of women and female heroism came to define our popular culture for generations of American girls. Moreover, we’ve made it seem falsely axiomatic that women (unlike men) should pay neither a personal nor a societal price for the moral relativism and ultimate nihilism of simply “doing what I want with my life.”&nbsp;</p>



<p><strong>What a Girl Wants&nbsp;</strong></p>



<p>When Disney released <em>The Little Mermaid</em> in 1989, I was two years old. It was my first favorite film, and I dressed up as Ariel for multiple preschool Halloweens. I was far too young, of course, to understand that Ariel, whose great ambition is to see the human world above the sea, is an appalling “heroine.” Steinem would no doubt acknowledge some of the reasons: She gives up her own life and even her <em>literal voice</em> to tag along after some random dude. </p>



<p>More importantly, though, in Disney’s version of <em>The Little Mermaid</em>, Ariel’s ambition <em>itself</em> is paltry and selfish. Facile defiance of convention (“stay in the ocean and marry a nice young merman”) is the sum total of Ariel’s character—and her appeal to Disney’s impressionable audience. She evinces no other regard, maturity, or responsibility. Thus, the lionization and ultimate triumph of her shallow goal accords entirely with Steinem’s worldview as elucidated by Filipovic: Women who do anything other than what “the patriarchy” expects are laudable for that reason alone, regardless of what it is that they do or why.&nbsp;</p>



<p>As I’ve rewatched the rest of the modern Disney classics with my children over the past decade, I have noticed that Ariel is far from alone. The Disney princesses I grew up on are a collection of knock-off Steinems: The thing that unites Ariel, Belle, Jasmine, and Pocahontas, for example, is an amorphous dream of escape—and the viewers’ presumptive admiration for them on those flimsy grounds alone. Some of these cartoon protagonists are, of course, more sympathetic than others: Yes, Gaston and Jafar are toxic males surely worth escaping, whereas Pocahontas’ father and prospective fiancé deserved a lot better than her insouciant defection to some dangerous invader. But, in every case, a vague yearning to “live the life I want” predates these specifics.</p>



<figure class="wp-block-pullquote"><blockquote><p>When no personal ambition or contribution is universally understood to be more important than any other (or, worse, when the low is considered high and vice versa), relativistic restlessness plants the seeds of mass discontent.&nbsp;</p></blockquote></figure>



<p>Revealingly, this is <em>not</em> how Disney portrays heroism for males. <em>The Lion King</em>’s Simba earns his heroism not by embracing the carefree “life I want,” his family and their expectations be damned, but by going through all the self-sacrificial trouble of returning to Pride Rock to fight for his place as king.&nbsp;</p>



<p>Indeed, the only modern Disney film in which women and men are truly accorded full and equal dignity might be <em>The Princess and the Frog</em> (2009). Play-boy Prince Naveen is living Gloria Steinem’s feminist dream: Doing whatever he wants without regard for anyone else. But because he’s male instead of female, he and his behavior are positioned as needing reform; only with and via self-discipline and self-sacrifice can Naveen live a life worthy of the name. Meanwhile, the waitress-turned-princess, Tiana, hailing from Black New Orleans, begins with a dream of owning a restaurant that is, unlike the selfish longings of her predecessors, infused with a sense of responsibility to her father’s legacy and her own upward mobility. Yet even Tiana, despite her comparatively worthy ambition, must learn that—per her mother’s admonitions—no amount of individual success can replace love, and its promise of responsibility to a broader family and community.&nbsp;</p>



<p>Apparently, the infantilizing faux-heroism of “doing what I want with my life,” for which we are supposed to admire Steinem, popularly applies only to pretty, feminine, white or white-coded women. For everyone else, a reality principle and some regard for others are considered inextricable from both morality and maturity.&nbsp;</p>



<p>As well as from real happiness.&nbsp;</p>



<p><strong>What A Girl Needs</strong></p>



<p><a href="https://substack.com/@theworkofwomen">Emily Hancock</a> has written about finding herself, like Steinem, unmarried and unexpectedly pregnant in her early 20s. Unlike Steinem, she carried, birthed, and supported her baby alone. She grew up fast. There probably wasn’t a lot of time left over to muse about self-actualization. Today, in her mid-30s, Hancock is raising that daughter of her youth (now a teen) alongside the three younger children born within her marriage.&nbsp;</p>



<p>There is something wrong at the heart of an ideology that views Hancock’s life of unforeseen family obligation as a fate best avoided via abortion access and Steinem’s perpetual freedom from domestic care as an aspirational achievement.&nbsp;</p>



<p>That partly explains why women (and <em>especially</em> <a href="https://www.thefp.com/p/why-the-mental-health-of-liberal">liberal women</a>), our plethora of choices notwithstanding, are <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1412278">less happy</a> and <a href="https://mhstats.org/women/anxiety/">more anxious</a> than women in earlier generations. When no personal ambition or contribution is universally understood to be more important than any other (or, worse, when the low is considered high and vice versa), relativistic restlessness plants the seeds of mass discontent.&nbsp;</p>



<p>To be sure, no one should begrudge Filipovic her own outsized professional success and <a href="https://onlinelibrary.wiley.com/doi/full/10.1002/ajhb.70037?msockid=276ea630313f63782db6b38e30b46280">delayed motherhood</a>, with which she credits Steinem. There are downsides, though, to a world where more women behave like Filipovic than like Hancock. Such a society is hollowed, not only in terms of <a href="https://www.npr.org/2026/04/09/nx-s1-5779627/birthrate-united-states-babies-immigration">population</a>, but also in terms of <a href="https://lawliberty.org/book-review/the-progressive-case-for-parenthood/">values</a>. For one thing, <a href="https://www.babycenter.com/getting-pregnant/preparing-for-pregnancy/age-and-fertility-getting-pregnant-in-your-40s_1494699">40-something motherhood</a> is not an option for everyone; a nontrivial percentage of women who intend to become mothers at that age are ultimately not able to do so. Moreover, many women celebrating their comparatively carefree lives as the fruit of Steinem’s legacy are neatly avoiding one omnipresent reality: For every “doing what I want with my life,” there is a counterfactual. Not just for the ostensibly repressed mothers of several like Hancock (and me), but also for Steinem’s allegedly empowered heirs.&nbsp;</p>



<p>In Louisa May Alcott’s 1868 literary classic <em>Little Women</em>, Civil War-era mother of four “Marmee” tells her second-born daughter, Jo: “You I leave to enjoy your liberty till you tire of it; for only then will you find that there is something sweeter.” But in the 1994 film, the line is “updated” to: “Go, and embrace your liberty. And see what wonderful things come of it.”</p>



<p>This is the lie that Steinem and her acolytes sold to women: There is nothing sweeter than the perfect freedom defined as a lack of responsibility to others.&nbsp;</p>



<p>The proto-feminist Alcott, of course, knew better. She wrote whole, complex, and nuanced female characters who were formed and chastened by self-sacrifice and responsibility <em>precisely because </em>she recognized that women and men are both worthiest and happiest (not in the hedonistic sense, but in the holistic one) when they willingly bear the burden of others’ needs. In updating John Bunyan’s 1678 male-centric Christian allegory, <em>A Pilgrim’s Progress</em>, to reflect the work of family life rather than the dangers of a literal pilgrimage, Alcott made a case for the seriousness of women’s character formation and moral agency.&nbsp;</p>



<p>Nor did she exempt men from that moral agency or its domestic manifestations. In <em>Little Women</em>, the main male character—<em>just like</em> the female ones—achieves maturity and respectability precisely by moving past “doing what I want” to embrace a life of responsibility to others.&nbsp;</p>



<p>This is the same point that Frank Capra makes, even more pointedly, in the 1946 Christmas classic, <em>It’s A Wonderful Life</em>. Protagonist George Bailey is discontented and miserable throughout most of the film because he never got to live the life of travel and wealth that he wanted. Instead, he took over his father’s business; got married; fathered four children; and lived with integrity and (resentful!) other-regard. The moral of the story, of course, is that George’s modest life of service to his family and community is far more wonderful—not just in its impact (though that is true), but<em> also</em> in his experience of it—than whatever he imagined for himself absent those burdens and responsibilities.</p>



<p>Someone needs to produce a modern remake of It’s <em>A Wonderful Life</em>, only with a female protagonist. Perhaps she could have a story like Hancock’s, but be paralyzed by resentment like George.&nbsp;</p>



<p>In some scene that portrays her misplaced regret—before she learns her lesson and embraces both the value and the joy of her own self-sacrifice—she would be reading something by Gloria Steinem.</p>
<p>The post <a href="https://lawliberty.org/the-tangled-legacy-of-gloria-steinem/">The Tangled Legacy of Gloria Steinem</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
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			</entry>
		<entry>
		<author>
			<name>Paul Mueller</name>
					</author>

		<title type="html"><![CDATA[Making Economics Humane Again]]></title>
		<link href="https://lawliberty.org/making-economics-humane-again/" rel="alternate" type="text/html"/>

		<id>https://lawliberty.org/?p=78685</id>
		<updated>2026-09-15T16:17:32Z</updated>
		<published>2026-09-17T10:01:00Z</published>
		<category scheme="https://lawliberty.org/" term="Law &amp; Liberty Essays"/><category scheme="https://lawliberty.org/" term="Adam Smith"/><category scheme="https://lawliberty.org/" term="economics"/><category scheme="https://lawliberty.org/" term="F. Scott Fitzgerald"/><category scheme="https://lawliberty.org/" term="Great Gatsby"/><category scheme="https://lawliberty.org/" term="J.D. Vance"/><category scheme="https://lawliberty.org/" term="Paul Mueller"/><category scheme="https://lawliberty.org/" term="postliberalism"/><category scheme="https://lawliberty.org/" term="St. Paul"/><category scheme="https://lawliberty.org/" term="Virtue"/>
		<summary type="html"><![CDATA[<p>The American vice-president, among others, is no great fan of global trade. He has criticized Margaret Thatcher, Milton Friedman, and the Wall Street Journal editorial board, suggesting that economic prosperity and growth might be overrated if they require America to be deeply enmeshed in global markets. Postliberals as a group have made no secret of [&#8230;]</p>
<p>The post <a href="https://lawliberty.org/making-economics-humane-again/">Making Economics Humane Again</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
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<p data-beyondwords-marker="dcb085ed-e9ea-47e7-98d7-4dee955eba11">The American vice-president, among others, is <a href="https://www.cato.org/commentary/vice-president-jd-vances-economic-confusion-about-milton-friedman">no great fan</a> of global trade. He has criticized Margaret Thatcher, Milton Friedman, and the <em>Wall Street Journal</em> editorial board, suggesting that economic prosperity and growth might be overrated if they require America to be deeply enmeshed in global markets.</p>



<p data-beyondwords-marker="42237003-5848-4fb3-85f7-2c335c26a4e4">Postliberals as a group have made no secret of the fact that they view mainstream economics as inhumane with its focus on consumption and GDP growth. Sometimes their arguments are questionable, but it’s true that modern economics has a way of embracing a flat, utilitarian view of the world, sometimes pushing that view into realms where it doesn&#8217;t belong.&nbsp;</p>



<p data-beyondwords-marker="c1df9b8a-8dc4-4bbe-9c90-aa710e87a33e">But should economists incorporate concerns about virtue, ethics, and happiness into their economic theory? Yes, but this question is more difficult than it appears. The issue is not whether ethics matter, but whether ethics should shape economic models themselves or merely how those models are applied.</p>



<p data-beyondwords-marker="b6fb03cf-63b9-4a9d-9992-d4bc3250a461">Modern economics prizes value-neutrality. Economists fear that introducing moral judgments will undermine foundational concepts like the positive-normative distinction, subjective value, and rational choice theory. After all, natural economic laws operate regardless of personal virtue: demand curves slope downward, incentives drive behavior, and binding price ceilings generate shortages. Keynesians, Austrians, and Supply Siders (as well as utilitarians, virtue ethicists, and Kantians) recognize this.</p>



<p data-beyondwords-marker="e9c11c03-cdb5-4416-8dd2-b037357da6c1">So why should economists attempt to incorporate conceptions of virtue, ethics, and happiness into their work?&nbsp;</p>



<p data-beyondwords-marker="81fe7e6a-a58f-4a92-9da9-b932025e5ca4">Because doing so will make them better economists <em>and</em> extend the applicability and persuasiveness of their work. Adam Smith considered moral questions foundational to economic inquiry. Modern practitioners should too. The <a href="https://www.amazon.com/dp/1316648818?lv=shuf&amp;channelId=500&amp;plpRedirect=mhFallback"><em>Humanomics</em></a> developed by Vernon Smith, Bart Wilson, and Deirdre McCloskey, among others, attempts to recapture Smith’s approach. And before you pillory me for licensing economists to pontificate on ethics they are ill-equipped to handle, hear me out.&nbsp;</p>



<p data-beyondwords-marker="5d01074f-382c-49f9-a6c9-9e5cb2edd27b">Many economists apply subjectivism too broadly. They treat a preference for vanilla over chocolate identically to a preference for pornography over marriage. But should unconstrained utility maximization serve as our societal north star? Consider the case of homelessness. Does leaving individuals free to systematically destroy themselves with hard drugs on public streets maximize their utility (or anyone else’s who isn’t paid to provide “services” to the homeless)?&nbsp;</p>



<p data-beyondwords-marker="0e1bf406-87fd-4540-8c92-96a77517357e">While there is obviously complexity to homelessness, the main problem for most homeless people seems not to be a lack of purchasing power, but a broken utility function. Giving homeless people more money to spend on things they desire is unlikely to improve their material, emotional, social, or spiritual wellbeing over time. Nor is this only an issue for the homeless—most people who struggle with relational poverty, depression, and other sources of dissatisfaction will find that improving their financial situation, by itself, does relatively little to improve their flourishing.</p>



<p data-beyondwords-marker="3c2c8088-91f7-4be6-b15d-c9ddbd4c059c">But economists’ broad application of subjectivism collapses ethics into moral relativism or a tacit, unexamined utilitarianism. While Adam Smith was surely in favor of increasing people’s productivity, wealth, and opportunities to consume, he was no utilitarian. He anchored economic life in justice and human flourishing.&nbsp;</p>



<figure data-beyondwords-marker="0b40d3a3-9483-42f0-84bb-ae23453e034e" class="wp-block-pullquote"><blockquote><p>Philosophical economics seeks to make <em>sense</em> of technical analysis and to determine <em>when</em> and <em>how</em> to use it.</p></blockquote></figure>



<p data-beyondwords-marker="7f1bf8e1-71ee-49b5-863a-7aa8e7cf32f7">Methodological purists might dismiss these concepts as “unscientific” and therefore outside the bounds of economic theory.&nbsp;Yet while a narrow “technical” economic theory can help us avoid mistakes, it does little to help us achieve human flourishing. As both Alfred Marshall and John Maynard Keynes recognized, pure economic theory offers minimal guidance for policy without ethical judgment.</p>



<p data-beyondwords-marker="75fb8c42-f58a-405e-8d96-8023d9c446be">Still, many excellent economists, from Friedman to Stigler to Becker to Mises, thought narrow, technical economics was more objective, scientific, and powerful. But even as Adam Smith cheered the expansion of wealth, he warned that some types of consumption can lead to <em>unhappiness</em> if they cut against virtue. He would reject the narrowing of economic “science” to value-neutral optimization and trade-offs that ignore<em> </em>broader moral considerations of how human beings flourish.</p>



<p data-beyondwords-marker="be7f9bd9-b299-4d93-969f-34b267f3e41d">Modern technical economics—built on constrained optimization, regression analysis, and parsimonious models—excels at analyzing trade-offs: firms maximize profits, price increases reduce quantity demanded, and taxes generate deadweight loss. These mechanics require no theory of virtue. As Mises <a href="https://oll.libertyfund.org/pages/mises-on-human-action">wrote</a>, “economics deal[s] with the means for the attainment of ends chosen by the acting individuals. [It does] not express any opinion with regard to such problems as whether or not sybaritism is better than asceticism. … Any examination of ultimate ends turns out to be purely subjective and therefore arbitrary.”&nbsp;</p>



<p data-beyondwords-marker="dd951504-e185-4f56-88fa-a0c450390622">This value-neutral optimization represents a sharp break from older traditions. Modern economic theory routinely <a href="https://www.taylorfrancis.com/chapters/edit/10.4324/9781315737195-31/adam-smith-views-consumption-happiness-paul-mueller">strips</a> behavior of its moral context, treating preferences as neutral data: “Gary Becker and George Stigler (1977) argue that people’s preferences should be taken as given so that the economist can focus on evaluating their means, not their ends. Normative judgments have no place in the ‘science’ of economics and explanations of economic phenomena by preferences are no explanations at all.”</p>



<p data-beyondwords-marker="3dc8c66c-a6b1-4da6-aa36-b9e37363d474">These economists would suggest that, given value-neutral utility functions, people can be made better off by increasing their income and thereby their consumption choices. But as Hayek said, while “the physicist who is only a physicist can still be a first-class physicist and a most valuable member of society[,] … nobody can be a great economist who is only an economist—and I am even tempted to add that the economist who is only an economist is likely to become a nuisance if not a positive danger.&#8221;&nbsp;</p>



<p data-beyondwords-marker="d0ba2c68-fe0e-4c24-9508-f83ad98e25b6">“Philosophical” economics situates human behavior within the broader reality of social life and human flourishing. Rather than taking preferences for granted, it examines how institutions, narratives, and moral commitments shape what individuals actually value. Where technical economics shows how agents allocate means to achieve given ends, philosophical economics asks whether those ends promote genuine well-being. Philosophical economics seeks to make <em>sense</em> of technical analysis and to determine <em>when</em> and <em>how</em> to use it.</p>



<p data-beyondwords-marker="12d2c633-77c3-464f-8546-424cd7bced5b">A novel like <em>The Great Gatsby</em> illustrates why relaxing budget constraints does not guarantee greater happiness. It describes how desperately unhappy incredibly wealthy people can be. It seems clear that their situation will not improve by increasing their wealth (and thereby their consumption). Their unhappiness does not stem from overly tight budget constraints, but from something deeper—a problem of dissatisfaction and lack of joy—disconnected from their consumption or wealth.</p>



<p data-beyondwords-marker="0881b9bc-ee68-4ea9-8bd8-a0c257057a6b">The Great Gatsby Problem exposes the structural limits of a utility-maximization framework. Gatsby and his friends do not suffer from a budget constraint problem; they suffer from a utility function problem which is connected to deficiencies in their character. In fact, inasmuch as wealth extends our capacity to act in the world, it can <em>amplify </em>disordered passions and pursuits. Can economists offer anything of value to these folks?</p>



<p data-beyondwords-marker="f4fb1873-1725-42bc-89d2-dcc4fe26e23a">Smith warns that those who blindly pursue wealth and success, only to discover that: “wealth and greatness are mere trinkets of frivolous utility …. enormous and operose machines contrived to produce a few trifling conveniencies to the body … ready every moment to burst into pieces, and to crush in their ruins their unfortunate possessor.”</p>



<p data-beyondwords-marker="552f44ea-9ef9-448d-a4a0-e3c48b35aff5">They do not realize that: “Happiness consists in tranquillity and enjoyment. Without tranquillity there can be no enjoyment; and where there is perfect tranquillity there is scarce any thing which is not capable of amusing …. the pleasures of vanity and superiority are seldom consistent with perfect tranquillity, the principle and foundation of all real satisfactory enjoyment.”</p>



<p data-beyondwords-marker="546ffb11-72e5-42c9-ac5b-e916697a5d43">The Great Gatsby Problem is not merely some esoteric literary metaphor. It diagnoses a core pathology of modernity—widespread discontent in the face of unprecedented material abundance. Granted, material life has become more convenient: smartphones summon delivery drivers to our doors, global travel is accessible, food is abundant, and modern homes are larger than ever. But a casual survey of the wealthiest humans in history reporting record levels of loneliness and depression suggests that Fitzgerald put his finger on a very real phenomenon.</p>



<p data-beyondwords-marker="73deb9ed-f852-406a-824a-b85ea35e4682">Life is clearly better now according to indicators of material wealth like GDP growth, record stock market highs, increasing per capita income, and increasing per capita wealth. Yet those arguments generally fail to resonate when people struggle with the content of their utility functions more than the limits of their wallets. Wealth does not provide meaning. As Joseph Schumpeter put it: “the stock exchange is a poor substitute for the Holy Grail.”</p>



<p data-beyondwords-marker="6e1be737-b9eb-4a4b-9ddb-6008faa54a54">Colloquially speaking, we suffer from lifestyle inflation. Despite being objectively wealthier than most people in history, and even most people living just 50 years ago, many today <em>feel </em>poorer when it comes to their life: not having a house or being married or having children. But these are the result of people’s shifting priorities and changing cultural dynamics rather than economic constraints. I’m suggesting that people would get married earlier and have children earlier if they had different priorities, not if they had higher pay or a better job.&nbsp;</p>



<p data-beyondwords-marker="20c0ce83-9504-4f1a-935e-17d5687f59cd">Gatsby&#8217;s problem was never his budget constraint. He had already solved that. His problem was that no amount of green light, glittering parties, nor even a reinvented self, could give him what he actually wanted, because he never stopped to ask whether the object of his desire was worth having. Economists can explain how markets and trade made Gatsby. They have far less to say about why he was unhappy.&nbsp;</p>



<p data-beyondwords-marker="bcceee99-fd14-47aa-bdbf-309b16c9922d">Another problem for a narrow technical economics is that human beings do not have a simple, clearly defined set of tastes and preferences. Their desires are sometimes kaleidoscopic—seemingly changing, not based on diminishing marginal utility, but on their mood. Unstable preferences make a mess of our models of constrained optimization. They also raise vital questions about how external environments shape internal appetites.</p>



<p data-beyondwords-marker="7089f2b1-d50a-456d-9743-46972f71eeb7">We also have preferences <em>about </em>our preferences—metapreferences. You might wish to be different than you are. Most of us would like to be more physically fit. We wish we liked exercising more and enjoyed eating unhealthy food less. Yet we may also choose to eat a bunch of potato chips or donuts in a given moment, then wish we hadn’t. So, people can dislike their preferences—that is, they dislike what they like. Several difficulties arise for technical economics when it comes to metapreference theory.</p>



<figure data-beyondwords-marker="81ea0250-d78f-478e-ada8-649b1afb7df5" class="wp-block-pullquote"><blockquote><p>Economics remains indispensable for checking misguided, utopian policies.</p></blockquote></figure>



<p data-beyondwords-marker="9505f33b-42ea-461d-857d-b1e8ef438fc0">One difficulty is that metapreferences quickly become recursive. Not only do we have preferences <em>about</em> what we like (our first-order preferences), but we can also have preferences <em>about</em> our preferences regarding our first-order preferences. You might prefer to be the kind of person who valued exercise highly and unhealthy food little, but you might also wish you were the kind of person who had <em>that preference</em> about your exercise and eating preferences. You wish that you cared enough about getting healthy to change your habits.</p>



<p data-beyondwords-marker="383befb1-3f8f-42cc-b536-04f9c161c5d4">But where do these metapreferences come from? And how deep do they go? Many philosophers and religious traditions have grappled with these kinds of questions. For Adam Smith and most economists of the nineteenth&nbsp;and early twentieth century, Christianity was the established intellectual tradition.</p>



<p data-beyondwords-marker="ff1c1c0c-1598-400d-814d-51f5b0a549e7">And Christian theology posits that human beings are complex creatures with body, mind, and soul. In this framework, it makes perfect sense that people have different levels or kinds of preferences that may conflict. In a famous passage, the Apostle Paul describes his own deeply conflicting desires: “For I do not do what I want, but I do the very thing I hate. … For I have the desire to do what is right, but not the ability to carry it out.&nbsp;For I do not do the good I want, but the evil I do not want is what I keep on doing” (Romans 7).</p>



<p data-beyondwords-marker="06f7421b-e7eb-4c78-a8f9-0334712a79dc">This passage describes deep conflict between different levels of desire. Why would one do what one hates or not be able to do what one wants? This is the metapreference problem in its starkest form—a first-order desire (evil) overriding a reflectively endorsed desire (good), with the agent as a spectator of his own choices.&nbsp;Indeed, much of the New Testament describes salvation in terms of transforming people’s <em>desires</em>, that is, the substance of their “utility function.”&nbsp;</p>



<p data-beyondwords-marker="164fa582-54f2-47ca-a379-a4e408c23ca3">Insisting that economists grapple with human nature is not the academic equivalent of splitting hairs. Before morality and ethics were exiled from economic departments, political economists regularly addressed non-material issues of human flourishing—such as virtue, contentment, joy, and meaning—and how they related to a world of scarcity and tradeoffs. Political economists recognized that public policy had complex dynamics and should be assessed from different angles and approached with humility. They engaged in philosophic economic inquiry.</p>



<p data-beyondwords-marker="8a4170d7-da13-49b4-b133-1f5eef0d9774">The recognition that human beings can make poor consumption choices according to deficiencies in their utility functions—seeking utility in ways that make them unhappy and discontented—undergirded economics before it split from political economy and moral philosophy. Anthropology, ethics, and flourishing have big implications for public policy, from welfare programs to tax systems to regulatory regimes.&nbsp;</p>



<p data-beyondwords-marker="dee4513a-3fe8-4cca-be4e-d6ebdcb14d9d">Debates over policies like surrogacy, prostitution, and abortion should include more than simple consent or utility maximization considerations. Many welfare policies appear to have simple &#8220;solutions&#8221; on the whiteboard when it comes to maximizing utility or increasing efficiency, but such policies often fail when deployed in real life because they overlook key elements of happiness and contentment that come through work, achievement, and success.</p>



<p data-beyondwords-marker="4e52b39b-a4cd-47cd-aa12-0a27ee494ca1">Economics remains indispensable for checking misguided, utopian policies. It is <em>the </em>discipline for connecting intentions with outcomes and means with ends. Dismissing economic theory and economic findings as postliberals do, will create a lot of unintended consequences—including stagnation, corruption, and greater inequality. </p>



<p data-beyondwords-marker="5d0750da-d70e-45b7-b229-88a1738b4fdf">But it would be naive to pretend the economist can remain totally detached from whether those outcomes are good or bad. We need qualitative judgments, not simply quantitative calculations. Evaluating metapreferences—our choices about what we want to value—is a good starting point for taking that seriously.&nbsp;Humans are ethical beings, not simply utility maximizers or rational decision-makers.&nbsp;</p>



<p data-beyondwords-marker="618021e9-c3d2-4ff3-a476-4b0db7e8651c">Incorporating ethics back into economic theory is the only way to make the dismal science truly humane again.</p>
<p>The post <a href="https://lawliberty.org/making-economics-humane-again/">Making Economics Humane Again</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></content>
		
			</entry>
		<entry>
		<author>
			<name>Theodore Dalrymple</name>
					</author>

		<title type="html"><![CDATA[The Importance of Being Indebted]]></title>
		<link href="https://lawliberty.org/the-importance-of-being-indebted/" rel="alternate" type="text/html"/>

		<id>https://lawliberty.org/?p=78740</id>
		<updated>2026-09-14T18:42:49Z</updated>
		<published>2026-09-15T10:00:00Z</published>
		<category scheme="https://lawliberty.org/" term="Law &amp; Liberty Essays"/><category scheme="https://lawliberty.org/" term="Britain"/><category scheme="https://lawliberty.org/" term="Democracy"/><category scheme="https://lawliberty.org/" term="Modern Monetary Theory"/><category scheme="https://lawliberty.org/" term="National Debt"/><category scheme="https://lawliberty.org/" term="Theodore Dalrymple"/>
		<summary type="html"><![CDATA[<p>Perhaps it is a reflection on the narrowness of my acquaintanceship that I know no one who fails to understand that government hyper-indebtedness is a dangerous thing—even those who hardly give a moment’s thought to economic questions. I do not, for example, know personally any Modern Monetary Theorists (who seem to have gone up and [&#8230;]</p>
<p>The post <a href="https://lawliberty.org/the-importance-of-being-indebted/">The Importance of Being Indebted</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></summary>

					<content type="html" xml:base="https://lawliberty.org/the-importance-of-being-indebted/"><![CDATA[
<p data-beyondwords-marker="1332d404-c6a2-48d0-8ddd-0642f71ed5ec">Perhaps it is a reflection on the narrowness of my acquaintanceship that I know no one who fails to understand that government hyper-indebtedness is a dangerous thing—even those who hardly give a moment’s thought to economic questions. I do not, for example, know personally any Modern Monetary Theorists (who seem to have gone up and come down like a rocket), or even Martin Wolf, the commentator in the <em>Financial Times </em>whom I ceased to read when he more than once suggested that the British government should borrow more, while interest rates were low, in order to &#8220;invest&#8221;—as if sound and productive investment were what recent British governments had mostly used money for. </p>



<p data-beyondwords-marker="4a9d7a98-f095-406e-a6e2-9b8d61679fdd">The problem with excessive borrowing is easy to see but difficult to solve, and not in one country alone. The former prime minister of Luxembourg, Jean-Claude Juncker, put it best when he said, &#8220;We all know what to do, but we don’t know how to get re-elected once we have done it.&#8221; (Not that Luxembourg has the indebtedness problem, for tax havens will always attract money as jam attracts wasps). </p>



<p data-beyondwords-marker="9d323d00-6964-4863-ab5b-fd78154bc20a">If one takes Juncker’s remark seriously, which I think that one should, it points to a problem with the current form of democracy itself, and perhaps even of human character. Bribery of the population has become a powerful political argument or tool. By borrowing, politicians can offer electorates seemingly free benefits, or benefits that are free for now: and a present benefit is more persuasive to many people than any warning, however cogent, that it will have eventually to be paid for, and with interest. Moreover, politicians can manipulate the disbursement of benefits, both direct and indirect, such that there are more beneficiaries than there are those who are to pay for them (the beneficiaries may include many nominally private entrepreneurs). Where everyone’s vote counts the same, belt-tightening for multitudes in the name of financial prudence or rectitude is not a winning slogan. Now and then someone dares to propose it and, in a severe crisis brought about by the economic crisis that inevitably follows from the system of electoral bribery, actually gets elected. But even these few find it much more difficult than expected to alter the finances of the ship of state. Debt is easy to contract—at least until lenders lose confidence in the willingness or ability of debtors to service the debt—but difficult to pay back. </p>



<figure data-beyondwords-marker="d11f6078-2f44-494b-95d8-ffde3a7acdff" class="wp-block-pullquote"><blockquote><p>Populism is often assumed to be a phenomenon of the right, but left populism is much more successful.</p></blockquote></figure>



<p data-beyondwords-marker="50d09cd1-f256-49f0-a664-f0a4b58c1c0e">For example, in Britain, the most bankrupt of the G7 countries, just the interest on the national debt is $2,000 per person per annum and rising fast, at three to four times the rate of economic growth. But more than half of the population receives more in benefits paid by the government than it pays in taxes, so any serious cut in expenditure (half of which is on health and social care) is unlikely to be popular, especially in a population into whom the lesson has been drummed that government expenditure is the prerequisite and sole guarantor of what is called social justice. A spiral into widespread impoverishment seems a likely result, but in such circumstances people are usually more concerned to hang on to their crumbs than demand or even hope for a bigger cake. Moreover, impoverishment for everyone is a great consolation to the impoverished. One of the reasons the British public was for so long so deeply attached to its National Health Service (the former chancellor of the Exchequer, Nigel Lawson, once said that it was the nearest thing the country had to a national religion) was that, if it was often second-rate or worse by comparison with elsewhere, it was at least perceived as second-rate or worse for everyone, and therefore just—which, incidentally, it never was, but in the struggle between perception and reality, the former usually emerges the victor.</p>



<p data-beyondwords-marker="b799c695-8856-4f0c-8a0c-a93ea1bda35d">Reducing a vast national debt unrelated to a true national emergency such as the Second World War, the temporary necessity for which the citizenry may understand, is difficult for electoral reasons. But politicians are reluctant to address government indebtedness for another reason also, namely that it is a boon to them irrespective of their political stripe. It acts as a guarantee of their vital importance, and if there is one thing more than another that politicians fear, it is unimportance or insignificance. You don’t struggle to the top of the greasy pole to be unimportant.&nbsp;</p>



<p data-beyondwords-marker="3ca36f77-5a0e-4bf5-b6ca-93f27bf43aa3">Here, Switzerland, by far the most truly democratic country in the world, acts as a terrible warning to all politicians: for in Switzerland, politicians are less important than anywhere else in the world. Most of the Swiss struggle to name many, or even one. The position of head of state rotates annually among seven members of a council of state, equally anonymous, so that the role is of no great importance—less well-known than an eminent professor or businessman. The modesty of Swiss politicians is not a merely personal virtue, for anything else would be simply ridiculous. </p>



<p data-beyondwords-marker="3d2f16c8-c534-4098-a005-4e33e3074b10">The Swiss central government’s debt is only 16 percent of GDP. Nevertheless, Switzerland has a powerful system of defence, that any invader would be most unwise to test.</p>



<p data-beyondwords-marker="0ce19f3b-886e-4c6b-bf15-1dea33b76411">I do not claim that Switzerland is paradise in all respects, let alone that it is paradise <em>because </em>it is so democratic. The rule of the majority in small things can be tiresome or even oppressive. But the number of countries whose populations would not gladly swap their own problems with those of the Swiss population must surely be small.</p>



<p data-beyondwords-marker="f39b1775-423f-457c-b329-f99455470648">Be that as it may, a large government debt assures the necessity of a busy political class, the class that created it in the first place and caused so large a proportion of the population to be dependent upon it for its livelihood and continued comfort and even wealth.&nbsp;</p>



<p data-beyondwords-marker="3d37178f-7424-43f3-9662-1b82e486b526">Populism is often assumed to be a phenomenon of the right, but left populism is much more successful. Because of the electoral system in countries like Britain or France, it does not even have to win the adherence of a majority of the population to win power; and having once won power, it binds its successors to at most minor variations of its policies. We do not live in one-party states, but in one policy-state. </p>



<p data-beyondwords-marker="24b47fa9-2b5c-473f-b3cd-e06cc0607eb5">The policy in Britain and France has been to bind the population to the state, directed by the political class. The former country, Britain, has just had a man foisted upon it (who might nevertheless win an election if called) who might be called the Hugo Chávez of the North Sea: a man who thinks that increased government control is the solution to economic stagnation, low productivity, and manifest social problems. The predictable consequence will be deeper debt, and an ever more providential role for the political class.</p>
<p>The post <a href="https://lawliberty.org/the-importance-of-being-indebted/">The Importance of Being Indebted</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></content>
		
			</entry>
		<entry>
		<author>
			<name>Tal Fortgang</name>
					</author>

		<title type="html"><![CDATA[Free Speech Maximalism&#8217;s Terror Problem]]></title>
		<link href="https://lawliberty.org/free-speech-maximalisms-terror-problem/" rel="alternate" type="text/html"/>

		<id>https://lawliberty.org/?p=78719</id>
		<updated>2026-09-15T15:04:07Z</updated>
		<published>2026-09-14T10:02:00Z</published>
		<category scheme="https://lawliberty.org/" term="Law &amp; Liberty Essays"/><category scheme="https://lawliberty.org/" term="First Amendment"/><category scheme="https://lawliberty.org/" term="Free Speech"/><category scheme="https://lawliberty.org/" term="Tal Fortgang"/><category scheme="https://lawliberty.org/" term="Terrorism"/>
		<summary type="html"><![CDATA[<p>More than a year ago, I observed that “many Americans subscribe to the belief that certain actions are unimpeachable as long as they have an expressive element to them.” The phenomenon appears to grow by the day. The latest installment in this pattern—what I called “free speech supramaximalism”—comes in the form of a New York [&#8230;]</p>
<p>The post <a href="https://lawliberty.org/free-speech-maximalisms-terror-problem/">Free Speech Maximalism&#8217;s Terror Problem</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></summary>

					<content type="html" xml:base="https://lawliberty.org/free-speech-maximalisms-terror-problem/"><![CDATA[
<p>More than a year ago, I <a href="https://thedispatch.com/article/free-speech-supramaximalism-public-good/">observed</a> that “many Americans subscribe to the belief that certain actions are unimpeachable as long as they have an expressive element to them.” The phenomenon appears to grow by the day. The latest installment in this pattern—what I called “free speech supramaximalism”—comes in the form of a <em>New York Times</em> <a href="https://www.nytimes.com/2026/08/18/opinion/trump-terrorism-laws-texas.html">op-ed</a> critiquing, of all things, our laws prohibiting material support for terrorism. <em>The Times</em>’s editors, if not author Rozina Ali, characterized the legal consequences of an attack on an Immigration and Customs Enforcement facility in the headline: “These Protesters Were Charged With Terrorism. Who’s Next?”</p>



<p>The answer to that question is <em>nobody</em>—unless said “protestors,” like the Prairieland ICE facility attackers, set off explosives, deface property, and shoot police. The dishonesty of euphemizing such illegal activity as “protest” speaks to our cultural impulse to leap to defend all expression. But the problems with Ali’s piece run much deeper than the headline, which merely captures the sum of all its errors. The op-ed betrays a profoundly myopic view of free speech, misunderstands our material-support laws, and shockingly relies on examples suggesting that, if anything, we need to scrutinize radical groups even more closely than we already do.</p>



<p><strong>The Meaning of Terrorism</strong></p>



<p>Ali makes several interrelated points. She argues that the Prairieland demonstrators received excessive sentences because they were charged—ostensibly over-charged—with material support for terrorism. Ali contends that the term “support” is “ambiguous” and leads to “prosecutions” based on “increasingly vague definitions.” Malleable and “focus[ed] on prevention,” material-support laws have facilitated a “witch hunt” against President Donald Trump’s enemies, such as Antifa and “liberal nonprofits.” Material-support charges against the Prairieland defendants, says one quoted attorney, amount to “judicial terrorism, designed to keep people from coming to protest.”</p>



<p>At least one lawyer, then, knows what “terrorism” means. It’s engaging in some condemnable behavior to accomplish a political or ideological goal. While it’s not clear how charging people who committed crimes keeps anyone from coming to protest—since it wasn’t the constitutionally protected acts of protest that led to the charges, but the undisputed criminal activity—everyone seems to understand that wrongdoing can be especially destructive if calculated to obstruct or circumvent democratic norms.</p>



<p>American law reflects this understanding. It defines terrorism as a “dangerous” and illegal action that “appears to be intended to intimidate or coerce a civilian population” or “influence the policy of a government by intimidation or coercion.” Such a definition is no more ambiguous than any other in our law. A jury is perfectly capable of hearing evidence that an individual intended—or a group conspired—to achieve certain policy outcomes through violence. An attack against an ICE facility, at a time when opposition to ICE (even interference with its law-enforcement activity) was at high tide, carries a few of the hallmarks of terrorism. (Graffiti at the facility reading “F—you pigs” did not help the defendants’ case.) The government proved beyond a reasonable doubt that the Prairieland attackers were using unlawful means to try to coerce ICE to change its ways.</p>



<figure class="wp-block-pullquote"><blockquote><p>If Americans come to believe that they can get away with disorderly or violent demonstrations, they will have no use for peaceful, lawful protest.</p></blockquote></figure>



<p>Yet why should such activity carry additional penalties? What that attorney deems “judicial terrorism” is really deterrence in action; not discouraging people from protesting, but from engaging in terrorism in place of protest.</p>



<p>Contrary to the attorney’s implication, this is a particularly worthwhile form of deterrence, which defenders of the First Amendment and lovers of protest should celebrate. In addition to the obvious destruction and violence wrought by these “protestors,” there is an additional danger posed to our democratic norms when people try to get their way through intimidation rather than persuasion. Genuine protest, like other forms of speech we have learned to treat as not just acceptable but sacrosanct, is compatible with a functioning free society. Violence and disruptions that interfere with other citizens’ legitimate interests are not.</p>



<p>Ali and the attorneys she quotes do not see genuine demonstrations and violent disruptions as being at odds, but as one continuum of “protest.” Punishing violence too severely therefore chills peaceful expression, as if gathering on a sidewalk leads inexorably to spilling over into the street and blocking traffic. Fundamentally, on this view, these are all manifestations of the same thing—expression, speaking out, exercising the right to protest. But this is flagrantly wrong, and makes the dangers of free speech supramaximalism clear: Treating violence as merely an extension of genuine protest renders actual free speech powerless and irrelevant.</p>



<p>If Americans come to believe that they can get away with disorderly or violent demonstrations, they will have no use for peaceful, lawful protest. Everyone will have to resort to disruption and violence if they want to compete with opponents willing to use such tactics. Severe penalties for trying to intimidate or coerce us, rather than persuade us, deter the race to the bottom and protect genuine freedoms of speech and protest. Policing the line between protest and lawlessness is in free-speech-maximalists’ interests.</p>



<p><strong>The Government’s Compelling Interest</strong></p>



<p>Ali attempts to portray our laws prohibiting material support for terrorism as directly contradictory to sacred First Amendment rights. After the September 11, 2001, terror attacks, she summarizes, “Law enforcement swept through Muslim communities, goading young men—including those with no criminal record—into making statements in support of terrorist plots, then slapping them with material support charges.” Prosecutors also pursued cases involving “small donations … translating a magazine … even offering nonviolent alternatives to a militant group.” Non-sequitur about prior criminal records aside, Ali is trying to show that the Prairieland prosecutions are of a piece with this trend, because all of them are really about speech, whether statements, translation, instruction, or anti-ICE demonstrations gone sideways.</p>



<p>Material-support laws and speech are certainly bound to collide, but that does not mean such laws are hopelessly vague or license prosecutorial indiscretions. Providing a full analysis requires understanding more about Congress’s express findings regarding terror groups, and the Supreme Court’s subsequent interpretation and application of the laws constructed upon those findings.</p>



<p>Alluded to but not named in Ali’s op-ed is a 2010 case, <a href="https://www.oyez.org/cases/2009/08-1498"><em>Holder v. Humanitarian Law Project</em></a>, that became the definitive Supreme Court decision assessing whether the law is unconstitutionally vague or burdensome to speech rights. Chief Justice John Roberts’s opinion for a 6-3 Court explained that even providing legal advice to a designated foreign terrorist organization (not merely a “militant” group, as Ali puts it) could be prosecuted under our material-support laws consistent with the First Amendment. Even applying the “fatal in fact” test of strict scrutiny, the Court found that the government’s overwhelming interest in starving international terror outfits of support could justify prosecuting forms of speech that would be protected in any other context.</p>



<p><em>Holder </em>cited Congress’s logical explanation for such dramatic restrictions: FTOs “are so tainted by their criminal conduct,” Congress wrote in a ratified amendment to the Antiterrorism Act, “that any contribution to such an organization facilitates that conduct.” Terror enterprises are so comprehensive that our national security imperative to defeat them compels a complete siege against them—giving their cause no quarter and depriving them of resources. As then-Solicitor General Elena Kagan explained while arguing <em>Holder </em>before the Court, this logically compels proscribing any relationship with FTOs, even innocuous ones: “Hezbollah builds bombs. Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs.”</p>



<p>Ali’s characterization of material-support laws either misunderstands or simply shortchanges the logic behind this approach. “It did not matter if the defendant” in a material-support case “directly helped carry out an assault or belonged to a terrorist organization: They could be prosecuted as if they were.” That’s correct, because terrorism thrives on more than membership and violence. It requires money, other goods and services, and occasionally even public relations. The controversial edge cases are no longer about the ambiguity of the term “support,” but about drawing the line between coordination and independent advocacy.</p>



<figure class="wp-block-pullquote"><blockquote><p>Radical groups are rife with individuals disposed to using violence to get their way.</p></blockquote></figure>



<p>A national-security interest such as starving terrorist groups of all support can defeat even free-speech interests, and that is what happened in <em>Holder</em>. That is not a reflection of creeping fascism, free-speech hypocrisy, or anything untoward at all. It is simply an application of long-running First Amendment doctrine, which reflects the commonsense understanding that we have shared interests beyond maximizing expression. Congress amply justified its approach to the national-security imperative of defeating transnational terrorist groups, and designed a law that recognizes how terrorist groups operate and tailors its prohibitions accordingly—leaving genuine independent advocacy for the pro-terrorist position protected. If this arrangement seems legally dubious, that is only because we are unused to the idea that the freedom of speech is circumscribed and does not cover all expression in every way.</p>



<p><strong>Not a Witch Hunt</strong></p>



<p>Is there an ongoing witch hunt under the guise of counter-terrorism? Ali wants her readers to believe there is, citing comments from senior White House officials and alleging they seek to portray left-wing opponents as “terrorists.” Even as she admits that such a portrayal has no legal effect, Ali invites civil libertarians to join the fight against a heavy-handed state using flimsy justifications to crush dissent.</p>



<p>The argument does not hold up in light of facts on the ground. While she remains fixated on the use of the word “terror,” Ali doesn’t account for the possibility that there is a <em>movement </em>afoot to use lawlessness and anti-Western rhetoric to do what terrorists do—intimidate and coerce rather than reason and persuade. There are networks of <a href="https://www.city-journal.org/article/nicolas-maduro-protests-peoples-forum">organizations</a>, funded by benefactors, designed to do exactly this. As my Manhattan Institute colleague <a href="https://manhattan.institute/article/socialist-red-rabbits-are-training-for-national-uprising-against-cops">Stu Smith</a><a href="https://manhattan.institute/article/the-foreign-money-behind-americas-anti-war-protests"> and I</a>—among many other researchers and analysts of domestic extremist movements and foreign malign influence—have shown, this is incontrovertibly true.</p>



<p>Much of the action occurs in the nonprofit sector, as Ali notes. “This law has not only been used against individuals,” she writes. “Prosecutors have also turned it against nonprofits, ultimately shutting down a major Muslim charity and complicating the work of others.” Nonprofits are usually seen as beneficial civil society organizations, and of course the vast majority of them are.</p>



<p>But not all. The “major Muslim charity” to which Ali links in her piece is the Holy Land Foundation (HLF), subject of the largest terror financing prosecution in American history. In November 2008, a federal jury <a href="https://www.justice.gov/archives/opa/pr/federal-judge-hands-downs-sentences-holy-land-foundation-case">found</a> that HLF was a front for Hamas that had funneled more than $12 million to Hamas-controlled entities while deliberately disguising the transfers as humanitarian aid. Five senior HLF officials went to prison; families of American victims of Hamas terror <a href="https://law.justia.com/cases/federal/appellate-courts/ca7/20-3233/20-3233-2021-08-16.html">are still trying</a> to collect the civil judgments they are due from HLF and its coconspirators.</p>



<p>Ali thus proves a bit too much. When the government does go after nonprofits, it’s not because it’s pursuing a witch hunt—it’s because that is where egregious terror-financing schemes live. With good reason, too: the First Amendment provides nonprofits significant privacy, and our tax code provides incentives for donations. In passing, Ali suggests that members of ongoing domestic terror networks are still making their home in the civil society sector. “The Prairieland defendants were hardly members of a cohesive terrorist cell,” she writes, not that cohesiveness is legally relevant. “Some were part of a Signal chat that was used to plan the demonstration. Several of them were attached to various organizations, like the Democratic Socialists of America and an anticapitalist reading group.”</p>



<p>All that suggests is that law enforcement ought to take a closer look at the centers of these conspiracies: Who put them in the Signal chat? What was the nature of their affiliation with the DSA? If several individuals share some affiliations, and then commit illegal actions to advance their shared cause, it’s logical to investigate whether those groups were responsible in some way for the lawbreaking.</p>



<p>If there’s any takeaway from this whole episode—and the way sympathetic observers are trying to reframe it—it’s that radical groups are rife with individuals disposed to using violence to get their way. They will call themselves protestors, free-speech warriors, and victims of a paranoid campaign to root out political violence. But they are feeling the heat for good reason: they represent a significant threat to the integrity of the American political system—indeed, to the future of the republic.</p>
<p>The post <a href="https://lawliberty.org/free-speech-maximalisms-terror-problem/">Free Speech Maximalism&#8217;s Terror Problem</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></content>
		
			</entry>
		<entry>
		<author>
			<name>Rachel Lu</name>
					</author>

		<title type="html"><![CDATA[Mirrors of 9/11]]></title>
		<link href="https://lawliberty.org/mirrors-of-9-11/" rel="alternate" type="text/html"/>

		<id>https://lawliberty.org/?p=78693</id>
		<updated>2026-09-09T14:20:17Z</updated>
		<published>2026-09-11T10:01:00Z</published>
		<category scheme="https://lawliberty.org/" term="Law &amp; Liberty Essays"/><category scheme="https://lawliberty.org/" term="9/11"/><category scheme="https://lawliberty.org/" term="Islamic World"/><category scheme="https://lawliberty.org/" term="New York City"/><category scheme="https://lawliberty.org/" term="oikophobia"/><category scheme="https://lawliberty.org/" term="Peace Corps"/><category scheme="https://lawliberty.org/" term="Rachel Lu"/><category scheme="https://lawliberty.org/" term="September 11"/>
		<summary type="html"><![CDATA[<p>I’ve always had great respect for the people who signed on for military service after September 11, 2001. They don’t get many accolades, because America is in the midst of an identity crisis, feels little pleasure in memories of Iraq or Afghanistan, and is even inclined to wonder whether we brought that pain on ourselves [&#8230;]</p>
<p>The post <a href="https://lawliberty.org/mirrors-of-9-11/">Mirrors of 9/11</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
]]></summary>

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<p data-beyondwords-marker="b7405957-62d1-479c-bc78-e1b13b1d2bf3">I’ve always had great respect for the people who signed on for military service after September 11, 2001. They don’t get many accolades, because America is in the midst of an identity crisis, feels little pleasure in memories of Iraq or Afghanistan, and is even inclined to wonder whether we brought that pain on ourselves with all that incomprehensible meddling on foreign shores.</p>



<p data-beyondwords-marker="cea05188-a287-4531-998a-e73290ea422a">I don’t believe that at all, though it’s certainly true that foreign meddling gets complicated. At the same time, I also know this. After 9/11, many people were grimly determined that “this must never happen to our nation again.” It has not happened again. I don’t fully understand the causal picture, but I don’t need geopolitical omniscience to feel gratitude. People put themselves on the line to protect our country after that brutal attack, and whatever the complexities, their primary mission clearly succeeded: we’ve never experienced another day like 9/11.</p>



<p data-beyondwords-marker="0f6dfde8-4cdf-4bc3-968a-bf00d26ce9ec">Some days I do wonder, though. Did Osama bin Laden also win, in some deeper cultural sense? In that once-vaunted “war of hearts and minds,” he seems to have gained considerable ground over the last quarter-century. We had those few years of confidence and purpose, and then our gaze turned back inwards as we collapsed into oikophobia and partisan recrimination. Now we have Americans on both sides of the line leveling stark existential critiques at our own civilization, eerily reminiscent of turn-of-the-Millennium Islamic taunts. I had many fears in the aftermath of 9/11, but I never anticipated that.</p>



<p data-beyondwords-marker="b9413834-3367-471d-a4c9-d396a12e2a0c">It’s hard not to take it a little personally. Because in fact, I too served my country in the years after 9/11, though certainly not in a way that merits the same admiration or honor. I never risked life nor limb, and volunteered only for work that one was permitted to quit at any time (though I didn’t, at least not until my defined period of service was properly up). It still meant something, at least to me. Roughly ten weeks after 9/11, I submitted my paperwork to the United States Peace Corps, something I had never even considered until that emotional period after the Towers fell, when my entire age cohort seemed electrified with the shared feeling that “we’ve got to do something.” It just so happened that I was a senior in college, standing at exactly that point in life when it’s possible to make those kinds of snap decisions. I shipped out to Uzbekistan in the summer of ‘02, part of the first complete training group to be sent back in-country after their post-9/11 evacuation. </p>



<p data-beyondwords-marker="1880392b-5b9b-4316-8b30-20ddbccdcd02">As a Peace Corps Volunteer, I spent the first and second anniversaries of that terrible date a few hundred miles north of Kabul, running seminar-style discussions with young Muslims about America, freedom, and what the future might hold for both our peoples. That kind of experience can form a person’s paradigms in ways that last.&nbsp;</p>



<p data-beyondwords-marker="12429437-fd24-4a3d-8bcb-cd802f558eb7">I am of course aware that right-leaning Americans have little use for the Peace Corps, and I’m not looking to pen an apologia. I do think that <em>that</em> group of Volunteers, given the time and setting, was largely on the same page. Regardless of where we fell on the American political spectrum, we were there to convince Uzbek Muslims not to hate us. To de-radicalize. To put a human face on the Great Satan. The soldiers fought to protect America; I shilled for her.</p>



<figure data-beyondwords-marker="fd9ccc07-d978-4239-8ab9-614391afce02" class="wp-block-pullquote"><blockquote><p>“Strength” is now expressed through flattering old enemies and denigrating old friends, a gleeful torching of long-accumulated geopolitical capital. </p></blockquote></figure>



<p data-beyondwords-marker="1277d559-31c7-43cf-bba4-f069dfe6a237">My views of my country, at 22, were probably fairly commonplace, and not particularly profound. I thought free societies were a good thing. I looked favorably on the American practice of allowing people to choose the course of their own adult lives. (My Uzbek friends were quite astonished at the level of freedom that I, particularly as a woman, took for granted as my natural right. Anyone who rails against &#8220;individualism&#8221; should at least trouble to get a realistic picture of what the alternative actually looks like.) I also genuinely loved America, as my native land. None of this is particularly radical. But I probably became a bit more of an outlier over the subsequent quarter-century.&nbsp;</p>



<p data-beyondwords-marker="a2f45760-9b24-462f-a437-d9c7a234490b">To many Americans, al-Qaeda’s brutality seemed to represent both a wake-up call and a challenge. Because they are used to sitting atop the geopolitical hierarchy, Americans don’t necessarily think all that much about what lies beneath. It turns out that the rest of the world hates us, or so many concluded in the wake of 9/11. From that ostensible insight flowed the challenge: Are they right to hate us? Have we whiffed on our global leadership? Are <em>we </em>the tyrannical oppressors of our age?</p>



<p data-beyondwords-marker="abafb20f-97f1-4100-a4da-d55ffffd5515">Across the intervening years, those questions have played out in the American consciousness like a bruising taunt heard in childhood that one can never quite forget. Unsurprisingly, they found a particularly receptive soil on the progressive left, where they spawned multiple strains of aggressive oikophobia.&nbsp;</p>



<p data-beyondwords-marker="36798fb6-5bb3-4711-9586-97a9481f4199">Some, like Critical Race Theory, were domestically focused, but in the 2020s we have increasingly seen Muslim influencers climbing into visible spaces in the left-wing political class, actively bolstering their platforms with a public embrace of the trappings of Islamism. It’s a fascinating development, but also troubling, in ways that can be effectively separated from any particular view of Islam as a faith. One can, for instance, have <a href="https://www.nationalreview.com/magazine/2024/02/memories-of-gaza/">deep sympathy</a> for the plight of the Palestinian people, and also see that the Palestinian cause for most progressive Americans has precious little to do with the suffering of Gazan children, and everything to do with Western self-loathing. Likewise, the progressive embrace of Islamic imagery may not reveal a <em>deep </em>sympathy with radical Islamic ideals, so much as a superficial attraction to something that feels subversive and a bit dangerous. Much or most of the Islamic world would prefer to stamp out those radical fundamentalist strains; the zealots are meanwhile fighting bitter internecine wars among themselves; but those nuances are overwhelmingly lost on young Westerners, for whom Islam is interesting mainly as a repository for a nihilistic rejection of their own cultures and political traditions.</p>



<p data-beyondwords-marker="d8dc256d-1602-4c09-98fc-4b481211cde1">Psychologically, though, the development is somewhat interesting. Was it inevitable that American self-doubt would eventually find expression in the open embrace of the trappings of the mass murders whose atrocities opened this millennium? “Third Worldism,” the latest progressive fad, is mostly just tiresome on the level of theory, rehashing bad economics, some Leninism, and knockoff arguments from Edward Said. But there is a grim poetry to coming “full circle” in this way, almost worthy of Sophocles. When Osama bin Laden’s “Letter to America” found daylight in 2023, it was hardly even surprising to see young people thrilling to his hackneyed “critique.” It took some time, but bin Laden does finally seem to have persuaded many Americans to view the destruction of the World Trade Center as an act of retributive justice.</p>



<p data-beyondwords-marker="0de1cbbd-9d48-4aae-9ed5-9bbb10adaad1">Even more startling, perhaps, is the extent to which similar lines of thought have taken root on the right. There too, the initial “reworking” had a domestic focus: think of Michael Anton’s 2016 “Flight 93” essay, which still presented the frustration of murderous hijackers as a heroic act, but with <em>the Democrats</em> cast as the existential foes. Over time, the populists would advance further down that road, disparaging once-honored war heroes like John McCain for “getting captured,” and flattering ruthless autocrats to their faces with the declaration that America “isn’t so innocent.” For some, this has finally looped around to a stance eerily similar to the left’s, in which America is presented as Israel’s lapdog, in the thrall of manipulative Jews. “Strength” is now expressed through flattering old enemies and denigrating old friends, a gleeful torching of long-accumulated geopolitical capital. That kind of self-destructive behavior points towards deep wells of self-loathing that bin Laden would doubtless have relished.</p>



<p data-beyondwords-marker="7733f2db-c827-437f-adff-1e86aafe1516">Then there are the more overt denunciations of America and all her works. As a high school student, I can still recall reading Bernard Lewis’s&nbsp;1990 <em>Atlantic </em>article, “<a href="https://www.theatlantic.com/magazine/archive/1990/09/the-roots-of-muslim-rage/304643/">The Roots of Muslim Rage</a>,” in which he suggested that the West was locked in a “clash of civilizations” with a fundamentalist Islamism that categorically rejected secularism, with its diffused authority and embrace of individual rights, the hallmarks of Western liberty. Lewis contended that “modernism and materialism” were the twin “evils” of the West that Muslim zealots were unwilling to accept. His argument was controversial, but as something I had absorbed at a young age, it doubtless impacted my own sense of my “mission” years later, when I undertook to evangelize the Islamic world for freedom. How strange then, decades later, to hear the same categorical rejection of America’s “modernist” traditions echoing from the postliberal right.</p>



<p data-beyondwords-marker="c4c64bb6-1b33-4198-9df6-656157f6b260">I don’t really mean to suggest that these pathologies would never have arisen but for 9/11. Clearly they are multicausal: postmodernism, postcolonialism, the rejection of Western Civ, and other obvious contributors all predated September 11. We didn’t <em>need</em> al-Qaeda to help us undermine ourselves. Still, the collapse of the Towers represented a profoundly emotional moment, especially for those of us who were both old enough to grasp the gravity and young enough that our basic paradigms were still forming. Those emotions left scars on our collective psyche which are now finding expression across America’s cultural landscape, often in twisted forms. For America’s enemies, it does in the end seem to have been a bit of a PR coup.</p>



<p data-beyondwords-marker="353cd4ff-29cc-4d79-84eb-9940c733b7ad">Here’s the deep irony. It’s not even true that the world hates us. Clearly <em>some</em> people do, but they have never been representative of the world at large; indeed, their rage often burns hot partly <em>because</em> they can see that their own intimate acquaintances have immense admiration for America, and would like to be more like us. As a Peace Corps Volunteer, I did, of course, encounter a range of views about freedom, authority, and the West, and some people had grievances with the United States that they wanted to air. That was something of an accent note, however. The general feeling about America was overwhelmingly positive.</p>



<figure data-beyondwords-marker="b412bc3d-0951-4aec-82a4-9716e31c7c40" class="wp-block-pullquote"><blockquote><p>The oikophobes of the 2020s may think they’ve transcended that place of privilege, but the odd truth is that they’re as solipsistic as any freedom-fry-munching neocon, simply replacing patriotism with its polar negative. </p></blockquote></figure>



<p data-beyondwords-marker="b0303baf-1c36-4d8a-8618-a50bee195879">When I asked people for thoughts on why 9/11 happened, a few did have thoughtful things to say about the challenges and insecurities of the Muslim world. One such conversation (with my local dairy supplier) ranged into such a warm discussion of the glories of ninth-century Baghdad and the wisdom of Averroes that he spontaneously called his friends into the shop and urged me to repeat the <em>Shahada</em> in front of everyone, effectively trying to “baptize” me a Muslim on the spot. Most people, though, expressed frank incomprehension, or simply attributed the crime to unhinged radicalism. “I have no idea why they did that,” was the typical sentiment. “The Wahhabis<em> </em>are crazy.” I can’t recall a single person ever suggesting to me that Americans brought it on themselves. It’s mostly just Americans who believe that.</p>



<p data-beyondwords-marker="6717c6f8-c2a5-4cca-80f4-c1d01785d5db">On September 11, 2001, Americans experienced a brief, awful moment of truth as they realized how little they understood about the rest of the world. They’d grown a little too comfortable there, on top of the world. The oikophobes of the 2020s may think they’ve transcended that place of privilege, but the odd truth is that they’re as solipsistic as any freedom-fry-munching neocon or flag-waving Buchananite, simply replacing patriotism with its polar negative. It was people like me—naïvete notwithstanding—who actually left the bubble, developing our views of America in conversation with flesh-and-blood citizens of less-free societies. That experience tends to reinforce rather strongly the reality that “this is a good country, and I’m grateful to raise my family here.” I felt no need to explore bin Laden’s ideological funhouse for perspective on America’s identity.</p>



<p data-beyondwords-marker="0c15a4c9-3699-4593-b351-d51cecc463eb">That clearly cannot be said of all of my compatriots. It pains me, but I suppose this too could be understood as one of the burdens of geopolitical dominance: one must periodically wrestle with ugly manifestations of a kind of “executive isolation,” the phantoms of our own cultural solipsism. Most great powers have ultimately collapsed after an extended period of destroying themselves domestically, finding the enemies within the gates more fearful than those without.</p>



<p data-beyondwords-marker="511d06a3-9fc4-48d5-8c4a-e608bce043e7">So perhaps that’s the mission at hand today. As a young woman, I went abroad to shill for my country. Heady enthusiasm comes more slowly in middle age, but I’m still willing.</p>
<p>The post <a href="https://lawliberty.org/mirrors-of-9-11/">Mirrors of 9/11</a> appeared first on <a href="https://lawliberty.org">Law &amp; Liberty</a>.</p>
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