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]]>But these claims misunderstand the common originalist basis, if not all the reasoning, of these decisions. Roe recognized an unenumerated substantive due process right that Dobbs found unsupported by text, history, or tradition. Buckley and Bruen concern rights expressly named in the Constitution: political speech under the First Amendment and the right to keep and bear arms under the Second. Originalism seeks to apply the Constitution’s meaning as it was understood at the time of enactment. It is not a direction to apply judicial restraint, but rather to interpret the Constitution fairly. To be sure, it restrains judges from inventing unenumerated rights. But it also restrains judges and legislatures from balancing these rights away.
In a recent article, scholars Rebecca Brown, Lee Epstein, and Mitu Galuti discount the importance of this distinction, declaring it a “thin reed.” But for originalists, it is the beam around which constitutional law is built. Given past precedent, an unenumerated right may be protected, but only if it is deeply rooted in America’s traditions. Dobbs correctly held that abortion was not such a right because it lacked the long tradition of protection that undergirded other unenumerated rights.
By contrast, no one needs to infer from the due process clause that speech and gun rights are protected. The First and Second Amendments say so. Whatever the contest of the scope of these rights, their existence is secured by the text of the Constitution itself. Whatever the disputed meaning of the Ninth Amendment, it does not make enumeration irrelevant. Enumeration establishes a constitutional baseline that has made the treatment of enumerated rights different from that of unenumerated rights.
In If Roe … then Buckley, Lawrence Lessig’s treatment of the original meaning of the text is more sophisticated. He argues that the original First Amendment left legislatures the power to determine the contours of speech freedom for the public good and, therefore, that the regulation of independent political spending on behalf of candidates struck down in Buckley should have survived. His argument relies on the work of Jud Campbell, who argues that at the Founding, legislatures had broad authority to regulate rights such as freedom of speech in the interests of the “common good.”
These historical claims have been sharply contested, most recently by Philip Hamburger, who shows that the Founders wrote such rights down precisely to make them legal limits on government and enforceable by courts. In Hamburger’s view, Campbell turns the Constitution “upside down” by mistaking the Founders’ acceptance of narrow common law regulations, such as laws against libel or fraud, for a much broader power of government to reshape basic liberties. Narrow historical regulations of libel, fraud, bribery, or treating do not establish a general legislative power to redefine the freedom of speech.
For those concerned with the text, it would be particularly odd to apply this analysis to the First Amendment, which is expressly phrased as a restriction on the legislature: Congress shall make no law abridging the freedom of speech. It is not enough for Lessig to show that some Founding-era rights were regulable. He must show that an amendment phrased as a prohibition on Congress left Congress with substantial authority to define the very freedom it was forbidden to abridge. Lessig’s interpretation would instead convert this prohibition into a delegation to the legislature to decide on the wisdom of restrictions. And there is an additional reason to resist this reading. Putting legislators in charge of speech related to their reelection is a recipe for protecting incumbents.
We cannot make the error of ignoring the original meaning of the enumerated rights of the First and Second Amendments.
To be sure, Buckley, written long before the rise of modern originalism, is no jurisprudential masterpiece. But Buckley’s holding was right to invalidate limits on independent expenditures and campaign spending because they directly restrict political advocacy. Just as it would be unconstitutional to impose a ceiling on the New York Times and other media for editorializing or reporting, so too is it unconstitutional to impose a ceiling on Bill Gates or any other citizens. (It is not possible to make a distinction because the New York Times is the press without giving the government the authority to determine who the press is.) Neutral principles are especially needed in campaign finance because campaign rules structure the entire political process, because the First Amendment reflects distrust of government, and because incumbent legislators have obvious incentives to skew the rules.
Lessig also has a specific public-good argument, which he thinks has more clearly defined boundaries than it does. He seems to think that broadening the legitimate concern about quid pro corruption that justifies restrictions on the amount of campaign contributions to mean politicians’ dependence on outside interests justifies restricting the wealthy’s independent expenditures. But as I note in my book, Why Democracy Needs the Rich, politicians are even more dependent on the long-term influence of the professional influencers—the media, academics, and entertainers. It is unclear why, under Lessig’s theory, Congress could not decide to regulate that influence as well. Nor can legislatures regulate speech to protect “undistorted” public opinion. The Constitution provides no baseline to determine when opinion is distorted. Indeed, public opinion is created through the exercise of First Amendment freedoms.
Finally, Lessig argues that Bruen supports the case for overruling Buckley. This is amusing because Brown, Epstein, and Gulati want to overrule the case on which Lessig wants to rely on because its test is difficult to apply. But in any event, even if Bruen’s analysis were to be applied in the First Amendment context, Bruen does not reveal what Lessig thinks it does. Bruen does not stand for judicial retreat whenever the legislature invokes the public good. It stands for the proposition that when constitutional text covers protected conduct, the government must justify restrictions by reference to historically grounded limits.
For instance, that framework may support laws against bribery and other practices historically understood as corrupting elections. It does not support a general legislative power to use theories of “dependency” to ration “political advocacy.” A colonial law forbidding candidates from buying punch for voters provides an analog for vote-buying, not for limiting independent expenditures on campaign books and television spots, the modern equivalent of pamphlets. Lessig thus uses Bruen to reach a result of the kind that Bruen itself would not accept.
Brown and her colleagues’ most insistent point is not jurisprudential or historical as is Lessig’s, but more pragmatic. They argue that lower courts have struggled to apply Bruen, and its ambiguities have led to ideologically inflected decisions in the lower courts. But their empirical evidence, at best, is an argument for refining Bruen’s implementation, a process that has already begun, not for abandoning the judicial protection of an enumerated right. It is often the case that a series of cases in an area is needed to give direction to lower courts. The Court can refine its reasoning for clarity while adhering to a decision for its correctness.
Bruen’s result is easy for an originalist. The New York law at issue required licenses to carry a gun outside the home. And to get a license, the applicant had to show a “special need.” Enjoying the right to bear arms cannot require showing a special need to exercise it. That is a contradiction in terms. Thus, Bruen itself was an easy case.
The Court, however, sought to guide the lower Courts by stating that when the conduct fell within the terms of the Second Amendment, it could be regulated only if such regulation had traditionally curtailed the scope of the right. Again, Bruen itself was an easy case on that score because there was no history and tradition of bureaucratic licensing schemes, like those in New York, which undermined the purpose of the right. But Bruen did leave it somewhat unclear how historical examples were to be used.
Three years ago, United States v. Rahimi made clear that the “fit” between the historical examples of regulation and modern regulation was looser than some lower courts had presumed. Courts should compare modern law with historical regulations by asking whether they address a similar problem for a similar reason and impose a comparable burden on the right. The authors of the Bruen article are right that the test is hardly mechanical, but it still corrects one kind of mistaken understanding of the lower courts.
This term, the Court will decide yet another gun rights case, offering opportunities for further refinement. In the interim, scholars have suggested various frameworks to bring more order to the law. For instance, Randy Barnett and Nelson Lund suggest what they regard as a clearer test: courts should require the government to prove that a challenged restriction of the right to keep or bear arms does not vitiate the ability of Americans to use firearms to defend themselves against violent threats that the government cannot or will not prevent.” Here, the historical analogs would provide useful, though not exclusive, guidance. Scholars can help the Court to better calibrate its doctrine and work the law purely over the long term. We cannot expect judges to do all the heavy lifting unassisted. But any birthing difficulties in making Second Amendment doctrine more tractable do not justify overruling Bruen’s correct result.
Lessig contends that Roe and Buckley must stand or fall together. Brown, Epstein, and Gulati argue that Roe and Bruen must stand and fall together. But both make the same error of ignoring the original meaning of the enumerated rights of the First and Second Amendments. That distinguishes the result in Buckley and Bruen from Roe, making the latter suitable for overruling. The Constitution does not require judges to be libertarians in every case. But it does require them to distinguish between liberties judges invented and liberties the people wrote down.
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]]>The post Should Children Vote? appeared first on Law & Liberty.
]]>They pledged to deliver a bill titled the “Representation of the People Bill.” According to the government, this bill will provide “the most significant expansion of the franchise in over half a century” by extending “the right to vote to 16 and 17 year olds.” Labour has not confirmed if they are simultaneously changing the age of maturity, so yes, 16 and 17-year-olds will still be legally children. Yes, that is right. Britain’s Labour Government is planning to give the vote to children. Unfortunately, this is not a new pledge; in the 2024 Labour manifesto, they promise to “increase the engagement of young people in our vibrant democracy by giving 16- and 17-year-olds the right to vote in all elections.” We are told that “early engagement by younger voters will build the foundations for their lifetime participation in the electoral processes.” The government does not provide an argument for this claim or any persuasive evidence at all.
There is a consensus on the political left in Britain that giving children the vote is a good thing. The Liberal Democrats are also in favor of it, and so is the Green Party. A Green Member of Parliament said that “Giving 16- and 17-year-olds the vote is a long-overdue step towards a stronger, more inclusive democracy.” She added that “young people have powerful voices and a vital stake in decisions about their future—it’s only right that they have a say at the ballot box.”
There are many arguments that conservatives of all stripes and flavors could and should make against giving children the vote in all elections, such as that it is excessive egalitarianism. Here is a sketch of them, but the main argument and the fundamental difference with the left is philosophical. That is the understanding that civic participation is about civilizational stewardship and not about so-called personal growth and providing people with a voice.
The Consistency Argument: First, there is a complete lack of consistency in the left’s approach to adulthood and voting. Extending the franchise without extending full adult legal status to 16- and 17-year-olds creates an incoherent standard. Indeed, voting should be tied to adulthood, and if society treats adulthood at 18, with the legal responsibilities of adulthood, this is when citizens should vote. Yet, we are living through an age of cultural infantilization, when childhood is extended further and further; therefore, lowering the voting age is incoherent. The voting age should reflect a stage of broader adult autonomy, which is a much more consistent position, as the franchise should be linked inextricably to adult civic life. Voting isn’t supposed to be just “civic participation” for the sake of personal development. There are important, often complex issues at stake. We need mature, experienced people involved. Not children. Moreover, other features of “adult life” begin at 18 in the UK. For example, it would be odd to trust a 16-year-old to decide on an issue as complex as politics but not trust him or her to make a wise decision regarding smoking, drinking, driving a car, or even renting a hotel room.
The Slippery Slope Argument: The slippery slope argument is straightforward. Why stop at 16? Why not give the vote to 15-year-olds, 14-year-olds, or even 13-year-olds as they too have a “vital stake in decisions”? Don’t these children need to be given a “say at the ballot box”? When the vote is no longer tied to adulthood, there will be a clamor from the left to lower it even further. After all, don’t 12-year-olds have loud voices and much at stake? Expanding the electorate may not improve democratic participation or outcomes. Adulthood involves moral and intellectual cultivation over time, not merely having an opinion or a “strong voice.” Political wisdom requires seasoned judgement and not naïve idealism. Wisdom does not arise from a belief in my rights or my self-expression, but it matures alongside moral and civic responsibilities. Political authority and wisdom emerge from maturity, responsibility, and embeddedness in social institutions, not simply from abstract claims of equality and a right to express my opinion through the ballot box.
Children will play their part in this civilizational stewardship soon enough, but children should not bear the responsibilities of the vote until they are adults.
Misinformation and Education Argument: Children are easily misinformed and misled by the media, social media ecosystems, propaganda, and by other children during recess. In the age of algorithmic outrage and political marketing directed at “youth identity,” conservatives and classical liberals need to argue that political judgment depends upon cultivated prudence. Of course, adults can be fooled by these things too. Children should be on their educational journey towards national loyalty, cultural citizenship, and civic virtue. Children are still growing and developing politically, emotionally, and cognitively. They should not bear the responsibility of voting. It is also deeply odd for insecure youth who are still in school to be burdened with thinking through party platforms and not about their schoolwork.
Ideological Fashion: Adults as well as children are susceptible to ideological fashions, influencer culture, and peer conformity. But children are especially so, precisely because they are still in the process of basic education and emotional development. There may be 16- and 17-year-olds who have the independence or settled character that is required for stewardship of public institutions, but children are not yet, and perhaps never will be, independent from transient passions and influences. If one needs proof of this, he needs only to visit his local high school. Abstract democratic expansion, when detached from moral formation, is a recipe for disaster. It runs the risk of increasing ideological campaigning in our already woke schools, encouraging political emotionalism, and further politicizing everyday social and educational life for children. If political discourse is already more passion than substance, it will become excessively so after enfranchising hormonal adolescents.
Organic Change and Equality Argument: Institutions should and do evolve organically through history and custom, not abstract theories of equality or rights. There has been no great crisis, or systematic mistreatment, or other pressing necessities that have given rise to this policy; it is just pure self-interest, which is masked in ideology. This is not the same as previous expansions of the franchise, in 1832, 1867, 1884, 1918, 1928, or 1969, which gave working-class men, then women, the vote and then equalized adulthood with the right to vote. In all these expansions, there was a compelling practical case for reform and expansion. The left needs to offer a compelling reason to alter the franchise. Giving the vote to children is driven by abstract egalitarian logic rather than historical experience. The modern obsession with flattening all hierarchies in the name of equality is undermining political authority and wisdom. Political equality cannot erase natural differences in maturity, formation, and judgment, and therefore, long-standing democratic norms should not be altered quickly. Democratic norms depend on habits, institutions, and moral formation rather than mere assertion of rights or the use of one’s voice.
Unity and Governability Argument: Will giving the vote to children calm class conflict, reduce extremism, preserve national unity, and integrate new voters into constitutional politics, or will it intensify generational politics and make Britain even more ungovernable than it is already? The left needs to answer these questions before they give children the vote.
Civilization Stewardship Argument: All the above arguments against giving children the vote are persuasive in their own right, but the most substantial reason not to do so is philosophical. Providing the youth a voice, or political inclusion or political self-expression, as the left may advocate, is not what voting is about. It is about the participation in the sovereign decision-making of your country. If we take Edmund Burke’s concept of intergenerational community, the dead, the living, and the unborn seriously, casting one’s vote is never merely about expressing an opinion, sending a message, or giving people a voice; it is about exercising stewardship over a civilization that one has inherited. Children will play their part in this civilizational stewardship soon enough, but children should not bear the responsibilities of the vote until they are adults. This was, until very recently, common sense.
Chesterton’s Fence argument: In his 1929 book, The Thing, Chesterton outlines his “one plain and simple principle” for reforming things. He argues that the modern reformer says, “I don’t see the use of this; let us clear it away.” Chesterton argues that the intelligent reformer should answer:
If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.
There are reasons why the franchise begins at 18, and Britain’s Labour Government wishes to clear it away without understanding why it is there in the first place. The franchise should expand cautiously, and constitutional changes should require strong justification, which the left has not provided.
There are so many reasons against youth voting, none of which are addressed by Labour. This suggests that they do indeed embody Chesterton’s reformer in that they clearly haven’t thought about the reasons for the fence post.
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]]>The post An Ode to Bicameralism appeared first on Law & Liberty.
]]>Although the principle of checks and balances has been a cornerstone in the defence of liberty across the world, in contemporary times—when politics seems to be operating as agonism on steroids, where every political disagreement has become a kind of life-and-death struggle—checks and balances are increasingly seen as the main obstacle on the road to the land of salvation. For salvationists, the system of checks and balances is not natural and is counterproductive to the life of a country. This sentiment is perhaps best encapsulated by then-Professor Woodrow Wilson, who wrote in his 1908 book Constitutional Government in the United States:
Governments are living things and operate as organic wholes. … The makers of the Constitution constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and allow to no single part or organ of it a dominating force; but no government can be successfully conducted upon so mechanical a theory.
One of the instruments of checks and balances that has been increasingly under attack is the bicameral structure of legislative power. Take, for example, the abolition of hereditary peers from the House of Lords in the United Kingdom by the Labour Government. In the Philippines, there have been calls to eliminate the Philippine Senate. Even in the United States, increasing legislative gridlock across constitutional structures has placed a strain on bicameral arrangements and provided ammunition to critics of bicameral systems. This problem is further amplified by the deference—or, at times, outright pliancy—of members of Congress towards the president of the United States when both belong to the same political party.
Legislators within a bicameral system possess a mandate of their own—one that is political, whether directly or indirectly derived, but also constitutional in nature.
The usual critiques of bicameral structures are that they generate paralysis and gridlock, impose costs on the taxpayer, and may dilute accountability or obscure rather than curb lobbyist influence. Hence, it should not be surprising that the post-World War II trajectory has seen some states abolish bicameral structures, as occurred in Denmark and Sweden, although the global balance between unicameral and bicameral systems has plateaued; indeed, Peru recently returned to a bicameral system. What is undoubted is that the majority of legislatures across the world are unicameral rather than bicameral. More importantly, however, within most bicameral legislatures the upper chamber is fundamentally weak—for example, the UK House of Lords—or is not equal in power to the lower chamber. For instance, in Germany, the Bundesrat possesses only limited veto powers.
As the United States celebrates its 250th birthday this year, it is also an appropriate moment to acknowledge one of its most important contributions to the theory and practice of constitutional government: a bicameral legislature with comparatively strong and co-equal chambers. One might offer an ode to bicameralism in this respect.
Yet the United States was not initially committed to bicameralism. Under the Articles of Confederation, the national Congress was a unicameral legislature. As delegates met in Philadelphia for the 1787 Federal Convention, however, bicameralism became a central feature of the new constitutional design.
Publius articulated the logic for comparatively strong and co-equal chambers in Federalist #51, advocating safeguards against legislative tyranny. Thus, Publius writes:
In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.
The need for a bicameral legislature as a check on transient passions and majorities is further reinforced in Federalist #62. Publius argues: “The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions”. He further adds in Federalist #63 that the Senate functions as a cooling mechanism for political passions: “such an institution may be sometimes necessary as a defence to the people against their own temporary errors and delusions … there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.”
Bicameralism in the United States not only functions as a feature that fosters civic friendship and compels compromise on deeply divided policy questions, or, in short, as Yuval Levin argues in his book American Covenant, unity. In Publius’s words, however, there is something more fundamental about bicameralism: it represents a crucial safeguard for liberty, particularly in the context of transient majorities and passions that may seek to trample upon liberty in their quest for salvation. Freedom is protected not only by two strong and coequal chambers, but also by the manner of their elections, their constituencies, their procedures, and their specific constitutional roles.
Yet Publius understood that structuring two strong, coequal chambers with distinct election cycles, constituencies, procedures, and constitutional roles was insufficient. The institutions themselves required human agents capable of working both for and within the bicameral structure. To achieve this, lawmakers within these chambers had to be actively ambitious—jealous in preserving their institutional authority. As Publius famously observes in Federalist #51, “ambition must be made to counteract ambition.” To prevent the abuse of power both within the legislature and across the broader constitutional structure, the system relies upon this competitive drive for dominance to keep power in check.
Herein lies the challenge affecting bicameral legislatures across the world, particularly those few with strong and coequal chambers: there often appears to be a lack of ambition among members of the upper chambers. Since lower chambers and the executive are more susceptible to transient majorities, members of upper chambers are frequently pressured to fall in line with the “mandate” granted by the people to the executive and the lower chamber. Furthermore, even among members of lower chambers, ambition may be attenuated, as the executive “mandate” is often understood as requiring alignment with the government programme supported by the electorate.
That is not to say that, in every political question, the upper chamber invariably falls in line with the “mandate” of the executive or transient majorities. For example, the relatively weak House of Lords has, recently, halted legislation that would have legalised assisted suicide in the United Kingdom—legislation passed by the democratically elected and more powerful House of Commons. Even in the United States, Republican senators who hold a majority have not always aligned with the Trump White House; for example, in the case of Matt Gaetz, the president was reportedly compelled to withdraw his nomination for attorney general due to opposition from Senate Republicans. Nevertheless, these are only a few examples—and the keyword here is “few”—suggesting that the broader trajectory is one in which members of both upper and lower chambers increasingly fall in line with the government agenda derived from the executive “mandate.”
If Publius’s words regarding the importance of bicameralism for the preservation of liberty are correct—and I believe they are—then the increasing attacks against the institution, together with the lack of ambition among members within bicameral legislatures, represent a danger to liberty. Although, in the case of the United States, its particular constitutional particularities make it difficult for a single party to control all branches of government for an extended period of time, thereby allowing competition between factions to operate as an additional safeguard for liberty, the danger becomes more acute when both the executive and the legislature are controlled by the same faction and the members of the bicameral legislature lack ambition.
Bicameral systems play a vital role within systems of checks and balances, particularly in contexts where the executive and legislature are controlled by the same faction.
Therefore, if bicameralism is to fulfil its role in safeguarding liberty, particularly in contexts where the executive and the legislature are controlled by the same faction, legislative members must recover their ambition: the ambition to protect their constitutional roles and powers, to assert institutional independence, but also the ambition that arises from recognising that they too possess, directly or indirectly, a “mandate” from the electorate. This latter point is particularly important, since in representative government the executive alone does not possess a mandate; legislative members are not merely delegates tasked with enforcing the executive’s will.
Legislators within a bicameral system possess a mandate of their own—one that is political, whether directly or indirectly derived, but also constitutional in nature. If legislators recover this ambition, the legislature can once again perform a healthy and effective role within the broader system of checks and balances.
An effective example of this ambition operating within a context in which a single faction controls both the legislature and the executive can be found in my native Puerto Rico, particularly in the figure of the president of the Senate, Thomas Rivera Schatz. For example, in 2019, Rivera Schatz initiated legal action to prevent Pedro Pierluisi from being sworn in as the successor to Governor Ricardo Rosselló, who had resigned in disgrace, on the grounds of constitutional violations. More recently, Rivera Schatz, currently serving his third non-consecutive term as Senate president, has become embroiled in a political crossfire with Governor Jenniffer González-Colón. Although both belong to the same local party and are affiliated with the Republican Party, the Puerto Rican Senate has rejected and voted down several of the governor’s cabinet nominations and has exercised a robust oversight role, often to the detriment of the González administration. In both of these cases, the lower house—the Puerto Rican House of Representatives—appeared to lack the same ambition in asserting its institutional role and was more closely aligned with the executive “mandate.”
What lies behind Rivera Schatz’s ambition to protect the constitutional prerogatives and “mandate” of the Puerto Rican Senate is not entirely clear. It may well reflect political survival or internal party struggles for control. Nevertheless—and this may be a controversial claim for readers familiar with Puerto Rican politics—there is no doubt that Senator Rivera Schatz’s ambition has contributed significantly to the defence of Puerto Rico’s constitutional structure and to maintaining a degree of balance between the legislative and executive branches. In short, this is one example of the potential value of a bicameral system and its role within a system of checks and balances, particularly in contexts where the executive and legislature are controlled by the same faction, provided that members of the legislature retain institutional ambition.
In his speech to a joint session of the United States Congress, King Charles III, while praising the similarities between the British and American constitutional traditions, declared: “And those roots go even further back in our history: the US Supreme Court Historical Society has calculated that Magna Carta is cited in at least 160 Supreme Court cases since 1789, not least as the foundation of the principle that executive power is subject to checks and balances.” The reaction to these words, particularly from the Democratic side, was a spirited standing ovation. That standing ovation serves as a timely reminder that bicameral legislatures are, at least in principle, aware of their role within the system of checks and balances and of their contribution to safeguarding liberty. It is a pity, however, that many participating in that ovation perhaps failed to undertake an inner introspection regarding how their own lack of ambition has weakened that system and one of its central components: bicameralism.
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]]>The post A New Head for the Fed appeared first on Law & Liberty.
]]>1. Shrinking the Fed: Chairman Warsh has been clear about his interest in shrinking the bloated balance sheet of the Fed, and in reducing its heavy interventions or so-called “footprint” in financial markets. In the first quarter of this year, the Fed grew by $35 billion, bringing its total assets to $6.9 trillion as of March 31, 2026. That is 7.5 times as big as the Fed was at the end of 2007, when it produced its last historically normal balance sheet. Ever since then it has been in the Ben Bernanke-induced, abnormally inflated balance sheet mode, which Warsh has often rightly criticized. Although Bernanke, when he was Fed Chairman, promised Congress that this would be temporary, it has not been, but has lasted more than 17 years, so far. Can the Fed shrink back to normal?
At the end of 2007, the Fed’s total assets were $894 billion. That was 6.2 percent of nominal GDP and 8.3 percent of commercial banking assets. To get to these same percentages today, the Fed would have to shrink by more than $4 trillion, including selling a couple trillion of long-term Treasury securities. In 2007, the Fed’s investment in mortgage-backed securities was zero, which is what it should be. How the Fed convinced itself to become and remain the biggest investor with the biggest footprint in mortgages is a puzzle indeed. To get back to zero, it would have to unload its $2 trillion in MBS, the purchase of which so distorted the mortgage market and house prices.
Chairman Warsh has of course considered how any material sales of investments to shrink the Fed would make the prices in the Treasury bond and MBS markets go down and their interest rates go up. Should the Fed push bond and mortgage interest rates up, increase the Treasury’s interest cost, and make houses even less affordable? That seems to have no chance of being a political winner.
On top of that, the Fed has a mark to market loss of $546 billion on its Treasury investments and a loss of $311 billion on its MBS. To sell them would be to move such losses from unrealized, “paper” losses, to realized, cash losses, which would have to be reported on its profit and loss statement. The Fed’s total mark to market loss of $857 billion is about 18 times its total book capital of $48 billion. The Fed insists that nobody cares about its losses, but such numbers would be truly enormous, embarrassing, and obviously poor PR.
Shrinking the Fed looks desirable, but is apparently a longer-term, not a short-term, project. Since the Fed’s most important function is to finance the government of which it is a part, I have suggested that a reasonable longer-term target size for the Fed might be 10 percent of the national debt. Today, that would mean a Fed about $3 trillion smaller than it is.
The Fed reported a net profit of $1.4 billion in the first quarter of 2026, but this modest profit was only possible because the Fed is being heavily subsidized by the US Treasury.
2. The Unknowable Right Interest Rate: Eight times a year we are treated to the melodrama of the Fed’s Open Market Committee meeting to set, and since the Bernanke time, to forecast with their “dot plots” interest rate paths. Upon reflection, it should be clear to everybody that no committee, including this one, can actually know what the right interest rate is, and certainly it cannot know what future interest rates will be. The committee’s forecasting record makes that apparent. As then-Fed Chairman Jerome Powell so rightly observed, “We are navigating by the stars under cloudy skies.” I think this saying should be forever enshrined in Fed lore right next to William McChesney Martin’s famous “punchbowl” line.
Chairman Warsh seems inclined to get rid of the “dot plot” forecasting and any inclination for the committee members to feel committed by their past recorded guesses. This is a good idea. In addition, will he privately brood about the larger question of whether it really makes sense to have a national price fixing committee for interest rates?
3. Perpetual Inflation at 2 percent?: Among the Fed’s heirlooms from the Bernanke years is the notion that the Fed can on its own, without Congressional approval, commit the United States to perpetual inflation at the rate of 2 percent per year—in other words, to quintupling prices in an average lifetime. The inflation targeting regime has given us the historically anomalous experience of central bankers claiming they have to get inflation up. This regime has presided over not only the runaway inflation of 2021–22, but also current inflation at nearly twice the target rate.
It is now 14 years since the Fed unilaterally announced its target of 2 percent inflation forever. It seems like time for a critical reconsideration of it. International financial expert William White has a forthcoming article: “The Inflation Targeting Framework for Monetary Policy Needs to be Challenged.” This seems right to me. Chairman Warsh’s comments on how to think about inflation suggest he may be open to such a reexamination.
4. The Role of the Money Supply: Did the Fed and other central banks somehow forget about the perennial role of creating too much money in fostering inflation and depreciating the currency? It seems that by rejecting a mechanical relationship of money supply and prices, they embarrassingly made the opposite error, which explains their woefully wrong forecasts of inflation and interest rates in the early 2020s.
The British economist Tim Congdon, whose forecasts in this period were based on money supply and were far superior to those of the Fed and the Bank of England, concludes that “the behavior of money growth must be restored to a central position in policy-oriented macroeconomic analysis.” Chairman Warsh might be thinking about whether the Fed should take this advice.
5. Thinking Clearly About the Fed’s Finances: Among other things, the Fed is a giant financial enterprise. It is designed to make money for the government, but in recent years has lost heavily instead, with combined reported net losses for the three years 2023–25 of $211 billion. To this should be added the $857 billion in mark to market losses discussed above.
The Fed reported a net profit of $1.4 billion in the first quarter of 2026, but this modest profit was only possible because the Fed is being heavily subsidized by the US Treasury. The Treasury does this by holding vast interest-free deposits in the Fed—of $893 billion on March 31 of this year. At current interest rates, these will give the Fed $33 billion in profit, which it will not return in remittances to the Treasury this year, only in the hazy future. This increases the current year’s federal deficit and runs up the national debt by the same $33 billion—not a very good deal for the Treasury or the taxpayers. To fix it, the Fed should simply pay the Treasury interest on its deposits, the same way it pays interest to banks.
For clarity, you can divide the Fed into three main functions: issuing currency, which at current interest rates makes profits of about $87 billion a year; the $33 billion in profit from the Treasury subsidy; and then everything else, which includes the Fed’s trillions in underwater long-term investments. This third function appears to be making losses at the rate of about $113 billion a year.
As chief executive of the Federal Reserve and a financial expert himself, Chairman Warsh might be thinking of how to provide rigorous explanations to Congress of the Fed’s financial performance, balance sheet and financial outlook, making these clear to the legislature, which is his boss.
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]]>The post Ayn Rand’s Italian Debut appeared first on Law & Liberty.
]]>If there is one author who has inspired young people to think differently about these big ideas, it is Ayn Rand, who is remembered as the author of Atlas Shrugged and The Fountainhead. While the philosophical system she created, Objectivism, remains at the fringe of culture and academia, her moral defence of capitalism has inspired figures such as former Speaker Paul Ryan and former Federal Reserve Chair Alan Greenspan. Yet one of her lesser-known books, We the Living, deserves more attention than it gets.
Rand, born Alisa Rosenbaum, grew up in Russia in a bourgeois Jewish family and lived through the Russian Civil War and the start of the Soviet regime, witnessing firsthand the effects of collectivization and nationalization. She came to New York in 1926 and exactly a decade later wrote a novel inspired by her formative years in Russia, We the Living.
In 1942, Italian filmmakers adapted We the Living into a two-part Italian film without Rand’s approval, ostensibly as anticommunist propaganda for the Mussolini regime. But Rand’s themes prevailed, undercutting its fascist messaging, and the film became a rallying cry for freedom in authoritarian countries in Europe, before it was suppressed by the same regime that had approved it. Long forgotten but recently restored, We the Living is worth revisiting to examine how and under what conditions cinema can shed light on the lived travesties of communism.
Rand wrote We the Living, having been a witness to history. She was twelve during the October Revolution, after which Rand saw her father’s pharmacy business nationalized. After returning years later from her family’s refuge in Crimea, she found herself caught in a purge of bourgeois students and expelled from Petrograd State University. According to her intellectual heir Leonard Peikoff, Rand wrote We the Living to flush Russia “out of her system.”
We the Living is set in 1922 Russia and follows Kira Argounova, who has returned to Petrograd along with her family. Her father, once the owner of a textile factory, attempts to eke out a living as a private trader. An aspiring engineering student, Kira, enrolls at the Technological Institute to build skyscrapers. Conspicuous as a woman and more so as an implicit individualist, she finds herself at odds with the school’s ideological conformity. She finds a kindred spirit in a chance meeting with Leo Kovalevsky, a mysterious, conscientiously individualistic young man from a bourgeois background.
Upon meeting again, the two of them fall in love and attempt to flee the country. They are caught by the secret police, but manage to escape prison, and Kira moves in with Leo in an apartment they are forced to share with strangers. Hungry and unable to find work, he begins to suffer from tuberculosis. Meanwhile, Kira is expelled in an ideological purge against students from Bourgeois backgrounds.
As Leo grows sicker, Kira struggles to no avail to find a state sanatorium that might take a non-communist. Upon discovering that her fellow student, a GPU secret police officer who sees communism as a moral ideal, Andrei Taganov, is in love with her, she becomes his mistress to finance Leo’s recovery.
Leo returns as a changed man, cynical, drunken, and spinning get-rich schemes with the help of corrupt officials. Kira painfully stands by him as Leo abandons the very ideals he once lived by. Tuberculosis failed to kill him, so he slowly destroyed himself. Andrei, however, finds his sensuality awakened and his communist ideal replaced by his love for Kira, “his highest reverence.” In a fascinating love triangle, the hero and the “villain” trade places.
The novel depicts the realities of communism as Rand experienced them: the breadlines, the lack of privacy, the censorship, and the loss of purpose to which Leo succumbed. While Orwell’s 1984 showed the double speak, surveillance, and psychological manipulation by which totalitarianism strips the soul of that which makes life worth living, Rand shows how communism, through the systemic nullification of the individual and his rights and every mounting, through every mounting inconvenience and indignity, strips the soul of that which makes life worth living. Rand exposes communism as an utterly vacant ideal, one under which no moral principles are possible.
We the Living met with headwinds during the “Red Decade” of the 1930s, when socialism was popular among intellectuals. As Peikoff writes, “for nearly three years, We the Living was rejected by New York publishers. It was rejected by more than a dozen houses. A typical rejection said that the author did not understand socialism.” After an internal debate, Macmillan agreed to publish it, the owner believing it to be an important book even if it wouldn’t turn a profit.
And indeed, We the Living sputtered when first published in 1936, instead gaining a steady following through word of mouth. It found readers in England, Denmark, and, curiously enough, Italy. However, by 1937, when it was beginning to take off in America, the book went out of print.
American adaptations of Rand’s books have been mixed at best. Rand adapted We the Living into a play, The Unconquered, directed by George Abbott, which ran on Broadway for a total of six performances. Regarding the play as a complete failure, Rand later wrote that the source material did not work for theatre.
Despite compulsory moments of fascist propaganda littered throughout, film goers instinctively recognized that the film “attacked dictatorship and praised the individual, thus criticizing both communism and fascism with an attack on both.”
We the Living may have succeeded in Italy in part because Italians saw their own realities under a totalitarian regime reflected in Rand’s plot. By the late 1930s, Italy was roiled in international conflicts and, like the Soviet Union and Nazi Germany, used cinema for propaganda purposes. In 1940, Italy passed a law against the importation of Hollywood films from all the major studios. Italy had to make up for the loss of Hollywood imports by rushing more films into domestic production. To help fill quotas, the Italian government allowed domestic producers to seize the copyright of enemy authors. The censors encouraged, among other things, films with anti-Bolshevik and anti-communist themes.
Bruna Scalera, daughter of Michele Scalera, the owner of Scalera Studios in Rome, must have thought that We the Living fit the bill. Her father hired Goffredo Alessandrini, a director known for making Italian propaganda films, to helm the project and attached two writers, Corrado Alvaro and Orio Vergani, to adapt the script.
Merely getting the film approved by censors proved difficult. The Ministry of Popular Culture initially refused to approve the project because Alvaro and Vergani were “outside the fascist ideology.” The studio appealed the decision to Benito Mussolini’s son, Vittorio Mussolini, who decided it was appropriate enough, with some changes.
Despite the censors, the pre-production process resulted in a uniquely faithful adaptation of Rand’s source material, such that the film was split into two parts, Noi Vivi (We the Living) and Addio Kira (Goodbye Kira). In their initial script, however, Alvaro and Vergani had turned Kira from an engineering student to an aspiring ballet dancer. Alessandrini rejected this and opted to shoot directly from the book, spinning out new pages every morning of the shoot. The biggest difference would be the ending, which left out Kira’s fatal attempt to escape the Soviet Union. Rand intended the conclusion in the novel to make a statement that under a totalitarian regime, no life can flourish. While the film’s conclusion feels abbreviated, it does focus the film around the tragic romance between Kira and Leo.
Alida Valli was cast as Kira and Rossano Brazzi as Leo, capturing him in large measure as Rand described him: “too strong to compromise, but too weak to withstand pressure, who cannot bend but only break.” Curiously, extras in the film included Russian nobles and members of the Russian émigré community.
Fosco Giachetti, cast as Andrei Taganov, found himself clashing with the political censors. From their perspective, his character garnered too much sympathy for a communist official. Vittorio Mussolini himself requested that the actor dial back his portrayal of the character. To this, Giachetti responded, “Well, I don’t do favors to anybody, my artistic personality is mine, and if in the film I don’t find the novel’s Andrei, on whom we have based everything and signed the contract, I won’t do the film.”
Upon release, the film attracted great interest from critics and audiences. Despite compulsory moments of fascist propaganda littered throughout, film goers instinctively recognized that the film, as Jeff Britting writes, “attacked dictatorship and praised the individual, thus criticizing both communism and fascism with an attack on both.” We the Living became Italy’s longest, most successful film at that time, earning the prestigious Biennale film prize at the Venice Film Festival, where it drew a standing ovation. The film played around Europe, including in Vichy France, Greece, Denmark, Hungary, and Romania. In Nazi Germany, propaganda minister Joseph Goebbels expressed disapproval that the film portrayed the Russians as being “too mild.”
We the Living succeeded throughout Europe because people recognized the malignant forces of statism in a way that Americans were too removed to understand. Just as Italian censors began to catch on, Nazi Germany pressured Italy to pull the film. Benito Mussolini ordered the film shelved, and all negatives and prints seized. The National Fascist Party accused the filmmakers of “waging a war against the wishes of the majority of the Italians.” The reason for its success is also the reason that it was suppressed.
Protesting the takedown of the film, the film’s stars Alida Valli and Rossano Brazzi refused to work in Italy until the end of the war. Alessandrini fled the country, and Scalera Studios’s legal counsel was blacklisted by the government. Brazzi went on to work with resistance groups in Italy for the duration of the war.
Meanwhile, when Rand learned of the film’s existence, she fumed that her intellectual property had been appropriated by fascists. But Valli, who, along with Brazzi, eventually migrated to Hollywood, reassured her that the public had not been duped. Rand’s legal battle ended in an out-of-court settlement in 1961. In 1968, her lawyer located a surviving nitrate in Rome, and Rand found that the film, with the exception of the propaganda scenes, was faithful enough for her satisfaction. She especially approved of Valli’s performance as Kira. Assisted by a young editor, Duncan Scott, Rand orally edited the film in 1968 and 1969, cutting scenes of fascist propaganda and combining the two films into one.
Although Rand never lived to see the completed film, the reedited version of the film premiered at the Telluride Film Festival in 1986. In 2023, an 80th anniversary restoration overseen by Scott premiered at the Film Forum in New York City, and it went on to play in film festivals worldwide in the next two years.
In storytelling alone, We the Living delivers a searing political romance. Allessandrini’s direction prefigures post-war Italian neo-realism with taught pacing, shadowy, high contrast lighting, and misty close-ups. War conditions kept the production confined to studio sets, but the framing and dramatic lighting make up for these limitations. Valli’s Kira conveyed the cold, ironclad resoluteness and pining sensuality that Rand had likely intended, and lead actors channel the steely passion and rapid cadence that makes Rand’s philosophical dialogue crackle. Given especially the extratextual politics of the film’s history, there is no better cinematic dramatic presentation for Rand’s stated theme of “the individual versus the state.”
The film’s themes remain profoundly relevant. The 80th anniversary restoration seems to have sputtered after its festival run, but it deserves broader exposure. It would be interesting, for instance, to see The Criterion Collection release a special edition including extra features, such as the original cut of the two films, that explore their historical context.
If the production history demonstrates anything, it is that films like We the Living find audiences in places that understand socialism and communism firsthand. By contrast, Americans yet to experience real socialism still view it as a moral and practical ideal. As Roger Scruton observed in The Meaning of Conservatism, “socialism has been able to perpetuate the belief in its moral purity, despite crime upon crime that has been committed in its name.”
For those with lived or socially constructed memories of Soviet regimes, socialism is not simply an abstract end that promises social justice. Perhaps we need several more decades of Mamdanis before America understands as much. Or, instead, maybe show them We the Living.
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]]>Editor’s Note: The following essay was previously published in The Washington Post on May 11, 2026.
For years, I kept a favorite cartoon in my desk and pulled it out to open the annual business-plan meeting at the unit I led. It showed a frazzled executive standing in front of a screen displaying his multiyear sales projections. The line ran straight horizontally, close and parallel to the x-axis, almost to the right edge, where it leaped steeply upward, next to a label that said, “Miracle happens here!”
No impulse is more human than wishfulness, the tendency to grasp at any straw that enables us to avert our eyes from difficult realities and put off facing them. Members of America’s national political class personify this failing, in their continuing practice of fiscal denialism. Even as the inexorable arithmetic piles up, those responsible for the nation’s economic future and national security fasten on imaginary miracles to justify a gross default of their duty of stewardship.
A decade ago, as the national debt surged toward the once unthinkable level of $20 trillion (now nearing $40 trillion), denialists took brief refuge in an alchemist fantasy that called itself Modern Monetary Theory. The notion that a nation could borrow without limit, forever, in its own fiat currency was quickly demolished by full-spectrum critiques, in venues ranging from the Cato Institute to the Review of Keynesian Economics. The experts weren’t really necessary; you could have just consulted the Journal of Common Sense, or maybe your grandparents.
MMT has mercifully disappeared from serious discussion, but the wishful impulse has not. Its latest comfort station is the claim that the productivity boost that artificial intelligence will bring to the economy will bail us out of our sinking boatload of debt. Stop worrying; “Miracle happens here!”
In our post-truth world, facts aren’t as stubborn as they used to be, but the most obstinate of all are the mathematical ones. They tell us not to rely on even the powerfully positive impact of these new technologies to spare us the radical adjustments that a generation of procrastination has now made inevitable.
This is no time to be touting miracle cures to justify further procrastination.
That isn’t to say that no help is on the way. The evidence is persuasive that AI and related advances are already boosting the economy in the most important way possible, by raising productivity. That’s the biggest reason that GDP is surprising on the upside while job growth remains tepid. Moreover, forecasts that this favorable windage will accelerate seem highly credible.
What’s not credible is the idea that even an AI-led productivity surge can suffice to offset our decades of dereliction. The Congressional Budget Office, the Federal Reserve, and other forecasters peg average future economic growth at a little under 2 percent. Assume a 70 percent boost from the AI revolution, to 3 percent or so, and it becomes possible to imagine our current debt level stabilizing, not improving but merely getting no worse.
But even this daydream requires far too many improbable breaks. Simulations conclude that the chances of growth of even 2.6 percent are less than 1 in 20. That’s without factoring in the possibility of a military crisis, a recession, another pandemic, or any other macroeconomic setback. AI revenue increases could be partially offset by new spending requirements, for energy infrastructure, for example.
The Penn Wharton Budget Model credits AI with a healthy 1.5 percent productivity and GDP increase over the next decade. That would result in deficit reduction of some $400 billion over those 10 years. Not chump change, but only a fraction of what would be required, given the tsunami of entitlement spending, driving trillions of added debt, making landfall over that period.
AI enthusiasts assure us that the beneficial impact will be even bigger. Let’s hope they’re right, although that would mean a bigger productivity surge than those brought by electricity or the Internet. Even if it happens, it cannot conceivably get here before the trust fund insolvencies start in the early 2030s. Kent Smetters, a Penn Wharton Budget Model scholar, states flatly that AI, however positive, isn’t “a magic bullet” and that the call is “not even close.”
Let’s stipulate that AI will be the transformative wonder that its inventors foresee; that the CBO and other forecasters have often tended to underestimate US economic growth, especially in environments of lightened regulation and taxation; and that the United States somehow sails through an unprecedented streak without a single costly exogenous blow.
It still ain’t enough.
Otto von Bismarck supposedly proclaimed, “There is a Providence that protects idiots, drunkards, children and the United States of America.” After decades reelecting a Congress whose spending behavior qualifies for the first three categories, we can’t count on providential salvation.
This is no time to be touting miracle cures to justify further procrastination. Until America acts to make major changes in laws on the books, the right side of our national business-plan chart will continue to show a sharp downward line and the label, “Big trouble happens here.”
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]]>The post The Politics of Pathology appeared first on Law & Liberty.
]]>After so brilliant a start, the rest of the book came to him as something of a disappointment. It is difficult to maintain such a level of coruscating wit. But many of the citizens of Western democracies might nowadays say something similar about the political class that rules them: “The human race, to which so many of our politicians belong.”
If the political class is human beings, they must have human rights, among them a right to confidentiality about their medical condition. When the electorate votes, it does not thereby deprive candidates of what everyone else is entitled to. We cannot complain that the political class has walled itself off completely from the rest of the population and granted itself unjustified immunities and privileges, and at the same time deny it the rights that everyone else has.
On the other hand, given that a medical condition may seriously impair a politician’s ability to carry out the duties for which he has been elected, before or during his term of office, his state of health is not just a private matter, between him and his doctor alone. “Hands, that the rod of empire might have sway’d,” should surely be under the control of a mind that at the least is free of the distorting effects of pathology. Once there is prima facie evidence of medical incapacity, or even mere deterioration, a person in a powerful public office becomes fair game for public medical speculation. By voluntarily seeking public office, he has given the public locus standi to intrude on at least some of his private affairs.
How far down the chain of public office this may extend is a matter of judgment, as indeed is the question of how serious or intrusive a pathology must be before it is reasonable for the public to request or demand further information. Certainly, we cannot expect the political class itself to be wholly frank or honest in this regard. For politicians, partisan political calculation usually trumps, so to speak, questions of truth, morality, or even national interest. Concealment of incapacity is the natural response of the party in power, while exaggeration of the same is natural to the party in opposition.
If it is not altogether easy in the case of physical illness to draw a line between capacity and incapacity—what lays one man low may stimulate supreme effort by another—it becomes even more difficult when it comes to incapacity resulting from alleged mental illness. Given that everyone has their moral and political biases, and that few are capable of putting them completely aside, psychiatric diagnosis at a distance is particularly hazardous. The temptation to disqualify a detestable or detested politician on psychiatric grounds, as if this were a purely objective matter and not one of moral judgment, is strong, but should be resisted. So loose has psychiatric diagnosis become that everyone has one; the argument that someone is mentally ill is hardly more precise than are alleged analogies with fascism.
In 1964, Fact magazine notoriously carried out a survey of psychiatrists, asking them whether Barry Goldwater, the Republican candidate for the presidency, was mentally fit to be president, and 1189 of 2417 who answered said that he was not, almost certainly believing that they were replying not as ordinary voters, but as scientists with access to sources of knowledge unavailable to the hoi polloi. Goldwater sued the magazine for defamation, and won, after which the American Psychiatric Association laid down a rule that said, “It is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a treatment.”
Inadvertently, the psychiatrists demonstrated how difficult it is in this field to separate technical judgment from moral judgment.
Whether this was a counsel of perfection or a limitation of freedom of opinion, or both, has been debated ever since. It might be that a psychiatrist has a right to express an opinion as a private citizen, as has everyone else, about a politician’s mental fitness for office, but not qua psychiatrist, thereby claiming special authority. This seems to me sophistical, however, arguing for a distinction without a difference.
In 2017, Dr. Bandy Lee, a psychiatrist at Yale, edited and published a book of essays by “mental health clinicians” claiming that Donald Trump was not mentally fit to be president, and would be dangerous as such, opinions allegedly based upon some technical knowledge that they, the authors, had that was not available to mere laymen.
In essence, their claim was that President Trump had, or suffered from, a personality disorder, or several personality disorders, and that his conduct consequent upon this disorder, or these disorders, rendered him unfit for office.
They diagnosed the personality disorder, or disorders, by his past conduct, and because leopards do not change their spots, expected his conduct to remain the same. The logic went as follows: We know he has a disorder because of the way he behaves, and he behaves the way that he does because he has a disorder.
It is obvious that this offers no fresh illumination to anyone who has simply observed President Trump and come to a conclusion about his character. Some may like that character, and some may detest it. Some may detest it and yet say they nevertheless want him as president. But it is clear that we have returned to the medicine that Molière satirised in the seventeenth century: in the Imaginary Invalid, the doctor explains the tendency of opium to cause sleepiness because it contains a “dormitive substance.”
That Dr. Lee was motivated principally by political passion is suggested by the fact that she made no comment in the following years on then-President Joe Biden’s mental state. It is not this, however, that made her opinions wrong: it was their emptiness posing as technical sophistication.
There was recently an article in the British Medical Journal about the ethics of diagnosing President Trump’s psychological or medical condition by doctors who had never examined him. It was generally a very fair article by authors who almost certainly detested him. But while they acknowledged that his psychological or medical condition was a matter of importance, they urged caution (not quite the same as absolute prohibition) against diagnosis at a distance.
And with good reason. Inadvertently, they demonstrated how difficult it is in this field to separate technical judgment from moral judgment. They wrote:
In 2017, a group of mental health clinicians … accused Donald Trump, President of the United States, of being “paranoid and delusional” and having “malignant narcissism.”
The giveaway word is “accused”: a word that one does not usually employ in making a diagnosis. It implies fault or blame, a moral failing rather than a merely physiological deficit.
As Hume said, reason is the slave of the passions.
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]]>The post From the Fourth Estate to Digital Fragmentation appeared first on Law & Liberty.
]]>But today, it seems that journalism is declining, and artificial intelligence may become the new fourth estate. But not only does AI fail to protect individuals against government power—it often reinforces the supremacy of the State. There is an enormous cultural gap between the journalistic mythomania of The Front Page, Billy Wilder’s unforgettable masterpiece, and today’s deluge of monochromatic content and news, stamped with the disclaimer “content created with the help of AI.”
Chartbeat’s latest report on audiences in the first half of 2026 reveals that search engine traffic to small digital media outlets—those receiving between 1,000 and 10,000 daily pageviews—has fallen by 60 percent over the past two years, while search engine traffic to large media outlets with more than 100,000 daily visits has dropped by 22 percent. Publishers who were counting on AI to become their new traffic provider have already been disillusioned. It is true that visits referred from platforms like ChatGPT are increasing eightfold every year, according to Similarweb data, but the reality remains bleak for mainstream media: in the specific case of ChatGPT, it represents less than 0.1 percent of the total traffic received by newspapers and media websites. Yes, AI platforms generate traffic, but they destroy far more traffic than they generate, because although they draw from the media, they offer more complete and accurate answers than conventional information, so users stop at the answer to the query and do not delve further into the sources.
This feels like the end of a long road. The idea that the press was a fundamental counterweight in a democracy vanished the day the journalistic side of the scale ceased to carry weight, because it no longer significantly influenced public opinion. The story of how we got here, while depressing, is also fascinating because it helps us understand many things about our time and how our freedoms have been partially stolen before our very eyes.
The Golden Age of Journalism, often identified with Watergate, New Journalism, and the investigative reporting of the ‘80s and ‘90s, has not been followed by a descent into a Bronze Age of journalism, but rather by an Age of Smoke. In a way, Balzac’s prophecy in Lost Illusions (1843) has come true, although for reasons different from those he could have foreseen: “Give any newspaper time enough, and it will be base, hypocritical, shameless, and treacherous; the periodical press will be the death of ideas, systems, and individuals; nay, it will flourish upon their decay. It will take the credit of all creations of the brain; the harm that it does is done anonymously.” We can identify four critical moments in this decline.
First, the rise of the Internet and digital media led to a decline in print readership. Now, any new free digital outlet could capture attention with a major exclusive, often delivered faster, more accessible, more up-to-date, and in a richer multimedia format than legacy outlets.
An army of AI-generated bots can drastically alter public opinion on social media about any hot topic in just a few hours, and can prove more effective than an extensive, well-founded exclusive report in any traditional newspaper.
Second, in the midst of this process, declining print readership and subscriptions brought a fall in advertisers, leaving many major Western newspapers in conditions of economic vulnerability; according to Pew Research, print advertising in the United States fell by more than 70 percent between 2005 and 2020. This led to the formation of large media groups encompassing newspapers, magazines, television channels, radio stations, and digital platforms, followed by a wave of layoffs and budget cuts
Third, social media burst onto the scene just as digital outlets were beginning to understand the importance of search engine optimization, and consumption habits rapidly shifted toward these platforms. It no longer mattered how a news item ranked on search engine results, but rather whether it went viral on social media, as a succession of algorithms gradually reduced the visibility of what newspapers sought to highlight, instead rewarding what users engaged with most heavily.
This degenerated into a clickbait frenzy—and with it, the old written journalism we once knew effectively died, morphing into something closer to tabloid television. In any major newspaper, a celebrity in a thong on the beach generates ten or twenty times more engagement than a major political scoop. Moreover, the thong story is ten times cheaper to produce than serious investigative reporting or war coverage.
This leaves what was once considered the powerful world of journalism in a somewhat embarrassing position. In fact, most major media outlets have removed “most-read news” rankings from their front pages to avoid them becoming a predictable mix of bulk events, celebrity news, how-to articles, sex, and emotional clickbait. Instead, they now offer “reading trends,” “most popular,” or “recommended stories,” which allow them to apply a “quality reads” filter and take other factors into account.
I am not suggesting that digitization was inherently an obstacle to quality and freedom—on the contrary, the ability to access and verify information across multiple sources has expanded exponentially. The question is whether this new landscape still allows us to consider the press a true “fourth estate.” The case is difficult to argue when, in terms of sheer influence, that role is now more often played by influencers, YouTubers, or bots deployed by governments, pressure groups, and other interested corporations to shape online debate.
The press no longer holds a monopoly on information and is frequently outpaced in both speed and scope by other channels. P. J. O’Rourke saw this early on, writing in The CEO of the Sofa: “The web is just a device by which bad ideas travel around the globe at the speed of light.”
X is a clear example of how the democratization of information can be both an opportunity and a threat to freedom. When Elon Musk acquired the platform in October 2022, he claimed his goal was to restore free speech and end moderation policies that, de facto, amplified certain ideological messages at the expense of others. X can serve as a guarantor of free expression—or as a powerful tool for manipulation by elites and governments. At different moments, it has arguably been both.
On one hand, X, Facebook, and other twenty-first-century information platforms may surpass traditional newspapers at their peak in terms of influence over immediate political cycles, daily ideological agendas, and reputational dynamics, but they have never managed to match the long-term structural influence of traditional newspapers on public opinion as a whole.
On the other hand, in 2026, we are privileged witnesses to a new paradigm shift that goes beyond social media. AI, with its amalgamation of sources and its simple, concise explanations, is rapidly gaining ground on traditional media in the role of providing information to users; and although almost all chatbots offer links to their sources, as I have pointed out previously, most users do not go beyond the first level of inquiry (i.e. the text generated directly by the chatbot) and ignore the original sources. That is to say, real influence no longer lies with media groups, nor even with the big tech companies that control search algorithms, but with AI, subject to whatever biases its developers choose to introduce at any given moment; as has already been widely debated and documented when analyzing the pro-woke biases of ChatGPT or Claude. To make matters worse, AI can explain a news story better than most journalists, and it certainly allows users to fully personalize their interests. We could be, in other words, thrown into a near future in which even the traditional digital press format could cease to make sense, or at least become something marginal.
As for print, consider the shift in the profitability model. In the era of classic journalism, ads and subscriptions were essential; today, most share a hybrid model that includes print and its advertising—the diversification of digital content, subscriptions, and digital advertising. The print newspaper is no longer the business itself, but a small product within a much broader digital business. There is a clear parallel with the music industry. Platforms like Spotify have rendered physical media largely obsolete, leaving vinyl as a niche market for romantics and collectors. Much of traditional journalism now occupies that same space.
And as if this perfect storm were not enough, we must also reckon with the rise of twenty-second news—delivered by TikTokers, tweets, influencers, or AI-generated summaries. Audiences are no longer accustomed to reading long-form analysis. Video steadily displaces text across platforms. Reality compressed into just a few seconds is far more susceptible to manipulation by individuals, organizations, or governments seeking to shape public debate.
Originally, a certain degree of transparency in funding and independence was essential for the press to function as a counterweight to power. Today, independence, both in large corporations and among small freelancers and influencers, is scarce and, in any case, very difficult to identify with any precision amid the vast media landscape. As has been noted, many of the new leading voices in journalistic opinion are flourishing on social media. They are often not journalists, have not worked their way up through the profession, and their funding is unknown. They simply went viral and were either absorbed by established media organizations or evolved their accounts into independent media channels in their own right.
Virality often appears spontaneous; it is not always so. Many seemingly random influencers are suspected of having been deliberately boosted by political actors or organizations. Some cases have come to light, sparking media scandals. For instance, Wired revealed last August that a group dedicated to promoting Democratic discourse online offered influencers up to $8,000 a month to promote the party line, under a confidentiality agreement and with certain restrictions on their content. In May 2025, the New York Times uncovered other similar networks through which Democrats are attempting to recruit new influencers to counter Donald Trump’s dominance in the social media culture war.
We cannot say that this mix of influencers, traditional media, opinions aggregated by AI chatbots, and breaking news on major social networks constitutes a “fourth estate.”
For both suspicious and legitimate influencers, what Hunter S. Thompson once denounced still holds: “The most consistent and ultimately damaging failure of political journalism in America [is that it] has its roots in the clubby/cocktail personal relationships that inevitably develop between politicians and journalists.”
It is also not easy to know the sources or the origin of information. As the profiles of what used to be a conventional journalist have become blurred, those who spontaneously turn to reporting do not understand the value of journalistic deontological principles, or are even unaware of them. When Roger Scruton wrote “An Apology for Thinking,” he was denouncing the specific case of censorship he had suffered after a decontextualized interview in the New Statesman—but, as is always the case with the British philosopher, he was also denouncing the new censors who today work on the Internet fabricating cancel campaigns:
We in Britain are entering a dangerous social condition in which the direct expression of opinions that conflict—or merely seem to conflict—with a narrow set of orthodoxies is instantly punished by a band of self-appointed vigilantes. … We are being cowed into abject conformity around a dubious set of official doctrines and told to adopt a world view that we cannot examine for fear of being publicly humiliated by the censors, this world view might lead to a new and liberated social order; or it might lead to the social and spiritual destruction of our country.
In short, the post-digital boom crisis in journalism has only exacerbated the early symptoms of decline that some authors detected decades ago. This is the case of H. L. Mencken, who drenched the profession, like everything else, in cynicism. And yet, in his later years, he glimpsed the first warning signs in the major newspapers: “In my day a reporter who took an assignment was wholly on his own until he got back to the office, and even then he was little molested until his copy was turned in at the desk; today he tends to become only a homunculus at the end of a telephone wire, and the reduction of his observations to prose is commonly farmed out to literary castrati who never leave the office, and hence never feel the wind of the world in their faces or see anything with their own eyes.”
These are old problems amplified by the new digital ecosystem. The fourth estate, at the very least, is now a decentralized, chaotic amalgam of loudspeakers, whose fragmentation empowers the State over the citizen. This fourth estate is no longer led by a small number of identifiable, more or less transparent newspapers, radio stations, and television channels adhering to certain standards of journalistic ethics. Social media often delivers information from authors we know nothing about beyond an anonymous profile on X or another platform, with the sole and controversial endorsement of a large follower count. An army of AI-generated bots can drastically alter public opinion on social media about any hot topic in just a few hours, even using fake news or emotionally manipulative rhetoric, and can prove more effective than an extensive, well-founded, exclusive report in any traditional newspaper.
The term “fourth estate” was once used because it referred to an identifiable, relatively homogeneous group that, despite ideological differences and partisan preferences, generally exercised its role as a counterweight to political power in a fairly consistent way. Today, we cannot say that this mix of influencers, traditional media, opinions aggregated by AI chatbots, and breaking news on major social networks constitutes a “fourth estate.” Rather, in its extreme fragmentation, in the mixture of truth and fake news, and in the lack of transparency regarding authorship or verifiable sources, it is political power that gains ground, vis-à-vis a dissolved and heterogeneous media landscape. Of course, at this point in the history of communication, the losers are individual freedom and the democratic health of our societies. In other words, we may now have access to vastly more information than ever before, but we are also more vulnerable to manipulation by political power.
Faced with the vast audience aggregators of influencers, newspapers obsessed with clickbait, and AI bots generating informational noise, what we once called “old journalism”—or even New Journalism in the hands of Tom Wolfe and Gay Talese—now looks set to become a refined, decorative luxury product aimed at minorities. At the very least, beyond filling the hearts of print romantics, it will serve as a reminder that freedom must be won every day.
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]]>The result is an AI system that can deliberate for far longer than earlier models, draft extended memos, and solve increasingly complex problems. Just last week, Timothy Gowers, a Fields medalist, said that ChatGPT 5.5 had solved an open math problem important enough to be part of a graduate student’s doctoral thesis. Some now predict that AI programs will soon be able to work through problems for days or even weeks, producing correspondingly more impressive results.
These improvements profoundly affect the creation of legal information. In some contexts, frontier models can now answer online student questions with speed, fluency, and accuracy that rivals what a professor can provide on the spot. They can also produce a series of legal memos in a day that would have required a research assistant days, if not weeks, of effort.
What does this mean for legal education? The first question is how it will change the legal profession, because legal education is downstream of the profession’s needs. Clients will not pay lawyers to do tasks that machines can perform more cheaply.
The rise of analytic legal machines will not kill all the lawyers, but it will transform what lawyers do, what clients will pay for, and what law schools must teach. Lawyers must continue to adapt their work as AI capabilities evolve. Economists, like Alex Imas and Luis Garicano, think about jobs in terms of supply and demand, and their analysis can be applied to legal work as well.
Start with the demand side. Demand will shift away from lawyers whose principal value is routine analysis because machines will increasingly perform that work better, faster, and more cheaply. But clients buy, not just legal words, but also the analysis that AI cannot readily produce. They buy judgment, reassurance, and confidentiality. Currently, at least, they need someone who can argue in court and sign an opinion.
Thus, it is true that items such as the first draft of a memo or a standard contract clause will become increasingly cheap to produce. But the client meeting after the memo will still take place. Most, if not all, clients will still want the final decision about whether to sue or take reputational risk in each situation to be made with human input. The trust required to make those decisions on behalf of or in concert with a client is not cheap.
Machines can already isolate all the judge’s opinions and thus frame an argument designed to move the relevant decision-maker. And soon, machines will be able to perform very sophisticated analysis using decision trees and probability assignments for different scenarios. Nevertheless, lawyers who can bond with other human beings and help them make challenging decisions in the face of uncertainty will become more, not less, valuable. Those are the kind of lawyers that law schools will need to produce.
Law and economics also suggest that AI will not merely reduce demand for lawyers. Lowering the cost of routine legal analysis will likely expand the market for legal services among individuals and businesses that now forgo them. This development will be a great boon to democratizing legal planning and, thus, liberty. But cheaper legal output may also still have a quality problem. Clients, particularly unsophisticated ones, often cannot tell whether a legal answer is sound for their particular circumstances. Lawyers will therefore become more valuable as certifiers of legal quality.
Now turn to the supply side. Economists recognize that jobs are not isolated tasks, but bundles. Some bundles are weak. If you can peel off a task and automate it, you can leave the human with less to do. Other bundles are strong because the tasks belong together. Separating them creates too much coordination cost, too much risk, or too much loss of accountability.
Legal practice contains many strong bundles. AI can prepare outlines and analyze transcripts, but courtroom advocacy still requires credibility, emotional intelligence, and the ability to adjust when a judge or opposing counsel does something unexpected. William Butler Yeats famously asked, “Who can separate the dancer from the dance?” suggesting that there are activities where the creation cannot be separated from the activity. So long as law demands generate situations that require real-time creative responses from humans, in-the-moment legal creativity will be required.
We need more training in oral and rhetorical skills. In practice, the future lawyer’s value will often lie in being able to orally defend and take responsibility for work that AI helped produce.
Law rests on judgment and responsibility, which also creates a bundle. A legal system cannot now run on anonymous machine output. Someone must sign the filing. Someone must advise the board. Someone must tell the client, “This is lawful,” “This is too risky.” And he must understand the output of machines and the law well enough to make that judgment.
Thus, the current hiring strength in BigLaw is not evidence that AI will do nothing—it is yet more evidence that law is still a strong bundle. Clients still need judgment, reassurance, confidentiality, advocacy, and someone who can take responsibility. But that does not mean every task inside the bundle will retain its old value. Currently, AI still preserves many roles for lawyers. But it is already changing what the lawyer is paid to do. And, of course, current results do not guarantee future security. AI is improving monthly, and with that improvement, it will colonize ever more tasks.
Law schools should respond in several ways. First, they must ensure that AI literacy becomes part of professional formation. Even as AI replaces coding, companies continue to hire software engineers who can harness AI to write code. Being a master of AI is no less valuable for lawyers. Students need to learn how to use AI, but also how not to be used by it. With this partner, they must learn verification, confidentiality, and the difference between a plausible answer and a responsible judgment. Certification of the quality of machine work will remain essential. That means they must still be fully trained and independent as lawyers, but also able to use and evaluate AI constantly.
Thus, some parts of the law school curriculum will continue to focus on providing the independent legal skills needed to judge AI outputs. Only then can lawyers take responsibility and play the role of certification, which will become even more essential. I imagine, for instance, that the content of the doctrinal courses in the first year may be unchanged even if AIs become useful tutors to help students learn legal rules.
Second, assessment must change. If students practice in an AI-rich world, we should stop designing assessments for every kind of course as though AI does not exist. Some assessments in some courses should require students to use AI. They must then evaluate, supplement, and stand behind their output. Seminars, for instance, should include extended oral presentations so that the professor can better assess the students’ capacity to defend machine-assisted work fluently, as well as their classmates’ capacity to probe the product.
Third, law schools should teach the strong bundle. That means more exercises that bring together doctrine, facts, ethics, strategy, and institutional roles. A student should be trained not only to learn the summary judgment doctrine, but also to apply it. He or she should have to decide whether filing the motion advances the client’s real goals.
Another reason for doing this is that law firms may no longer do as much of this kind of training as before. AI endangers the apprenticeship period by automating the tasks through which junior associates historically acquired judgment. In the old model, training was bundled with productive work. But if AI performs those tasks faster and more cheaply, firms may reduce the involvement of these associates, leaving training as a separate investment that law schools may need to provide.
Fourth, we need more training in oral and rhetorical skills. In practice, the future lawyer’s value will often lie in being able to orally defend and take responsibility for work that AI helped produce. A focus on oral skills will be a sharp reversal of how the law school class has evolved in the past decades. The Socratic method, which involves cold calling students, has declined in popularity. Education has become more consumer-oriented, and most students dislike public grilling because it may embarrass them in front of their peers. Moreover, law professors today are less connected to the bar, where the give-and-take of oral argument is the lawyers’ daily bread, and more integrated into the Academy, where it’s quite normal to stand at the front of a classroom giving lectures from PowerPoint. But in a world where AI machines will be whirring behind the scenes and providing much legal analysis, talking persuasively and engagingly will be an ever more essential part of a lawyer’s job.
Finally, AI will move us toward a more relational economy because humans still value human relations. Client counseling, negotiation, interviewing, leadership, and ethical judgment are key skills in this relational world. They are the parts of the legal bundle least likely to be commoditized.
Of course, if AI continues to improve rapidly, as I expect, more radical reforms may be required. Some legal work today is protected less by technical necessity than by legitimacy, convention, and the human need for responsibility. It is still hard to imagine an AI arguing in court, counseling a board, or standing before a client and taking responsibility for a judgment. But conventions can change when technology changes what seems possible, useful, and legitimate. One can imagine, for instance, that in arbitration, the parties may choose to restrict themselves to AI lawyers and an AI judge to enhance predictability and thus the value of the contract. But the law school that begins now to train lawyers in judgment, persuasion, and the intelligent use of machines will be far better prepared for the next round of changes demanded by the accelerating progress of AI.
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]]>By 1900, Southern states had enacted segregation laws for “places of public accommodation” (hotels, restaurants, railroads, and the like), and the Court upheld these in 1896’s Plessy v. Ferguson. The residential segregation campaign began later, a response to the “Great Migration” of blacks into border-state cities in the 1910s. This campaign faced more constitutional difficulties due to American doctrines of property rights.
Baltimore enacted the first residential segregation law in 1910. Louisville enacted a law that prohibited members of one race from moving into a block in which the other race was a majority. The NAACP cleverly arranged a case in which a white man, Buchanan, sued to overturn the law. Buchanan sold his house on a white-majority block (situated between the only two black-owned houses on the block) to a black man, Warley. When Warley refused to complete the purchase because of the Louisville ordinance, Buchanan sued him. Given his house’s situation between the only two black-owned houses on the block, Buchanan argued, no white man would buy it. In Buchanan v. Warley (1917), the Supreme Court struck down the Louisville law as a violation of individual property rights. Edward Bassett, the “father of zoning,” lamented that cases like this indicated that American law “gave real estate owners almost total control over the use of their property.”
To get around this constitutional impediment, segregationists devised the “racially restrictive covenant,” in which a purchase contract forbade selling the property to members of certain races. The title search for a house that I purchased in 2007 turned up a restrictive covenant from the 1925 sale of the property. The purchaser agreed never to sell the parcel “to any one of the Ethiopian or African descent.” He also promised “that no dwelling house shall be erected on the property that costs less than $1500”—a zoning-use restriction avant la lettre. The Supreme Court upheld such covenants in 1926, the same year that it upheld more comprehensive zoning laws.
Zoning was a “quintessentially progressive concept,” historian Michael Allen Wolfe observes, exemplifying the movement’s faith in expertise and state power. It fit particularly into the progressives’ belief that the state could improve the genetic stock of the population, based on their belief in racial group hierarchy and eugenics. One can see the first zoning ordinances in the efforts of cities like San Francisco to control Chinese laundries, and in New York City’s tenement-manufacturing laws.
The proponents of such laws supposed they would manage unruly new immigrant populations. Progressive economists like Richard Ely characterized these immigrants as “beaten men from beaten races, representing the worst failures in the struggle for existence,” and planners promoted zoning as a “means for preventing race deterioration.” Progressive sociologist Edward A. Ross had coined the term “race suicide.” (Stanford University fired him for his advocacy of Asian immigration exclusion, which gave rise to the movement for tenure to protect “academic freedom.”) Theodore Roosevelt popularized it. He called the limited child exemption in the first income tax “a premium on race suicide.” Eugenicists believed that zoning to promote single-family homes would encourage the fertility of the native-born, and the tax code still provides for the deduction of home mortgage interest payments.
“Urban planning” as a profession had grown up in the late nineteenth century, a kind of social science or social engineering that could impose order on America’s burgeoning urban growth. Zoners benefited from the progressive campaign for municipal “home rule.” Whereas earlier suburbs had desired to be annexed to their core cities, by 1900, most used zoning to keep urban populations out. Like many other progressive causes, it drew deeply from German sources, though, as with the judicial philosophy known as legal realism, the two world wars helped to efface these origins. As Frederic Howe observed, “In Germany the city is as sovereign over the property within its limits as it is over the people.” In legal terms, zoning reflected the progressives’ conviction that common law doctrines like nuisance and trespass were outdated, inadequate to deal with modern urban problems. (Though they would disingenuously plead that zoning was just an updating of common law nuisance.)
These planners openly admitted that the “outdated” Constitution stood in their way. American judges need to “get over this bogey of the Constitution,” Andrew Wright Crawford argued. Reflecting Woodrow Wilson’s vision of an administrative state that was separate from politics, zoning would be the work of technical experts, insulated from democratic majorities.
Zoning represented a step back to collective security from individual opportunity.
New York enacted the first comprehensive zoning law in 1916. Luxury hotels and exclusive retailers had displaced residential mansions in the nineteenth century, and they now organized to keep garment manufacturers from doing the same to them. “You are like cattle in a pasture,” one zoning advocate told the retailers, “and the needle trade workers are the flies that follow you from one pasturage to another, nagging you into abandoning one great center after another.” Aware of the vulnerability of their novel plans to constitutional challenge, zoning advocates tried to get as many American cities to adopt zoning as quickly as possible. The US Department of Commerce aided them; its secretary, Herbert Hoover, ardently supported zoning. The Department’s Standard State Zoning Enabling Act sold over 55,000 copies.
The village of Euclid, on the outskirts of Cleveland, joined the campaign. The Ambler Realty Company owned lots that were valued at $10,000 per acre for industrial use. (The founder of the company was the chairman of the Board of Trustees of Hillsdale College.) Euclid’s ordinance limited the zone to single-family houses, reducing their value to $2500 per acre. Even zoning advocate Alfred Bettman called the Euclid plan “arbitrary.” Ambler sued to enjoin the ordinance. The federal district judge, Steven Westenhaver, granted the injunction, though declaring that “this case is obviously destined to go higher.” He drew upon precedents that had protected individual rights against the “police power”—the power of state and local governments to legislate for the “safety, health, welfare, and morals” of the people. As if responding to Frederic Howe, Westenhaver observed that Euclid’s restrictions “recognize no distinction between police power and sovereign power.” If zoning were a valid exercise of the police power, then “all private property is now held subject to temporary and passing phases of public opinion, dominant for a day, in legislative or municipal assemblies.”
This conservative judge brought to the decision the kind of factual analysis that progressives repeatedly called for, particularly in zoning. Westenhaver saw in the apparently neutral land-use restrictions significant class and ethnocultural bias that later decades would more fully document. “It is equally apparent that the next step in the exercise of this police power would be to apply similar restrictions for the purpose of segregating in like manner various groups of newly arrived immigrants. The blighting of property values and the congesting of population, whenever the colored or certain foreign races invade a residential sector, are so well known as to be within the judicial cognizance.” Westenhaver noted that the Supreme Court had struck down explicit racial segregation in 1917, and recognized that land-use zoning could act as an equivalent. Noting that “the courts never hesitate to look through the false pretenses to the substance,” he concluded that “the plain truth is that the true object of the ordinance in question is to place all the property in an undeveloped area of 16 square miles in a strait-jacket. The purpose to be accomplished is really to regulate the mode of living of persons who may hereafter inhabit it. In the last analysis, the result to be accomplished is to classify the population and segregate them according to their income or situation in life.”
On appeal, the Supreme Court reversed Westenhaver and upheld the Euclid zoning ordinance. George Sutherland, one of the more conservative justices who came to be called “the Four Horsemen of reaction” during the New Deal, wrote the opinion. He was helped by Euclid’s lawyers, who tried to cast the ordinance in a common law light, akin to the traditional doctrine of nuisance. Sutherland asserted that
while the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles, statutes and ordinances which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution of course must fall.
He appealed to the classical standard, “the maxim sic utere tuo ut alienum non laedas (use your own property in a way that does not interfere with others’) which lies at the foundation of so much of the common law of nuisances, ordinarily will furnish a fairly helpful clew.” He deferred to the findings of “commissions and experts,” who concluded that “very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district.” In low-density areas like Euclid, “apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances.” The other three conservative Horsemen dissented, but without opinion.
Euclid was a transformative decision, fundamentally redefining the American understanding of property rights and enabling the rise of the administrative state. (In its next term, the Court accepted compulsory sterilization of the “unfit,” another part of the progressive campaign for social engineering.) Nineteenth-century Americans had turned away from medieval English common law rules that exalted the “quiet enjoyment” of the land and opened it up to economic development. Enabling property owners to use their property in dynamic and entrepreneurial ways undergirded the unprecedented economic development of the country.
Zoning represented a step back to collective security from individual opportunity. New immigrants and black migrants would not have the same opportunities. New Deal programs to promote homeownership reinforced the zoning regime (the “redlining” practices that we hear so much about). The Supreme Court held racially restrictive covenants to be unconstitutional in 1948, but zoning regulations continue to have their effect. In 2021, the city of Berkeley, California, repealed its single-family zoning restriction. As a local activist put it, “We’re known for our progressive history, but we have a couple of skeletons in our closet.”
Portions of this essay are adapted from the author’s 2013 book, The American State from the Civil War to the New Deal.
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