The clearest example is an old one. When the English liberal tradition distrusted an army kept in peacetime, the worry was not that it would march against the people the next morning. It was that a permanent instrument of force, merely by standing there, already alters the relation between ruler and ruled, whether or not it ever fires a shot. That is why, when a war of pamphlets broke out in England against standing armies in the late 1690s, the underlying argument was this: liberty is lost not on the day the power is misused, but on the day it becomes normal for that power to be always at the ready.

This old distinction, between disciplining the use of a power and watching over its mere existence, has all but dropped out of our vocabulary. It has dropped out at the very moment we most need it, because we are now building, piece by piece, a new capacity without much asking whether it should exist at all.

Over the past year the European Union has assembled, in plain sight, the beginnings of a standing capacity to condition entry to ordinary online spaces on a credential presented at the door. In April 2026 the Commission’s age-verification application, known informally as the mini-wallet, became feature-ready for member states to adopt. Its declared purpose is modest and sympathetic: it is meant to enable a platform to confirm that a user is over a given age without learning anything else about him. It relies on a cryptographic proof that discloses a single yes or no. On its own terms, it is a privacy-preserving device, and a clever one.

One feature of its design carries more weight than the rest. The Commission states that the age-verification app is built on the same technical specifications as the European Digital Identity Wallet, which every member state must make available to its citizens by the end of 2026 under the Union’s 2024 identity regulation, Regulation (EU) 2024/1183. Compatibility, the Commission calls it, and the app’s tender specifications go to real lengths to keep the age proof unlinkable, forbidding the verifier from reconstructing who presented it. The privacy of the check is not the loose thread. The loose thread is what the shared specification normalizes: a common European habit of gating access on a certified attribute, presented through infrastructure the state recognizes.

The question underneath is not whether this tool respects privacy, which it does. It is a different one, and the loudest critics barely raise it: what does it mean for the state to require, as a matter of course, a credential for the privilege of entering an online space?

The backdrop is a defeat that turned into a redirection. The Union’s 2022 proposal for a regulation against child sexual abuse online, known to its opponents as Chat Control, would have required messaging services to scan the content of private communications. After three years of resistance, the Council, in the negotiating position it agreed to in November 2025, dropped mandatory scanning, though it kept voluntary scanning and other preventive duties, and the final law still awaits negotiation. What survived was a narrower requirement: if a messaging or email service identifies a risk that adults are using its service to groom or solicit children, it must verify the ages of its users. Crucially, this rule only applies to platforms where a specific risk is found—it is not a blanket requirement for every website on the Internet, a distinction critics frequently overlook. The route to age verification now runs less through that contested law than through the Digital Services Act and the soft-law guidance built upon it.

That route deserves an accurate description. The Commission’s guidelines on the protection of minors, issued in July 2025, are formally voluntary, and following them neither guarantees compliance nor makes departure an automatic breach. Yet they are the reference point against which the Commission will assess compliance with a binding provision of the Digital Services Act, breach of which can cost a platform up to six percent of its worldwide turnover. In theory, then, a platform is free to ignore them. In practice, departing from the one benchmark by which it will be judged is a risk almost no firm will run. The recommendation does not command, and it does not need to.

Europe is not alone in grappling with these issues, and the convergence is the point. Australia’s social media age law, in force since December 2025, requires covered platforms to prevent under-sixteens from creating or keeping accounts. The United Kingdom’s Online Safety Act now requires highly effective age assurance, concentrated on pornography and harmful content and policed by Ofcom, which has already imposed its first fines. The president of the European Commission has praised the Australian model and assured the United Nations that Europe will learn from it. The measures differ in reach, yet all point the same way, toward an Internet where more and more doors refuse to open on their own, yielding only to those who first attest to some condition. They have started with age, but since this is ascertained through a credential someone has certified, the practice could easily be expanded.

None of this arrives by conspiracy, and it is a mistake to describe it as one. It arrives as a sequence of sensible answers to real problems, each hard to oppose in isolation. Children are harmed online. Fragmented national rules do burden the single market. The trouble is that a chain of individually reasonable steps can arrive somewhere no one would have chosen as a destination had it been proposed directly.

There is a powerful defense of all this, and it must be given at its strongest, not as a caricature easy to knock down. The mini-wallet does not hand a platform your name. It is built to prove a single attribute and conceal the rest, so that a bar on minors need not become a register of adults. A common European standard spares the continent twenty-seven incompatible national systems, and spares the citizen the far more invasive alternative of uploading his passport to every website that asks. Transaction by transaction, a proof that reveals almost nothing is better than what came before. I concede all of this without reservation. And it is precisely because each individual use is defensible that the real problem is hard to see, because it lies in none of those uses.

The problem is not how the capacity is used. It is what the capacity is, once built. A zero-knowledge proof protects the citizen in each concrete use, and it may keep his name from the platform he enters. What it does not do is undo the arrangement that use normalizes, in which reaching an ordinary online space requires first presenting a credential that some authority has certified. The anonymous proof looks like the opposite of surveillance, and it is. But what a threshold does to liberty does not depend only on how much it reveals. The Internet’s early promise, for good and ill, was that one could enter first and account for oneself later, or never. Conditioning access on presenting attributes first reverses that order, and installs it as a general habit rather than a special case.

The reason a threshold matters even when it is anonymous is that the terms of entry, once normal, are easy to tighten. A study prepared for the United Nations Human Rights Council in 2026, drawing on testimony from individuals across eighty-four countries, describes how the awareness of being identifiable reshapes conduct long before anyone is ever identified. People soften their words, withdraw, and avoid association. This is not because they have been watched: it is enough that they know they could be. That study concerns identification, which the European age proof is built to avoid, and its findings are qualitative. The narrower point holds regardless. Once a population is used to presenting a certified token at the door, the distance from an anonymous token to a named one is a matter of policy, not of architecture, and policy is the thing that changes.

European law is not innocent of this concern, and the trouble is not that Europe neglects rights. It is closer to the opposite. The Union legislates on rights with a thoroughness that has no parallel, and its own Court strikes down the results, invalidating the data-retention regime in Digital Rights Ireland and, in the two Schrems judgments, the transatlantic data arrangements American firms relied upon. Purpose limitation, data protection by design, and impact assessment all reach the architecture of a system, not merely its operation.

That thoroughness is also how the apparatus gets built. A regime careless about privacy could not have produced the mini-wallet; a careless design would have been refused. The scruple is real, and it is what clears the path.

Yet the tools of data-protection law are meant to police particular uses of data. They ask whether a given purpose justifies collecting a given set of data. They work well for that purpose, but what they almost never do is ask a different question: whether it is wise to build, up front, a reusable infrastructure, one that could facilitate future initiatives that have not yet even been proposed. The bloc’s asylum and border databases are the warning, built to manage one population and later opened to the police. Infrastructure tends to outlive the reason that built it, and the law examines that reason more searchingly than the infrastructure itself.

If the danger lies in the capability rather than its use, it is worth being plain about what law can do. A capability, once built, cannot be unbuilt by statute; the potentiality remains, and no safeguard proposed here will retire it. The identity regulation already does more than its detractors concede, mandating selective disclosure, user control, unobservability of transactions, pseudonyms, and the wallet’s own voluntariness. All of it governs how the tool behaves, but not how far the practice spreads. Three measures, none of them utopian, would keep that practice exceptional rather than default: a presumption of open access, under which credentialed entry is permitted only in domains the legislature has named; a guarantee that an uncredentialed route into a service survives wherever gating is imposed; and a sunset on the gating mandates, so that an arrangement justified by a present concern does not harden into permanence.

The first of these matters most, because it names the real hinge. The worry is not that a single setting could be flipped to unmask a speaker, a claim the app’s own specifications are built to defeat. It is that once presenting a certified token becomes the ordinary way to open a door online, the list of tokens one may be asked for is the easiest thing in the world to lengthen, one reasonable attribute at a time. The architecture need not betray its privacy promise to change the citizen’s position. It only needs to become the default.

The objection is that these measures are themselves policy, which policy can repeal. So it can. But constitutional restraint has never worked by making abuse impossible; it works by making abuse costly and visible. A capacity an official may widen from his desk, and one that needs a fresh vote in a legislature, are not equally dangerous, even if neither is beyond reach. The measures do not buy safety. They buy the requirement that every further step be taken in the open, by people who can be turned out for taking it.

Tocqueville foresaw the shape of this, if not its mechanism. The danger to democratic peoples, he wrote, would not be a violent tyranny. It would be an immense and tutelary power, benevolent in intention, that watches over their fate and reduces them to a flock of timid and industrious animals with the government as their shepherd. A capacity built to protect children, through a tool engineered to reveal as little as possible, is the most sympathetic instance of such a power, and that is what makes it instructive. The question a free people must learn to ask again is not only whether a power will be used well. It is whether this capacity should exist at all.

The post The Capacity to Control appeared first on Law & Liberty.

We’ll start with sex and violence, and then get to religion.

First, though, a preliminary comment on film adaptations of books: Screen adaptations of books must necessarily alter the story. Even a three-hour movie cannot reproduce an epic poem the length of Homer’s Odyssey. But the necessity of change does not grant a director or screenwriter carte blanche. Viewers (and readers) can ask about the film’s selection of scenes from a book and whether the changes made by a director faithfully reflect a book’s story.

It’s also fine for directors to be inspired by a story to adapt it to other situations or thematic ends. That said, these directors often signal the significance of the changes they made by renaming the film. Apocalypse Now (based on Joseph Conrad’s Heart of Darkness), O Brother Where Art Thou (also based on The Odyssey), or even Clueless (based on Jane Austen’s novel Emma) are examples.

There is a middle area, however, in which directors are inspired by a book’s story, and maintain formalistic elements of the plot, but want to tell a different story than the original. All adaptations do this to some degree. But there is a risk that a movie adaptation can be something of a bait and switch in which the director uses the cachet of the original story to increase ticket sales from viewers interested in a cinema version of the original story but not necessarily interested in the director’s insights unconnected with the original story.

At its core, much of the argument over Christopher Nolan’s Odyssey concerns whether, while drawing on the cachet of Homer’s Odyssey to attract viewers, he changed Homer’s Odyssey in ways that matter. In other words, is Nolan’s Odyssey a bait and switch?

Christopher Nolan wants to speak to the topic of civilizational decline in his version of The Odyssey. That’s an interesting and provocative topic and I’m personally interested in Nolan’s take on the subject. But it’s not what Homer writes about in his Odyssey. In his adaptation of The Odyssey, Nolan gives the audience a kinder, gentler Odysseus, if not a more neurotic Odysseus, than Homer did. Even though I’m more comfortable with the behavior of Nolan’s Odysseus than I am with Homer’s Odysseus, that comfortableness is a problem with the film’s adaptation of the story, not a virtue of it.

The Cold-Blooded Violence of Homer’s Odyssey

There remains a fair amount of violence in Nolan’s Odyssey. The cyclopes, the attack on Troy, Odysseus’s fight with Penelope’s suitors on his return to Ithaca. Yet for all the action in Nolan’s Odyssey, Nolan dulls the sharp, even shocking, edge of violence in Homer’s Odyssey. Homer describes a much less sympathetic Odysseus for modern audiences than Nolan does.

Start with the dramatic ending of Homer’s story in which Odysseus clears out the suitors from his home. This is the conflict to which Homer’s epic crescendos from the very start. Homer’s story culminates with Odysseus exterminating the suitors. All of them. It is a brutal conclusion to the story.

For all the action of Nolan’s fight scene in the film between Odysseus and the suitors, he blinks at the systematic, murderous violence of Homer’s Odysseus. In the film, after Odysseus dispatches perhaps two-thirds of the suitors, the remaining suitors one-by-one take a knee in surrender, yielding to Odysseus and asking for quarter from his vengeance. Nolan’s Odysseus extends mercy to them and accepts their surrender.

In contrast, in Homer’s epic, Odysseus gives no quarter to any of the suitors, including those who surrender and beg him for mercy. In Homer’s telling,

Leodes rushed in and caught the knees of Odysseus,
and spoke to him in winged words and in supplication:
‘I am at your knees, Odysseus. Respect me, have mercy’;

Odysseus rejects Leodes’s petition and kills him without mercy:

Looking darkly at [Leodes] spoke resourceful Odysseus:
‘… Many a time you must have prayed in my palace, asking
that the completion of my sweet homecoming be far off
from me, that my dear wife would go off with you, and bear you
children. So you cannot escape from sorry destruction.’
… With this he cut through the neck at the middle,
and the head of Leodes dropped in the dust while he was still speaking.

The only nod that Odysseus gives to the slain suitors in Homer’s story is to chasten his wife against exulting openly at their deaths because “it is not piety to glory so over slain men.” Nonetheless, Odysseus has no qualms about what he has wrought; responsibility for the slaughter lies fully on the victims. They were “destroyed by the doom of the gods and their own hard actions. … By their own recklessness they have found a shameful death.”

The extermination of the suitors without mercy does not exhaust the vengeance of Homer’s Odysseus. He next instructs Penelope to “assemble here the women [servants] who are in the palace, both those who have done me no honor, and those who are innocent.”

In Nolan’s screenplay, the fate of Melantho, Penelope’s quisling maid, is left ambiguous; we last see her cowering under a table.

In Homer’s telling, twelve of the 50 female servants in the house were disloyal, collaborating and cohabitating with the suitors. Odysseus tells his son Telemachos to have the twelve collaborators first clean up the bloody mess created by the slaughter of the suitors. Then, after they have cleaned up the house, Odysseus instructs his son to kill the traitorous maidservants:

After you have got all the house back in good order,
lead all these maidservants out of the well-built palace …
and hew them with the thin edge of the sword, until you have taken
the lives from all …

Yet Telemachos thinks that Odysseus’s order shows too much mercy to the maidservants. Rather than “cleanly” killing them with the sword, in Homer’s stomach-turning description, Telemachos instead hangs the women,

like thrushes … or pigeons, who have
flown into a snare set up for them in a thicket …
so their heads were all in a line, and each had her neck caught
fast in a noose, so that their death would be most pitiful.

Finally, in both Nolan’s film and in Homer’s epic, Odysseus anticipates that the families of the slain suitors will seek to kill Odysseus to avenge their relatives’ deaths. Nolan’s Odysseus takes the opposite action of Homer’s Odysseus in response to this threat: Nolan’s Odysseus flees into exile in the face of this threat; Homer’s Odysseus remains to fight and vindicate his return to Ithaca.

In Nolan’s story, Odysseus and Penelope quite literally sail into the sunset. Nolan’s exile of Odysseus is the capstone to Odysseus brooding over his (ostensible) sin for destroying Troy. Nolan draws on the trope of the scapegoat in concluding his Odyssey: Nolan has Odysseus again returning to exile to save Ithaca from the destruction of the suitors’ blood avengers. As scapegoat, Odysseus carries the consequences for his sin against Troy (and the consequences of his totalizing vengeance against the suitors) away from Ithaca. Odysseus pays the price of his sin and of his love for Ithaca and home. He is forever exiled from the city he loves and to which he sought to return. (The “scapegoat” is a well-known trope in the Bible. See, for example, Leviticus 16.21–22 and Hebrews 13.11–13. René Girard argued for the broad, archetypal nature of the theme.)

In contrast, in Homer’s Odyssey, not only did Odysseus not flee from the blood avengers of the suitors, he and Telemachos “would have killed them all”—that is, they would have slaughtered all of the suitors’ blood avengers—had it not been for the intervention of Athena to stay Odysseus’s and Telemachos’s hands against them. Homer’s story concludes with both sides making peace, and with Odysseus victoriously reestablished on the throne and at home in Ithaca.

The difference in the conclusion to Nolan’s Odyssey relative to Homer’s is both significant and telling: The trajectory of Homer’s Odyssey has Odysseus victoriously returning from de facto exile to home and throne. This is the sweeping telos of Homer’s entire epic. In contrast, in Nolan’s telling, Odysseus fails to return home; he trades a new exile for the old one on account of his sins.

To be sure, the conclusion to Nolan’s Odyssey is poignant and thought-provoking. But he gives us an insipid, hand-wringing Odysseus where Homer gives us a victorious, if disturbingly sanguine, Odysseus. It’s a stark difference, and it necessarily affects the narrative arc of the respective story each tells from the very start. That Nolan’s Odyssey has a cyclops and a Circe is mere formalism; we encounter a fundamentally different Odysseus and narrative arc in Nolan’s telling than we do in Homer’s telling.

This is not to suggest greater sympathy for Homer’s bloodthirsty Odysseus relative to Nolan’s tamed Odysseus. It is a canard that classical literature is necessarily uplifting or edifying. But Nolan softens his Odysseus to avoid challenging modern sensibilities as Homer’s more brutal Odysseus does. And that’s a loss. One reason to engage literature from other times and places is that it exposes us to worlds and worldviews different from our own. Learning about them does not entail that we approve or embrace those worldviews. Nonetheless, they expand our understanding of the world even if—or even because—we are appalled by what we see and learn. I learn more from Homer’s unexpurgated Odyssey than I do from The Odyssey that Nolan calibrated for modern sensibilities.

Odyssean Melancholy

Odysseus’s victory over the suitors (in Homer) does not mean that Homer’s Odysseus is uninflected with melancholy. Nolan’s odyssean melancholy derives from a neurotic Odysseus who wrings his hands over the conceit that his actions inaugurated the end of civilization. (In a jarring anachronism, Nolan’s Odysseus expressly refers to the end of the age of bronze.)

The melancholy of Homer’s Odysseus, however, derives from the telling exchange in the epic that Odysseus has in Hades with Achilles’s spirit. In that exchange, Achilles subverts the honor ethics of the Greeks. This ethic is a signal motivating force for Odysseus in Homer’s Odyssey. It is a fascinating development for Homer to place at the very center of his story. Achilles utterly dismisses the value of being remembered by humans or gods after one’s death for heroic deeds.

When Odysseus meets Achilles’s spirit in Hades, he lauds Achilles as the most blessed man who ever lived and who ever will live. Achilles is the epitome of the fulfilled life in ancient Greece:

No man before has been more blessed than you, nor ever will be. Before, when you were alive, we Argives honored you as we did the gods, and now in this place you have great authority over the dead. Do not grieve, even in death, Achilleus.

Achilles melancholy reply, however, is shocking. He tells Odysseus that his afterlife in Hades is misery; he would prefer to be a slave to a subsistence farmer than king of the dead:

O shining Odysseus, never try to console me for dying. I would rather follow the plow as thrall to another man, one with no land allotted him and not much to live on, than be a king over all the perished dead.

Nolan is correct to pick up on the melancholy theme in The Odyssey. But the sources of Odysseus’s melancholia differ entirely in Nolan’s telling and in Homer’s telling.

The great Achilles’s melancholy response to Odysseus’s praise in Homer’s epic casts a pall over the whole of the Greeks’ honor/glory ethic. The implications of Achilles’s comment for Odysseus (and other Greeks) are that Odysseus can at best eke out what pleasures remain in the days he has remaining in this life in small pleasures of domestic life with Penelope. That is the only joy he has in the face of an unremittingly grim future after death. This thematically underscores the need in Homer’s story for Odysseus to reestablish himself in his home with Penelope; that is the only glimmer of happiness Odysseus can attain in Homer’s epic.

Sex in Nolan’s Odyssey

The omission of much of the sex in Nolan’s Odyssey relative to Homer’s Odyssey is perhaps not as pivotal to the poem’s narrative arc as Nolan’s decision to tame the violence in Homer’s story; nonetheless, the omissions are telling.

First, while not narrowly limited to sex, in Nolan’s telling, Helen’s abduction from Sparta and the violation of hospitality—“Zeus’s law”—was merely the pretext for the Trojan war and was not its true cause. Rather, the real motivation of the war was economics: King Menelaus desired to eliminate Troy’s dominance over the trade routes. That is, money, not sex, was the real cause of the conflict. Given the significance Nolan ascribes to “Zeus’s law” of hospitality throughout the film, his substitution of a crass economic motivation for the violation of Zeus’s law as the cause of the war against Troy is jarring.

More directly related to sex, Kalypso held Odysseus captive as an object of her sexual obsession. “By nights,” Homer writes, Kalypso would force Odysseus to sleep with her “against his will.”

Kalypso subsequently retorts to the god Hermes when Hermes informs her of Zeus’s command to let Odysseus go, “You are hard-hearted, you gods … when you are resentful toward the goddesses for sleeping openly with such men as each has made her true husband.”

Amusingly then, while Odysseus maintains that “all he pines for is to go back to my house and see my day of homecoming”—note again how Nolan’s exile of Odysseus at the end of his story dramatically changes the narrative arc of Homer’s epic—he nonetheless spent his final night with Kalypso “withdrawn in the inner recess of the hollowed cavern, enjoy[ing] themselves in love and stay[ing] all night by each other.”

Despite being held against his will as Kalypso’s sex slave, Odysseus is not so aggrieved that he would deny Kalypso a departing tumble for the road, apparently.

So, too, in his interaction with Circe, hospitality required that he sleep with her in Homer’s epic: “let us two go up into my bed so that, lying together in the bed of love, we may then have faith and trust in each other.”

In the cases of both Kalypso and Circe, Odysseus was, as it were, coerced into bed with the women (except perhaps in his last night with Kalypso). Yet when sex was a matter of choice, Odysseus was able to resist temptation to continue his return to Penelope: He declined an offer of marriage to Princess Nausikaa of the Phaiakians despite Nausikaa’s desire as well as her parents. (And sleeping with Princess Nausikaa without benefit of marriage would have been an offense against the king and the gods.)

Religion and the Gods

Finally, the gods are present and pivotally acting characters throughout Homer’s Odyssey. They intervene personally and repeatedly in the affairs of men. Through Athena (and Hermes), the gods provide Odysseus with warnings, disguises, and protection. Nolan naturalizes all of this. When Odysseus asks (the largely silent) Athena, “Why can’t the gods speak in a way we understand,” Nolan’s screenplay has Athena responding that the gods communicate through such natural events such as thunder and smiles. The actions and activity of the gods are human projections in Nolan’s materialistic Odyssey.

So, too, Nolan turns “sacrifice” into a rarefied event relative to what it is in Homer. To wit, in Nolan’s telling, a sacrifice matters only relative to the size of what the offeror gives up to make the sacrifice. (Hence, the significance of Agamemnon’s sacrifice of his daughter, Iphigenia, at the start of the war against Troy, and the significance of Odysseus sacrificing his homecoming and going into exile instead in atonement for his sins at Troy in Nolan’s story.)

In this, Nolan misses how sacrifice is woven into daily life in Homer’s story, and in ancient life more generally. Specifically, the ordinary butchering of a domesticated animal typically included a sacrifice for the gods. That is, a portion of the animal was offered to the gods, but just a portion. The remainder of the animal was consumed by the people. So woven into daily life was sacrifice and meat that the Apostle Paul needs to address the problem in his epistle to the Corinthian church (1 Co 8.13, 10.20–22, 25–28). (In the Old Testament, when Israel traveled with the tabernacle, every domesticated animal needed to be butchered and offered at the tabernacle [Leviticus 17.3–9]. A portion of the butchered animal was sent up to YHWH in smoke, a portion went to the priests, but the bulk of the animal was then consumed by those offering the animal [Leviticus 7.15–18].)

As with the violence and sex in Homer’s Odyssey, Nolan muzzles religion in his telling of the story. The gods are not deeply intertwined in routine and daily life in Nolan’s Odyssey as they are in Homer’s Odyssey.

Nolan Presents an Epicurean Odyssey, Not a Christian Odyssey

It is this last point, that the gods are not deeply and personally involved in the daily life of Nolan’s Odyssey that is offered at times to suggest Nolan gives us a Christianized version of the Odyssey.

As one commentator observed, “there’s no question that Homer’s Odysseus and his comrades in arms believe in Athena or the wrath of Poseidon; unlike the Christian God, these two are very much among us, and submitting to them is a matter of course.”

My complaint at this point is not so much against Nolan as it is against the commentators.

Take the last part of the line quoted above, that is, the blithe assertion that “unlike the Christian God, these two [gods] are very much among us.” This sentiment tells us a lot about the perception of Christianity in the modern world. I dare say it is one shared by many of the faithful as well as by non-Christians.

This is not Christianity, however, but a sentiment consistent with the rival (and earlier) religion of Epicureanism. Theologian N. T. Wright provides a summary description of Epicureanism and its motivation, both in the ancient world and at the start of the modern world:

You could sum [Epicureanism] up like this: the gods are a long way away and they don’t bother about us, so relax and enjoy your life. …

Epicurus and the first-century BC poet Lucretius were reacting strongly, but not against ancient Judaism, which they didn’t know, and not of course against Christianity, which hadn’t begun then. They were reacting against certain types of ancient paganism that frightened people by suggesting that there were gods all over the place, that they were out to get you, and that if they didn’t make life miserable for you here and now they might well do so after you died. You then get the same reaction in the fifteenth century, when the medieval church had borrowed a lot of those ancient pagan ideas about unpredictable divine anger to frighten people into believing or behaving, so the rediscovery of Lucretius, and thus of Epicureanism, came as welcome news.

The thing is that the grand sweep of the Judeo-Christian revelation is not about God’s absence or remoteness from human life, as it is in Epicureanism, but about God’s presence in human life. (And, of course, the Judeo-Christian God does not share the capriciousness of the Greek gods.)

For example, in his prayer at the dedication of the Temple, Solomon wonders at the audacity of the returning presence of God in and through the Temple: “But will God indeed dwell with mankind on the earth?” (2 Chronicles 6.18)

God’s presence is the signal narrative arc of the Bible from Genesis to Revelation. In the Garden in Genesis, God comes to be present with Adam and Eve, but their sin causes a rift between God and them. The remainder of the Bible is God repairing that rift to reestablish the fellowship lost through human sin.

This is the point of the tabernacle in Exodus (25.8, 29.46) and of the sacrifices and ceremonies of Leviticus (26.11–12), it is the point of the temple (noted above), and is the point of the incarnation of Jesus on earth (John 1.14), of the Spirit coming after Jesus’s death (Ephesians 2.22, Romans 8.11) and is the sine qua non of the Age to Come (Revelation 21.3).

It is remarkable testimony to the failure of the Church in the modern age that the signal point of the Faith and its Scriptures can be so easily conflated with its Epicurean antithesis.

As I suggested above, complaining about how a film script changes an existing story can be made too easily. Changes are unavoidable in adapting an epic like The Odyssey for the screen. Yet necessity does not grant directors or screenwriters a carte blanche, exempting their choices from assaying.

In the case of Nolan’s Odyssey, it seems apparent that Nolan wants to tell a fundamentally different story than Homer told. Throwing in a cyclops and a visit to Hades does not make it a version of Homer’s Odyssey. The changes Nolan made in his Odyssey relative to Homer’s Odyssey are not merely formalistic. In taming and enervating Homer’s Odyssey, Nolan has given us a less challenging and piquant story than Homer did.

The post Taming Odysseus appeared first on Law & Liberty.

This distinction has generated one of the most important controversies in contemporary originalist theory: how large is the construction zone? That question may sound technical, but it is crucial to originalism because it determines how much constitutional law is governed by original meaning and how much is left to judicial discretion, normative considerations, or other methods of non-constitutional decision-making.

If the construction zone is large, originalism governs only the clearest provisions, while judges resolve many important disputes by moral or policy judgment. Thus, construction can become a form of living constitutionalism. A small construction zone, by contrast, means that the Constitution functions as a document whose meaning can be recovered and applied through interpretation.

The Construction Zone and the Language of the Law

Original methods originalism explains why that construction zone is much smaller than is often supposed. The Constitution must be interpreted not only according to the meaning of its words at the time of enactment, but also according to the interpretive rules deemed applicable to a document of that kind at that time. Those rules are not optional. They are constitutive of meaning. If modern interpreters employ different interpretive rules from those the enactors would have deemed applicable, they will produce a different meaning from the one the Constitution had when it was enacted.

The Constitution is not written simply in lay language, but in the language of the law. It is a legal instrument, expressly made the “supreme Law of the Land,” filled with legal terms, legal forms, and references to legal interpretive rules. The purpose of technical legal language and legal interpretive rules is to reduce uncertainty by providing more precise definitions and more determinate methods. The language of the law, therefore, enlarges the zone of interpretation and narrows the zone of construction.

For minimizing the construction zone, the most important rule is what we call the 51–49 rule. When the evidence is close—when it seems that an issue could be decided in either of two ways—the interpreter must choose the stronger interpretation, even if it is only slightly stronger. The rule does not assume that difficult questions are easy. Nor that all interpreters will agree. In fact, in close cases it is likely that interpreters will disagree about which interpretation is stronger. But the mere existence of disagreement does not establish indeterminacy. The 51–49 rule allows ambiguity to be resolved by selecting the better interpretation, and therefore close cases do not require interpreters to consider the normative or extraconstitutional considerations that the construction zone requires.

The 51-49 rule is central because ambiguity is the principal route by which cases become a matter of construction rather than interpretation. If every close question creates ambiguity, then the construction zone becomes large, and original meaning governs only a narrow set of cases. But if the original legal rules require interpreters to select the interpretation with stronger support, then many questions said to require construction are instead resolved by interpretation. The Constitution’s meaning does not run out merely because the evidence is contested.

Some scholars have challenged the rule, either directly or by implication. Some suggest that determining original public meaning requires broad public agreement. Others argue that early disagreements over issues such as the Bank of the United States show that the Constitution lacked a determinate meaning on important questions. The common error in these objections is to confuse disagreement about meaning with the absence of legal meaning. Law routinely delivers determinacy through agreed procedures despite disagreement about outcomes.

The Evidence for the 51–49 Rule

The originalist evidence for the 51–49 rule is strong. It begins with leading figures from both the Federalist and Democratic-Republican camps. Fisher Ames, a key Federalist and influential member of the Massachusetts Ratification Convention, articulated the principle during the debate over the First Bank of the United States. Ames declared that he had “no desire to extend the powers granted by the constitution beyond the limits prescribed to them.” Yet he recognized that “in cases where there was doubt as to its meaning and intention,” he had a duty “to consult his conscience and judgment to solve them.” Even when doubts remained between two different interpretations, Ames said he would adopt the reading “least involved in doubt.” That is the 51–49 rule.

Equally significant, Thomas Jefferson—the preeminent Democratic-Republican—insisted that “on every question of construction” interpreters should carry themselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and rather than squeeze a meaning out of the text or invent one against it, conform to “the probable one, in which it passed.” Ames and Jefferson did not agree on much. But they agreed on this method for resolving constitutional ambiguity. The interpreter should not invent; he should select the probable meaning.

The rule also has an obvious intuitive appeal. Where there is evidence on both sides of an issue, one should select the interpretation with the stronger evidence. Obviously, one should not choose the interpretation with weaker evidence. The law often employed this common-sense rule, as it did in civil litigation, where the plaintiff needed only to prove his case by a preponderance of the evidence.

To be sure, the law did not always decide every legal question by simply counting the evidence. Special legal rules sometimes affected which interpretation was stronger. In criminal cases, for example, the rule of lenity favors the defendant. But the rule of lenity is itself a rule of interpretation. It helps determine which reading the law adopts, instructing the interpreter to decide close cases in favor of the defendant. But even here the law does not run out or require construction. It merely changes the quantum of evidence required to decide the case against the criminal defendant. And where no special rule applies—as is usually the case—the case is decided based on a simple balancing of the evidence.

The cases around the time of the Framing provide salient evidence because courts acknowledged interpretive difficulty and nevertheless selected the better legal reading. Courts repeatedly wrestled with difficult questions of interpretation. They faced two plausible readings, admitted that the choice was difficult, and nevertheless resolved the issue by weighing the evidence and applying legal interpretive rules. Since courts do not readily acknowledge that a question is close, these cases are strong evidence that they were applying a 51—49 rule.

United States v. Fisher is a leading example. The question was whether a 1797 statute gave the United States priority in bankruptcy proceedings with respect to all its debtors or only to a narrower class of receivers of public money. Chief Justice Marshall adopted the broader reading, but he acknowledged the strength of the narrower one. He recognized that the statute created “much embarrassment,” that the opposing argument had “great strength of reasoning,” and that he was addressing a “doubtful statute” requiring mature consideration. Justice Bushrod Washington’s contrary view in favor of the narrow reading relied on the statute’s structure, title, and the canon against redundancy. Nonetheless, Marshall concluded that the broader reading was the better one. The section at issue, unlike the rest of the act, dealt not only with the duties of receivers of public money but with a distinct subject—the government’s priority in bankruptcy—and it described the debtors covered in broad terms. Fisher is not a case of plain meaning triumphing over a clearly inferior alternative. It is a case of a court selecting the better interpretation of a doubtful statute.

United States v. Palmer supplies another important example, in which Marshall resolved two close questions under a piracy statute. To keep this brief, we consider only the first question—whether robbery on the high seas was a capital offense. The statute made piracy capital and reached murder, robbery, and any other offense that would be punishable by death if committed on land. The defendant offered a plausible reading that the “any other offense” language modified robbery—so that robbery at sea was capital only if robbery on land was, which under federal law it was not. Marshall acknowledged that this reading was “entitled to great respect,” especially because the statute inflicted capital punishment. Yet he rejected it, concluding that Congress had named murder and robbery separately. Many other cases at the state and federal level adopt a similar approach.

Evidence from leading treatises reinforces the point. Emmerich de Vattel, an eighteenth-century natural law theorist who influenced the Founders deeply, wrote in his Law of Nations that “in all human affairs, when there is a want of certainty, we ought to follow probability.” If many interpretations present themselves, he said, one should prefer the interpretation that appears most agreeable to the intention with which the instrument was framed. English academic Thomas Rutherforth similarly recognized that common topics of interpretation may appear on both sides with enough probability to make certainty difficult but still directed interpreters to decide according to what rational conjectures show to be most probably the enactor’s meaning. US Supreme Court Justice Joseph Story stated the rule in constitutional terms: when constitutional words are susceptible to two senses, one strict and one enlarged, the interpretation should be adopted that is most consonant with the apparent objects and intent of the Constitution.

Objections

Nor is there substantial contrary evidence. The most significant possible rival is what one of us has called “the duty of clarity,” under which a court should hold a statute unconstitutional only when it clearly violates the Constitution. But even if one accepts that rule (as one of us does), it does not conflict with the 51–49 rule. The duty of clarity is best understood as a rule about judicial power. It governs the extent to which courts should second-guess legislatures. It is not a pure rule of interpretation in the first instance. Thus, on this view, a court might concede that a particular interpretation of the Constitution is slightly better than another, but nevertheless decline to overturn legislation on that basis, because it is not sufficiently sure that the legislature’s was mistaken. But when the legislature (or the executive or a citizen) interprets the Constitution, the 51-49 rule requires that they follow the interpretation believed more likely. And this holds even if one believes that the courts must give some modicum of deference to the legislature’s decision.

Nor is the 51–49 rule defeated by the possibility that interpretive choices are not always binary. The rule’s name is shorthand. Where more than two interpretations present themselves, the closely analogous rule is to choose the best interpretation. The framing generation confronted such situations, including the Decision of 1789 on presidential removal, in which interpreters defended four competing theories as the strongest interpretation. Multiplicity did not require construction.

Jack Balkin has suggested that the 51–49 rule is inconsistent with our supermajoritarian justification for originalism.  But this is a category mistake. The supermajoritarian argument justifies the Constitution as a whole because it was enacted through broad and extraordinary consensus. It does not follow that every provision or interpretive rule must command supermajoritarian support. A legal system can sensibly require supermajoritarian support at the level of enactment because of the need for consensus for the system and yet use ordinary adjudicative decision rules at the level of application. Requiring supermajoritarian support at the application level would greatly reduce the effect of the Constitution on decision-making (and greatly hamstring judicial review). That may be undesirable.

The 51–49 rule thus rests on statements of important Founders, early judicial practice, and evidence from influential treatises. There are no statements to the contrary. If ambiguity can be resolved by selecting the better legal meaning, then the construction zone is small. Originalism need not surrender hard cases to normative judgment. It can remain interpretive, not normative, all the way down. And because interpretive rules are constitutive of that meaning, fidelity to the Constitution requires fidelity not only to its words, but to the rules that made those words law.

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Editor’s Note: This is the third and final essay in a symposium on the executive removal cases, Trump v. Slaughter and Trump v. Cook. The first essay can be read here and the second essay here.

For most court watchers, the blockbuster case of 2026 was the birthright citizenship case, Trump v. Barbara. But for teachers of National Powers cases like myself, the blockbuster was Trump v. Slaughter on the president’s power to remove a member of the Federal Trade Commission. Law professor Steven Calabresi went so far as to call Slaughter “the most consequential and important majority opinion of [Roberts’] tenure as Chief Justice.”

Slaughter overturned the landmark 1935 precedent of Humphrey’s Executor v. US, which had insulated FTC commissioners from presidential control. Chief Justice John Roberts’ opinion rejected the old argument that this independent agency’s functions were not “purely executive,” only quasi-executive. In the course of his argument, Chief Justice Roberts marshals a compelling range of evidence from the text, structure, and history of Article II that the executive must be able to fire members of the agency to keep it accountable.

Roberts should have laid out even more evidence from the history, in order to better answer the dissent by Justice Sonia Sotomayor and better set the course for future cases on the separation of powers. An excellent historical resource which none of the opinions cite, unfortunately, is Charles Thach Jr.’s Creation of the Presidency, 1775-1789: A Study in Constitutional History. This book has been discussed several times in the pages of Law & Liberty, and it deserves to be. It began as Thach’s dissertation from Johns Hopkins University in 1922, and has been reprinted by Liberty Fund in 2007. Let us compare Chief Justice Roberts’s account with Charles Thach’s account of the creation of the presidency as a unitary and accountable executive.

The Removal Debate

The majority opinion in Slaughter begins its history before the Constitutional Convention takes place in 1787. The American experiment in government began with a bad experience with executives—namely King George III and his royally appointed governors. When the state constitutions were rewritten immediately following independence, almost all of them adopted weak, plural executive branches or none at all. Roberts argues that “unity won out” at the convention over plural executive models due to the negative experiences in state governments during the Articles of Confederation period. In addition, Chief Justice Roberts correctly identifies the following: that Alexander Hamilton, Charles Pinckney, and James Wilson were the members who made the key arguments leading to a unitary executive at the Convention; that General George Washington’s likely role as first president was a consideration; and that Hamilton went on to defend the unitary executive in Federalist #70. Finally, the “Decision of 1789” by Congress to establish executive departments affirmed the president was vested with the power to remove, and it became the accepted precedent (at least up until 1936).

Thach fully recounts all of that in his book, but he would perhaps add three additional points to the chief justice’s account.

First, Thach would add to the discussion of the Articles of Confederation period. In chapter 3, he describes the Continental Congress’ attempts to execute the laws without an executive branch:

Having reached a decision, [the Continental Congress] entrusted its execution to whatever agency seemed at the moment most convenient, perhaps a committee of its own membership, perhaps a state council or convention, perhaps individuals without official status. Such agencies, having carried out the order in question, immediately lapsed. There was neither plan nor organization.

These committees for execution ate up Congress’ time, created turf wars, and were ineffective—leading to calls for a national executive branch of some sort. The plural executive model was failing both at the national and state levels, therefore. How to fix the national executive branch, making it both energetic and democratically accountable, was a question left open even in Madison’s Virginia Plan presented at the beginning of the convention.

Second, in chapter 4, Thach points out that the key model for the presidency cited during the convention was the New York governorship of George Clinton. That was the one state where a truly unitary model had been tried, and it had worked well, so well that Clinton rival Alexander Hamilton felt compelled to cite him as a paradigm in Federalist #70. It is true that the New York Constitution did not spell out appointment and removal powers for the executive branch, but “[Governor] Clinton’s control of nominations had given him control of the patronage, as was well known to all conversant with New York politics,” writes Thach. Here is another important point: after the convention, arguments made by various participants at the convention are repeated by the defenders of the Constitution, no matter who made them in the summer of 1787.

Third, Thach offers a highly nuanced account of the different sides in the Decision of 1789. He points out that eighteen Congressmen involved in the Decision of 1789 had been at the Constitutional Convention themselves—it was virtually the same “political environment.” During the debate, there were four camps, but one can tell by reading the debates that the presidential removal argument won the day—and got the final vote that mattered. Six of the House members present at the convention voted for the bill (Madison, Clymer, Baldwin, Carroll, Fitzsimons, and Gilman), while just two voted against (Sherman and Gerry, a “Grumbletonian”). The fact that several Congressmen were members of the convention is a significant point that Chief Justice Roberts leaves out; the Decision of 1789 gives us insight into the original meaning of Article II. It is not just one Congressional interpretation that could be erased by a later Congress, as it tried to during the Tenure of Office years after Reconstruction. As Chief Justice Taft said in Myers v. US, the Decision of 1789 is “contemporaneous legislative exposition” (272 US 175). And what is especially definitive about the Decision of 1789 is that the Senate renounced the power of removals. Thach writes: “The significance of the [Senate] vote is the greater when it is remembered that instances where a political body voluntarily deprives itself of power are very few in all the history of government.”

Lessons for the Future

The points from Thach just recounted, and others from his book, would have added a great deal to the Trump v. Slaughter discussion.

Chief Justice Roberts would have been able to more decisively answer Justice Sotomayor’s dissent about whether the Decision of 1789 merely decided a “rule against congressional participation in removals” or “a rule against tenure protections.” Of course, Roberts is right that they are “one and the same,” but unless the legislative history of the dissent is countered with a balanced reading of the same history, their objection remains. Justice Sotomayor cites law professor Jed Shugerman, but she just as well could have cited another old and venerable book, Edward Corwin’s The President: Office and Powers:

While the decision [of 1789] undoubtedly avoids the direct implication that the President owed the power of removal to a grant by Congress, yet this outcome was brought about by the indispensable aid of those who throughout the debate had championed the doctrine that Congress could determine the question of the scope and location of the removal power in any way it saw fit. … While, therefore, the decision may be fairly considered as ascribing to the President alone the power to remove executive officers, appointed by the consent of the Senate, whom Congress chooses to leave removable by not fixing their terms, it certainly did not establish the proposition of the Myers case that Congress is without power to fix the terms of any executive officers whatever as the President’s power of removal.

That is not a fair reading of the Decision of 1789. Recall the second point drawn from Thach: arguments made by various participants at the convention are later repeated by defenders of the Constitution. Even if Madison at the convention may not have viewed removal as vested in Article II, the question was now decided by a ratified Constitution which he supported. Corwin’s reading of the Decision of 1789, first laid out in a 1927 article responding to the Myers decision, offered another bogus parsing of the debate. Corwin claimed: “a mere fraction of a fraction, a minority of a minority, of the House, can be shown to have attributed the removal power to the president on the grounds of executive prerogative.” That is nonsense. Thach rightly focuses on the majority vote; there are many measures voted down in Congress that do not command a majority, and they do not matter to the final text of the law. Additionally, the law voted on with the Decision of 1789 was a liquidation of a clause of the Constitution which had already been written and ratified, not the construction of a new power. Even Corwin admitted there were problems with Humphrey’s Executor: “if a Federal Trade Commissioner is not in the executive department, where is he? In the legislative department; or is he, forsooth, in the uncomfortable halfway station of Mahomet’s coffin, suspended ‘twixt Heaven and Earth?”

Lastly, if Chief Justice Roberts had discussed what Thach did about problems of the Articles of Confederation, it might have led him to confront the delegation doctrine head-on, the course suggested by Justice Neil Gorsuch’s concurrence. There is not just a problem of independent agencies unaccountable to the executive—there is a problem of agencies mixing all three functions (an issue I would argue the court dodged in the Federal Reserve case of Trump v. Cook this term). Given the design of the executive branch and the principle of separation of powers, the court ought to return to the non-delegation doctrine and the issues involved in Schechter Poultry. As Justice Gorsuch points out, thanks to delegation, Independent Agencies also have “enormous legislative and judicial powers” they should not have in the form of regulation and adjudication. Those should be returned to the legislative and judicial branches as well.

But the Slaughter decision is a good start. By returning to old books on the subject, we discover that arguments about the original meaning of Article II have not changed very much in 100 years. The much stronger argument in favor of a unitary executive is finally being made by justices in the majority other than Chief Justice Taft. It can be further enriched by returning to old and new scholarship (for newer scholarship on the Decision of 1789, I recommend Aditya Bamzai and Saikrishna Prakash; for newer scholarship on removals in the early Presidencies, I recommend Joseph Bessette and Gary Schmitt). If only the Court had paid more attention to Creation of the Presidency, 1775-1789, it might never have gone down the Humphrey’s Executor dead-end road in 1936.

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Editor’s Note: This is the second of three essays in a symposium on the executive removal cases, Trump v. Slaughter and Trump v. Cook. The first essay can be read here and the third essay here.

On June 29, the Supreme Court decided two cases that together transformed the law of removal. In Trump v. Slaughter, the Court held that the Federal Trade Commission exercises executive power and therefore must remain subject to presidential control. Expertise, bipartisan composition, staggered terms, and institutional continuity traditionally associated with independent commissions no longer suffice to protect their members from removal.

Trump v. Cook, decided the same day, preserved an exception for the Federal Reserve. The Court treated “for cause” as a substantial and judicially enforceable limitation, not merely a requirement that the president state some reason for removing a governor. It did not decide whether the allegations against Lisa Cook constituted cause. It held that she must receive notice and an opportunity to respond before a final decision, after which courts may assess the validity and sufficiency of the asserted grounds.

The Court justified this protection through the historical lineage of the First and Second Banks of the United States and the importance of shielding monetary policy from political interference. But it also supplied an important qualification. In upholding the Fed “as currently structured and with its existing enforcement authorities,” the Court cautioned that Congress might not be able to add regulatory powers “attenuated from monetary policy” (Trump v. Cook, slip op. at page 22, footnote 6).

That qualification creates the institutional-design problem. Monetary policy supplies the rationale for independence, but removal protection attaches to the governor’s office rather than to votes. The same protected governor participates in monetary policy, emergency lending, supervision, regulation, and payments policy. Cook accepts that existing portfolio while casting doubt on further expansion. Congress therefore cannot reconsider removal protection without also asking what powers belong inside the protected office.

Congress’s task should be threefold: first, protect monetary policy from retaliatory removal, to embed in legislation the protection the Supreme Court has recognized. But second, Congress should make clear that central bank independence is not required for every power a central bank may hold. And lastly, it should separate monetary implementation from fiscal credit allocation.

In 1983, when I co-authored one of the first two papers on central bank independence, we focused almost entirely on whether monetary policymakers could resist political pressure and removal. We concluded that greater autonomy was associated with less accommodation to outside pressure and lower inflation. Later multidimensional indices expanded the concept of independence, though I questioned treating heterogeneous institutional features as a single empirical measure. Those empirical objections remain. But Cook presents a different question: not which collection of legal traits best predicts economic outcomes, but which allocation of authority is constitutionally legitimate, democratically accountable, and institutionally durable.

Protection from removal is not intended as an employment benefit for the office holder. It is a protection of the monetary decision process from retaliation and preemptive intimidation. Allegations unrelated to performance in office are ruled out in Cook; the Court’s decision ruled out removal first and litigation later, since even temporarily sidelining a governor can alter votes (which was the actual matter being decided).

This leaves to Congress the practical task of clarifying what it meant by cause and the process of notice, an expedited judicial review, and a clear remedial rule. Legislation should expressly exclude good-faith monetary policy judgment as a cause for removal. Congress could add accountability to balance these protections through reporting and transparency requirements.

The Fed has other protections from Congressional oversight. As Paul Tucker wrote in Unelected Power, the Fed is financially independent because it funds its operations from its own earnings and fees gathered from its holdings of securities. Congress typically can control agencies through the appropriations process, but not the Fed. I would not like to see that changed—this would be too large an encroachment on its independence. But it does create a need for an ex ante definition of its powers. A Fed that enjoys both protection from removal and financial independence should have its powers expanded carefully.

When we first wrote about central bank independence, the Fed already was a hybrid between a monetary institution and bank regulator, though at least these were within recognizable banking categories. It supervised state banks that joined as members of the System; it regulated bank holding companies, and it operated the discount window as part of its lender-of-last-resort function rather than as a tool of monetary policy. The Fed’s power to deal with emergencies, granted in Section 13(3) of the Federal Reserve Act, was institutionally dormant since its use during the Great Depression. 

In 1984, Continental Illinois received aid from the Fed through extended credit in part to protect other financial institutions that had exposure to Continental. This failed to stabilize the bank, and FDIC’s eventual losses were larger as a result. The FDIC Improvement Act in 1991 closed this loophole to prevent the Fed from using the discount window to help insolvent banks. Congress put the Fed within a perimeter that required approval of extended credit.

Long Term Capital Management was a hedge fund that failed in 1998. The New York Federal Reserve convened a recapitalization of a nonbank, though it put no Federal Reserve funds at risk. At that moment, the Fed’s perimeter expanded through coordination and judgment of systemic risk, though not yet through the balance sheet. Congress also broadened the Fed’s supervisory perimeter, further blurring the distinction between monetary policy and financial regulation.

The Fed’s rescue of Bear Stearns in 2008 thus was not created ex nihilo. It combined Continental’s systemic-protection logic with LTCM’s recognition that a nonbank dealer could be systemically important. In the rescue of Bear in March, the New York Fed financed a special purpose vehicle called Maiden Lane so that JP Morgan could acquire the failing company, using Section 13(3) as its authority. That was a fiscal act carried on the central bank’s balance sheet, not merely monetary implementation. When AIG failed the following September, the Fed’s support was extended on a much larger scale, and the absence of the fiscal framework for resolution became evident. Additional Maiden Lane SPVs were created.

Congress acted again in passing the Emergency Economic Stabilization Act of October 2008, which created the Troubled Asset Relief Program, or TARP. Congress provided authorization of fiscal capacity through the Treasury. But this left many things unfixed, including a rewrite of Section 13(3) or a definition of the boundary between the Fed and the Treasury in financial crises. 

The Fed and the Treasury implicitly acknowledged this institutional gap in a joint statement on March 23, 2009. They distinguished the Fed’s responsibility for improving broad credit conditions from credit allocation, which they assigned to fiscal authorities, and promised to work with Congress on a regime for resolving systemically important financial institutions and defining the Fed’s role in those resolutions. Like the 1951 Accord, the statement was an agreement between two institutions created by Congress concerning the boundary between their powers. Unlike the 1951 Accord, however, it was followed by major legislation: Dodd-Frank supplied a resolution regime and revised Section 13(3), though it did not fully resolve the monetary—fiscal boundary.

This was not the first time the Treasury and the Fed had attempted to define their relationship through an interagency statement. During World War II, the Treasury had asked the Fed to peg the government yield curve to reduce wartime financing costs. The 1951 Accord ended that accommodation and restored an operating boundary between debt management and monetary policy. In both 1951 and 2009, the agencies could announce an operating settlement; only Congress can make the boundary durable.

Dodd-Frank was a partial answer. It provided an orderly liquidation regime for systemically important financial institutions (SIFIs) as a direct response. It amended the Fed’s 13(3) powers to prevent assistance to specific failing firms but retained the possibility of creating broad-based lending facilities. Creating any such facility would require the Treasury’s approval. These revisions were meant to prevent future Bears and AIGs. When the March 2020 COVID shock happened, Congress was part of the solution in supplying CARES Act funds, the Treasury supplying loss protection, and the Fed supplying a larger lending capacity. Left unresolved, however, is whether an appropriation plus Treasury approval is enough. 

This history raises the question: what rule should prevent a central bank, protected from removal and ordinary budgetary discipline, from becoming a permanent allocator of credit? Writing before 2020, Charles Plosser, a former Fed president, observed that the Fed’s balance sheet had traditionally been filled with Treasuries, but Bear and AIG “amounted to debt financed fiscal policy and a form of credit allocation.” Likewise, the rapid expansion of Fed purchases of mortgage-backed securities supported the housing industry, a powerful political force in Washington.

The Fed today, under its new chair Kevin Warsh, is debating the size of its balance sheet. Should credit allocation and revenue generation determine this? And who should decide that? Plosser argues for a return to a Treasuries-only portfolio, with a transfer or exchange of non-Treasury assets to a fiscal authority such as the Treasury. Because the Fed is not exposed to the ordinary appropriations process, Congress cannot use a traditional mechanism to police each balance-sheet decision. It must rely on a statutory fix instead.

This leads to a Congressional agenda of three complementary reforms. First, Congress should protect the Fed by clarifying the removal protections, so good-faith monetary judgments do not become cause for removal. Second, Congress should bound the protected office. Many agencies need expertise, but the test should be whether the function is sufficiently connected to monetary policy, lender-of-last-resort operations, payments stability, or systemic liquidity to justify placing it in an office protected from presidential removal and ordinary budget discipline. Third, Congress should separate monetary implementation and broad emergency liquidity from fiscal credit policy. Temporary action in a crisis should be permitted, but facilities involving sectoral credit support, Treasury loss protection, or material credit risk should sunset unless Congress has clearly specified how they may be renewed and who is politically accountable for doing so. 

Cook rests on the history and function of monetary policy, yet the office it protects carries a full statutory portfolio that extends well beyond what is needed to conduct monetary policy. Congress should not strengthen removal protection without also defining the boundaries of the protected office. Central bank independence is justified because it shields monetary policy from short-term political control. It should not be used to insulate every exercise of Federal Reserve authority from democratic accountability. Protecting its independence ultimately requires defining its proper sphere. 

The post Boundaries and Independence appeared first on Law & Liberty.

The occasion was Trump v. Barbara, in which the Court, by a vote of five to four on the constitutional question, struck down President Donald Trump’s executive order purporting to withhold birthright citizenship from children born on American soil to parents unlawfully or temporarily present. Chief Justice John Roberts wrote for the majority, joined by Jackson as well as Justices Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett; Justice Brett Kavanaugh concurred in the judgment on the narrower ground that the order violated a federal statute, without joining the majority’s constitutional holding.

Justice Thomas, joined by Justice Neil Gorsuch, filed a dissent of some 90 pages arguing that the Fourteenth Amendment, a creature of Reconstruction, was written to secure the citizenship of the freed slaves and their posterity, and that its language about being “subject to the jurisdiction” of the United States imports something more exacting than a stork’s flight path. Gorsuch and Justice Samuel Alito each added dissents of their own.

Justice Jackson, for her part, joined the Court’s opinion in full and then wrote separately, as she said, “to respond to some of the themes in the principal dissent.” What followed was a rebuke, notable more for its passion than its legal arguments. Thomas’s account of the Amendment’s history, she wrote, “elides the entire point of the Second Founding.” One pictures the old Georgian receiving this the way a man receives news that his hat is out of fashion: with mild interest and no particular alarm.

It is worth asking what Jackson’s opinion actually contributes to the corpus of constitutional law, because a close reading of it suggests the answer is several fashionable metaphors dressed up as historical argument, and rather less history than advertised.

Start with the phrase “Second Founding.” Conservative and libertarian scholars, not least among them Ilan Wurman, have used that term for years to describe the Reconstruction Amendments as a refounding of the Republic on principles more consistently applied than those of 1787: natural rights, equality before the law, a national citizenship that trumps the several states’ pretensions. That an originalist and a progressive jurist can reach for the identical phrase and mean almost opposite things by it tells you the phrase itself is doing no work. It’s a banner, not an argument, and Jackson waves it as though the mere waving settled a case that in fact turned on considerably drier questions of domicile, allegiance, and the common law of jus soli.

Then there is her central image: that the Reconstruction Amendments were “an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery.” In a judicial opinion, the borrowed vocabulary is important to note. “Caste” is not an American term of art; it originally referred to the hereditary, endogamous social order most fully elaborated in the Indian subcontinent, formalized by religious sanction and enforced by rules of ritual purity that have no American analogue. American slavery was a wrong of a different architecture: a labor and property system, race-based and brutal, but not a caste system in the technical sense.

American law after 1865 did not need to abolish caste because caste, properly understood, was never the American condition. Jackson’s use of the word is not a historian’s term but a theorist’s: it belongs to the vocabulary that migrated out of comparative sociology and postcolonial studies in the late twentieth century, in which “caste” became a portable metaphor for any entrenched hierarchy, decoupled from its Indian origins and redeployed to describe American racial subordination as a system of structural power, dominance, and enforced dehumanization. That vocabulary has its uses in a humanities seminar room, but it’s unsuited for an opinion purporting to recover what a ratifying public in 1868 understood itself to be doing, since nobody in the 39th Congress was thinking in the idiom of caste theory. The anachronism is not incidental to Jackson’s argument: it is the argument, smuggled in under a rhetorical flourish so that a contestable theoretical frame arrives looking like established historical fact.

The pedagogical simile that follows is, if anything, worse. The Fourteenth Amendment, Jackson writes, “caused a paradigm shift in the trajectory of our Nation; the teacher who scolds a student for bullying a classmate hopes the student learns the broader lesson of treating everyone with kindness, not just that one kid.” The sentiment is unimpeachable, and the jurisprudence is nonexistent. A teacher’s hope about a student’s moral development is not a rule of law, still less a rule about who possesses sovereign power to confer citizenship upon whom; it is an appeal to feeling dressed as the application of logic, and it fails at the point where someone asks what, specifically, was enacted, by whom, and with what words. A child’s classroom is not the place to look for the original public meaning of a constitutional clause. Nor does Jackson’s modish register belong in the High Court—her opinion reaches more for a popular audience than the kind of serious argumentation that is expected of the justices.

Insofar as Jackson makes a serious argument, though, the heart of it is the claim that “the Citizenship Clause reflects” a “universalist approach” to belonging, that the freedmen and their allies fought not merely for their own citizenship but for a capacious, race-neutral principle of birthright membership that happened, as a matter of historical accident, to benefit them first and everyone else after. But this is not what the record shows.

Jackson submits, “First in the North (as States abolished slavery), and then in the South (after Emancipation and the Union’s victory in the Civil War), Black people who were generally not permitted at the polls or in the halls of power mobilized nevertheless to advance the universalist vision of belonging and citizenship that eventually won the day.” As much as one might wish this were the whole story, the nineteenth century was considerably less tidy. Free Black communities in the antebellum and Reconstruction-era North were frequently in open competition, sometimes violent competition, with the era’s Irish immigrants for the same dock work, domestic positions, and unskilled labor—a rivalry that boiled over most infamously in the New York City draft riots of 1863, when Irish mobs lynched Black New Yorkers and burned the Colored Orphan Asylum, but that simmered in labor markets up and down the Atlantic seaboard for decades before and after.

Frederick Douglass, who figures prominently in Jackson’s text, complained bitterly, and more than once, that Irish immigrants were displacing Black workers from trades Black tradesmen had long held. This is not the record of two oppressed classes marching arm in arm toward a shared “universalist vision”; it is the ordinary record of groups competing amid scarcity, which is very different from a coalition united behind an abstract principle of belonging. It’s also a reminder, if one is needed, of how much more complicated the era’s racial and ethnic arithmetic was than the “universalist vision” allows.

Jackson’s thesis requires a Reconstruction-era coalition of the oppressed, marching together toward the light. The actual historical record offers something messier: a Black political class fighting, often alone, for its own concrete and particular claim to birthright citizenship, in a country where that claim was resisted not only by native whites but frequently by other groups jockeying for the same narrow rungs of the social ladder.

Consider, too, Jackson’s use of the Colored Conventions—the free Black political gatherings of the antebellum decades. “Do note this,” she instructs the reader, in the imperative mood of a woman confident she has found her smoking gun: “The citizenship thesis of the Colored Conventions was thus not that some new status should be created and conferred on freed Blacks. It was instead that freed Blacks already had a rightful claim to citizenship because they had been born on American soil.” What that sentence actually proves, though, is that the free Black leadership of the era grounded its claim to citizenship in birth on American soil—as applied to former slaves and their children, people whose ancestors had been forcibly and permanently domiciled here for generations.

It says nothing whatsoever about children born to parents who are transient, unlawfully present, or owing allegiance elsewhere, which is precisely the class of case at issue in Barbara and precisely the distinction Thomas’s dissent presses. Jackson offers this passage as proof of her “universalist” reading. It is better read as evidence for the opposite proposition: that the claim being pressed by the Colored Conventions was a specific claim, rooted in a specific historical wrong, made on behalf of a specific and identifiable class of persons—not an abstract doctrine of citizenship-by-mere-geography that Jackson’s opinion then extends, by her own say-so rather than by any citation she offers, to cover a much broader population than the one that ever made the argument.

A great deal of Jackson’s opinion, then, is interpretation presented as if it were simply what the text says: the critic’s own reading smuggled in as the plain sense of the document, so that disagreement with the critic starts to look like disagreement with reality itself. Take Jackson’s culminating flourish: “With this recognition, the US Constitution finally got an anticaste engine. And with it, the Nation gained a new font of legitimacy and vitality.” The phrase “anticaste engine” is not legal nomenclature; it is a metaphor where a citation should be, and metaphors, however energetic, cannot be shepardized.

Texts do not interpret themselves. Meaning, as Stanley Fish taught us, is always the product of an interpretive community bringing its own assumptions to bear, and Jackson’s opinion is a case study in the phenomenon: a critical-theory reading of the Reconstruction Amendments, complete with its vocabulary of caste, hierarchy, and structural subordination, presented not as one plausible interpretive community’s gloss on the text but as the text’s own self-evident meaning, discoverable by anyone who simply looks hard enough.

It is not self-evident. It is a theory, imported wholesale from academic departments that do not customarily concern themselves with the original public meaning of 1860s legislative text, and dressed, for the occasion, in judicial robes.

The longer passage that follows compounds the trouble. Jackson insists that the Fourteenth Amendment “is not color-blind; rather, its core principle is that our Nation does not tolerate racial caste,” that its architects “did not think or pretend that race didn’t matter,” and that “the Citizenship Clause applies universally precisely because such universal application was necessary to achieve the Amendment’s own race-conscious remedial purposes.” This is a striking thing to ask a reader to accept, since it requires holding two propositions at once that sit uneasily together: that the Amendment’s purpose was narrowly race-conscious, remedial, and particular to the freedmen, and also that its text must be read as universally, indiscriminately applicable to any child born on American soil regardless of parentage, allegiance, or the circumstances of the parents’ presence here.

One cannot have the remedy be narrowly race-conscious, and the application be indiscriminately universal without doing some fairly athletic interpretive work to explain why the universal reading was “necessary” to the particular purpose—work Jackson asserts rather than demonstrates. It is possible to write a great deal of confident prose about “systemic subordination” and the “remaking of the soul of a Nation,” as Jackson does, without ever quite closing that gap.

None of this should be mistaken for a claim that conservatives must agree or disagree about the result in Barbara, or that Thomas’s dissent was beyond argument. Reasonable originalists have disagreed about domicile, allegiance, and the scope of Wong Kim Ark for a long time, and will go on disagreeing. The complaint here is narrower and, I think, more damning: that a concurring opinion of the United States Supreme Court, in the process of answering one of the oldest questions in American constitutional law, reached for the jargon of the graduate seminar and the internet meme in more or less equal measure, and asked readers to accept as historical fact what is, on inspection, an interpretive frame.

Jackson closes by insisting that the advocates of the Fourteenth Amendment never “pitched Black Americans against immigrants,” that “freed Blacks fought for the shared humanity of all people,” and that Lincoln foresaw a need to “link the fates of all” against any return to subordination. It is a generous proposition, but it is not, on the record, quite the whole truth. From the antebellum labor competition on the northern docks through the 1863 draft riots to Booker T. Washington’s Atlanta Compromise address, in which he pointedly urged Southern industrialists to “cast down your bucket” among the Black workers already present rather than import foreign labor, to A. Philip Randolph’s friction with immigration policy and organized labor in the twentieth century, the relationship between Black Americans and successive waves of immigrants has been one of recurring, often painful competition for the same rungs of American economic and civic life—not the seamless coalition of universal belonging that Jackson would have us believe. A jurisprudence built on that fiction is not less consequential for being well-meant. It is only less true.

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