In his new book, Burning Down the House, Andrew Koppelman argues that libertarianism has gone down a dangerous path inspired by Ayn Rand, Robert Nozick, and Murray Rothbard. He joined host Rachel Lu for a spirited debate and discussion about limited government and the role of the state. Rachel Lu: Hello. Welcome to Liberty Law Talk. I am Rachel Lu, associate editor at Law and Liberty, and with me today, I have Andrew Koppelman. He is the John Paul Stevens professor of law at Northwestern University and the author of several books. But today, we are going to be talking about his newest Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed. Thanks so much for being with us today, Andrew. Andrew M. Koppelman: Thanks for having me. Rachel Lu: So, I think we should really just dive right in and talk about this title here. I don’t think there’s a need for some fancy preamble on my part. I actually thought the title was very clever because there is a metaphor in here, but there’s also an actual burning house that you refer to in the book, which you take as an example that will help us to understand what’s gone wrong with libertarianism. So, talk about that a little bit. What is the burning house and why did that become your title? Andrew M. Koppelman: So, Obion County, Tennessee did not have its own fire department. It contracted with a nearby town for fire protection, but it didn’t do the contracting. Each individual citizen made a private contract with the fire company for protection, and there was an old man named Gene Cranick who had been paying his fee for years and he’s getting old. One year, he forgot and his house caught fire. His wife called the fire department, and the fire department told him, “Sorry, you didn’t pay your fee. We can’t help you.” Eventually, they came down in order to make sure that the fire didn’t spread to his neighbor’s houses because his neighbors had paid the fee and his house burned down. This generated a furious debate in the press afterward about whether this was appropriate behavior and there were folks on the right and the left who agreed that this was the true face of libertarianism. This was the vision of the future that libertarianism was offering. It wasn’t really so much about the house in particular where this was 2010. What they really were debating was Obamacare. What they really were debating was whether society has any obligation to take care of people who suffer misfortunes that are not the consequence of rights violations by other people. Rachel Lu: Right. Very good. An interesting example, also good, because I remember this and probably a lot of people do, right? I remember this debate about the burning house, and this is going to go on thought to have a metaphorical edge to it, right? Because you want to think about the way that libertarianism as a philosophy has burned down in a sense. I want to talk about that in just a moment, but first, I wanted to get in a question to make sure that I don’t forget it. You indicated in the book that you became interested in libertarianism at this time, at the time of the burning house. Then as you say, this was a debate really about Obamacare in many ways. I know you were really interested in Obamacare. Before that point, you’re an established scholar who’s been mixing it up with intellectuals for a long time. Presumably, you already had some familiarity with libertarianism. So, what did you think before that? Did the research pick up on notes from a youthful libertarian phase or was it a total about phase for you? How did this fit into your intellectual life? Andrew M. Koppelman: Well, I always believed that we should have a society that accommodated weirdness and difference and idiosyncrasy. My earliest scholarship was about gay rights and anti-discrimination law, but I wanted to respond to the idea that was being offered by libertarians like Richard Epstein, that the culture was none of the state’s business. It seemed to me that one of the things that anti-discrimination law did, first, it interfered with freedom of contract for larger purposes. I thought that that was entirely appropriate. It also was an intervention in the culture to try to change the culture. I thought that that was appropriate. So, I was interested in libertarianism from quite early, but the Obamacare case took me out of the areas that I’d worked in, which were law and political philosophy with respect to individual rights to larger questions of government power. I thought what was strange about the challenge to Obamacare was that its proponents were trying to cripple the power of the federal government because they thought that that would promote liberty. I thought that that was strange. I thought that people weren’t understanding the extent to which the Obamacare challenge rested on this strange philosophy. In the course of writing a book about the Obamacare fight, which I did, I got deeper into libertarian philosophy. I was surprised to discover that I liked Friedrich Hayek and his original formulation of libertarianism in 1944 better than I expected to. I was more sympathetic than I had been when I had read him in college and in graduate school. I also, for the first time, read Ayn Rand. Lots of people read them in high school. I did not. I was absolutely horrified and I found this stuff repellent. One of the remarkable things about the fire story is that I found a lot of libertarians treating them as if they were the same, Rand and Hayek, but they’re in fact radically different. Hayek would never have a fire department stand back and watch a house burn down. He was just less doctrinaire than that. He was a big fan of free markets. He thought that people on the left should not sufficiently understand the value of free markets, but he also thought that there was a role for government to take care of a huge range of human needs that markets weren’t going to supply. Rachel Lu: Yeah, and it’s interesting, I’m your fellow traveler there. I think I also read Rand exactly that same period as the right is going through this very hard libertarian phase. I don’t think you should read Rand for the first time when you’re a full-fledged adult, because if you’re not 16, you read her and you think, “Wow, I guess I thought there must be something more or better or something in here. I know a lot of people are impressed by this, but this is just awful. This is it. This is really rad.” So, I don’t know. I hear you there, but let’s move on to talk about Hayek, because Hayek is in some ways the hero of this book, though heavily qualified, but still has a heroic role. Of course, you go on to make an argument that I’m sure many of our conservative listeners will find extremely counterintuitive. You want to say that the Democrats have become the Hayekian party in truth, though not necessarily acknowledged, right? As the right has moved off in a Randian, Rothbardian direction, right? It’s actually tacking towards anarcho-capitalism, even though as you acknowledge, most people on the right don’t want to think of them themselves that way, certainly now, right? The Tea Party era has waned, at least in its public face. Most of them wouldn’t want to say that. But talk about what it is that Hayek gets right, that you think Rand and Rothbard have wrong. Andrew M. Koppelman: So, to understand Hayek, we’ve got to go back to when he wrote the Road to Serfdom, which was his big intervention. He didn’t mean it to be an intervention in American politics, but it was. He was really responding to the program of the British Labor Party, which wanted to nationalize the means of production and put all heavy industry under the control of central economic planning. In the late 1930s, the world’s most admired economic managers were Joseph Stalin and Adolf Hitler, because they were the ones who had turned their economies around and they were both booming. Russia had been a backwater. Now, it was building steel mills. There’s high employment, and they’d ended the inflation in Germany while France and Britain and the United States were all experiencing high unemployment. So, there was a broad consensus among intellectuals that economic planning was the only way out. They didn’t like the dictator’s methods, but they thought something like this was necessary. Hayek, who at the time was a professor at the London School of Economics, he had grown up in Austria, but he was now in London, wanted to argue that central economic planning was necessarily going to be wasteful and tyrannical. That’s the argument of the Road to Serfdom. T he book was an unexpected hit in the United States where conservatives who were opposed to the New Deal were looking for some good intellectual rationale for the position that they already had. Hayek just turned out to be exactly what they wanted, but it was always a poor fit, because Franklin Roosevelt never proposed central economic planning. There was something approaching it that was tried in the first years of the New Deal, but he had pretty much given up on that by 1934. After that, what Roosevelt was offering was welfare state capitalism where you have capitalist economy but with a safety net. So, that you wouldn’t have destitute old people. You wouldn’t have destitute poor people. The program of the Democratic Party since then has been about expanding the safety net to provide for the people who lose out in a capitalist economy. The Road to Serfdom wasn’t opposed to that. The argument in the Road to Serfdom at least, was that capitalist economies are not going to give people what they deserve. They’re just going to efficiently promote production and they avoid the tyranny that you would get if there was central economic planning. So, there really isn’t anything in the basic ideas being put forth in that book that Bernie Sanders or Elizabeth Warren would reject. We are arguing about the size of the welfare state, about what protection there ought to be, but Hayek, in 1960, again arguing against the British case, argued that you don’t need to have a national health service with doctors on the payroll of the government. It’d be much more efficient to give people vouchers and let them buy subsidized insurance on the private sector, have private insurance companies compete with one another to provide insurance. Of course, you’d have to require the insurance companies to write insurance for everybody so that they couldn’t exclude people who were sick and you would have to require everybody to have insurance. By the time you finish reading this passage of the Constitution of Liberty, another book that Hayek writes in 1960, by the end of that passage, you can see today he has outlined Obamacare, all of the elements of Obamacare proposed by Hayek in 1960. He does, as he becomes older, become crankier about a welfare state. He is terribly afraid of democracy, because he thinks that the democratic governments are going to redistribute and destroy a capitalist economy. He ends up becoming friendly with murderous tyrants like Pinochet in Chile. But his original formulation I think had something quite valuable to offer, and the Road to Serfdom is still worth reading. Rachel Lu: So, it seems to me like you’re probably right that most people on the left would agree with Hayek about some fundamental principles. They certainly would agree that it is okay to engage in some level of redistribution in order to help people in desperate circumstances, but most people on the right would agree with that too, right? That’s not going to be a terribly controversial suggestion on either side of the political spectrum. So, I think maybe we need to distill a little bit more clearly what mistake it is that you think comes through Rand and Rothbard that you think is so important or invigorating on the political right. Andrew M. Koppelman: Well, the shift that has happened over time in libertarian thought is the view that the smaller the state is, the better the state is, the more free we are. The larger the state, the less free we are. That’s an argument that has been put forth by the writers who I take on later in the book, not just Anne Rand, but Murray Rothbard and Robert Nozick and Ludwig von Mises and Charles Koch who’s enormously influential in American politics. While there are lots of elements of the Republican party that don’t embrace that view, if you look at the track record of the Republican Party, the last time they held the presidency and both houses of Congress, what they actually managed to accomplish was enormous tax cuts for the rich and gutting the regulatory apparatus, the administrative state. The Trump administration basically tried to cripple regulation at every opportunity that it had. There was a massive effort to abolish Obamacare and to take health insurance away from about 20 million people in order to have even more tax cuts for the rich. This is not Hayek. This is a vision in which the smaller the state is, the lower taxes are, the better off we are. So, it actually has in practice quite a lot of power within the Republican party. You saw it just before the last election when the Republican leaders were talking about what they would do if they captured both House of Congress, which they hoped to do. They wanted to make the Trump tax cuts permanent and they wanted cuts in Medicare and social security. This is not Hayek and this is Rothbardian. Rachel Lu: Well, but what’s the argument for why it is necessarily Rothbardian to want a smaller state? Presumably, part of the background for this is that you’re right, most people on the right want the state to be smaller than it is. That doesn’t necessarily mean that we want it to be as small as is absolutely possible without descending into total anarchy. But if most people want it to be smaller that it is right now, if they have an idea that the state is doing too much, then for practical purposes, they’re always going to be attracted to any platform that promises to reduce the size of the state somewhat. But I guess my question would be, do you have good reasons to think that the motivation for wanting that is really fundamentally Rothbardian or might there be some other reasons for that that are more sympathetic maybe, dare we say more Hayekian that are worth fleshing out and responding to? Andrew M. Koppelman: So, the useful work that Libertarians continue to do today I say in the book is they are inclined to think that anything the state is doing is likely to be incompetent or corrupt or both. This is always a hypothesis worth investigating. There are plenty of state programs that are counterproductive. If you read Milton Friedman’s books, if you read Capitalism and Freedom or Free to Choose, there’s a whole catalog of things that the state is doing wrong, interfering with the economy in ways that make us all poorer. A lot of the time, he’s right. The hypothesis is always worth investigating. Let’s imagine that you have a doctor who thinks that the body can heal itself and that surgery and drugs are never necessary. You don’t want this person as a doctor, but he can be a fabulous medical researcher, because it sometimes turns out that there are medical interventions that are wasteful and unnecessary. It turns out, for instance, that there are lots of joint problems that have been the object of surgery. Turns out that physical therapy does the job just as well as surgery does. So, libertarians, I think, do a useful job in entertaining that hypothesis. It’s when you push the hypothesis across the board without attention to evidence that I think that it becomes destructive. That’s another aspect of the Trump presidency. Trump wanted to get rid of any regulations that burdened industry and had high costs for industry regardless of the benefits. If given regulation is going to cost industry half a billion dollars, even if the amount of lives saved and destruction prevented is going to be 10 times that, well, the regulation is still too expensive and we don’t want to do it because we don’t want regulation burdening the industry. Rachel Lu: Right. So, you used that example in the book about the doctor and I thought that was pretty clever and especially good for thinking about thinkers like Friedman, because I think you’re right. He is ingenious sometimes about coming up with explanations for how certain things can happen without state action. They’re not always right. When you think through the details of them, sometimes you think, “No, I don’t actually think that would work.” But because his mind just works like that, it’s always worth engaging. Sometimes you think about aspects of a problem that you hadn’t thought about before and he can be a useful foil that way, even if you decide that he’s not right. But here’s my concern or at least voicing a concern that I think many conservatives would have that I would share. As you move through the chapters of this book, I think many of us are going to notice there just seem to be a real lack of constraints, either theoretical or practical, on what claims people can make against the state in situations of need. So, conservatives are going to have two pretty significant objections to the growth of the state that aren’t really rooted in this tough luck libertarianism of Rand or Rothbard. They’re rooted more in concerns about subsidiary and the way that civic and community organizations can be stunted or suffocated by the state and then also in concerns about moral responsibility. When are we stunted in our moral growth as individuals if we just live with the perpetual assumption that the state is going to backstop all of our real needs? Maybe you can’t have anything that you want, but at least anything that you plausibly need is society’s obligation to supply you. How does that affect us as individuals if we just live that way? So those two concerns I think are going to loom pretty large in the minds of a lot of conservatives who are going to agree with you that it’s okay for the state to do some redistribution for the sake of supplying a social safety net, but they’re not going to want the state to do quite so much. So, the question that I would ask to you maybe on behalf of people who share those concerns is just under what circumstances is it okay for the state to say to an individual, “Yes, you plausibly need this, it would be possible to supply it to you at the public expense, but we’re not going to do that”? What could justify saying that if anything? Andrew M. Koppelman: Well, the question of what needs are urgent enough that the state needs to provide them is a question you’ve got to answer at retail need by need. But the specific context in which we were having this argument was the fact that there were large numbers of Americans who either could not afford healthcare or who were going to be bankrupted if they got sick. That seemed to me to be a fairly easy case for remedying the deficits of the market if the market is in fact undersupplying those and one of the things that had been happening as the negotiating position of working class people had become more precarious as it steadily has, is that the number of people without health insurance was steadily growing. So, in the decades before Obamacare, the proportion of the bottom quintile of workers who had no health insurance had risen from 20% to 40% and was continuing to rise. So, whatever needs you think people ought to be on their own for, medical care if they get sick seems like an obvious candidate for government supplying it. But I’ll also say if there’s a point that Richard Epstein makes that I embrace in the book that the bigger and more prosperous a capitalist economy you have and the more opportunities people have to provide for themselves, the smaller a welfare state you need. It was because there had been developments in the economy that had caused the enormous growth of wealth in the United States over the last few decades to pool at the top that you had people in this precarious position. An economy that is doing better without welfare provision for the people at the bottom just needs a smaller welfare state. Rachel Lu: So, it’s interesting because I agree that we need to do something to help chronically ill people who can’t afford their health insurance, but where to you, it seems like this is, as you just said, an obvious case where the state needs to come up with some reliable way to help people who are in need. To me, it seems like a very, very difficult case. In the book, this is several times, you draw the comparison. You quote Locke for instance, talking about how we have a clear obligation to ensure that people don’t starve. Then you suggest that, “Well, it obviously cross applies to things like medical care.” To me, that jump seems like a really big one. You say, “Well, death is death.” Actually, you say that in the book, death is death. It doesn’t matter if it happens because we can’t get food or because we can’t get medical care. Either way, you’re just as dead. So, these things are fundamentally the same. We have to provide people with medical care the same way that we can’t let them starve. But to me, I’m going to say no, those aren’t the same at all. Those are dramatically different. Obamacare was an interesting illustration of how different they are. Why are they different? Well, one reason is because there’s not really any limit to how much healthcare people might plausibly need to consume. Whereas the human body requires a certain number of calories, right? Two to 3,000 per adult is going to be fine. Once you get those, you’re pretty much good. We can get everybody that number of calories in the United States today and then you’ve met that need, but that’s not the case for healthcare. The reaper always wins in the end. We’re staving him off indefinitely. So, the number of medical interventions or treatments that might plausibly allow people to live a little longer, you can’t quite say unlimited, but it almost seems to be getting there, right? People can consume a lot of healthcare, but also, it’s just a lot more invasive. If my physical person is the responsibility of the state, that opens a huge range of questions. How my responsibility to take care of myself dovetails with society’s obligations to me. At what point in time is it okay for the state to exercise some paternalistic relationship and say, “Well, Rachel, I know you want to be a rock climber, but because we’ve agreed to backstop your medical needs, then we don’t think we can let you take that risk. So, no, we’re not going to allow any more climbing in Yosemite. It’s too dangerous now that we have agreed”? So, there’s a lot of questions like that that are opened by the healthcare concern that just don’t seem to be opened by the demand for food. Do you worry about any of those? Andrew M. Koppelman: Well, to begin with, in fact, as a matter of American political culture, the enactment of Obamacare turned out to be no danger to Yosemite rock climbers. They’re still climbing. So, that particular slippery slope did not in fact happen. I mean, there is this problem about the unlimited character of medical care. It’s a problem that everybody faces. In fact, the insurance that is paid for or subsidized by Obamacare has treatments that it won’t pay for. That is a separate problem, but what Obamacare does in all of its forms address is the much easier cases that it requires, for example, that health insurance companies make free visits to preventive care visit to the doctor available on an annual basis with no copayment. Now it doesn’t control. People are still free not to go to the doctor in the same way that we’ve got a food stamp program, but people are permitted to starve themselves if that’s what they want to do. We don’t force feed them. But it turns out that if you make these options available, lots of people are going to take them and those people are going to lead healthier and longer lives than they otherwise would. Healthy long lives are an element of human liberty. Rachel Lu: If you think though that the growth of the state has these negative impacts on us as individuals and potentially on civil society at large, then you can see how something like Obamacare is going to raise a lot of serious concerns. When you just say, “Well, these concerns are not going to come to fruition, it’s all going to be fine,” people aren’t necessarily going to be reassured by that when what you want to do upfront is dramatically change the system that’s already in place. You want to do that basically on the argument that we absolutely have to because there are people in need. That’s when you get people who are going to come back and say, “Oh, so every time people are in need, we just have to make any necessary changes in order to ensure that they don’t have needs anymore. Can we at least spell out some conditions under which that might not be obligatory?” It seems to me that you don’t really do that all that much in the book. So, I think that’s still going to be a lingering concern. People are going to feel like you haven’t really explained why the growth of the state can’t just be relentless, can’t just be endless. Once that becomes true, then we’re going to be really concerned about these issues of subsidiary and moral responsibility. Andrew M. Koppelman: So slippery slope arguments are always empirical arguments about what is in fact a danger and what dangers are likely to emerge in the world, but these same slippery slope arguments were made against social security. They were made against Medicare. There is a famous speech by Ronald Reagan in which he argued in the early 1960s that if Medicare was passed, that would be the end of freedom in the United States. It’s just not the case. Obamacare is now an element of American life, and it has now evidently become politically untouchable. It doesn’t feel like it’s not a free country anymore. Nobody is forcing you to do anything medically. It is just the case that if you can’t afford to pay for your medical care, which is true of a very large number of Americans, that you will still get the medical care. There are easy cases, but you’re right, I don’t have a set of an elegant philosophical theory of the necessary and sufficient conditions of human need that warrant government subsidy. I think that that’s got to be negotiated politically. Rachel Lu: So, you mentioned social security in Medicare. You might anticipate, I don’t know, that for somebody like me… You mentioned that several times in the book. Actually, in the book, you seem to mention social security a lot more than Medicare. I was curious whether there was a reason for that. Are you more confident in the case of social security than in Medicare or it just happened like that? Andrew M. Koppelman: Well, social security has been around longer, and so it has been more of a libertarian target. If you read libertarian writings from the 1930s to the present at any given time, if you read Libertarians in the ’40s, the ’50s, the ’60s, the ’70s, one thing that is a constant is that they are always confident that social security is going to go bankrupt in the next 10 years. That has just been a theme that has persisted. Rachel Lu: So, do you really think that programs like Social Security and Medicare are sustainable over the long haul? Andrew M. Koppelman: Yeah, I think that the broad purposes of these programs is to make sure that old people have a decent standard of living and have adequate medical care. The country is phenomenally richer than it was in the 1930s when these programs were enacted. We can afford to pay for these because we are so much richer. The principle impediment is that all of the money is pooled at the top and it’s politically difficult to get at it, but that’s a political choice. Rachel Lu: I don’t know. I think the numbers on that really, really are pretty bleak, right? Because yes, of course, these programs were designed to stave off penury in old age, but right now, they’re paying out massively more than they’re bringing in from younger workers. We’re paying for these programs by adding to the deficit, but we have shrinking numbers of workforce age adults and growing numbers of elderly adults. I think it’s pretty widely agreed at this point that especially in the case of Medicare, this is becoming a real problem. We’re going to have to change the thing in some way in order to make the program sustainable. That’s pretty difficult, because once you establish an entitlement program, people expect to get that. They build their lives around that expectation. That seems to me like exactly the problem in fact that Hayek was worried about when he said, “Well, this is going to end up redistributing wealth from the young to the old. It’s going to cause intergenerational resentments and it’s going to distort people’s incentives in such a way that it may eventually become socially sustainable.” I look at elderly entitlements and I say, “Yes, and yes, and yes, I was right about all of that. These programs are a very serious problem.” I mean do you anticipate that there’s going to be some change that’s going to make even Medicare sustainable over the long run? Andrew M. Koppelman: Well, I agree with you that politically, it is not possible to tell old people, “Sorry, we can’t afford to pay for your medical care anymore.” But I also think, I’m going to repeat myself now precisely because in our general running of the economy, we have been Hayekian and the country is so enormously more wealthy than it was even 30 years ago for us to say now, “Well, if you are old, we could have afforded to pay for your medical care 30 years ago, but now we’re too poor to do it and we can’t do it anymore.” It’s just wrong. There’s more wealth, much, much more wealth than there was 30 years ago. So, I wouldn’t focus on specifically the number of younger workers. I would focus on the amount of wealth that is available to the society. Rachel Lu: Well, what about the fact that we are right now using elderly entitlement programs to transfer wealth from younger workers to older adults who in many cases are far wealthier than these younger workers and were wealthier than them in their own youth? So, we’re actually transferring wealth away from a plausibly needier group of people to one of the best financially established groups in America. That’s just happening right now. It’s the situation that Hayek foresaw and that I think inevitably is going to happen when you establish things like these entitlement programs. Does that seem to you like an injustice? Andrew M. Koppelman: Most old people in fact depend on social security for most of their income. Most old people are not all that rich. So, the biggest problem with social security, I would say, is that it’s regressive, the amount of taxation is capped. You pay a percentage of your income up to a certain limit. After that, the very richest workers with the highest incomes are off the hook. There’s been some talk of changing that, because again, there’s quite a lot of revenue there. A big shift in the American economy over the last several decades is that wealth is concentrated at the top. I could pay more in social security. I could afford it. Even if the payments were not going to increase, the richer people can afford to subsidize the poorer people. But now, we get into the weeds of policy. The broad idea of libertarianism that I’m trying to address in the book is the idea that social security is morally wrong, because it redistributes and redistribution is a violation of human rights because it takes money away from people who did nothing wrong. That’s the fundamental libertarian idea that I’m trying to challenge. I mean, we can talk about policy. It’s just got nothing to do with my book. Rachel Lu: Well, I understand that, but I think it does. Maybe I’m not explaining this well. What I’m trying to get at here is that I think most conservatives are going to agree with you on the point that you’re trying to carry, but they still don’t like social security and Medicare and they don’t like a lot of things that the state is doing right now for other reasons. They think that these programs are problematic for the two reasons that I’ve already said. One is that they teach us to see the state as the primary entity that backstops all of our fundamental needs. That creates a lot of injustices like the ones I think we’re seeing right now where a lot of wealth ends up getting transferred away from people who plausibly have needs to other people who in many cases at least aren’t as needy, but it also leads to a lot of negative kinds of incentives that both train people to live less productive and less morally responsible lives and also disincentivize the formation of different kinds of civil society. It seems like you just want to say, “No, I’m not really very worried about that. I think it’ll be fine. That’s not the question that I’m interested in.” But if that’s the question that conservatives are interested in, most people on the right, and if many of us think, “No, we really don’t think it’s fine,” then my point is it may not be correct to suggest that the right is overwhelmingly Randian or Rothbardian. It may be that people on the right just don’t agree with you that social security and Medicare are well-functioning programs. They don’t agree with you that the threat to individual moral development and community is trivial and that’s why they’re opposed to the growth of the state. They’re not Randian. They’re Hayekians but Hayekians who disagree with you about a number of maybe more practical questions. That’s my point. Andrew M. Koppelman: There are two different issues here, and I want to separate them out. One is the specifics of the programs. I’m not addressing those in the book. The question about whether these programs could be designed differently is separate from the question of whether it’s legitimate for the state to do anything at all about people who in old age can’t afford food, housing, and medical care. I mean, any government program generates dependency. I’m sitting here in my house and I don’t own a gun and I have no ability to defend myself if I’m attacked because I rely on the police and my reliance on the police is a dependency. You could say, “Look, Koppelman, this is destroying your character. You really ought to be more self-reliant and defend yourself.” But I think that it’s better for my liberty to not have to think about the danger of being physically attacked because I got a reliable police force. Even people who are barely making it on their wages, who don’t have the resources to set aside a fund for their old age, provide for medical care for their old age, I don’t think that that destroys their character. I think that makes them freer. Now, there is a concern that you’ve raised that we do know that some programs have been counterproductive and have generated kinds of dependency that are counterproductive for the people who are the objects of the program, that some welfare programs meet that description and some don’t. I go back to my claim that libertarians provide a useful function to the extent that they call attention to particular pathologies of particular programs. Sometimes they’re right. Sometimes welfare programs do create dependencies that are bad for human flourishing, but it’s just way too broad to say that this is true of government programs generally. The logic of that position does extend to the police force, and I like having a police force. Rachel Lu: Yeah, absolutely. I think that you actually do have some examples in the book that are pretty good for thinking through some of the forms of, you might say, nanny statism, that we plausibly want. One of the things that you point out in the book is that modern life is just extremely complicated. In many cases when you think about all of those complications, you do want to say, “Yeah, I think it’s actually fine for the state to have somebody figure out which toxins can’t be in my lake that I live by, which ones are going to poison my children and then send people out to test the water and make sure that those toxins aren’t there.” I’m not going to do that on my own. I don’t have the relevant expertise. So, sure, I’ll pay taxes for somebody to do that. But what I’m saying I think is that a lot of us on the right think there are a lot more cases than Democrats want to consider in which it’s not good for us to have the state playing that role. I think a lot of us think that, yeah, programs like social security and Medicare have infantilized us in ways that have undercut our flourishing as human beings. They’ve really fundamentally changed our relationships to our own families and to our own communities. Even if there are some positives to that, there are also a lot of profound negatives to that that we’re really concerned about. So, to loop this back to your argument, what I’m saying here is I think your point that you want to make against Rand and Rothbard, I think you make it very effectively. I would grant you victory on that point, but insofar as you think that you’ve won a victory against the entire political right and you’ve shown that the Democrats are the real Hayekian party and that the Republicans are off on some Randian protest against the world or something, it just doesn’t seem as convincing to me, because I don’t think that the motivations most conservatives have for protesting the growth of the state are fundamentally Randian. I think that they’re more rooted in these other concerns about moral responsibility, moral development, civil society, community and so on and so forth. Andrew M. Koppelman: Well, I think that the United States needs a responsible conservative party that is suspicious of the left’s proclivity, and the proclivity is certainly there to reach to the state for a solution to all problems. I think that people on the left have a tendency to be too optimistic about the state’s capacity to solve problems. This is an argument that we should be having at retail program by program. So, I think there is a valuable role for a responsible conservative party in American politics. I remember when there was such a party and I miss it. Rachel Lu: Well, do you think it’s possible? This is a question that I had for you. You have a brief flyby discussion of Aristotle in the book, and there are a few things that you say. I mean, there’s a couple places in the book where you basically just tossed to the side any distinction between killing and letting die for instance. Oh, not giving somebody medical care when you could is pretty much like murdering them or something. I mean, to a Catholic intellectual, that’s putting up a big sign that says, “Fight me, but I restrained myself a little bit.” Andrew M. Koppelman: That’s Locke. John Locke says that. I just quote him. Rachel Lu: Well, but even if that’s true, you’re quoting him with approval and you want us to apply that to present situations, right? I don’t think we actually want to spend the whole time talking about trolley car scenarios or things of that general nature. So, I haven’t gone that direction. But I do want to ask you, doesn’t it seem possible that many of the questions that we’ve been discussing here about the proper size of the state will only be answerable if we do have more detailed discussions of human nature and how it affects us as human beings when the state is playing a certain role in our lives? It seems to me that you don’t really want to do that very much. You mostly just want to say, “Oh, well, people should be able to pursue whatever life they want to have.” But if you’re not prepared to enter more deeply into questions about human nature and what rural development requires and what healthy community and family life require, then it may be that a lot of the negative impacts of state programs on human life are just going to be invisible to you. You’ve already decided from the beginning that you’re not going to look at those kinds of problems or you don’t care about them or something, but then for somebody like me, that’s going to seem like a pretty see no evil approach. All of the harms of state programs that I think are most significant and are actually seriously undercutting our thriving of human beings, you’ve just decided from the beginning of the book that you’re not going to talk about and that’s going to make a lot of it amiss with me. Andrew M. Koppelman: I don’t think that I’ve done that at all. I say repeatedly in the book that state programs can be counterproductive and destructive and they can have that effect, but once again, I think that you’ve got to think about that at retail. So, just the talk about the size of the state, you need to disaggregate the functions of the state. So, pollution regulation, for example, which you talked about, it’s just basic physical harm. I am making money by running a factory that dumps toxic chemicals into the river that children are going to drink. This is just basic harm prevention. But if you want to prevent that harm, you need an enormous scientific bureaucracy to figure out which chemicals are harmful in which ways. You need a big state in order to provide this level of basic protection. Most of what the federal government does is Medicare and social security. We can talk about how to design those programs, but if old people are going to get a basic standard of living and decent medical care, you are going to need a transfer of funds on that scale. You think you can redesign the programs to make them more efficient. Hooray, I’m in favor of it, but the fundamental question is, are you going to do anything about that? I talk about the earned income tax credit, which responds to the destructive dependency that the welfare state has produced by telling poor people, “Look, you get a job and you make any salary at all and we will supplement your income. So, that you have a decent standard of living, but you got to have a job. You got to work. You cannot be purely dependent on the state.” That’s the shape that the welfare state takes today primarily, and it does not in fact produce the kinds of dysfunctions that the older welfare programs did. Rachel Lu: So, suppose I say, “Well, one of my concerns about elderly entitlements is that it seems like they fundamentally undercut people’s incentives or inclinations to marry and have families.” The reason people used to do that is so that they would have people to care for them in their old age. But also, when generations are more connected by need, they’re just more aware of the relevance of family connection, of intergenerational ties, and so on and so forth. So, you say, “We have to do these calculations at retail.” Suppose I’m looking at a young person who’s trying to decide what to do with their life, and I say, well, that person today thinks, “All right. Well, my parents are cared for by the state, and I will one day be cared for by the state. So, when I think about my personal goals, I don’t really see why new humans need to enter into that.” That person doesn’t go on to have a family. They end up pursuing some single life or possibly married childless lifestyle. Something like that is most appealing to them. Is that a retail level calculation when I start thinking about how that impacts people’s decision making or where do we fit that into the conversations we have about the appropriate role of the state? Andrew M. Koppelman: Well, there are today lots of people who have children because they want to have children, not because they are terrified of being destitute in their old age. I think that actually wanting to have children is a better reason to have children than financial considerations. Everything that we know about relations between old people and young people before social security, the relations of dependence weren’t sources of happiness on either side. We know that now. I mean, there are some people who live with their adult children, but in fact, the overwhelming preference of old people is to live separately and to not be in the same house as their children. It’s not like they don’t have relationships with their children. They just want to live independently from one another. We have stories of the old people trying to manipulate and wheedle support from their younger children because they are financially terrified. I just don’t think that financial terror is a good basis for family relationships. I see members of my family who I don’t depend upon at all just because I love them and I want to spend time with them. That seems to me to be a better basis for family connection. Rachel Lu: So, clearly, I’m much more concerned about this than you are and I could bring forward a lot of further issues. So, things like these really sad articles you read sometimes from therapists who say, pretty much, my office is full all day long of people who either a parent or a child has just decided they don’t want to have a relationship with them anymore. It’s a one way decision. More often it’s the child who makes this decision, but it can go either way. Usually, the explanation is just, “Oh, I don’t like your political or religious or social views. I feel hurt that you’re not as supportive of my life choices as I’d like.” Whatever, something like that. It’s not some serious case of abuse, but relationships are messy sometimes. Maybe the other person just said, “I don’t think I want to deal with this one anymore.” So, I’m a lot more concerned about those things than you. But instead of trying to solve that question, I just want to say my real question to you is, is there room in the parameters of your debate even for talking about questions like this? Because I think that is the type of concern that people like me have with the growth of the state. But when you keep coming back to the response, “Well, we just have to look at this at a retail level,” I’m going to be inclined to say, “Yeah, but what you consider to be retail level considerations don’t really seem to include a lot of the broader considerations that I have about human beings, how they develop, and how they’re most likely to thrive.” It seems like both at the top theoretical level and then down at what you call the retail level, you have already decided that you’re only interested in looking at certain kinds of considerations that seem to screen out a lot of the concerns that I really have. I think many other traditionally inclined people would have. Where do we talk about this? Do we talk about individual dependence when we’re talking about Hayek and high level government considerations, or is this somehow supposed to be something that the policymakers deal with? Because I feel like that whole level of analysis just got squeezed out in your jump from political theory to “retail level” considerations. Andrew M. Koppelman: Well, one of the basic presumptions of liberalism is that if you give people adequate resources that the institutions of community and family that you care about are going to flourish, because people are going to make good choices with their freedom. That’s I think true of most people. I mean your therapist’s offices tend to be inhabited by people who are in some way dysfunctional and need therapy. They’re not a good sample of the population as a whole. I mean, this has been a problem for liberalism from the beginning. If you allow people to make their own religious choices, some of them are going to choose false religions and should the state tolerate that. One of the basic presumptions of giving people freedom is that people are competent to decide what to do with it. I mean the fact that the state got out of the religion business in the United States has made the United States one of the most religious countries in the world. It turns out that people are attentive to these things if you just let them decide how to live. Rachel Lu: You know what I’m going to say here. We got to wrap this up, but it feels to me like we’ve come circled around to a place where you are being the tough luck libertarian now. You’re telling these people in the therapist’s room, “Look, this isn’t my problem. If you didn’t raise your kids right, then I can’t help you now.” Where I’m the one who wants to say, “No, we need to be making decisions at a higher level to help people have more fulfilling lives and flourish and feel real and important human needs.” Maybe an interesting place to have gotten to. I feel like I should give you an opportunity if there’s anything in conclusion that we didn’t hit that you want to mention about the book or that you want readers to be attentive to. We have a generally classically liberal audience. So, if you want to make any pitch for why they should be interested in your book, now is the time to do that before we wrap up. Andrew M. Koppelman: Big takeaway of the book is that libertarianism comes in flavors. The reason why I wrote this book was because when I was writing about the healthcare case, I saw that it was being animated by a libertarianism. So, I tried to learn about what’s libertarianism, where’d it come from. That’s why I was reading Hayek and Rand. There was no good general introduction to libertarianism that was not written by an enthusiast. So, I thought a good critical overview of what this set of ideas is, where it comes from, I thought was badly needed. So, if you are classic liberal inclined, I think the book puts some pressure on your views and tries to sort out what is alive and what is dead in that view. I think it’s better to be awake than to asleep. It’s better to reflect on your political views than not. Rachel Lu: Thank you so much for that. The book we’re discussing is Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed. It is… I didn’t say this before so I should say it now. … a very readable volume and you don’t need to have a lot of background in either law or political theory to read it. It really just reads very nicely. So, anyone with an interest in that, I would encourage you to go out and check out Andrew’s book. Thank you so much for being on with us today. Andrew M. Koppelman: This was fun. Thank you, Rachel. Rachel Lu: This was fun. Yes, thank you so much. Brian A. Smith: Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. Please visit our journal at lawliberty.org.

Veronique de Rugy joins host Samuel Gregg to discuss the state of classical liberal economic ideas in Amerca. Brian A. Smith: Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org. And thank you for listening. Samuel Gregg: Welcome to Liberty Law Talk. My name is Sam Gregg, and I’m distinguished fellow in political economy at the American Institute for Economic Research, and I’m also contributing editor at Law and Liberty, part of the Liberty Fund Network. Thanks for joining us today. Classical liberalism and classical liberal ideas have long played an outsized role in modern American politics, especially on the right. Today, however, we seem to be living through a period of retrenchment, whereby, classical liberal ideas are under siege from the left, but also increasingly from the right. Economic nationalism seems to be in the ascendancy on the left and the right, and much of the American business world has lurched in the direction of what’s often called stakeholder capitalism. We even find parts of the American right seemingly willing to even embrace and use something that most conservatives have at least theoretically opposed, that being the administrative state. Some national conservatives insist that classical liberals have been in the driver’s seat of the American conservative movement for too long, and that it’s time for them to step back. So what’s happened to classical liberalism in America? Did classical liberals make mistakes in pursuing their limited government agenda? Is there a chance that the band, otherwise known as fusionism, might get back together? Are classical liberals now condemned to being friendless for a generation? What does it mean to be a classical liberal in America as the second quarter of the 21st century looms. Joining me to discuss these and related questions today is one of America’s leading classical liberal economists, Dr. Veronique De Rugy. Dr. De Rugy is the George Gibbs Chair in political economy and senior research fellow at the Mercatus Center at George Mason University. Her primary research interests include the US economy, the federal budget, taxation, tax competition, and cronyism. Her popular weekly columns address economic issues ranging from lessons on creating a sustainable economic growth, to the implications of government tax and fiscal policies. She’s testified numerous times in front of congress on the effects of fiscal stimulus, debt, and deficits, and regulation on the economy. She’s the author of a weekly opinion column for the Creators Syndicate, writes regular columns for Reason magazine, and blogs about economics at National Review Online‘s The Corner. Her charts, articles, and commentaries have been featured in a wide range of media outlets, including Bloomberg Television, The New York Times, The Washington Post, The Wall Street Journal, CNN International, C-SPAN’s Washington Journal, and Fox News. And I think it’s fair to say that she is the scourge of that most crony-est of outfits, the Export-Import Bank. Vero, welcome to Liberty Law Talk. Veronique De Rugy: Thank you for having me, Sam. Samuel Gregg: Vero, you’ve been involved in the world of classical liberal ideas in America, but also in Europe, particularly France, for a long time. And in the 1980s and 1990s, classical liberal ideas, especially about economics, I think, seemed to be in the ascendancy, right? At least at a rhetorical level. But now they are plainly on the back foot. So what, in your view, is the single biggest event, or the single biggest development that’s responsible for this change? Veronique De Rugy: That’s a very good question. If I wanted to be utterly self centered, I would say that it seems that everywhere I go, classical liberalism loses, because obviously when I lived in France, it was not a classical liberal country, there’s still a communist party, there’s still a socialist party. I mean, command and control seems to be really the way people think about the economy, and the role of government, that most solution comes from the government. And I moved to the US hoping to leave all of this behind, not that I have any illusion that the US was perfect, but certainly, it looked so much better. And ever since, it’s been in decline. But that, I assume, is more correlation than causation. So to answer your question more seriously, I think, obviously, the most obvious answer is we have either not done our job properly, or we’ve been ineffective at making our case, or, and there is something easy and appealing to the case that the government can solve all of your problems. And we have failed, utterly failed, to present our ideas in a way that actually contradict this claim in spite of the evidence. I mean, we live in a world that is abundant compared to where… It should be obvious that a market economy is the way to go. But also, I think we have probably failed to emphasize and talk to people about their real concern. So maybe we haven’t talked to people at their level of concern, and we’ve stayed in this fear of, look, this is great, all is great, the economy is growing, we’re wealthier than we are. And we’ve not addressed people every day concern. Samuel Gregg: Well, let’s step back then and take a type of self reflective position, which I think is what you’re doing now. Do you think that classical liberals simply assumed that they had won the economic argument, and they weren’t paying attention to some major cultural shifts that have lent energy to those on the right and on the left, who perhaps were always skeptical about markets, and who never really gave up their faith in things like Keynesian economics, or the different interventionist options associated with things like industrial policy. So do you think that’s part of the issue that the assumption was, we’ve won the economic argument, therefore our major job of persuasion is over? Veronique De Rugy: Yes and no. I think this is true for areas like free trade and immigration for a while. But I think in the world that I’ve evolved in, Keynesian economics has always been much more potent and influential, for instance, than the more, I hate to say this, but more free market alternative. So I think it is true for some areas where we took things for granted, because there was a consensus. Samuel Gregg: You mean something like trade for example? Veronique De Rugy: Like trade. Yeah. And immigration to some extent. There were some things we took for granted, which we assumed we had made the case, and it was done. The thing, in my opinion, that is more puzzling about the last, let’s say 20 years, and what has happened, is that we see people, at least in my case, I see people who have been battling with me in the trenches against the left on central planning issues, on government intervention into their lives, on all sorts of things, who have now flipped their position, and are talking about how the free market is not the answer, or is it worth overriding the allocation of the market in order to achieve a common good? And they are sounding a lot like the people they used to criticize. That, to me, is the most baffling thing. It’s not that we had won, and we took everything for granted. There’s some of that, that’s part of the story. What I don’t quite understand is how you can have such a reversal in beliefs. Not everyone, but in a lot of people. I mean, it’s easy to say it’s opportunistic, that Trump opened the door for a political opportunity that a lot of people were actually were ever that principled, but were more in the business of winning elections, and trying to be in power, saw and jumped into. But I think there’s something more. I’m just not that cynical to think that that is all that is at play. Samuel Gregg: So are you suggesting that maybe the case for markets was not as widely accepted as perhaps we assume? That in fact, things like a more or less neo Keynesian outlook on the economy never really went away? Veronique De Rugy: Well, I think it… It’s obvious. Listen, even when I say that the case for free market, like free trade for instance was established, right? There were always some people who were skeptical of free trade. Samuel Gregg: Right. Pat Buchanan for example. Veronique De Rugy: Yeah, yeah. No, I mean, there were always people. Or I mean, if you remember the whole debate about NAFTA, right? I mean, they really opposed two sides very violently. Two sides that I think overstated their position. The outcome of, for instance, I do think… And you talk about this in your book. And I, really, where I said a lot of the free traders at the time probably overstated the impact of NAFTA. It’s not that it’s not a net positive, but it’s not this panacea that is going to make everything fine. And on the other hand, obviously the anti NAFTA people were completely wrong about how horrible it was going to be, and all this, and all that. So it’s not as if everyone wants a free trade, or it’s also not as if, I think, the way people understood the benefit of trade was ever the correct one. I think there was an understanding that was actually profoundly Mercantilist, or profoundly misguided, I’ll say, I don’t want to put a label on it, about it. Where we’ve always said, “You know what? Free trade is great, because it allows us to export more.” And we failed to actually… Because we were getting what we wanted this way, we were getting free trade agreement based on this premise, right? I think we didn’t do, maybe… I mean, I don’t want to blame people. But we have really, it seems, failed to actually make the case that actually the real value of trade is what we import. And in fact, from an economic perspective, from a domestic perspective, export as a cost, or even just making the case that if you want to export more, you need to import much more, right? And so- Samuel Gregg: We never really got away from, let’s call them neo Mercantilist arguments. Veronique De Rugy: I think the logic of the arguments as we were making them, as a matter of, listen, we’re getting what we want, which are free trade agreements, even though they’re not perfect, even though the logic is misguided, but we’re getting what we want, probably meant that we took things for granted that we shouldn’t have done because people did not fundamentally understand. Did not fundamentally understand what the value of trade truly is. So that’s an example to minimize how far we’ve fallen. I think we were doing great, but maybe not for the best reasons. Samuel Gregg: Let’s shift discussion now to an angle which I think you’re particularly competent to talk about with this, a discussion of what’s happened to classical liberalism and classical liberal ideas. You have been relentless, and I mean relentless, in your critique of corporate welfare and the cronyism that’s so widespread in the business sector of the United States. So is part of the challenge for classical liberalism today the fact that many business leaders don’t actually like markets, they don’t like competition? Because if that’s true, if it’s true that large numbers of business leaders are not really onboard with the case for dynamic markets both domestically, but also internationally, that means that an incredibly influential segment of America is not in fact onboard with market and classical liberal ideas. So do you think that this describes part of the challenge for classical liberalism today? Veronique De Rugy: It is. But I think our biggest challenge, right, is ultimately, we live in a world that is… Where politics plays a big role, and where the role of government is oversized, and the existence of government, and its ability to actually grant favors, unless we win, and we get some sort of, I don’t know, constitutional amendment that says that no government granted privilege for the private sector no matter what under any circumstances. I mean, it’s always going to be there. And I think if you marry this with the same issue as with trade, which is that people saw the benefit of, at least business leaders, right? They see the benefit of free market. But they actually don’t think about what actually makes it work. And that basically, when they’re given an opportunity to actually get a government granted privilege, meaning a subsidy, a monopoly grant, a tax break that the competitors are not getting, they take it. And they take it because they just… It’s beneficial to them, it’s available to them, they answer to their shareholders, and they maybe not at a fundamental level understand how this behavior in and of itself feeds a dislike for capitalism, for lack of a better word, a free market, for the lack of a better word. Samuel Gregg: Whereas, what really is operating here is a type of Mercantilist outlook. Veronique De Rugy: Yeah, I mean, it is. In fact, one of the most detrimental and problematic aspect, I think, of cronyism, corporate welfare, government granted privilege, however you want to call it, is precisely that because the government tends to benefit and grant privilege to larger more connected political companies, companies that may actually, in most cases, not actually need it at all but like it, because who wouldn’t want to have better terms for your loans? It feeds this idea, right, that the wealthy and the corporations are the enemy. I mean, if you think, if you go back to the Occupy movement during the Great Recession, I mean, these guys were way… They were right about sensing that there is a real problem of a government that is effectively letting everyone being crushed, but saving a bunch of big banks, having sheltered big banks for a while, and now they’re being saved, the airlines are being bailed out. And it gives this perception, right, that there’s this corruption going on. Of course, the things people mostly don’t see is that you don’t cure this kind of behavior with more government. Or more importantly, in my opinion, that these behaviors only exist because of the government ability to grant this privilege. Samuel Gregg: Right. Which is essentially Adam Smith’s point in The Wealth of Nations, in his critique of Mercantilism. So, Vero, we’ve been talking about the economic side of what’s happened with classical liberalism. And we’ve touched on some of the politics. Here’s a question for you which is a little different. And that is, do you think that there are things on the cultural side, cultural developments in America that classical liberals have neglected when they’re making their arguments about limited government, and markets, and all these sorts of things, is that, are there things on the cultural side that they’ve largely neglected to their cost now? Veronique De Rugy: Well, I mean, not just on the cultural side, even on the economic side. Actually, your book was, strangely enough, an eye opener for me. There’s this one sentence that I just actually wrote a column about, just this one sentence in your book, which is to actually remind people that economists really make a terrible case for the free market, for what the free market does. And we make it in terms that are as if the price system is the beginning and the end of absolutely everything. When in fact, what is actually beautiful about the free market is that is all the institutions that exist to support it underneath that are necessary, that are conducive too actually create cooperation between strangers, and good behavior really, between strangers. So that, I think, is an issue. Is we economists talk about the market, and the price system in ways that sometimes are counterproductive. Instead of talking about competition as this cut throat thing, what we should actually highlight, at the very least occasionally, is an incredibly cooperation that is enabled by the market economy. I think on the cultural side, I think we have… And I wonder whether it is because a lot of the free market movement is actually made of economists. And so the cultural aspect of this defense for a market economy just totally ignore the cultural side. And I think for instance, you and I have talked about this in the past, I think that we have utterly placed so much emphasis on the market that we have actually forgotten that as important are notion of communities usually underpinned by civil society, which is, civil society is the way that we help one another, basically, outside of the market, right? There is the market ways to do this, but there are also just… There are communities, and there are ways that people actually do good for one another, support one another, feed one another. I mean, the market helps, because it provides wealth to support these activities, but it goes way beyond. I mean, civil society is such an important thing that we should constantly be cherishing. And instead, I think we’ve overlooked it at great cost in my opinion. Samuel Gregg: So you think classical liberals should be saying more about the civil society side of things. So all these associations, communities, that are not state, but they’re also not economic associations either. Veronique De Rugy: And think about it this way, right? So again, I think that the fact that so much of our community are community of possible liberals are made of economist, I think basically puts forward this individualistic side of a market economy, right? It sure leads to cooperation, and even though no one plans it. At least let me talk for myself. I have neglected, for about two decades, the importance of communities and the role they play in people’s flourishing. And it’s not for lack of haven’t read… I’ve read David Beito, I don’t know how you pronounce his name, book on all these welfare institution that existed outside of the government. I mean, I should know better. I mean, I find stories like this incredibly inspiring. But I think in my own thinking, I haven’t focused enough on the importance of communities. Samuel Gregg: So we’ve talked about the past, and we’ve talked a little bit about the present. I’d like to now shift our conversation towards the future, and what might lay ahead for classical liberals, and classical liberal’s ideas. So this isn’t the first time in history, right, that classical liberal ideas have been somewhat marginal. I mean, imagine living in the 1920s, or 1930s as a classical liberal. I suspect it was a very, very lonely time. So what do you think might be the opportunities for classical liberals to advance some of their ideas in the current conditions? Are classical liberals, in a sense, are they basically condemned to wait for a crisis to come along and then seize the opportunity? Or are classical liberals looking for a more piecemeal approach? In other words, skirmishes, winning skirmishes here and there rather than waiting for a massive catastrophe to happen, to which they will then step in with solutions? Veronique De Rugy: So I don’t think that catastrophes are the way to go for us, because when people are scared, when people feel poor, they turn to the government. I’m not super optimistic that our moment is going to come about because of a crisis. Samuel Gregg: But that’s what happened in the financial crisis, right? Remember, everyone turned to the state, across the world. Veronique De Rugy: Yeah. No, I mean, it’s what’s happened during COVID. This happens a fair amount, and the government grows during emergencies. And the attempt to stay grow is, I mean, at least in the last 20 years I’d say, that’s definitely the case. I do think that our only way of doing this, first we need to regroup. I think we need to talk to one another more. The battle of ideas ultimately is going to be the solution to our problem. Besides, I don’t know what else we can do. And I think we’re going to have to take stock of what has worked and what hasn’t worked. And I was actually thinking about this, and I’m writing something about this right now, is I think we’ve overlooked the importance of economic growth in our lives. And I think we haven’t explained to people enough how ultimately it’s not just… Focusing on economic growth, it’s not just a sound economic case. But it’s actually an incredible case that with economic growth, you don’t just lift everyone out of poverty, especially poor people. But also, you actually promote a lot of the values that we want in society, like a liberal order, tolerance, peace, all of these things. And I feel like we have definitely grown much less, at a much slower pace in the last 20 years. And I don’t think we’ve been alarmed enough about that fact, because that is working absolutely against us. But I think ultimately, we need to make the case… We need to be very careful not to oversell a lot of our solutions. So I mean, I’ve mentioned NAFTA. We did probably oversell the benefit of NAFTA. I mean, I’m still a big supporter of NAFTA. I mean, there’s no question in my mind that it was extremely important and beneficial. I worry that there’s a trend in our movement to oversell the benefits of technology, and supply side reforms. They’re very important, right? I mean, I think they’re extremely important to produce growth. I think we all have to recalibrate and find a way to talk to people about what they really care about. Samuel Gregg: Right. Because when we talk about economic growth, we often talk about GDP, we talk about living standards, and things like this. All of which is good. But that’s also a quite materialistic way of approaching it. Veronique De Rugy: Yeah, but I mean, I think we need to focus on the moral aspect, the non-economic aspect. You get more safety, you get more clean environment, you get more tolerance, more peace, there are liberal values that do not. These liberal values just do not happen in stagnant economies. They don’t. They don’t. In fact, a stagnant economy, they breed resentment, they breed trying to look for a scapegoat, they breed the, a lot of what we’re seeing right now about the fear of others, blaming others. So I think we need to make a much better case to actually talk about all these things we care about, and put them in the context of things that actually really matter to people. And I think we need to do a better job. For whatever reason, it baffles me over… I mean, it constantly baffles me. Government fails all the time, a lot, at a scale that’s enormous. I mean, I don’t know if you read the story about the high speed rail in California. Samuel Gregg: Yes. Veronique De Rugy: Typical case of industrial policy, government intervention, hubris. Even the French bureaucrats, the engineers were like, “We’re leaving. We’re going to Africa to build a bullet train, because this is too politically dysfunctional.” This happens all the time. And yet, people fail to hold the government responsible, or actually to remember that maybe it should make us more skeptical about using the government for everything. And this is what baffles me the most about the New Right to use this… Samuel Gregg: The sheer degree of government failure we can point to. And yet, many people who describe themselves as New Right, or national conservatives, or whatever this new grouping is called, they don’t seem willing to acknowledge- Veronique De Rugy: But it’s… Samuel Gregg: That the government fails again and again. Veronique De Rugy: A lot of these people were our friends, fighting with us against government intervention, precisely because they understood government fails. So that’s interesting to me. But to their credit, I think they are doing what maybe we failed to do. And that is to actually point out that there are truly things that are not working. I mean, when you look at areas in the US where there’s high unemployment rate, low wage, and people are stuck there. And unlike what we’ve seen in the past, and these type of contexts, people would go, or they would train and get another job, they would leave, they would go somewhere else to find… People aren’t doing this anymore. I mean, there are groups. And we tend to actually talk in aggregate. Well, I’ll admit, everyone is better, I’ll admit, everyone is better. And it is true, I’ll admit, everyone is better, right? Even those people in the [bottom] they all have TVs, and iPhones, and all that stuff. But once you’ve said that, you’ve accomplished nothing, because those goods, and that level of wealth is your new baseline. So we are not talking about these specific problems, we’ve ignored them. Samuel Gregg: So you mean we need to move from the aggregate to the regional and local in a sense? Veronique De Rugy: Yeah. And true, for instance, I look at these areas, and it’s heartbreaking. But I can’t name you 10 things that the government has actually done to get people stuck there, right? But I mean, if I don’t ever talk about these areas, right, then I’ve allowed basically the narrative of the market has failed these people to basically, to take over. Samuel Gregg: Well, we’re getting close to the end of our conversation. And I’d like to conclude by asking you a somewhat different question. So, classical liberals, they have their pantheon of intellectual heroes. So in more recent times, they would be people like F. A. Hayek, Milton Friedman, James Buchanan, for example. But there are also others who go back a few centuries, and were, of course, primarily English, Scottish, and Western European. So my question for you, which we’re going to conclude is, who is, for you, the classical liberal thinker from the past that classical liberals need to be looking to today for inspiration? Now, I have some ideas. But I’d be interested in hearing, who do you think would be someone who can inspire classical liberals in the somewhat gloomy environment of today? Veronique De Rugy: Frédéric Bastiat. Samuel Gregg: Bastiat? Veronique De Rugy: I mean, there are many. By the way, you know why we’re so attached to people of the past, to scholars of the past, to intellectual of the past? And this is one of our challenges, because there are no new ideas. I’m always annoyed when people say, “Well, can you come up with new ideas?” Well, actually, there are not a lot of new ideas out there. Maybe there are different ways to do things. Right at the margin you can do things differently, you can have a different messenger, have a different message, use a different medium. But when it comes to the arguments for freedom, the argument for classical liberalism, honestly, all the cases have already been made. The one person who I think actually does a remarkable job with a lot of humor is Bastiat. Don’t get me wrong, I love Adam Smith, and I like… But some people can find it unbelievable boring, right? I think Bastiat has it all. And this is not any chauvinistic instinct that actually gets me to say this, because I will say, the first time I read Bastiat, I read it in English, because the French totally ignore Bastiat. But I think that we can take a page of the way he was fighting these battles, and he was… I mean, he was funny, he had always concrete examples, he was challenging people, the way they think, as well at the same time, making some incredibly profound arguments about the law. By the way, I mean, Bastiat, before Hayek, right, talked about the difference between legislation and the law, how these are two separate things. So I guess I want to put a plug for Bastiat. Samuel Gregg: Bastiat is, of course, as you know, buried in San Luigi dei Francesi in Rome. You can actually go, and stand there, and look at his grave. And the fact that he’s buried there, I think, is indicative of someone who thought very widely, obviously, about economics, and the movement for liberty, but also some of the deeper traditions, which he clearly believed. Veronique De Rugy: Yeah, and if I can add something, one of the things that we’re missing very often when we talk about these intellectuals of the past who are very inspirational, who have actually put out in books truth that are just… That we’re still using to this day, is we admit that I think the baseline for all of them was a standard for morality that may be actually different than the one we have today. Samuel Gregg: Right. They sort of believed in moral absolutes. Veronique De Rugy: So we pick and choose what we want, but we ignore that overall environment where the arguments were taking place. They were things that were taken for granted that we don’t take for granted anymore. And I think we tend to pick and choose. So I think this is a warning about using writers of the past selectively without acknowledging some of the most profound facts about them. Samuel Gregg: Dr. Veronique De Rugy, thank you very much for joining us. Veronique De Rugy: Thank you for having me. Samuel Gregg: You’ve been listening to Liberty Law Talk, in which we’ve been discussing what happened to classical liberalism with one of America’s leading classical liberal economists, Veronique De Rugy. This podcast is available here, at the Law and Liberty website, and all good podcast sites, like Apple Podcast, Spotify, and Podchaser. If you like what you’re hearing, please give us a five star rating to encourage more people to join us each month. I’m Samuel Gregg for Law Liberty Talk. See you next time. Brian A. Smith: Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. And please visit our journal at lawliberty.org.

James Dominic Rooney joins host James Patterson to discuss his recent Law & Liberty exchange on Confucianism, as well as political catholicism in the West. Brian A. Smith: Welcome to Liberty Law Talk. This podcast is a production of the online journal Law & Liberty and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening. James Patterson: Hello, and welcome to Liberty Law Talk. My name is James Patterson. I am chair and associate professor of politics at Ave Maria University, a research fellow at the Center for Religion, Culture, and Democracy, faculty partner with the Jack Miller Center, and president of the Ciceronian Society. Today with me is Father James Dominic Rooney. He’s a member of the Order of Preachers, also known as the Dominicans. He’s an assistant professor of philosophy at Hong Kong Baptist University. He works primarily in metaphysics, medieval philosophy, Chinese philosophy, and the philosophy of religion. He has a recent book called Material Objects in Confucian and Aristotelian Metaphysics on Bloomsbury Press. But today we’re going to be talking more about a political discussion that occurred somewhat on Law & Liberty, also elsewhere. In fact, part of the reason why we’re doing this podcast is because I heard one of his interlocutors, Habi Zhang, on The Pacific Century earlier this month. I sent the podcast to him and then remembered that he’s actually already had this debate. Father Rooney, welcome to Liberty Law Talk. Fr. James Dominic Rooney: Nice to be here. Thank you for having me. James Patterson: The position that Ms. Zhang has taken is that Confucianism as a political doctrine or political philosophy is simply incompatible with any idea of freedom, at least as it’s understood in the West. In fact, she says that freedom has no real meaning in China until it encounters the West. What is it exactly about the view she took that you took issue with, and what’s the position that you take instead? Fr. James Dominic Rooney: Well, I should say I think Ms. Zhang’s position is a bit odd even within the world of Chinese philosophy scholarship. I would say it’s actually a very active debate, because there have been a number of people, basically, since the revolution, who have been arguing back and forth about the role Confucianism ought to play, does play, might play in a future political philosophy that is more liberal. There was actually a very good book by a Chinese philosopher from Rutgers, Tao Jiang. He argues in favor of Daoism being a philosophy of personal freedom. I actually think that’s a good initial response, that there’s nothing about Chinese philosophy in general that lacks a concept of freedom. I think that kind of Daoist view from Zhuangzi that he was talking about is one option, of course, if you just want to talk about freedom in Chinese philosophy as a whole. Now my area is Confucianism, which is I think what Ms. Zhang was attacking in particular. And there are quite a number of Confucian liberals, actually. It’s really not that unusual to hold a position that Confucianism might give us a grounding for something like a kind of liberal view of society. It’s not going to be the same thing as contemporary liberalism but for example, the sort of people that come to my mind are Joseph Chan and Sungmoon Kim, who teaches here at City U, right out my window. I’m pointing. He teaches here. But I mean, both of them here in Hong Kong are well known for defending positions about using Confucian philosophy to defend liberal positions about freedom. My position is a little different, because they’re more contemporary political philosophy. They’re more interested in other questions. Mine came from the position that I’m sort of working on projects right now that might come to fruition in natural law politics. I’m from the natural law tradition. I’m a Thomist and we have a long tradition from Cicero and Aristotle to Aquinas down through the Dominicans of the modern school like Cajetan, and de Soto, and Victoria. And the position we hold is very similar to the Confucians. That’s why I went into Confucian philosophy and my point against Habi Zhang was just to point out a lot of the Confucian republicans at the time of the revolution actually recognized the parallels with natural law thinking, with natural law, political thinking. And they pointed out that the motivations for Confucian political doctrine are pretty similar to those that motivated people like Yves Simon and Jacques Maritain to defend natural law sort of theories of democracy, and constitutional separation of powers, and all those sorts of things that we think of as liberal doctrines. And so I just defended that well, I mean if Confucianism can hold all the things natural law does and they’re relatively close, well, there’s nothing about Confucianism as such that requires it to be kind of authoritarian. And I think her arguments about that why what in Confucianism leads it to be authoritarian had a lot to do with the idea that government is aiming to work for good lives of its citizens, that that’s the purpose of government. She called it benevolent government. And I think one of my other interlocutors also pointed out this claim and said, “Well, it’s really about benevolent government,” but there’s nothing about benevolence in government that just is to say, right, perfectionism is what we call it in contemporary political philosophy, perfectionist political philosophy. There are perfectionist liberals around like Steven Wall, Joseph Raz. It’s not all that unusual for there to be perfectionist liberals. I think even from a natural law perspective, Confucianism shares a lot of the same presuppositions as natural law theory, and you can get to defense of these same liberal institutions through natural law theory. There’s nothing that stops you in Confucianism from getting there either. James Patterson: One of the choices she makes that I thought made the article both compelling but also perhaps subject to a certain amount of criticism is that of all the people she selects to offer a western account of human freedom is she chooses Hannah Arendt. And it sounds to me that Hannah Arendt wouldn’t really comprehend that. Not that she wouldn’t understand, but that her body of thought does not really overlap much with the natural law tradition. Is that the issue at work here or do you think it’s something else? Fr. James Dominic Rooney: Yeah, I mean, if I can put it bluntly, this is a very common strategy among people today to argue against kind of liberal institutions is they tend to say something like this. I was just looking at Habi Zhang’s article, and part of the point here by quoting Hannah Arendt is to make a claim that western philosophy, western theories of liberalism require some account of an autonomous self, that free people are disconnected from families and nation and it’s like, I don’t know, Sartrean or something, that we have no commitments to anybody else or to nature. Political authority is just oppressive. It can’t be natural. When you start off on this account of liberalism or what is required for freedom, I mean, of course natural law, Confucianism can’t accept that kind of individualistic atomistic self. That’s just obvious. But it’s certainly not the case that that’s required for things like democracy or separation of powers or popular sovereignty. I mean, Robert Bellarmine gives one of the famous arguments for popular sovereignty that the Catholic church accepted and he certainly doesn’t believe in atomic individuals and this kind of picture. It’s a very common strategy, anti-liberals use or aliberal people will use. And it’s rhetorically effective to some extent, but it’s just not true that in order to have and support liberal institutions, you have to accept this kind of completely individualistic picture of the self. Or another strategy is you have to accept Locke’s picture of liberalism. But of course there’s no reason to accept, I mean, there’s no reason if you think separation of powers, popular sovereignty is true, any of those commitments, there’s no reason you have to accept Locke’s account or Hobbes’ account even more. To me, it’s just a kind of non-sequitur that if you accept these institutions, you have to accept Locke or Hobbes or Hannah Arendt’s account of freedom. I don’t think you do. James Patterson: This is primarily for my benefit as well as maybe some of the listeners. There is something you allude to, you mentioned it but you don’t quite explain it, it’s this distinction about the legalists intervening in historical Confucianism. And as I was reading it, I made an association where there’s this emphasis on virtue and moral improvement in Confucius that the legalists just attempted discredit in favor of arguing in favor of some nearly totalitarian regime intended to keep the people in line. And when I was reading this, it felt very much like I was reading about the transition from medieval to modern political philosophy. Is this a fair analogy or are there some things that are missing in the account, the Chinese? I’m assuming there are, I was just wondering what they were. Fr. James Dominic Rooney: Yeah, no, certainly. Let me just to answer your question immediately, I think actually that’s a very good way to think about it. Although the Chinese version legalism or fajia is the school of law is what it sort of means literally. It’s one of the classical schools of Chinese philosophy and they’ve sometimes been called realists or different other kinds of terms, but actually, I think it’s got a very similar vibe to somebody like Hobbes. The basic viewpoint of these kind of people we can go to one of the more important people would be Han Fei Tzu. And these kind of theorists have a kind of, you’re right, a kind of totalitarian theory of the state. They are influenced by another earlier school called Mohism from Mozi and it’s a kind of consequentialist ethics. They accept a certain theory of the state that became influential in China because it influenced a number of leaders to crack down on philosophical pluralism because they thought philosophical pluralism undermined the state. It led to a famous burning of books and elimination of alternate thought because this was the ideal was in order to have a state that really is effective, you have to eliminate alternative perspectives, you have to shut down, right, philosophers that might have alternate theories of justice. Because that’s one of the things from the early Mohist Confucian school or the early Mohist school consequentialism, is that part of the problem in the state is different theories of justice because it causes disharmony in the state. The Legalists were famous for many of their sort, let’s say, taking consequentialism and practice and operationalizing it. They did all the things consequentialists get accused of today. They want vicarious punishments and very harsh punishments to dissuade people from doing bad stuff in the state. They were famous for these sort of implementing very harsh punishments, cutting out dissent, eliminating philosophical pluralism. And I think it’s pretty clear to me that those schools are actually closer to what Habi Zhang is talking about. In the history of Chinese philosophy legalism sort of took over during this warring states period. we’re talking around, I mean Han Fei Tzu is 240 BC around, and these schools are got prominent in China and influenced the way Confucianism was practiced in China and the sort of relation it had with the state because it became a sort of way of, it gave rulers a certain kind of perspective that the philosopher should serve the state, right? And they shouldn’t be allowed to be independent. And Confucianism ended up adopting some of the views. I mean we might call the state Confucianism of the time, adopted some of these views so that it wouldn’t get totally snuffed out. It tried to come up with of accounts the Confucians could support the state in a similar vein, although the Confucians always rejected the sort of legalist idea of vicarious punishment and these overly harsh punishments. The Confucians were always trying to moderate the punishments. And there were others. The basic sort of view of later Confucianism even was Confucianism was famous for something that the legalists would not, I think, accept which was the role of scholars in the government to remonstrate with the emperor. That was a very Confucian institution that shows you a little difference with legalism. The legalists thought the philosophers need to serve the state and need to be suppressed. The Confucians, even when they were serving the state, have the idea, if we might put it this way, that the Confucian institutions, the scholars were really independent and were supposed to act as a moderating influence on the emperor. They were supposed to educate him and then if the emperor did something wrong, they were supposed to write memorandum to the emperor to correct him. And this generates a sort of theory that looks pretty, it’s not separation of powers, but it represents… It was supposed to be a check on the autocracy of the emperor because the Confucian theory was always that the moral law, justice, stands higher than the state that is definitely 100% central to the Confucian doctrines. If you look at the first chapter of The Mencius it’s anti-consequentialist. It’s one of the kings of the time talking to Mencius about how Mencius can profit the state, which is let’s say a very, this is before legalism proper, but would be a very legalist kind of way of thinking. And Mencius says, “Why did you ask about profit? You should have asked about righteousness and then you would’ve asked the right question.” And that kind of perspective has always been the Confucian perspective. Justice stands higher than the state. There’s a higher moral standard that the state cannot violate. If the state violates it, the state becomes unjust and illegitimate to the extent to which it violates the standards of justice. The Confucians, I think definitely did not share that kind of legalist perspective, but you can see that this kind of legalist perspective very much influenced some of the practices of China. I think Habi Zhang is sort of associating some of that, this sort of legalist consequentialist understanding of the state more with Confucianism than it ought to be. James Patterson: You actually referred to another interlocutor and it was, I believe David Schneider, he makes a great deal of use out of the understanding of heaven or the idea of pietas versus, what is this? You say xiao? And how these are, that these are not sufficiently parallel ideas, but heaven and Confucian sense and versus a Christian sense or pietas and xiao and that this is a confusion that you’ve encountered. Is this a accurate assessment of your position or does he perhaps miss something here? Fr. James Dominic Rooney: If I can try to summarize the position as I understand Dr. Schneider, his position is, as you say, how is a virtue that is akin to, it’s translated in English as filial piety. Xiao Is the virtue basically of sons to fathers. And I mean sort literally that’s what it is, sons to fathers. And then it gets applied by a sort of analogy to any hierarchically subordinate person to the superior. Xiao is a virtue also of servant to minister is a kind of xiao. I think pietas is a good translation in a good analogy in the western tradition because piety is about the same sort of thing, gratitude to God, gratitude to your parents, gratitude to your government and your nation. I mean you find that in Cicero you find it in Aquinas. But the difference that David Schneider tried to claim is that in xiao, in the Confucian tradition, we might say, “No inferior person has a right to oppose the person in a superior position.” That’s sort of David Schneider’s claim. Now in fact, I think that’s false. I mean, I think even in the Confucian tradition. Because in fact you can find in the, I already mentioned the institution of remonstration with the emperor, which is certainly the Confucians thought that was possible. But in particular too, it’s also just I think not quite true to say that xiao requires the inferior person always to do whatever the superior person tells them to do. The obvious case is in the Confucian canon there are clear cases where in the analect and in I believe The Mencius as well, you find clear statements that sons are not to follow the commands of their parents if their parents command them to do what is evil. I think that’s a pretty clear statement, that there’s something wrong with the view that no inferior person ever has a right to disobey his superior, because that’s precisely when you can disobey is when it’s against the moral law. We could go into more detail, but my basic claim was I think David Schneider’s view just takes inspiration from, again, the same sorts of things. There is among Thomists, I’m going to go in a little bit now to the West. There’s among Thomists exactly the same sort of argument that in classical Thomism, right, charity and justice are about normative relationships, natural, natural kinds of roles and duties we have to each other. For example, Alasdair MacIntyre makes the same argument that there’s no such thing as human rights in Thomism, there’s no such subjective natural rights that individuals have under Thomism and the natural law tradition. But I think that’s just false and there are lots of people that argue that that’s the case because it turns out right objective, right is right relationships between people. That’s in the Thomist’s natural law tradition. It’s the same among the Confucians, like righteousness or xiao is about right relations between people and there are wrong relations between people. And sometimes that can mean, right, it’s indistinguishable from a kind of subjective natural right. For example, if the son doesn’t have to obey when the father commands something that’s immoral, it looks to me like that’s just indistinguishable from saying there’s a kind of subjective natural not to obey when it’s a certain kind of command. You have a right not to obey under certain circumstances. I think there are other things, for example, the Confucians clearly believe there are certain actions that no person, not even the government can command you to do that we might say intrinsically immoral. There are absolute moral prohibitions on Confucianism just as there are in the natural law tradition. If there are absolute moral prohibitions, then you get something like human rights right out of it. Because if the government can’t ever torture you, then torture is wrong and you have a human right not to be tortured just in virtue of being human you have a subjective not to be tortured. You can get that out of, I think that’s one of the things you could get out of absolute moral prohibitions. If the government can’t do something or no human being can do it to you, then I think you can derive these kind of claims diirectly. I think the harder question that David Schneider brought up has to do with separation of powers. What I argued is this, in the classical tradition in China, there’s not been much consciousness of the need for separation of powers. There’s not been much consciousness of the need for it or how to do it. There are some people, there are some sort of hints in the tradition where people thought about it. There are some more modern Confucians that sort of came up with claims about this. I’m forgetting this one Confucian’s name, but I was just reading, I’m forgetting. It’s called the Brightness of the Dawn or something. He was like 17 18th century Confucian. But he argued for reforms that would bring about a kind of limitation, constitutional check on the authority of the king, of the emperor on the authority of princes. And I just don’t think there’s anything in Confucianism that requires you to deny it, that requires you to deny the legitimacy of something like separation of powers or the possibility of holding individuals in the government, including the emperor to some standard. I just think there’s, even though it might have been the case that Confucians in fact criticize this or didn’t come to a claim about separation of powers, I mean, it took people in the West a long time to do that too. It just takes time. There have to be certain kinds of circumstances. The question is whether Confucianism is incompatible with it, and I just don’t think it’s a persuasive argument that Confucian ethics or politics requires us to deny something like the goodness of separation of powers. And I think you can give arguments for it just as you can in the natural law tradition. James Patterson: Well, we should move on. People who are listening to this may know about our encounters with a revived concept about the relationship between church and state, and that is what’s called integralism, I sometimes call it neointegralism, but we’ve both had work that we’ve done on this. I know that one of the things that you’re doing to take on maybe the broader issue that integralism’s brought up is that you have a book coming out called Beyond Classical Liberalism. But before we talk about that book, maybe talk about some of the things that you’ve done concerning integralism and where you stand on it. Fr. James Dominic Rooney: Yeah, so the Jihad lives. I am very dedicated to the claim. I think there’s something very deeply wrong with integralism. I should say, I mentioned to you before the show began, there are lots of noxious political views in the air. The ones that concern me as a Catholic priest and theologian and philosopher are those that claim that Catholic doctrine requires them to be true. I have some papers I’m working on at the moment about problems, injustice, individualism that concede certain claims that I think they make that are clearly false. Integralists tend to claim that there are certain commitments from Catholic theology that require you to be an integralist. For example, our doctrine of grace, or Thomas Pink is the famous philosopher who argues there’s a certain kind of privilege that the church has in relation to the state that the church is in, has an intrinsic right from God to civil penalties of the state. That’s part of the church’s power, it’s indirect power over the state. He gets this idea from Francisco Suarez, who he’s a very famous Thomas Pink is a very good and famous scholar of Francisco Suarez. he gets the idea from him. But in fact, in Catholic theology, that position on the indirect powers is terribly controversial. There are quite a lot of people that have rejected that claim. The most notable I think is John Henry Newman and Joseph Raz clearly reject. I think there are actually lots of people in the tradition that reject this claim. I think the Dominican tradition rejected some of these claims. But leaving that aside, I think that the deep problem with integralism is even if you concede this controversial claim about the church’s power, let’s just pretend it’s true. I don’t think it follows integralism. If I put it this way, my account of integralism, I got this formulation a little bit from Kevin Vallier, so I’ll give him credit for it. But I think the idea is it’s a theory about the ideal political arrangement. The ideal political arrangement. And the claim is something like this: the state has the obligation or the mission of advancing the temporal common good, the church has the mission of advancing the supernatural common good. And the integralist thesis is this, that there is the ideal political arrangement is one on which the church can mandate the state to directly advance the supernatural common good. That’s basically the thesis, and you need to unpack it a little bit, what I mean by directly. I think the idea is right, if the state advances good things, like they prohibit murder, right? That’s a natural good, right? Prohibiting murder. That advances the supernatural common good indirectly, right? Cause you can’t be a saint if you murder people, right? James Patterson: That is uncontroversial. Fr. James Dominic Rooney: Yeah, I know it’s a controversial thesis, but directly advance, directly advancing the supernatural common good means that the state can use its power under mandate or delegation by the church or something like that in order to, for example, punish heresy, right? Cause heresy is a supernaturally, it undermines the supernatural common good of the church. The idea is from Thomas Pink, for example, that the church does teach, you’re not allowed to coerce people who are not Catholic. You’re not allowed to directly coerce the unbaptized to become baptized, we think. But perhaps we could use the state or we have an ideal arrangement on which the state could be holding Catholics to their baptismal promises through coercion, right? If you are baptized as a kid as a Catholic, we can punish you, put you in prison for heresy or something. If you’re not Catholic, we can protect the Catholics from you, right? We can stop you from building synagogues, right? Cause that’s bad for Catholics, I guess. I don’t think so. I think that’s a little weird. But anyway, that’s the idea. James Patterson: That’s one word for it. Fr. James Dominic Rooney: We’re going to keep the bad Protestants away from the Catholics and all the atheists. We’re going to put them under dhimmitude or something. My objection to this theory is pretty simple, which is the thesis is it’s the ideal political arrangement. I think there’s no such ideal, I don’t think it makes any sense what the grounding is for this ideal, why it’s ideal. And I think if you try to work out what those grounding is, it leads you to accept something intrinsically unjust, whatever explanation they give. There are lots of different explanations, but the basic claim is going to have to be something like this. You can do it of one of two ways, but the idea is going to be, I should say the first thing integralists are always going to retreat to is they’ll say, “Well, once we have a legitimate constitution for a Catholic confessional integralist state, well nobody, there might be non-Catholics living in the state, but as long as the constitution is just, right, why do the Jews worry about us using state power to advance the supernatural common good of the Catholics? If the constitution is justified?” Well, my problem is of course the justification of the constitution because that’s where the ideal political arrangement comes in, is to say that the constitution for this kind of integralist estate is ideal. I admit that it could be legitimate for the state to advance the supernatural common good under some circumstances. Maybe there are circumstances under which the state could legitimately do that. If we have a majority Catholic population, maybe if there are certain ways in which I think, here’s a good example. I buy Kevin Vallier’s convergence theory of public justification. There can be things that we can agree with Jews about, that we can publicly justify the state doing things that I think advance the supernatural common good. Here’s something we might want to do. We can pass a federal law to preserve Sunday as a public holiday of rest. This advances the supernatural common good, I think, right? And it’s something state power does, and there might be other things that the state can justify that I don’t think have anything to do with integralism that I think maybe the state can advance those things. And I don’t think there’s any reason we can’t do that. But when you try to justify this ideal constitutional arrangement, I think you end up having to say things like this. You have to say something like, “Well, what non-Catholics think about the constitution of our government doesn’t count.” The integralist has to say either one of two things, either that non-Catholic objections to a constitution in which we exercise this kind of church power over the state, either non-Catholics are just not publicly reasonable. a lot of integralists, I know, just think the objections of non-Catholics to government power being exercised by the church are just, we might say publicly unreasonable in contemporary political philosophy. We just disregard them. They’re not important. We could pass the constitution anyway. We had a constitutional convention to pick what our constitution is for our country. We could just leave the non-Catholics right out. They’re not admitted. The problem with this is pretty clear, I think why it’s unjust, because it seems to me that it would just say, for example, we could set up integralist states in other countries like colonies, right? Because the natives don’t matter if they’re non-Catholic, their objections don’t matter. It seems to me to entail pretty obvious injustice. A lot of integralists I think just accept that conclusion. But I point out my Dominican confreres, Bartholome de las Casas and Victoria, have some very strong words against the claim that right non-Catholics have true dominion or that the integralist state could somehow override the natural rights that they have of dominion. I think that’s a problem. James Patterson: Does this tie in to the project where if classical liberalism needs us to go beyond it, part of that might be because we have a sense that there’s something inadequate about its present argumentation that perhaps integralism a symptom of it’s sort of resurfacing? Is that part of the cause for you to write this book? Fr. James Dominic Rooney: I’ll just say there are other ways people could ground integralism. I think they’re not going to work. I think they’re basically going to be circular. They could say, I think there’s a tension in integralism, but I’ll just put this, sometimes they say, and they generally do say you need a majority of Catholics for an integral state to be justified, but in fact, and in principle, they end up treating non-Catholics as if they have no duties toward them in this constitutional convention kind of moment. In terms of the constitution’s legitimacy, they own nothing to non-Catholics. Well, that’s a pretty clear tension. Is the 50% or more of Catholics, how does that require true legitimacy? This is what one of my articles is about, is there’s a tension here that’s really serious, and I don’t think the integralists seem to care, but in fact, I think it’s just very clearly is going to either lead you to say, “Well, either the integralist state is not the political ideal or injustice. There are no rights for non-Catholics of the right sort.” They tend to think non-Catholics should just be excluded from citizenship. I think that’s the center point for the injustice of integralism. Now to the point on the Beyond Classical Liberalism. I certainly think this view is a symptom of a certain kind of problem. I’ll just say what the problem is right out. I gave a talk this summer where it was the failures of liberalism. I think here’s what happened. Liberalism is very much a sort of strategy for toleration and it tries to go to minimal principles like John Rawls’ kind of position. We’re trying to find terms of cooperation that everybody can agree to. He was inspired by Kant, I think Kant had, there are some things of course that Kant said that were right, but a lot of Rawls and Kant, what they get has now become very controversial, I think, because they, they want to give a certain definition of reasonability. Then I think once they reject metaphysics, once they reject the sort of rich moral basis for these things, it becomes impossible to see why their account of justice is anything but question-begging. They’re accepting. That’s things that from the Christian tradition, from the natural law tradition is what they’re doing. Those are the parts I agree with, but they don’t give it a correct foundation and they sort of empty it of everything. It becomes a very formal account without the right kind of grounding in my opinion. I think this is what has happened is liberalism had some bits from the Christian natural law tradition that were right, and they tried to put them on a weird foundation that isn’t able to support them. And now what we have is this rise of authoritarianism is basically lots of people haven’t been given moral reasons, strong moral reasons to support things like liberal institutions and respecting the rights of non-Catholics or other people. And it’s a sort of breakdown we’re looking for. There’s lots of ways in which the liberalism might be breaking down, but I think liberalism is really a justification. It’s not really the institutions. The institutions have their own problems, but the problem for the problem that I see from liberalism is really our ability to mount a moral defense of the institutions. And I think that is what you find today is people are grasping at straws and they’re buying into really bad authoritarian theories and undermining what I think are real moral imperatives. I mean, I think the sort of culture we have, free speech, respect of other people, respect for Jewish citizens and other non-Catholics in America. I mean, I think our respect for people on the other side of the political aisle is a moral duty. I mean, I think that’s why we should care about liberal institutions is because these things instantiate moral duties we have to our fellow citizens. And when we violate them, we’re violating moral duties. When liberalism says we’re being intolerant or whatever the hell else, I mean, that’s weak sauce. And then we just use liberal language as a kind of moral virtue signaling to sort of exclude people we don’t like. And there’s no criteria for saying who’s really intolerant or tolerant, and that’s why it gets bandied about so much these kind of liberal terms, like tolerance or. Anyway, that’s sort where I come from is I think what we really need is kind of the deep, rich moral tradition to defend precisely these kinds of liberal institutions against the onslaught of really bad stuff that could be around the corner and is happening in some countries. Like I was in Myanmar, some of the brothers, or mean, some of the brothers from this province that I’m living with or in Myanmar. And that’s bad news. That’s bad news. And what kind of moral criticism can we make? The UN, I think is totally toothless in regard to this. And this kind of contemporary shallow human rights language is totally useless in criticizing the government and the abuses of government in places like Myanmar. That’s what I’m concerned about. I think liberalism has deprived us of the ability to think clearly about what’s wrong with places like the junta in Myanmar taking over and killing lots of people. I think if I can put it this way, a lot of these integralists like places like Hungary, because they see these, I think they’re suckered in by certain kinds of things that they think are beautiful. Support for families. Now. In fact, my family’s from Hungary. James Patterson: Oh, I had no idea. Fr. James Dominic Rooney: I live in China right now and in Hungary I know what the policies are like, and I know I think they’re in fact intensely romanticizing what is actually occurring in these countries. In fact, I think there are lots of problems. I mean, for example, they have horrible problems with supportive family life. I mean, there are incredibly low birth rates. Now these countries recognize there’s a problem. And I think there’s a sort of romanticism here that I think Beyond Classical Liberalism, my book is going to try to address by bringing together a lot of different people to present alternatives. Let’s look beyond classical liberal thinking to what kind of views could we give from a classical perspective, from different classical perspectives? Can we work together with other people who are, for example, I’m having Jews and Protestants, I’m having feminist, perfectionist political philosophers, civic republican, people that like civic republicanism. How can all these classical traditions kind of come together and can we advance and see ways to restructure our liberal institutions, to defend those liberal institutions on a moral basis and restructure them so that we can think better? How can we use them to advance family life to advance the kinds of policies we care about without going into the weirdness, without going into the strangeness and the authoritarianism of the integralist theory? I mean, the problem with integralism is not that they like families, nobody, I mean, very few people are going to think that’s a problem everyone’s going to think keeping Jews from being citizens is a weird problem, a weird hangup. But I think the question is, and I think it’s a real question, is if you think the point of government is to make people’s lives good, who gets to say what the good life is? How is that position compatible with the view that we’re self-determining? That we’re living in democratic liberal societies where not everybody thinks the same thing? Well, actually I think they are compatible. I think they’re very compatible. And I think in fact that’s the best way forward to advancing the things we care about. Because of course there are lots of people, the integralist and the authoritarian survives on painting other people as enemies that are totally unreasonable. You can never talk to the Jews, right, Just too different and they undermine the common good. Well, I mean, in fact, right. There are lots of things we agree with, even with atheist liberals, there are lots of things we can agree about to advance the common good. And a lot of the time it’s just that we haven’t formed the right kinds of alliances, right? I mean, I think this is sort of the problem today. Anyway, that’s where I am is I think a lot of these alliances with other groups, there are lots of bases, there are lots of topics on which we can agree, for example, to support families better within democratic society. We just need a good moral defense of it that is able to bring other people together, I think. James Patterson: Yeah, the problem with the friend-enemy distinction is that we are called to love our enemies. It doesn’t really seem to work that we would want to engage in such antagonism or to dominate. But I guess on that, we agree. Thank you so much for being generous with your time, Father Rooney. We have the name of the book Beyond Classical Liberalism, and what’s the name of the metaphysics book in case anyone wants to get really technical, I’ve lost it. Fr. James Dominic Rooney: Material Objects in Confucian and Aristotelian Metaphysics. I’m a metaphysician. I just play a political philosopher on television. James Patterson: You’re quick study, Father. Thank you so much for coming on. It’s especially important because last time I had a Jesuit, so I had to make sure to keep things balanced, fair and balanced, only on Liberty Law talk. Fr. James Dominic Rooney: Well thank you James for having me on. Brian A. Smith: Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. And please visit our journal at lawliberty.org.

Vincent Phillip Muñoz joins host Samuel Gregg to discuss his new book, Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses. Brian A. Smith: Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org and thank you for listening. Samuel Gregg: Welcome to Liberty Law Talk. My name is Sam Greg and I’m distinguished Fellow in political economy at the American Institute for Economic Research, and I’m also a contributing editor at Law and Liberty, part of the Liberty Fund Network. Thanks for joining us today. Religion and religious liberty seem to be major points of contention today across the United States. Whether the issue is school prayer, religious exemptions from healthcare mandates, or the degree to which legislators, even presidents allow their faith to shape politics and policies. It’s very hard to escape debates about the place of religion in the public square today. Overshadowing all this is the fact that a concern for religious liberty was at the forefront of the minds of many American founders. This was eventually given expression in the First Amendment, but what did the founders really think about religious liberty? Did they think of it as a natural right and therefore connected in some way to natural law, or was the securing of religious liberty essentially focused on securing social peace? These and many other questions are discussed in a new book entitled Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses published by the University of Chicago Press. I’m very happy to be joined today on Liberty Law Talk by its author, Professor Vincent Phillip Muñoz. Professor Muñoz is the top field associate professor of political science and concurrent associate professor of law at the University of Notre Dame. He’s the founding director of Notre Dame Center for Citizenship and Constitutional Government. His scholarship has been cited multiple times in church-state Supreme Court opinions most recently by Justice Alito in Fulton V City of Philadelphia 2021, and by both Chief Justice Roberts and Justice Thomas in Espinoza V Montana 2020. He’s widely published having written several academic books as well as articles on topics like religious liberty, the idea of natural rights, as well as the American founding. He received his BA at Claremont McKenna College, his MA at Boston College and his PhD at Claremont Graduate School. Philip, welcome to Liberty Law talk. Vincent Phillip Muñoz:  Thanks for having me. Samuel Gregg: Today in America, Philip, we often think that it’s hard to imagine a topic more controversial than religion and religious liberty. I suppose that’s because religious liberty touches on questions ranging from Constitutional interpretation to the more generic place of religion in American society. Now you’ve been writing about the nature of religious liberty, its connection to ideas about natural rights as well as its Constitutional and wider political implications for many years. So tell me this, why did you decide to write this book at this particular time? Vincent Phillip Muñoz: Yeah, that’s a good question. Thanks again for having me on. I’m a fan of the show and listen to it regularly, so it’s a pleasure and a treat for me to be on it. Why did I write the book? Well, I suppose I thought, every author thinks, that I saw something or see something that others don’t see, and I think that’s the natural rights foundations of religious liberty in American constitutionalism. In our jurisprudence and in the scholarship, people don’t talk about natural rights that much. And I think by ignoring natural rights, because we don’t really understand natural rights, we don’t really understand the founder’s thinking. And I think that leads to misinterpretations of the First Amendment. Samuel Gregg: Now, I noticed in the title of your book, or more precisely let’s say the subtitle, that used the word words, the original meanings of the First Amendment religion clauses. So not original meaning in the singular but rather original meanings in the plural. Now I take it that you are indicating here that to speak of original meaning in a singular sense is somewhat of a mistake. Am I right in supposing that or did you have something else in mind? Vincent Phillip Muñoz: Yeah, no, I think that’s exactly right. I think there are a different meaning for the establishment clause and the free exercise clause, but it’s even more complicated than that. One of the chapters in the book, I think it’s the four chapter is titled something like “How the Founders Agreed about Religious Liberty but Disagreed About the Separation of Church and State.” What I’m trying to show is that there was an agreement on the natural rights principles, but at the same time still disagreement about public policy questions about church and state. So the founders are more interesting and more diverse than I think scholars have realized. Samuel Gregg: Now, was this something that you came to a conclusion to before and then you wanted to find out if your summation was true or was this something that you came to conclude after reading through some of the texts that are obviously very important for this conversation? Vincent Phillip Muñoz: That’s a really good question. I think the light bulb went off when I read a correspondence. I can’t even remember. It was George Washington writing to someone and I just can’t remember whom right now. And he is talking about Patrick Henry’s proposed funding law, a bill for Christian education or education in Virginia. This is right after independence. There’s a debate between Patrick Henry on the one hand and James Madison and Thomas Jefferson on whether religious ministers will be funded in the new state of Virginia. And George Washington in the letter, again, I just can’t remember, it’s in the book, I just can’t remember to whom it is addressed, says he was originally in support of Patrick Henry’s proposal. So here was George Washington on the one hand, supporting Patrick Henry, a patriot on public funding of religion, and James Madison and Thomas Jefferson on the other side. And I was trying to figure out what all the founders had in common, and they do have something in common. But then it was just obvious, well, they disagreed too. And of course they did. They do have natural rights principles, but what those principles mean in practice, just like we disagree about things, they disagreed about things. Samuel Gregg: Well, in light of what you just said, I’d like to quote something that you wrote on page 89 near the beginning of chapter four, which is entitled “The Founder’s Disagreement.” And you write the quote, “While the founders agreed that religious liberty is an inalienable natural right, they began to disagree when they moved beyond the core right to worship according to conscience.” End quote. The natural question to ask I suppose is why did they disagree once they move beyond this essential point? Vincent Phillip Muñoz: I don’t know if all listeners that this will resonate with them what I’m about to say, Thomas Aquinas says, “When you move away from the first precepts of the natural law to more secondary considerations, what the natural law dictates becomes a little less clear.” And I think it’s an analogous to that. The founders agreed, what I say is an inalienable right, their language was an unalienable natural right. And they agreed that means the government has no authority to tell you how to pray, prohibit you from praying, tell you where to worship, mandate worship. So there’s a core agreement. But when it comes to questions like funding, can government fund religious schools? The question in Virginia was, can government fund religious ministers? In the argument, Patrick Henry’s argument was because religious ministers provide education for the citizenry, there’s no public schools at the time. So it was about education according to Patrick Henry. When it comes to these secondary questions, there’s just disagreement about what the natural rights principles dictate. Doesn’t mean that there’s a right answer and wrong answer, just you have to wade through their differences and try to figure it out. Samuel Gregg: So you mentioned public education on funding for religious education. What are some of the other, let’s call them policy areas that the founders disagreed about once they moved beyond this core agreement about this right to worship according to conscience as you describe it? Vincent Phillip Muñoz: Sure. Another example is can you use religious tests for office? We think of this as a core element of the natural right of religious liberty. It’s actually not so core. In the argument for the pro religious tests for office is something like this, and the context here is let me just use Massachusetts, to be a governor in the state of Massachusetts under its first Constitution, you had to be a Protestant. And that was not uncommon. Other states had religious oaths for office that effectively eliminated Catholics or Jews or non-Protestants. It varied state by state. And the argument that the proponents of the religious tests used was, “Look, we need virtuous office. We need men,” it was all men at the time, “We need men of good character.” This is why we have age limitations. You must be 35 for president or 30 for Senate. And that’s an indication. The age is a substitute for maturity. Well, they said, “Well, we can use religion as a substitute for virtue.” And it’s clearly a legitimate public purpose to have a limitations on office holding that will foster good character. Religion, some founders said, can be used in that way. And that’s how they justified religious limitations on office holding with the idea that religious liberty is a natural right. And they said, “Yeah, you can worship however you want, but we can use religion as a means to further public purposes such as virtue and office holding.” That’s one side. The other side was no religious affiliation should make no part of the government’s considerations, like a colorblind constitution, race should not be part of the government’s considerations. And so civil rights should not be conditioned on religious affiliation. That’s a second area of disagreement. Samuel Gregg: So obviously you’re pointing to considerable ambiguity about the public policy implication of the First Amendment, at least based upon reading what different founders said about these things and the way that they disagreed about these things. So if there is this ambiguity, what does this mean for originalist approaches to the First Amendment today? Because if there is this ambiguity then that suggests that in many cases it’s not immediately evident what the original meaning of the establishment clause and the free exercise clause is, at least as it pertains to public policy questions. So what does this mean for the originalist project of Constitutionalist interpretation, at least with regard to the First Amendment? Vincent Phillip Muñoz: Okay, let me just preface my answer by saying it takes me about a hundred pages to answer this question in the book. So I’m going to give you the short version. The first thing we should, just because one founder said something doesn’t mean that’s the founding position on church and state. And you see this in jurisprudence, a citation to Jefferson or Madison. And because Madison said this, usually this is misinterpreted, but that’s another problem because Madison said this, then therefore the First Amendment means that. And that’s just a lazy way to do jurisprudence. And look, both sides do this. Conservatives do it. Liberals do it. It’s just irresponsible, to speak candidly. Okay. The other thing it indicates, the founders disagreements, if you are aware of the disagreements when you go back and read the historical record, the historical record starts to make more sense. They disagreed about the proper relationship between church and state. One of the ways we deal with disagreement at the time of the founding, less so now, but at the time of the founding was federalism. So part of my argument was the establishment clause and the odd language, respecting an establishment. Congress shall make no law respecting an establishment. One of the purposes, not the only purpose, but one of the original purposes was to say, “Hey, we disagree about these church-state matters. We will leave them with the states.” And that’s how knowledge of the disagreement starts to shed light on what they were actually doing when they drafted the First Amendment. Samuel Gregg: So given that’s the case, what role do you think that the idea of natural rights has in terms of constructing a coherent originalist interpretation of the First Amendment in light of the fact that the founders clearly did disagree about some very important questions regarding religious liberty that are still playing out today? So what does the natural rights approach to this suggest in terms of how one should construct an originalist approach to the First Amendment? Vincent Phillip Muñoz: Okay, so let me just start on the level of you’re a good faith legislator trying to understand what your constitutional power is or judge trying to interpret the First Amendment. What would this knowledge of natural rights, how would it help you? Well, first of all, I talked about the establishment clause already, let me talk a bit about the free exercise clause. The First Amendment says, “Congress shall not prohibit the free exercise of religion.” Well, what is the free exercise of religion? It’s not a term of ours. There’s not a clear meaning of the free exercise of religion. So you have to go beyond the text. You can’t just, “Well, the text is obvious.” Text is not obvious at all. Well, how did the founders conceive of the idea of the free exercise of religion? If you go back to what they wrote about religious free exercise, you see they called it an inalienable natural right. Well, what’s an inalienable natural right? Again, this is a whole chapter in the book. An inalienable natural is a right over which we do not give authority to government. That’s why it’s inalienable. That term is actually very important. It refers to social compact theory. We don’t give a certain degree of authority to the government over our religious exercises according to the founders. I’m going to make a big jump here. The core of that right was the right to worship, the right to worship according to conscience. What that means in practice is government has a jurisdictional limitation. It has no authority to tell you how to worship, to make legislation saying, “You must worship in this way at this time in this church.” So the question was what does the natural rights, or what does the knowledge of the founder’s natural rights philosophy do for constitutional interpretation? It gives us a way to understand the terms they use, the free exercise of religion, how they would’ve conceived those terms. Samuel Gregg: So you say it in the book, you say you’re offering a method of interpretation that I quote, “Does not correspond to any existing jurisprudential approach.” So tell us about how your approach differs from the primary ways in which the Supreme Court has approached First Amendment cases and how your approach might yield some different decisions to what we’ve been seeing coming out of the court in say, the past 10 years on these first amendment issues? Vincent Phillip Muñoz: Okay, sure. I’m going to group, I hate doing this, but it’s just for convenience, I’m going to do it. There’s I’m going to call it, a liberal approach and a conservative approach. I don’t actually think those terms are really appropriate, but nonetheless, that’s how people think about these things. So the liberal approach says, “Thomas Jefferson erected a wall of separation. That’s the understanding of the establishment clause.” And then they take off running. What does a wall of separation mean? Now they say all of this is originalist because Thomas Jefferson erected the wall of separation and that’s how we get the lemon test, the endorsement test, and other subsequent tests that impose the strict separation of church and state. I don’t think any of this is really originalist. They don’t really understand what Thomas Jefferson said. They take one metaphor, just for the record, Thomas Jefferson had nothing to do with the drafting of the First Amendment. He advocated a Bill of Rights, but he was in Paris at the time the first Amendment was drafted. He had no direct connection. The wall of separation comes from a letter he wrote in 1802. So to even use Jefferson is a little bit specious. But that’s a different problem. But they take this idea of a wall of separation and run with it. Conservative judges do something a little bit different. They don’t know what the text means either. They recognize the text is ambiguous, so they go to traditional practices. Did the first Congress allow chaplains? Yes. Well then chaplains must be okay. Did the first Congress support religion? Well, in some ways they did in the federal territories, the northwest ordinance. So I guess that means support of religion is okay. So they look to traditional practices, especially the practices of their early founders. That’s a common way of doing jurisprudence. There’s much to be said for it, but that’s not how the founders talked about religious liberty. It’s not really originalist. When the founders talked about religious liberty, they used natural rights language. So if you really want to follow the founders, now it’s a different question of whether we should, but if you really want to follow the founders, you have to understand how they conceived what they thought religious liberty was. Samuel Gregg: So you’re arguing in a sense for a more philosophical approach to this rather than, let’s call it a historical approach to understanding what the original meaning means? Vincent Phillip Muñoz: That’s exactly right. I find that compelling because I think it reflects actually the founder’s understanding. You could say there’s an interesting historical question. How do we understand the founders? By what they did or what they said? And that’s a rich historical question. I think we should understand the first amendment by what they said and then the philosophy behind it, not simply by their actions. Samuel Gregg: That brings me to the next question I wanted to ask you, very naturally actually. So you make it very clear that the founders by and large understood religious liberty as an inalienable natural right. Now this idea obviously did not just pop out of nowhere. So where did that understanding in your estimation come from? Is this a straight translation from say, Locke’s letter on toleration or is it derived from older natural law sources like Protestant natural law theorists like Hugo Grotius or even medieval natural law thinkers or some combination of these sources? Or was there something distinctly American in the way that the founders talked about religious liberty as an inalienable natural right? Vincent Phillip Muñoz: Yeah. Good. That’s a difficult question. Let me tell you what I try to do in the book and then give a fuller answer to your question. What I try to do in the book is just simply present the clear evidence that they talked about religious liberty. This way it’s very easy to show. You just go to the early state constitutions. There was a great period of constitution making between 1776 and 1791 in America, mostly at the state level. Obviously we made the federal constitution as well. In these early state constitutions, there are declarations of rights, and these were not law per se, but they were statements of political principles. And when you go back and read those declarations of rights, what you see is they all say the same thing about religious liberty. It’s a inalienable natural right or it’s a natural right. So that’s the evidence that the founders conceived religious liberty as a natural. What I then try to do is explain using Isaac Backus, one of the most important Protestant ministers at the time, a Baptist minister, Thomas Jefferson, who’s my representative of secular enlightenment philosophy, John Locke in particular. And then James Madison, who’s interesting—he’s really unique, his natural theology. I try to show how through the traditions of secular philosophy, protestant theology, and natural theology or natural philosophy, how the founders themselves conceived the natural right to religious liberty. I don’t trace the intellectual heritage of that thinking. That’s a different project really beyond my expertise. Certainly you can see elements of Locke in Jefferson’s thought without a doubt. You can see elements of Locke in Madison’s thought. But Locke, as far as I know, never uses the language of inalienability. That’s a maybe uniquely American conception, consistent perhaps with Locke, but different than the language he uses. And then of course there’s a rich Protestant tradition. We tend to oppose in light of philosophy or lacking in philosophy with Protestantism, but the founders didn’t and I tried to show the harmony in their own thinking. Samuel Gregg: So is that where you would identify something distinctly American in the way that the founders talked about religious liberty as an inalienable natural right? It’s a combination in a sense of Protestant thinking about this particular question as well as obviously enlightenment ideas about toleration that were becoming much more widespread in, let’s call it the North Atlantic world at this particular point in time? Vincent Phillip Muñoz: Yeah, I think that’s right. And if you really push me, though this will make my integralist friends go crazy, I think you can even find at least the preconceptions of a distinction between church and state and the makings of the beginning of an idea of a political right or civil right to religious liberty. And even the thought of Thomas Aquinas, that’s a different podcast. But I think you’re right to see, and what I’m trying to show is there are both theological and philosophical influences that the founders draw upon, but I just try to explain the founders as they presented themselves. Samuel Gregg: Well, you won’t be surprised to hear me say that. I think you’re right about Aquinas and I read other scholars who’ve suggested in this regard that you can find a type of argument for religious liberties and natural right in medieval canon lawyers. But as you say, that’s a different discussion for a different podcast. I’d like to move towards the end now, but I’d really like to shift the discussion in a different direction. And it concerns part of your book that at least I found especially interesting, and that’s perhaps because it’s the area that I knew the least about before reading your book. And this concerns something you mentioned before, which is the way that different states and different state constitutions treated religious liberty. In fact, on pages 58 to 59, you list all the different provisions of the different states about religious liberty of and from worship between 1776 and 1786. So this leads me to two questions. First, what influences, if any, did these texts have upon the first amendment? Second, what were the starkest differences between the various state provisions for religious liberty? Vincent Phillip Muñoz: Let me start with the second question because that will help me address the first, the starkest differences I think are the state of South Carolina’s 1778 Constitution of South Carolina. And then the Virginia Constitution as drawn out or filled in by Jefferson’s Virginia statute for religious liberty. So the 1778 South Carolina Constitution, it’s the one founding era state that actually established a religion. Samuel Gregg: Only one. Because you often hear people talking the states. Vincent Phillip Muñoz: Everyone says six or seven states established a religion. They say that because Leonard Levy, famous scholar, not always fully truthful scholar, famous scholar said six or seven states had established religions. The reason Leonard Levy said that is because he said, “If a state funded religion, it had an establishment.” But he was imposing a definition of establishment. He was taking a mid-20th-century jurisprudential category. If you fund religion, you have an establishment and reading it backwards. The founders did not associate, at least not all the founders funding a religion with establishment. And that’s one of the things I try to show. The language on whether you could or could not fund religion was separate from language concerning an establishment. So you have the South Carolina constitution that says, “We have an established religion.” What that meant is certain religions, you had to be Protestant to be incorporated. The state constitution prescribed articles of faith. It prescribed how ministers were selected. The state had authority to limit how much a church could raise every year. The state delegated taxing power to churches. This is all part of an establishment.  On the other hand, if you go to the 1776 Virginia Declaration of Rights and then the 1786 Virginia statute for religious Liberty, Madison and Jefferson said, “No one’s civil rights should be affected, both positive or negative according to religious affiliation.” That’s the range. That was your first question. How does this all impact our understanding of the First Amendment? Well, as I alluded to before, because there are real differences, there was a real motivation to keep these questions at the state level and you see that in the respecting an establishment. If we said, “Federal government should make no law respecting abortion.” We would immediately understand it. Oh, because that’s a state question. I don’t want to repeat what I said before. At the same time, the natural rights philosophy gives us an indication of the substance of the free exercise class. Samuel Gregg: So here’s my last question and it’s very much directed to contemporary circumstances. What does your message about religious liberty and the way that the founders understood it, what do you think the most important message is on the one hand for those who take a, let’s call it liberal approach to questions of the First Amendment? And what does your approach say to those who take, let’s call it a conservative approach to the First Amendment? Vincent Phillip Muñoz: Yeah. Well, I should say, I’m not trying to advocate my approach, I’m just trying to set forth the founders’ understanding as best I understand it and as clearly as I can express it. So if you don’t like the argument of the book, blame the founders, don’t blame me. I’m pretty candid in the conclusion. I try to assess it. My voice comes out in the conclusion. I say, “This is what I see as the strengths of the approach. This is the weakness of the approach.” So I’m just trying to operate as a scholar here. If there’s one thing I’m trying to show, it’s that judges have abused the founders and misused them. They’re really rewriting the First Amendment. Samuel Gregg: And you mean judges who would self-describe themselves or be described as liberal and conservative on these issues? Vincent Phillip Muñoz: Yeah, more so the liberals, but also the conservatives to be honest. Now whether this is malicious or accidental, I think it’s pretty obvious when it’s malicious. It’s maybe less obvious if it’s accidental. But either way, they’re rewriting the First Amendment and that’s one of the things I’m trying to show. Now we might like that rewriting or we might not, but let’s have an argument about it. To have an argument about it, you first have to see what’s been done. Samuel Gregg: And that seems like a good point to end our discussion. Professor Phillip Muñoz, thank you very much. Vincent Phillip Muñoz: It’s a pleasure. Thank you. Samuel Gregg: You’ve been listening to Liberty Law Talk in which we’ve been discussing Professor Phillip Muñoz’s, new book, Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religious Clauses, published by the University of Chicago Press and available at Amazon, as well as all good bookstores. This podcast is available here at the Law & Liberty website and all good podcast sites like Apple Podcast, Spotify, and Pod Chaser. If you like what you hear, please give us a five star rating to encourage more people to join us every month. I’m Sam Greg for Liberty Law Talk. See you next time. Brian A. Smith Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. And please visit our journal at lawliberty.org.

Why are so many prime-age men checked out, neither working nor looking for work? Nicholas Eberstadt discusses his book Men Without Work and a hidden employment crisis with host Samuel Gregg. Sam Gregg:         Welcome to Liberty Law Talk. My name is Sam Gregg and I am Distinguished Fellow in Political Economy at the American Institute for Economic Research, and I’m also contributing editor at Law & Liberty, part of the Liberty Fund Network. Thanks for joining us today. It’s long been known that work has major economic significance, but also a great deal of significance for human’s social and even moral development. Of all the creatures in this world, humans alone work. Animals don’t work. Plants don’t work. Minerals don’t work. That alone should tell us that work is something fundamental to who we are as humans. It should also tell us that when people work, where they’re paid or unpaid but can’t work or don’t work, we can expect many negative consequences that go beyond work’s economic dimension. America’s long prided itself on its relatively low unemployment rate compared to, for example, western European countries, and at this present moment in time, unemployment is extremely low in the United States. Yet, we also know that many Americans, especially young American men aren’t working, and in some cases are choosing not to do so. One reason we know that is because of the research conducted into work and employment patterns in the United States economy by our Liberty Law guest today, Dr. Nicholas Eberstadt. Dr. Eberstadt holds the Henry Wendt Chair in Political Economy at the American Enterprise Institute, where he researches and writes extensively on demographics and economic development generally, and more specifically on international security in the Korean Peninsula and Asia. Domestically, he focuses on poverty and social well-being. His many books in monographs include Poverty in China, 1979, The Tyranny of Numbers, 1995, The End of North Korea, 1999, The Poverty of The Poverty Rate, 2008, and Russia’s Peacetime Demographic Crisis, 2010. He has a PhD in Political Economy & Government, an MPA from the Kennedy School of Government, and an AB from Harvard University. In addition, he holds a master of science from the London School of Economics. In 2012, Dr. Eberstadt was awarded the prestigious Bradley Prize. Today, we’re going to be talking about his latest book, or more precisely, his updated new book. Originally published in 2016 as Men Without Work: America’s Invisible Crisis published by Templeton Press, Dr. Eberstadt’s book cast a spotlight on the collapse of work for men in modern America. Rosy reports of low unemployment rates and full or near full employment conditions, he contended, “We’re overlooking a quiet continuing crisis.” That is Depression-era work rates for American men of prime working age, between 25 and 54. The grim truth he’s stated at that time was that over 6 million prime-age men were neither working nor looking for work. “Conventional unemployment measures,” he said, “ignore these labor force dropouts, but their ranks had been rising relentlessly for half a century.” Now, republished and with a new introduction as Men Without Work: Post-Pandemic Edition, again published by Templeton Press, Dr. Eberstadt now says, “Six years and one catastrophic pandemic later, the problem has only worsened. Moreover, it’s seemingly spreading among prime-age women and workers over 55.” In a brand new introduction, Dr. Eberstadt explains how the government’s response to COVID-19 has exacerbated the flight from work in America. From indiscriminate pandemic shutdowns to almost unconditional unemployment benefits, “Americans,” he says, “were essentially paid not to work.” So, just today, despite all the vaccines and all the developments that we’ve had in combating COVID, inexplicable numbers of working-age men, but also women are sitting on the sidelines while over 11 million jobs go unfulfilled. That means that our current low levels of unemployment are grievously misleading, and the truth is that fewer prime-age American men and it turns out women are looking for readily available work, than at any previous juncture in our history. Nick, welcome to Liberty Law Talk. Dr. Nicholas Eberstadt:  Sam, it’s a pleasure. Thanks for inviting me. Sam Gregg:         Well, I’d really like to begin where I begin with most conversations of this nature, which is when you began exploring this topic, which I think it’s fair to say is on a lot of American’s minds now, what was it that originally attracted you to this subject? What was it that first alerted you to this problem, which you suggest was essentially and least originally a problem with American men? Dr. Nicholas Eberstadt:  Well, Sam, I think that what laughingly passes as my career is looking at problems that are hiding in plain sight. Whether it’s the mismeasure of poverty or social crises and what was once the Soviet Union, I kind of stumbled onto this by recognizing that I was hearing an awful lot of happy talk around 2015 about unemployment levels being at almost historic lows, that we were at near full employment back in 2015. It seemed to me that this was contradicted by the evidence of my senses, not the least of these being that almost half of the American public back in those days was saying that we were still in a recession, the kind of subjective impression. I’m certainly not now, nor have I ever been a labor economist, but I’m a pretty good trespasser, so I started getting into some of the data indicators, and all of a sudden I realized, gee-whiz, guess what? Working-age men between 25 and 54 were suffering employment rates that were more or less mirroring the tail end of the Great Depression. So, in 2015, 2016, prime-age men, as they’re called, the 25 to 54 group, were reporting work rates that were more or less the same as the rates in the United States in early 1940 when the national rate of unemployment was about 15%. Sam Gregg:         We weren’t that far away from the depression. Dr. Nicholas Eberstadt:  Yeah. It was the tail end of the depression. It wasn’t the depths, but it was part of the depression. So, the reason that we were getting these happy talk numbers on unemployment is because one factor in the whole tableau was being omitted, the men who were not in the labor force to be either in the numerator or the denominator. The original unemployment rate was constructed in such a way as to do unemployment over workforce. It was inconceivable by the people who put together the unemployment rate statistics back in the late ’30s that able-bodied men would be sitting on the sidelines, yet by 2015 and 2016, more than 10% of the civilian prime male workforce was checked out, neither working nor looking for work. Sam Gregg:         Well, one issue, which I suspect is on the minds of many Liberty Law listeners, is the degree to which this phenomena that you’re talking about, in the pre-pandemic era, how much was this a question of some of the cultural change, for example, that started manifesting themselves say, in the late 1960s as part of which I might call the general questioning of what many people would call traditional American ideals, including the ideal about work, and how much do you think this owes to specific policies implemented by different administrations over time? So, what’s really driving this? Is it culture? Is it policy, or is it some combination of both? Dr. Nicholas Eberstadt:  The conventional wisdom then, and I think still today in academic and policy circles, is that the retreat from the workforce by prime-age men is mainly driven by economic and structural change, which is to say declining demand for less skilled work, decline in manufacturing, share of the workforce, China’s entry into the world trade order. Sam Gregg:         Arguments that we hear today, right? Dr. Nicholas Eberstadt:  Yeah, exactly. I mean, it’s the same, I think, received wisdom more or less today, and obviously globalization, offshoring, all of that. Obviously, there’s plenty of truth in that, but it’s not the whole story and it’s not even, I think, most of the story. If you look at the data, which is sometimes helpful, you can see that from 1965 to 2015 and actually onto today, you can trace out an almost straight line in the proportion of men who are no longer in the workforce. I mean, between us nerds, if I say that the line has got an R-Squared of 0.96, you’d know that, that’s a social science straight line because human beings are a little bit untidy, but it’s practically a straight line, which would be 1.0. And we don’t see any shock. We don’t see the economic shocks, the recessions, the China entry into the WTO, or any of the other things that you’d expect from this demand-driven received wisdom. What is causing this? Well, of course, culture is always the last refuge of scoundrels, and when we can’t describe anything convincingly in economic terms, we’ll say it’s culture. So, I won’t go there quite yet, but let me say this first, what we do know is that for years and years and years, if you ask in surveys, as the government does, men who are not in the labor force, why they are not in the labor force, only a tiny minority of them say this is because they could not find work, only a tiny minority. There are many other reasons that are given. The surveys are a bit procrustean that they only give you eight options. You’ve got 7 million lives and eight options, so it’s a little bit awkward. But lack of employment opportunities is not a big factor according to the men who are dropped out of the labor force. So, what we have seen over the period since ’65 were a couple of big changes. We’ve seen a revolution in the family, of course, and it has always been true that never-married men and men without children at home are less likely to be part of the labor force than married or counterparts with kids under the same roof. That’s certainly part of it. We’ve also seen the explosion of social welfare benefits that began with the war on poverty and the Great Society. Our friends in Europe and other OECD countries say that we’re painfully stingy in our social welfare benefits, but that doesn’t necessarily mean that the incentives and disincentives have some influence on our activities in the workplace. We’ve also seen a big explosion, a new wave of immigration in the United States. We, Americans, think of ourselves as a nation of immigrants, but from really the ’20s until the 1960s, we were at a very low ebb in accepting newcomers. We’ve had a big surge of newcomers since the ’60s, and that’s affected all of these patterns as well. Finally, there’s been an explosion of crime and punishment since the 1960s. It started with the crime spree that began in the ’60s. It continued in the ’70s, and into the ’80s. And then, a few years later, there was a wave of punishment, and this wave of punishment has meant that we have now well over 20 million adult Americans with a felony conviction in their CV, so to speak. Sam Gregg:         And that rules them out for work in some cases, in some forms of employment. Dr. Nicholas Eberstadt:  They are invisible in most of our government statistics and our national statistics, but that does not mean that they are not disadvantaged in the workplace, as you just mentioned. So, we had all of these trends in conjuncture moving together, and certainly, it’s reasonable to surmise that these had a major impact on some of the outcomes that we’re discussing today. I cannot go into the blank pages of paper that I look at with all the decimal points on it and divine culture out of that, but I think we can tell a story that is consistent with a change in mentality about family, work, meaning in life, and other things like that. Sam Gregg:         You mentioned the word invisible, and I’d like to focus on that a little bit because in the 2016 edition of Men Without Work, in the original introduction, you wrote, quote, “The collapse of work for America’s men is arguably a crisis for our nation, but,” you added, “largely an invisible crisis.” Now, when I first read that, the thought that sprang to my mind was, “Why invisible?” Is it because Americans simply don’t want to talk about it because it starts to raise questions about how faithful we are to certain American ideals? Is it because talking about it would spark some awkward questions, or is the invisibility to do with the fact that it was affecting a segment of American society that we simply aren’t used to thinking about as experiencing a major problem, in other words, men, particularly say, white men, for example, or is it some sort of combination of these things, or is it something different altogether that accounts for this invisibility phenomena? Dr. Nicholas Eberstadt:  That’s a really good question, Sam. I think it’s a number of different factors, some of which you’ve already mentioned. I mean, quite obviously, many of these invisible men missing from the workforce and really from society were getting ready for deaths of despair, not deaths of rage and anger. We didn’t see rioting in the street by these men. We’re more likely to see opioid overdoses. So, because they were not a public menace to society in quotes, they didn’t come into the evening news, in the way that crime blotter activity so often does. So, that made it a little bit more easy to ignore. But I think also, as you intimate, our preconceptions were in play here as well. I mean, in the academy, of course, working-age men are not a privileged victim class. They’re going to be overlooked when one is talking about disparities. They’re kind of the baseline against which one judges disparities, and it’s certainly also true that more or less, since the beginning of civilization, working-age men have naturally been regarded as providers, rather than as a vulnerable dependence. Sam Gregg:         Making a sense of shame, if you’re not working or if you don’t seem to be supporting people through your work. Dr. Nicholas Eberstadt:  Shame and stigma, that may also lead to quietude. Though, for all of these reasons, I don’t think that the general public or even well-informed readers, policymakers were prepared or predisposed to recognize this problem. So, for actually about two generations, they didn’t. Sam Gregg:         That’s fascinating. I mean, another word that comes to my mind, and you’ve alluded a little bit to this in some of your previous comments, when it comes to this invisibility and the particular demographic that this was affecting… We’re going to go on and say more about how you’re arguing now that this phenomena is starting to affect other demographics, but one word that came to my mind when I read your book was the word, alienation. Now, when many of us hear that word, we think of course of Karl Marx, who wrote a great deal about how work for particular people and particular economic settings produced what he called, alienation, by which he meant a sense of distance between ourselves, our work, and the product of our work. Now, I happen to think that Marx was wrong about that, but he was pointing to us a certain type of… Let’s call it experience. But your book pointed, and the new version of course also points to a different type of alienation, the alienation that’s experienced by not working when you can and perhaps should be working. So, how would you describe the type of alienation that Americans today experience from being nonworkers, even if they don’t even use the word alienation to describe the experience? Dr. Nicholas Eberstadt:  Well, I should confess that there was a time when I would’ve called myself a Marxist- Sam Gregg:         I never knew that. Dr. Nicholas Eberstadt:  … but I knew I’m kind of bilingual because of that, so I’m not going to give you a whole thing about the labor versus labor power, the consequences of Marxian alienation here. I think we’re kind of talking more about Émile Durkheim than Karl Marx in this particular circumstance. So, really, I think the best portrait comes from the self-reporting of the people involved to the US government, from the Bureau of Labor Statistics’ Time Use Surveys. The BLS asks all adults for reasons of their own, “What do you do between the time you wake up in the morning and the time you go to bed, and how long do you spend doing it?” And the picture which prime-age men, who are neither working nor looking for work, paint through their self-reporting is not just troubling. It’s kind of horrifying. According to self-reporting in these surveys, these men who are neither working or looking for work, and let’s add another layer, and not in training or education, about a 10th of the men who were out of the workforce or full-time students getting ready for another job- Sam Gregg:         You’re talking about people who are not even preparing to go into the workforce. Dr. Nicholas Eberstadt:  I think over on the other side of the ocean, they call it NEET, N-E-E-T, neither employed or in education or training. If we look at that group, which is not a small group, well over 6 million, they basically don’t do civil society. Almost no time invested in either worship, or volunteering, or charity work. Although you might think they have practically nothing but time on their hands, they do surprisingly little help around the house with other people, other family members, or with housework, a lot less than employed women with kids, who are more or less the most time-scarce, time-poor people in America. They don’t even get out of the house that much. They’re getting out of the house less and less according to their self-reporting. What they do is they spent a lot of time in front of screens. Now, these clunky surveys won’t tell us what they’re watching or what sorts of devices they’re watching, but they’re reporting, spending about 2000 hours a year in front of screens. Now, for many people, that’s like a full-time job. And when we bear in mind that other reports indicate that about half of these men say that they’re taking pain medication every day… I mean, not necessarily prescription or illicit, over-the-counter, maybe in some cases, but half of them are taking pain medication every day. We’ve got this vision not just of people spending all day playing World of Warcraft or Call of Duty. They’re doing it stoned, and it’s a kind of picture of life in limbo in purgatory. It’s miserable, and certainly, these are not the sorts of skills that are going to get you back into the workforce. They’re going to make you much more likely A, a long-termer, and B, possibly a candidate for deaths of despair. Sam Gregg:         Well, you’re really talking about people. Their alienation is their living outside reality. Dr. Nicholas Eberstadt:  Increasingly detached from family, certainly detached from work, detached from the community or at least from one of the apertures that many involved themselves in the community, and the volunteering and charity, and worship, and so forth. One of the things which I don’t think we do very well in modern economics is talk about poverty. We’ve got all of this emphasis on lessons learned, and very little on lessons forgotten. When we talk about poverty, we’ve forgotten all of the lessons the Victorians knew. And one of the things the Victorians took as obvious was that there is a distinction between poverty and misery, and what we’re describing here are people who, in any other sort of historical era, would be seen as fairly well off in a material sense, but living in this life of degradation and misery. Sam Gregg:         And deep unhappiness, I suspect as well. Dr. Nicholas Eberstadt:  In many cases, perhaps. Sam Gregg:         So, one aspect of the problem, of course, that you addressed particularly in the first version of your book, is you focused very much upon the demography of the unworking American man. Now, I know you’ve worked a great deal on questions of demography throughout your entire career, especially for example, the very real problems associated with population decline, but in the 2022 edition of Men Without Work, you point out, and this is where I started to get very worried, that the unworking problem is now going beyond that demographic of American men. It’s now working its way into other demographic sectors, particularly, I thought this was interesting, prime-age women and older workers. Now, is this something that you believe reflects the pandemic or more particularly government responses to the pandemic, or did you suspect that at some point, these trends were going to emerge anyway? Dr. Nicholas Eberstadt:  I think it’s too soon to tell how deeply embedded new mores are being felt about work and working in the rest of the American population. I think that we’ll only know that in the fullness of time, but we’ve had at least a shock in the wake of the pandemic, and we may also be experiencing a shift. The evidence that we’ve had something big occur is screaming on the headlines in the business section every day, the 11 million unfilled jobs in the United States. We have a piece-time labor shortage, unlike anything we’ve ever experienced in the history of our country before. And the number of unfilled jobs has shot up by 4 million and more since pre-pandemic times, and by some fascinating twist of fate, our labor force in the United States is about 4 million or so shy today of where it would have been on pre-pandemic trends. So, the upsurge in unfilled jobs, mirrors and almost matches the slump in workforce availability that we have in post-pandemic America today. What is striking about this is it’s not just the continuation of the old men without work story. I mean, that’s there, but we’re now seeing a whole new face on the flight from work in post-pandemic America because prime-age men account for only a very small minority of the 4 million or so shortfall that I just mentioned. I mean, depending on how you calculate it and what your baselines are, 10%, certainly under one-sixth. The overwhelming majority of the shortfall is men and women 55 years of age and older, and the rest is mainly prime-age women, women 25 to 54. Now, the 55-plus group is one of the few good news stories in the United States labor market before the pandemic. Work rates and labor force participation rates for the rest of the population were kind of heading south from the turn of the century until the pandemic. It’s only the 55-plus whose rates were going up, but those were shocked by the pandemic, and bizarrely, they have stayed at their summer of 2020 levels for a couple of years now. Sam Gregg:         Wow, that’s fascinating. Dr. Nicholas Eberstadt:  Despite the rollout of the vaccines. Sam Gregg:         Right. Right. Dr. Nicholas Eberstadt:  And despite everything else. So, explaining and understanding what has caused this enormous setback for our silver workforce is kind of important. And then, there’s the question about what’s going on with the shortfalls for prime-age women as well. Sam Gregg:         So, looking ahead then, there’s an issue I suspect is on many people’s minds, which is what are likely to be some of the long-term consequences, if these trends that we’re talking about today are not slowed down, let alone reversed? We’re going to do a little bit of crystal ball gazing here. I don’t know if it necessarily guarantees low unemployment forever, but I suspect it might have some productivity implications. So, what do you regard, first of all, as the most serious economic consequence, and second, the most serious social consequence of these trends? I appreciate that we’re speculating now, but on your understanding of the data and your study of this very complicated question, what do you think of the long-term economic consequences and long-term social consequences? Dr. Nicholas Eberstadt:  The long-term economic consequence I think is the risk of stagnation and division in our society. If you take a look at any sort of growth accounting in any way you want to do it, you’ve got to have growth of capital, growth of labor, growth of productivity. If you’re going to get economic growth, then you can kind of divide up a growing pie. We may not divide up a growing pie the way that everybody would like, but if you have a growing pie, you can at least have a debate about this. Since the turn of the century, America’s per capita growth rate has been not much over 1%. Okay. That means that we’re on a path right now to doubling our incomes or output per capita about every 70 years. So, that means that in one’s working lifetime, one is likely to have to scale back expectations a lot. Not likely to see a doubling of one’s own incomes with that sort of pace of growth. You may not even really see much improvement for your kids. You have to wait until you see it for your grandkids. I mean, that’s- Sam Gregg:         That’s depressing. Dr. Nicholas Eberstadt:  That’s a pretty depressing tableau, and of course it will lead, I think, in any sort of open society, with the sorts of history and expectations that we have, trying to figure out how you’re going to increase living standards otherwise, and I think the way you do it otherwise is through government and redistribution. So, you end up fighting over a stagnant pie. I think that’s a pretty grim prospect, and that may also be the answer to the social side of your question, but the notion that living longer and working longer is not something that’s part of a fulfilling life. I think it gets us into some territory in which we’re going to find a lot of trouble. It’s very hard for me to imagine how the traditional historical American optimism squares with that. We’re going to be a more… There’s nothing that we can do to stop becoming a grayer society. So, putting that into the tableau, I think, is pretty sobering. Sam Gregg:         Yes. I mean, I often think about the productivity implications of this, and of course, you mentioned government redistribution, et cetera. Of course, that has its own implications for productivity of its own nature. We’re getting near to the end of our own conversation, and I think the obvious place to end is the question that Americans, ever pragmatic as we are, the question that a lot of Americans will ask is, what can we do to reverse these trends? Is there in fact anything that we can do at this point, and if so, is it a culture-first approach? Is it about altering incentives, or are we primarily looking to lower-end legislation to tackle certainly what you describe as a very complicated and intertwined set of social, economic, and cultural issues? Dr. Nicholas Eberstadt:  Well, in policy research, one is supposed to exclude magic wand solutions. Right? You’re only supposed to be able to talk about the buttons you can push on the dashboard. So, I have to exclude the magic wand solution of fixing the family in America, and I have to exclude the magic wand solution of restoring the profile of religious confidence and belief to say, Circa 1960 levels. Those we have to leave out. On the dashboard, improving educational skills, in particular, what we’re not allowed to call vocational skills. I mean, that phrase is no longer politically correct. It’s a scandal that so many people graduate from high school in the United States without a skill. College isn’t for everybody. We know that. But everybody who goes through a US education should have a skill that they graduate with. By the way, maybe the worst thing about the policy response to the pandemic was the irresponsible and arbitrary shutdown of schooling for kids in the United States. People are going to have a lot to answer for on that one, and the long-term costs of that are going to last with us, not just for decades, for generations. So, there’s the education portion. There’s the question of, I hate to say, rethinking because it’s kind of pompous, but we have to, I think, really reinvent our entire disability insurance system because the system now is kind of a sprawling, incoherent archipelago based on good intentions, but now very largely incentivizing helplessness and dependence. Sam Gregg:         And probably designed for a different time, I imagine is where- Dr. Nicholas Eberstadt:  For a completely different time. Absolutely, Sam. I mean, in our social welfare system as a whole, we need to think about the virtue of a work first principle. I’m not the guy who thought of that. It’s the Swedes up in Scandinavia. After they ran out of other people’s money, they thought about it. It probably will cost more than our current system, but its social benefits I think would be much greater than our current system. We’ll want to cast a spotlight on the tens of millions of invisible Americans who are ex-cons. I don’t know that all of them can be rehabilitated, but many, many, many of them can and can be reintroduced to society, to family, to the workforce. Because they’re invisible, we can’t have the evidence that we need for evidence-based approaches to this. It’s preposterous. It’s kind of disgraceful. And then, there’s something which I don’t think government can do at all here, but we as citizens can, and that is to kind of commit truth, to recognize the obvious importance of work to a healthy, robust, optimistic society. It’s far beyond economic, the virtues of work. It’s moral. I mean, employment is a service to others that helps to complete oneself, and if one does not recognize that, one misses an enormous amount of the virtue and the benefit for a virtuous open society. Sam Gregg:         I was going to say the word, virtue, actually with myself because when we work, it’s not just a question that we’re shaping the world around us. Right? We’re also shaping ourselves. We become more industrious. We take risks. We are more patient. We have to be prudent, et cetera. Dr. Nicholas Eberstadt:  We’re helping to complete ourselves, just the same way that family does, just the same way that being engaged in society does. It’s a fuller life. I mean, to people who don’t take this as self-evident, it may be hard to explain, but it is true. It has the virtue, the small- Sam Gregg:         The truth. Dr. Nicholas Eberstadt:  … but important virtue of being true. Sam Gregg:         Well, thank you, Nick. That’s a great place to end. I’d like to end by reminding our Law Liberty listeners, we’ve been listening to Dr. Nick Eberstadt and discussing his new post-pandemic edition of Men Without Work: Post-Pandemic Edition, published by Templeton Press, and available at Amazon, as well as all good bookstores. I’m Sam Gregg for Liberty Law Talk. See you next time.

Law & Liberty‘s editor Brian A. Smith welcomes philosopher and pastor James Bruce to the podcast to discuss Robert Alter’s magisterial translation of the Hebrew Bible and Bruce’s research on Christian faith, justice, and equality. Brian Smith: Hello and welcome to Liberty Law Talk. My name is Brian Smith, the editor of Law & Liberty. With me today is my friend Jay Bruce. He is a professor of philosophy at John Brown University, where he directs the University Center for Faith and Flourishing. He is also associate pastor of Covenant Church in Fayetteville, Arkansas, and the author of Rights in the Law, an exploration of the thought of Francis Turretin. He’s currently working on a second book on the links between Christianity, justice, and equality, which we’ll talk about a bit later. Jay, thanks for joining us. James Bruce: Thank you, Brian. Longtime listener, first-time caller. Brian Smith: Jay’s most recent piece for us, “The Godless Bible,” is an exploration of Robert Alter’s complete translation of the Hebrew Bible. Jay spent a long time on this piece for us, and this led me to wonder about his mental state. Many times during the project, he tells me he took about 20,000 words of notes, among other things. It also made me think about Alter’s general approach. People talk a lot about translation styles, literal versus more poetic and the like. Jay, how would you describe Alter’s approach to translating the Bible? Does he have a well-developed philosophy regarding biblical translation? James Bruce: In a phrase, it’s very good, commendable and, I think, ultimately, extremely persuasive. He wants the translation to sound like the lofty Hebrew prose and poetry it is. In each of the volumes, it’s three volumes, and in each volume, he actually recapitulates the themes of his translation philosophy. A major handle for me, in terms of understanding Alter, is that, to make a translation overly accessible, is actually to dumb it down and to step away from the text as it was written. For example, word choice. Rare words in Hebrew get rare English words in his translation. “Song of Songs,” chapter three, verse nine says, in the Alter translation, “A palanquin, did King Solomon make, from Lebanon wood.” I, of course, being so learned, had to look up. I had no idea what a palanquin was. Hopefully, his commentary does have the definition that a palanquin is what rabbinic literature understood the Hebrew word to mean. He says, “Or, perhaps less grandly, a sedan chair.” The point being that, if you try to make it too accessible, you actually don’t arrest people with the technical vocabulary that’s being used. We want an exalted style, it’s not Time magazine. Also, as I think you mentioned, it’s literal. This fits nicely with his desire to make the translation style be lofty. The word-for-word literal translation actually requires something of a reader. The Hebrew word for seed is often translated as a seed like you throw on the ground, or even descendants, or it can also mean semen. What Alter does though is he always keeps it seed, trusting that the reader has the requisite knowledge and expertise in order to discern the word’s use in its different context, just like in the Hebrew. I also can’t help but think that this makes the scriptures loftier, as they should be treated. That there’s a respect, a curiosity that interests us when we confront things that we don’t know. One last example on the word choice. In Ruth chapter four, Boaz has to confer with Ruth’s kinsman redeemer, who chooses not to redeem her. Of course, he’s a deplorable character. I love how Alter playfully translates Ruth chapter four, verse one, as, “Turn aside. Sit down here, so and so.” Translating the Hebrew that way to make you say, “This guy is not even worthy of recognition in the text.” He’s also very sensitive to syntax and in the way that the Hebrew is playful. In Job, he is just a master of artful translation. Job chapter eight, one of Job’s friends says, “For we are but yesterday unknowing, for our days are a shadow on Earth.” In the same passage, he’s deploring people who aren’t trusting in the Lord. He said that, “Whose faith is mere cobweb, a spider’s house his trust.” He is really sensitive to the rhythm and the internal rhyming structure of the Hebrew. His sensitivity to dialogue, Brian, absolutely is just a work of genius. Even when he’s commenting on various passages, he’s so careful to help you realize this is what you’d expect with Hebrew, this is what you get, and you’re supposed to feel the difference. He repeatedly says, throughout the Hebrew Bible, the first phrase or phrases that someone speaks is supposed to cause you to anticipate who that person is. It frames the person in a way I don’t think it does for me as an English reader. It means that, when he’s commenting on 2 Samuel, Chapter 11, when Bathsheba says to David, “I am pregnant,” Alter writes, “Astonishingly, these are the only words that Bathsheba speaks in this story.” Her big statement is, “I am pregnant.” Really arresting. I could keep on going, but that’s a flavor, I hope, for your audience, of just how magisterial and sensitive Alter is as a translator. Brian Smith: It sounds like he’s almost created the feeling one has when one enters a truly majestic piece of religious architecture. Your eyes are cast up to the Most High as you enter a cathedral or a really magnificent church. It sounds like something like that has been accomplished in this translation. James Bruce: That’s right. I can say that he goes for extremes, that when the language is lofty, it really is the cathedral. In Job, when Job’s adversary has a second dialogue with God, whereas before he talks about, “Hey, the Lord says, ‘Have you seen my servant Job? Et cetera, et cetera,'” in the second dialogue, the adversary picks up the pace and just says, “Skin for skin.” Alter is really good at the lofty, but he can also do the pungent as well, so it’s really impressive. Brian Smith: It’s really interesting. What did you find least compelling about this translation though? James Bruce: I do mention it in my review, the published review, that I think he’s right to translate the Tetragrammaton as LORD, in all capitals. Then, having made that move, he wants to make the reader feel the antiquity of the text, and so he says things like, “For hand upon Yah’s throne,” or “El, the God Lord.” I think that Yah, God, would abide. I don’t think that, when I said I’ll assume that the speaker’s intoxicated in my review, I was actually thinking, and I’m not trying to be blasphemous, but El Yah, sounds a lot like a cockney person saying, “Hell, yes.” His defense is that he wants to say, “I’m getting the antiquity of the text. I’m exposing the strangeness of it.” Having already made the decision not to try to transliterate the Tetragrammaton, and just keep it as Lord, I think that he shouldn’t have done that. That was clunky. Then, of course, I have my whole ABJ, anybody but Jesus, shtick. Which somebody, and probably it’s my fault if I didn’t make this efficiently clear, but I didn’t expect his translation to be Christian. What struck me about the translation, Brian, was the fact that there were passages like Ezekiel chapter two, verse one, where the text says, “Son of man, stand on your feet and I shall speak with you.” Alter translates it, “Man, stand on your feet.” He says that he avoids the translation, because the term son of man has Christological Jesus connotations. I actually think that he should have stuck to his guns and his methodology and done word for word, trusted the reader. From my perspective, he should have said, “I’m going to trust the reader to come to his or her own conclusions about the text as it stands, as opposed to glossing over that.” There is one instance where… I’ll finish here. I don’t mean to ramble on, but I do it well. There are instances where, very few, where he just, I think, contradicts himself. Perhaps for polemical purposes, but I wouldn’t want to impune a motive to him. In Ruth chapter one, when Ruth says to Naomi, “Your people is my people and your God is my God,” Alter places God in lowercase. He says that one shouldn’t imagine that Ruth has become a theological monotheist. That’s his commentary on Ruth chapter one. Then in his introduction to Ezra and Nehemiah, he actually talks about Ruth, who naturally accepts the God of her new home, capital G, God of her new home. There, I think, he just has a different polemical purpose. There are instances where you’ve got to decide if it’s volume three, page 804, and you’re a run-up to Ezra and Nehemiah, it sounds like she believes in capital G God and is a monotheist. Then let that reflect in Ruth chapter one, or vice versa. Brian Smith: Is this just a confusion that comes from what you call his, at one point in the review, the embrace of the God of Baruch Spinoza? James Bruce: Yeah. It could be. I’d hate to have me read me for consistency. I think it would be a horrible experience. Multi-decade life adventure, this grand achievement. I, of course, am consuming it all at once. Well, over three years. Not all at once, but over three years. I think that there could be instances of getting to a new book and looking at Ezra and Nehemiah and having Ruth in your rearview mirror. I do think that it was most helpful to me to understand him as thinking that the water could ripple with spirituality, but not the God of Abraham, Isaac, and Jacob. Brian Smith: There’s also this sense that, I think, is coming through with what you’re saying, and certainly, what you wrote in the review, that Alter seems to approach each individual book of the Hebrew Bible as a separate text, which is quite different, I think, than both any rabbinical commentators and the way, of course, Christians would undertake a reading of this. James Bruce: Yes. That actually exactly correct. It almost became comical. Because, if the author or authors leaned in a Spinozistic direction, then Alter’s heart strangely warmed to the text. I knew that the Job poet was just going to be a genius, before I even began reading anything that he wrote about Job. Then there are other books that, like Ezekiel. He hates Ezekiel. The animus is on the page. I do think that’s an issue. Yet, there are times when Alter is incredibly sensitive, even though I don’t think that he would be sympathetic. He’s nevertheless sensitive. It took me so long to review the books, that my title ended up being different. My initial working title, I don’t think I’ve told you this, Brian, was “Reading the Bible in the Time of the Coronavirus.” Because, Alter offers this comment on a passage in Leviticus. I think I teared up, because he said, “This passage, it’s hard to understand what exactly is going on, but I think that this is… It’s, ‘Cover his mustache,’ or something.” He says, “I think that people are draping cloths and creating, basically, these face masks.” He’s so sensitive. I got a little teary-eyed. Because, of course, we’ve been in face masks forever. Just the beauty of it, that some things don’t change. Some guy has got a crazy cough, don’t let him cough on people. There were definite instances. Then also Proverbs, which he doesn’t particularly like. He’s really good at translating the Proverbs, so I have to give him a lot of credit there. Brian Smith: Tell me more about this he doesn’t like the Proverbs bit, because this is interesting. In that, I feel like, if you ask a random person, what is my go-to passage when I need to grapple with human concerns, a lot of people, Christian and Jew, are going to open up to Proverbs. What is his animus there? James Bruce: This is too glib, but what’s comforting to many people is exacerbating to Alter. What’s comforting to many people is the message of do good and the Lord will bless you. Times are tough, but soldier on and trust in the Lord. Lean not on your own understanding. In all your ways acknowledge Him, and He will guide your path. He’ll make your path straight. This is very comforting to people. I think, for Alter, it’s cheap, moral platitudes that gloss over the harsh realities of life. For that reason, so I think the very reason why it’s comforting to many is to him disingenuous. Brian Smith: That’s a nice segue though into… Let me stop you, because I think this will lead well into what I definitely wanted to bring us to talk about. Which is, you mentioned Proverbs 29:2, “When the righteous are many, a people rejoices, but when the wicked man rules, a people groans.” You say that he ignores this passage, that he thinks it simply platitudinous. As you mentioned, this was a really important passage for the American founders. You mentioned that Dreisbach has an entire chapter in his book on this. Is it just another case of this is a platitudinous proverb, or does he have some additional explanation of that point? James Bruce: Not really. He just said, “This proverb, like the next one and several others in this chapter, is no more than a formulation and verse of a platitude.” I think that Dreisbach, in Reading the Bible With the Founding Fathers, he devotes a whole chapter to it. I think that people need to be reminded that there’s a character of a nation that can bring happiness. That individual liberty and individual virtue brought together in community can cause a people to flourish. Oliver O’Donovan talks about Augustine’s redefinition of a Republic, from the Ciceronian definition, that Augustine and O’Donovan’s words says that a Res Publica, a Republic, is defined by their common objects of love. I think Proverbs 29:2 says, “If your common objects are love of love, are the good, the true and the beautiful, then life is going to be, in the midst of all sorts of hardships, the people will rejoice.” It also is an important caveat to that, which is that a wicked man can really ruin a nation. That wickedness can… Just a handful of wicked people. I think that on the cusp of the American Revolution, with the founding fathers thinking about, in their mind, being delivered from a tyrant, that they were groaning under the tyrant. Then also, at the same time, the people don’t get off the hook by repelling the wicked man ruling over them. They have to do the hard work of living a righteous and holy life, so that there can be true flourishing for the community. Brian Smith: This makes me wonder if this is partly a product of Alter’s treating each individual text completely separately. Because, if you think about, God, make us other people, give us kings, versus judges, who are often likened to Republican magistrates, there’s a lesson there for why a passage like this one from Proverbs is so important. I’m a little surprised at incongruousness of these two things. James Bruce: Yeah. Alter has the best, let’s see if I can quote it verbatim, the ad hoc military leader is his definition of a judge. I think that’s the best definition of a judge that I can come up with. Yeah. I think that in for Samuel get this concern about kings and that they’re going to do all these horrible things. What we see is, they do all these horrible things. The people… I just like it, because Proverbs 29:2, you’ve got somebody to blame the wicked man, but that doesn’t get you off the hook for being unhappy. Brian Smith: Or having a lack of virtue. James Bruce: Yeah, exactly. No, that’s right. Again, I just to emphasize that two quick points. Number one, you’re right, that he is going to see Proverbs as this collection of moralizing things will work out sentences, over and against what, I think, he would say is the really interesting stuff of Job and Koheleth, which is Ecclesiastes, and that sort of thing. Then number two, just to emphasize, again, that though he doesn’t seem to have a lot of emotional or mental energy for the substance of the Proverbs, he’s a masterful translator of Proverbs. Because, he really, again, to go back to the first question about translation style, he wants to get the pithiness of the Hebrew. It’s beautiful to read. Brian Smith: It’s such a fascinating dichotomy though. I think you’ve partially answered this. I want to go to the line that you wrote about the passage from Proverbs. You say, “The single verse may easily contain a cure to the contagion that is contemporary American political life.” I wanted you to just elaborate more on that, because it’s left hanging as a piece of food for thought in the essay. It strikes me that there is a political teaching here. I just want to hear it elaborated. James Bruce: Sure. Everybody thinks that everybody else is the problem. Their little group, their little tribe, they’re the true Americans, Brian. Everybody else is just, they’re the enemy of the people. When the wicked man rules, a people groans. If your wicked man is Biden, or if your wicked man is Trump, or if your wicked man is somebody else, your governor, and if your wicked man is a woman, well, sure, the people groan. That doesn’t give you the road ahead. The road ahead has to be when the many are righteous. I think that we need to do a lot more critical self-examination of the people in our camp. It is incredibly difficult, because I think that people are always testing whether or not you’re part of the tribe, it is incredibly difficult to create any kind of room for self-reflection. We need to be courageous. We need to be willing to say, “No, of course that person aligns with me politically, but I don’t like what she said,” or, “That’s not how we should… I don’t like what he said.” Then work on personal virtue. People are rewarded for all sorts of wickedness. To recognize that this has not been a new phenomenon, it is something that every generation must fight against. Brian Smith: That’s good. I suspect it has something to do with your book project. You’ve never actually told me very much about this, so I would like to hear more about this forthcoming book of yours. What’s your current thinking about its relation to our present political disasters? James Bruce: Thank you for asking me about it. I really appreciate it. At Casa Bruce, I would joke about my never-ending Hebrew Bible book review. I also joke about my never-ending book project. It was conceived as a University Press book. Richard, your predecessor, he actually encouraged me, “No, this is a book that’s worth reading.” My hope is that… I’ve been going through all these different drafts. My hope is that eventually, I’ll get a serviceable draft that I can shop for a literary agent and try to get a big publisher. If you work for a big publisher listening to this contact, please feel free to reach out. Basically, the thesis of the book is that there’s certain understandings of the relationship between justice and equality that undermine the Christian faith. People adopt an understanding of justice, and its relationship to equality, without realizing how it could affect their Christian faith, until really it’s too late. I think that the parallel could work with Judaism. I’m too ignorant of Islam to comment on whether or not it would work with Islam. I stick to Christianity, which I am a Christian, but also it’s an important religion, especially in American political life. The example that I give, which the most, I think, straightforward is, if you think that justice always requires equality, then you have to give up on hell. Because, it’s strict to quality of outcome, you have to give up on hell. Then I like to joke that, if everybody goes to hell, why go to church? There really is a big framing question. I try to handle three pairs of ideas and work through those. The biggest obstacle to, and I think I’ve turned a corner, of asking questions like, “What’s wrong with the world?” My thought is that people choose either nature or choice to describe the wrongness of something. It’s a violation of nature or I broke my agreement. Then how does God respond to what’s wrong with the world? If I think that sin is related to, is not connected to nature, the nature of the thing that God has made, i.e. me as a person, but is instead connected to what I’m choosing, a violation of choice, then I’m going to see sin not as law-breaking, as is consistent with the Christian tradition, but instead as some kind of brokenness. How does God respond to that choice? With healing or with judgment. I try to work the reader through. Basically, somebody pointed this out to me a couple months ago, that it’s a hundredth anniversary, I think, next year, of J. Gresham Machen’s Christianity and Liberalism. In some sense, what I’m trying to do is an updated… The Machen book is magisterial. I love it. Perhaps more technical. I’m trying to make it really accessible. Because, one of the things that I do is I work with the philosophers and all their different theories, and then show how it permeates to all the different theologians. I do have some kind of smoking guns where, well, everybody has to have an equal opportunity for salvation, because God is just. It would violate distributive justice if God didn’t give everybody an equal opportunity for salvation. This is basically John Rawls smooshed into New Testament language. That would be an example of where you start believing things that aren’t in the Bible, but they’re consonant with your political beliefs. Brian Smith: That reminds me a bit of the end of The Screwtape Letters. The addition I have has something called “Screwtape Proposes a Toast,” where Lewis has his character, the Devil, Screwtape, talk about how equality has been this great Soporific elixir of modern man and corrupted their thinking in many different areas, but particularly with respect to their faith. James Bruce: Your audience will know, if my book ever comes out, that when I reference Screwtape, if I don’t have a little footnote saying that I owe this to you, then shame on me, because that’s a great quote. Brian Smith: It is. I have loved that book for a long time. Thank you for joining me on the podcast. James Bruce: It was my pleasure, Brian. Brian Smith: Thank you all for listening to Liberty Law Talk, which is a production of Law and Liberty at Liberty and Liberty Fund. You can visit us at lawliberty.org and libertyfund.org. Thank you. Have a good day. Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. Please visit our journal at lawliberty.org.

Law & Liberty‘s editor Brian A. Smith talks with Samuel Gregg, about his new book The Next American Economy. Brian Smith: Welcome to Liberty Law Talk. I’m the editor of Law & Liberty, Brian Smith. Joining me today is my friend Samuel Gregg. Sam is a Distinguished Fellow in Political Economy and Senior Research Faculty at the American Institute for Economic Research, as well as a contributing editor for Law & Liberty. He’s the author of numerous books, including the subject of our discussion today, and has just released The Next American Economy: Nation, State, and Markets in an Uncertain World. Thank you for joining me, Sam. Samuel Gregg: Brian, it’s always good to be with you, and good to be on the other end of the podcast. Brian Smith: Yeah, I thought you might enjoy that. So longtime Law & Liberty readers might already know the answer to this question, but I wanted you to talk some about what led you to write this book. Samuel Gregg: Well, as the title suggests, The Next American Economy: Nation, States, and Markets in an Uncertain World, America is very much at a crossroads right now when it comes to its future economic direction. We have a choice, I think, really between what on one hand I call a type of state capitalism, which is essentially extensive government intervention in the economy via protectionism, industrial policy, et cetera; or, we have a choice of moving in a free market direction. And by free market, I mean more than just markets. I mean all the institutional and cultural underpinnings of that type of economic system, which I think has assumed a particular form in the United States. So there’s that big choice, I think, that is increasingly laying before us. At the same time, as you know, there are many debates about this that are occurring on the left and on the right, and between the left and the right. Traditionally in much of American politics, these debates have fallen more or less along left/right lines. But one of the interesting things about this particular debate is most of the heat and lies about this debate that is occurring is occurring on the right, which is an interesting phenomenon, because at least since the 1980s, up until I would say around about the mid 2000s, the right in America was more or less behind the case for free markets. Now that is no longer the case. On the right you have people like myself. We very much believe in the case for markets and why they’re important; not just economically, but politically and culturally for the United States. And then you have others who are arguing in favor of using a very big state to intervene in the economy and specific sectors of the economy to try and deliver economic outcomes that would be different than what would otherwise be delivered by markets. The wider context of all this is that these economic debates are occurring in a context in which it’s not the 1980s anymore. We’re living in a very different set of geopolitical and domestic political arrangements. Those of us who believe in markets and those who read the book will discover that while I recognize some of the problems that people on the other side of this debate are pointing to, I think their diagnoses are often wrong, and I think certainly their solutions are very wrong. It’s very clear to me that those of us on the free market side cannot talk and act and think as if we are living in the 1980s. So much has changed since then and up until now. The free marketers don’t adjust the way they argue, not so much the content, but the way they argue, and the narrative they present their arguments for markets in will lose this very important debate, and I think America will be worse off for it. So that’s why I wrote the book. The first part is really trying to set the political scene, then go on and explain why protectionism and industrial policy, but also this phenomena of stakeholder capitalism, which we’ll probably say more about later, why these are very bad alternatives for America. Then I try and outline what I call a creative nation, a competitive nation, and a nation that’s a trading nation as the alternative. But again, wrapped up in a particular narrative that I think goes back to the American founding in the American experiment, because if these arguments are not made in this type of way with this type of context and with that narrative, the case for markets will increasingly lack legitimacy in the United States. So it’s not just a series of economic problems we’re dealing with; we’re dealing with some serious political challenges as well. Brian Smith: So speaking of politics. I mean, I agree with you completely that all of the really interesting stuff being said right now is on the right about this, but what I’d like to hear is your story of how conservatives got here, conservatives here understood as national conservatives. Where did that movement and its associated industrial policy advocacy come from? And what do you think the best case on their side is? Clearly, you disagree with it, but one of the things I thought was interesting about the book is how you tried to unfold some of the ways they fell into this position. So why don’t you tell our listeners about that and sort of unfold this narrative. Where do you think this came from? Samuel Gregg: One of the things I’ve tried to do is to give as fair a case to the other side as possible because I don’t like producing straw men and tearing them down, because frankly, that’s what the other side do on these topics for the most part. But what I think if one is going to give the best sort of analysis of how this happened, how we saw so much of the right move in the direction of economic interventionism, I think it goes back to, first of all, the 1990s when we saw people like Pat Buchanan come to the fore and start arguing that free trade and trade liberalization had had deleterious social effects upon the United States. Many of the arguments we’re hearing today were made by people by Buchanan in the 1990s. And remember, he ended up basically derailing George H. W. Bush’s hopes of a second presidential term. So there was a sense within much of the country, particularly on the right. Many people started to view markets and economic globalization as not being in America’s long-term interest. So that’s one background. Another background, which is an even deeper background, is that trade issues have been part of American political debate right from the very beginning of the republic. I think we often forget that. But in the 19th century, slavery of course was the biggest political dividing point in the American body politic, but tariffs and trade policy came a close second after that. Differences about trade policy split North and South. It split parts of the North, parts of the West, parts of the East. It was one of these dividing points that split the country regionally, sometimes even within particular states, and even within the major political groupings that crisscrossed the country. So in many respects, we are going through the same types of debates that we’ve had in America for a very long time, and that precede Pat Buchanan and his outbreak, if you like, of economic nationalism in the 1990s. Fast forward a few years, and what do we find? Well, I think if one is going to look for a breaking point, for many people on the right when it comes to the case for markets, it’s the same breaking point that affected a lot of other Americans, and that was the 2008 financial crisis. Now, I could give you lots of reasons here why I think that crisis had far less to do with the private sector and far more to do with bad regulation, regulations that incentivized people to behave badly, excessively low-interest rates from the Fed for too long, the government essentially having a type of pseudo monopoly of the housing market, et cetera, et cetera. We could go through all that, but unfortunately, that doesn’t matter. Brian Smith: Because they’re government failures. Samuel Gregg: They’re government failures, but the problem is that the narrative that, one, was that this was a crisis of capitalism, of American capitalism, that there was something fundamentally wrong with the economic system that many people identify as being quintessentially American. In fact, we know that people in powerful positions in China watch this crisis very closely, and they concluded that the capitalist model was flawed in some fundamental ways and that China needed to avoid some of these problems, which is precisely when China started moving away from what had been a relatively limited economic liberalization, much more back in the direction of a state-centric economy, which is more or less, I think, what modern China is now today. So that, of course, I think the financial crisis really shattered a lot of people’s confidence in the long-term benefits of markets. Many conservatives looked around and said, “Well, we need to rethink the role of the state in the economy. And we’re also not sure whether economic globalization has been as beneficial as people had hitherto supposed for the United States. There must be other ways.” When you add to that a good number of conservatives concluding that the administrative state is here; we haven’t really done much to take it down. Maybe it’s time we should start using it for pursuing what we believe is in America’s best economic interests, and that means using state power to try and achieve that, which I happen to think is more or less moving in the direction of how progressives think about America and the role of the state, et cetera. Brian Smith: Which explains things like Compact Magazine in some ways. Samuel Gregg: It explains many things. It explains the shift away from markets that you see on the part of a good number of hitherto market-friendly magazines. You mentioned Compact, which of course is a new magazine, but you can look at others such as First Things for example, which now I think it’s fair to say takes a more skeptical view of the role of markets. Another thing which I think is also driving some of this is that America clearly has some serious social and cultural problems, whether it’s drug addiction; whether it’s things like young men who won’t work, don’t want to work and won’t work; whether it’s things like declining birth rates; whether it’s concerns about the implications of immigration for national sovereignty, et cetera, et cetera. All those social and cultural problems, and some of them are actually real problems. The fact that young men are not working is a real problem. The levels of drug addiction, levels of family breakdown, these are real problems. There’s no doubt about that. But many conservatives have apparently concluded that the causes of these problems are primarily economic. They often associate these things, for example, with trade liberalization, which they would argue has emptied out manufacturing and created rust belts, et cetera. And I happen to think that’s all false, but that’s the narrative that has established itself on large parts of the right and parts of the left as well. Many people on the right have concluded that this is primarily an economically caused problem, and therefore we need to use the state to engineer economic solutions that will fix these problems. Now again, I happen to think that that’s a highly economistic explanation of these problems. I think the economy has relatively little to do with these things and much more to do with the social and cultural changes that flowed from the 1960s, as well as things like the disaster otherwise known as Lyndon Johnson’s Great Society programs. Brian Smith: Yes. Samuel Gregg: So the idea that the state can fix these problems through raising tariffs or introducing industrial policy strikes me as fanciful. But nonetheless, these social problems, I think, are what are driving many conservatives in this type of direction. The last thing I’ll say about all this is that I think free marketers’ responses to many of these questions has been inadequate. What do I mean by that? I mean that the response of free marketers has been to focus heavily on the economic problems associated with the economic arguments being made by people on the right who want protectionism and want industrial policy. Free marketers have gone very hard, and I go very hard at them as well, about they don’t understand trade, they don’t understand basic elements of things like comparative advantage, trade-offs, the damage that protectionism does to an economy. They either don’t know or they ignore the very real systematic and epistemological problems with something like industrial policy. And that’s all fine, and that all needs to be said, but if free marketers are basically saying, “Look, these other things don’t work. They’re inefficient. And what we have to offer you is efficiency and effectiveness,” well, that’s fine, but that’s not a compelling narrative at a time in which politics heavily revolves around questions of identity. Who am I? Brian Smith: Correct. Samuel Gregg: What community do I belong to? What is my nation? Who is my tribe? Et cetera. If free marketers don’t understand that they need to move their arguments so that they invest them with a narrative that is cognizant of just how much the center of debate has shifted, then they lose. No matter how good the economics arguments are, if you don’t have a compelling narrative that goes beyond the economy and touches upon things that Americans care about, you lose. And that’s one of the things I spend a lot of time in the book trying to do, is to show, look, free marketers have to be very clear that they love America. That you can be in favor of free trade because you love America. And you have to disassociate yourself from the likes of Klaus Schwab and the World Economic Forum who don’t care about America. You have to be very careful in how you make your arguments. You shouldn’t go around claiming that free trade automatically brings peace and harmony in its wake. That’s not true. Adam Smith, by the way, didn’t believe that was true. Neither did David Hume. So in other words, free markets- Brian Smith: Or Alexander Hamilton. Samuel Gregg: … well, lots of these people really didn’t believe that. Smith is very clear about this, that free trade does not necessarily lead to greater harmony between nations. I think free marketers made a mistake when they started rolling that argument out in the 1990s and early 2000s. George W. Bush used this argument. Bill Clinton used this argument. And to many people it was compelling at the time. It also fit this wider narrative of Francis Fukuyama’s End of History and the Last Man. So we’re all at the end of history; markets and liberal democracy for everyone. This is inevitable. Well, nothing, my friend, is inevitable. And that is another thing. Brian Smith: Right. But the other thing which I think you picked up on in this book, which is really fascinating, is the degree to which if you began taking political economy or globalization politics courses in the early 2000s, it was almost spiritual. This understanding that the world was moving in the correct direction because of these free markets, which invariably were defended solely on these utilitarian grounds. I think you’re absolutely right to suggest that it is a persuasive failure on the free markets balance sheet that we have not developed arguments that point out these alignments between trade and a strong… Samuel Gregg: America. Brian Smith: Yeah, basically it’s failed to identify trade with American excellence. It’s failed to show the ways in which, or create compelling arguments in which morally, trade is the right way to go. It seems that we’re in want of great moral arguments for trade in this respect. This is not a morality of why trade is good; you’ve done that in other books. But it does do this incredibly important element of persuading people why trade and American nationhood are, if not actually just compatible, more than that. They’re absolutely vitally linked together, but we’ll get to that. I also really like the way in which you laid out this sort of course, the 1990s. But one of the things I wanted to draw our attention to next is that you give a lot of examples of industrial policy failures in the book; ones that you will not hear in ordinary discussions right now on the right, I think, generally. But which of your examples do you think best illustrates why industrial policies don’t deliver as promised? Samuel Gregg: Well, that’s a hard question, because there’s so many of them. The one I’ll talk about is Japan. I’m old enough to remember at the end of the 1980s, early 1990s, I remember being in high school, going off to college. And I remember that we were all told in the western world that Japan was the future. That Japan, because of its specific economic model, which involved a considerable amount of industrial policy, was going to supplant the United States as the world’s biggest economy. This was reflected in literature. Brian Smith: Mm-hmm. I remember reading Rising Sun. Samuel Gregg: Rising Sun, right? The film, and that was turned into a film. Or remember the first Die Hard film? Brian Smith: Right. Samuel Gregg: The Nakatomi Tower, right? So this was a whole narrative of Japan, because it had deployed industrial policy, was going to be extremely successful, this is why Japan was successful, this was why it was going to eclipse America, et cetera. Well, lo and behold, within two or three years, Japan slips into 20 years of sustained stagnation. There are many reasons for that, including bad monetary policies, the effects of the population decline started to have an effect, many other things. But it’s very clear that industrial policy was part of the problem. And what’s more, the Japanese finance ministry in 2002 publicly admitted this. Something along the lines of, “Industrial policy was one of the major reasons why we started to fall backwards in terms of economic progress and development.” Why Japan had slipped into this very long period of economic stagnation. And so when you go back and you look at the post-war history, post World War II history of Japan, you quickly discover that industrial policy was targeted. Those parts of the economy was targeted; it invariably didn’t work. That those parts of the Japanese economy that were incredibly successful were precisely the parts that did not have industrial policy. It’s also very clear that industrial policy in Japan, like all forms of industrial policy, became heavily cronyistic, heavily linked to the ruling liberal democratic party. And where government subsidies and different forms of industrial policy went, tended to go to where particularly powerful politicians wanted them to go, rather than whatever they were saying was going to be the best dollars spent and the best part of the economy. So the more you look at the Japanese story, the more you realize that all the reasons why industrial policy fails are manifest there. Whether it’s the knowledge problem in the sense that governments and technocrats cannot know what is the most optimal place in which they should intervene in the economy; whether it’s the cronyism that is endemic to all forms of industrial policy; whether it’s the ways in which it results in opportunity costs. Because if you direct money in one particular direction, it means you’re not directing money in other directions. I go on and on in one of the chapters about this, and I say that the Japan example is full of warnings to us as to why we should not go down this path. And today, what do we see? We have some people on the right saying, “China is the future. The Chinese model is how we should be proceeding,” at the very moment where if you look carefully at the Chinese economy, it is now really starting to run into some significant problems. It’s partly because of their self-created population problem, but it’s also got a lot to do with the extensive use of what we would call industrial policy throughout the Chinese economy, and the wheels are starting to come off the cart big time. So the parallels between the ’90s and today in terms of Japan and China are extremely striking. What’s interesting, I find, is that when you raise these pretty well-established points of historical and economic evidence, the people on the other side of this debate frankly don’t have answers. Brian Smith: No, it’s fascinating. Samuel Gregg: They don’t have answers. Brian Smith: One of the things that was striking as you were talking, I was remembering the great shift of Tom Friedman away from being a staunch, pure globalism advocate to writing fanboy articles in his op-ed page at The New York Times saying, “We should be more like China.” This happened around the financial crisis in a big way, and the drum beat just never stopped after that. But it is fascinating, the difference between China and Japan here. The one that admitted failure was the regime more like us, and yet we can’t take them admitting the failure of these policies as a piece of evidence. It is pretty striking. But I wanted to shift to the left a little bit more for a moment, because you do spend, and I suppose that the way I take it in the book is, the place where there is the most intellectual energy right now on the left in these economic issues strikes me as the environmental, social, governance movement. Samuel Gregg: Ah, ESG. Brian Smith: How do you think those imperatives threaten our prosperity, and sort of create a parallel or aligning with the right’s industrial policy advocates to threaten prosperity? Samuel Gregg: Well, ESG, DEI, diversity, equity, inclusion, and the broader stakeholder capitalism agenda, which is largely driven from the left these days, although interestingly, some people on the right are saying, “Well, we should have our own version of stakeholder capitalism,” which again, mimicking bad problems from another source. There’s so much one could say about this. One is that when you go down the path of saying, “Profit and shareholder value are not the primary objective of business,” whether it’s a privately owned company or a publicly traded company, when you start going down that path, then I think you start to disrupt in a very bad way the telos to use an Aristotelian term, of what business is supposed to be about. So families exist to raise children. Militaries exist to fight wars. Business exists, its defining characteristic is to produce profit and shareholder value. Otherwise, it’s not a business; it’s an NGO or it’s something else, but it’s certainly not a business. ESG and stakeholder capitalism and DEI all reflect attempts to relativize profit as the purpose of business. We often talk about that the latter as shareholder capitalism. So when then presidential candidate Joe Biden during the, I believe the 2020 election campaign, called “for an end to shareholder capitalism,” what he was really pointing to was not so much socialism or something like that. He’s really pointing to stakeholder capitalism, which deploys tools like DEI and ESG to try and fundamentally change the nature of business, so that business is about serving a range of stakeholders. Now, there’s one way in which you can talk about stakeholder capitalism in a very sensible way. I mean, every business that goes into any community has to assess who are the primary stakeholders in this community? Who do we have to work with, who do we have to deal with if we want to have a productive presence here and we’re able to make money? No business can ignore those sorts of things. But that’s very different from saying, “We actually have to include all these groups and peoples in our decision making process so that we can realize all these other goals besides just profit.” ESG and DEI are the tools that are typically used to do this. The effect is, I think, to try and fundamentally change the nature of business. You end up with businesses becoming and acting and sounding like left wing NGOs. And this of course is infuriating. It infuriates me because it is fundamentally destroying the telos of business. Destroying the telos of business as profit is makes no sense. It’s like saying, “Well, we’re going to turn the family into a business.” I mean, particular organizations have their telos, and things get very messy and bad when you try and move them away from that. The left, I think, see this as a way in which they can basically transform American capitalism from within. So you keep boards of directors, you keep CEOs, you keep the management structures. But the people you employ, the characteristics that you ascribe to them, that you say you want from them, the stated goals of the business, all that changes in a very negative, in my view, a very negative way so that businesses are not behaving like businesses; they’re behaving like NGOs. That is bound to have some very serious economic effects. It’s also going to have some very negative political effects. Because the other side of politics, the right, will say, “Well, okay, if business is in bed with the left, then why should we care about free enterprise? Why should we care about protecting business from excessive regulation? Why should we care about those who tell us we shouldn’t be using state power to try and deal with these types of problems?” Now, I happen to think that using direct intervention or even antitrust law to try and deal with this problem coming from the left inside the American business community is a very bad idea. But much of the business community has set itself up now for being a target from some people on the right. And, they’ve been set up in this position by people on the left who, by the way, have no particular interest or concern for markets and capitalism. They’re not doing this because they’re trying to forge some sort of new consensus in favor of markets. No; they’re trying to change the nature of American capitalism so that it’s not really American capitalism anymore. Instead, it looks much more like a 1970s European social democracy. Over, which of course, is laying a fair amount of what would be called corporatism, the idea that you had government, business, and it used to be unions working together to sort of decide, make all the decisions, to make all the requisite policies that they decided are needed. Which, of course, leaves lots and lots of people out of the political equation, pushes people out of markets, and creates all sorts of very negative consequences for the economy and the society as a whole. But that’s the sort of mentality, I think, that’s driving some of the stakeholder capitalism. And it’s profoundly anti-market. It’s profoundly anti-market, and it’s profoundly limited government. I think some businesses have gone down this path because they think, “Well, if we don’t do this, it’s going to get regulated for us, so let’s preempt it.” Well, guess what, corporate America? You are already starting to be regulated along these lines. The SEC has moved in this direction. Numerous government agencies are moving in this direction already. So if you thought you were protecting yourselves from potential regulation, you’ve made a serious misjudgment and you’ve let the enemy inside the castle, which leaves you in a much weaker position to fight back. Brian Smith: One of the things that strikes me is all roads, in this sense, are leading back to stronger corporatism, which shifts all the incentives in the market in ways. And of course, it’s still sort of a market, it’s just a market with very uneven rules for people sort of outside the corporatist game versus those inside of it. Now, I wanted to quote one thing that you said in the book and ask a question about it. So about midway through, you write, “Individuals can be entrepreneurial in many spheres of life. That includes bureaucratic empire making or securing privileges from governments. Many crony capitalists are superb entrepreneurs in so far as they see opportunities for regulatory capture that others don’t.” And so the question that’s right before us, I think, is what do you think it would take to shift folks that are, or have been brought up in, a corporatist environment into seeking genuinely entrepreneurial creative endeavors? Now obviously there’s probably a policy piece, but are there other pieces that can shift things in a more beneficial direction? Samuel Gregg: Well, let’s talk first of all about the policy piece. It seems to me that this is partly a question of incentives and regulation. If the incentives in a given economy line the direction of cultivating favor with legislators and governments so that you get what you want and you get to block out potential competitors and potential entrepreneurs, if all the incentives lie in that direction, it’s highly probable that more and more American businesses and people of an entrepreneurial mindset will move towards those incentives. What that tells me is that we need to change those incentives so that we shift incentives back in the direction of satisfying consumers, providing consumers with goods and services, and away from engaging in capturing parts of the economy that you then rigorously defend with your friends in the government from all potential competitors. How do we shift the incentives in this regard? Well, it seems to me that that corporatism depends very heavily upon a big state, lots of regulation, lots of intervention in the economy. The more you wind back the capacity of legislators and governments to offer business leaders goodies, so to speak, the more incentive there is for them to start looking back at the people that they should be serving, who of course are consumers. What’s needed in policy terms is a restoration of consumer sovereignty. Consumer sovereignty. This was Adam Smith’s key point when he was critiquing the mercantile system of his time, which operates very, very much like a sort of cronyist set of economic arrangements. Adam Smith said that the purpose of the economy is consumption, which means you have to satisfy consumers. Because it can’t be production. You don’t consume in order to produce; you produce in order to consume. And when you make production itself the end of the economic exercise, then you end up with lots of inefficiencies. You have businesses that operate because they’ve just operated this way for a long time, and they have friends in government who help them and protect them, et cetera. That’s a very negative situation to be in. So we desperately need to restore consumer sovereignty, and we do that by reducing the size and scope of government and regulations, so that you shift the incentives of businesses back to satisfying consumer wants and needs. But you’re pointing to something beyond policy, though. You are talking about really the normative case for these things, and why we should care about markets and present markets as being much more than just the most efficient economic system. There’s all sorts of things we can do in that regard. We can talk about the different types of freedoms that commercial liberty gives us, the ways in which a market economy allows people to use their creativity in particular ways that serve other people rather than those who happen to be well connected, et cetera. But certainly in the case of the United States, I think free marketers really need to show that the case for the market, it’s about efficiency, it’s about effectiveness, but it’s also because it’s good for the United States. It’s good for 330 million Americans. It’s good not just because it’s economically good, it’s also part of who we are as a people. And that’s one of the things I’ve tried to do in the book is to show just how deeply woven into American sense of at least the founding and the American experiment in ordered liberty, just how deeply connected that is to the type of economic system that we have in the United States, which is very different in many respects from similar manifestations of capitalism in the rest of the world. That’s the message I keep hammering away at to my fellow free marketers. If we don’t change the narrative, if we don’t make it very clear to Americans that the free market is not about this sort of opaque, no borders, a borderless world utopia, everyone trades freely, endlessly. It’s not about that. Trade is wonderful. Free trade is good, domestically and internationally. But if you are interested in winning hearts and minds, you’ve got to think about how you argue these things. My hope is that this book will help a lot of free marketers to understand how we can do this better. Brian Smith: I wanted to finish up by pointing directly to this. You conclude, as you say, by pointing toward this new way of thinking about things, but it’s actually an old one, as you point out in the book. Now, “A lot hinges,” you say, “on framing our rhetoric around convincing people that America needs to be understood as a commercial republic.” Can you expand just a little bit more on this point? Why is it important that we understand ourselves in this way? What are a couple of the key touchstones that ought to animate the way we talk? And by we here, I mean journalists, educators, people who are engaged in forming citizens. What are some of the key touchpoints that would do this? Samuel Gregg: Well, there’s a lot. So first of all, it’s very important, I think, if you go back and you read key founders, key documents that they wrote, speeches that they gave, it’s very clear that most of them thought that America’s future lay as a commercial republic. Now, there was a debate. We should remember that. Brian Smith: Absolutely. Samuel Gregg: There was debate in the founding about, let’s call it, the future political economy of the United States. There were people, Thomas Jefferson is maybe the most well-known, who wanted to see an America in which the economy was essentially focused around agriculture, small farms, sort of yeomen farmers, et cetera. That’s sort of Jefferson’s view, because he saw this as reminiscent of classical Greece and classical Rome. He was worried that commerce could be corrupted. But then there are lots of other American founders, and you find this particularly in The Federalist. This is what I found particularly interesting. If you go through The Federalist Papers, the vision that emerges is of America as a commercial republic. By republic they mean certain forms of government, self-government of individuals, self-government of the nation. But they also had virtues in mind, that there were certain virtues that were very important for being a good person, obviously, but were also beneficial in terms of how one went about acting economically. So America is a republic of a particular type, and the adjective commercial that informs that republic tells us a great deal about what people care about, what they do, how they preoccupy themselves, what they think is important, et cetera. A commercial republic is very different from an agricultural type of polity. It’s very different from a mercantilist type of political economy. It’s certainly very different from the type of economic systems that were very prevalent in continental Europe and south of the border, so to speak, that were very prevalent throughout the world at that particular point in time. A commercial republic is one in which people are entrepreneurial, in which competition is everywhere, and people are trading everywhere. And here’s the interesting thing about this. It turns out that commercial republics are not sort of enfeebled by their involvement and immersion with commerce. The argument of many founders, including George Washington in his farewell address, which is where I think you see this vision of a commercial republic particularly well spelled out, for them, commerce was a source of strength for the republic. It bound the people together. It also caused them to look outwards, to look for opportunities, for trading opportunities, for engagement with other nations on the basis of trade. They were very conscious that an economically strong and powerful country would be very hard to take down in geopolitical terms. And that, it turned out of course, to be true. I think one of the reasons why the United States played such an important role in winning World War I and World War II was just the sheer strength of its economy. So this is a very different way of talking about political economy, this idea of a commercial republic. But it’s also important because it chimes with the vision that emerged from the founding of the type of political economy that America was going to have. That matters, because in America, what gives something legitimacy is really how much it can be traced back to the ideals and texts that we associate with the founding. The scholar who I think is very good on this subject is Professor Gordon Wood, a very well-established American historian. Not a conservative; more or less, I’d say, a sort of modern liberal in the way that he looks into the world. But he makes it very clear that the founding contains the ideas and texts that give things legitimacy in America. That’s why things like socialist America or American socialism ring very strangely to us, because it just doesn’t fit the history of the country as it unfolded after the period of founding. The idea of a commercial republic is, I think, a very powerful way for those of us who think that free markets are the most optimal economic set of arrangements to frame the narrative of what we are about. It’s a very attractive one, because it takes good economics seriously, but understands the importance of rooting these things politically and culturally in who we are as a people. Because Americans don’t take their identity from their skin color or from myths that go back hundreds of years. We take our identity from the founding documents. This is one of the things that Gordon Wood talks about all the time. That’s where we find the source of our identity. And in an age in which identity is driving politics so strongly, in many respects, those of us who believe in markets have no choice but to think about how we link our belief in markets and limited government with who Americans are as a people. Brian Smith: Well, and I think that’s a really excellent point on which we can conclude. Thank you, Sam, for joining me on the show. You can pick up his Next American Economy in bookstores anywhere. Samuel Gregg: And Amazon. Brian Smith: And Amazon. So, thank you for coming. Samuel Gregg: Thanks, Brian. Always good to chat with you.

Welcome to Liberty Law Talk. This podcast is a production of the online journal Law & Liberty and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening. James M. Patterson Hello and welcome to Liberty Law Talk, a podcast presented by Law & Liberty and supported by The Liberty Fund. My name is James M. Patterson, and I’m an associate professor and chair of the politics department at Ave Maria University, a research fellow at The Center for Religion Culture and Democracy, President of the Ciceronian Society, and faculty affiliate of The Jack Miller Center. Today, our guest is William McCormick. He is a contributing editor at America Magazine, a visiting assistant professor at St. Louis University in the departments of political science and philosophy. He is a Jesuit scholastic or seminarian of the Central and Southern Province of the United States. He studied politics at Chicago and Texas, and has published in History of Political Thought, The European Journal of Political Theory, and the American Journal of Political Science. We will be discussing his recently published book on Catholic University of America Press, The Christian Structure of Politics: On the De Regno of Thomas Aquinas. Bill, welcome to Liberty Law Talk. William McCormick Thank you so much for having me. I’m looking forward to this conversation. James M. Patterson Outstanding. Well, you know this is quite an impressive book. I was very fortunate to have read it, and I want to start off by asking you to tell us a little bit about who Thomas Aquinas was. From what I remember, he was described as corpulent, but there may have been a few other things about him that may be worth discussing besides the polite way of saying that he maybe had a little too much cheesecake. William McCormick I certainly hope so, or else my book wouldn’t have much to offer. Thomas Aquinas was a 13th Century Italian priest and theologian and Dominican, and he was one of the greatest theological lights of his time. And for centuries thereafter, he was regarded as an important name and influence in theology and philosophy in the Catholic church. But certainly, often more in spirit than letter. Often he was invoked as an authority and not studied very seriously. So, the 19th and 20th, and now 21st Century, it’s been a really great pleasure to see a renewal of interest in his work, and especially the actual texts of his work as opposed to through the manuals and commentaries. Lot of wonderful commentaries written about him, a lot of wonderful manuals written about him, but to get back to the primary sources, this has been, yeah, just one of the fantastic intellectual achievements of Catholicism since the mid 19th Century, and Aquinas still has a lot to teach us today. James M. Patterson So, one of the interpretive devices you bring to thinking about Aquinas is the Augustinian, the Aristotelian and the Ciceronian. And I really like these three, but explain what they have to do in particular with De Regno, which is a bit of a curious work in Aquinas’ repertoire. William McCormick Well, I’m in the presence of someone who knows a great deal more about Cicero than do I, so I tread lightly, but I think one of the central puzzles of political philosophy, and one certainly to which Catholics have attended carefully is what does it mean for the human person to be naturally political? And in what sense does political community fulfill critical ends of the human person, in what way are human beings made whole, excellent, good, through political community? And some of the greatest thinkers in politics have addressed themselves to that question in one way or another. And of course, we, I think, probably most familiar with the idea from Aristotle that human beings are naturally political, and that to be most fully human, they need to live in human community. And that’s how you develop the virtues, the different facets of human excellence that make us so good. And that Aristotelian idea is indeed in, I was going to say in my own book, it’s indeed in Aquinas’ texts, more importantly. And I think that from a Christian perspective, the challenge, of course, is that… or, one challenge, is that because of the fall and the tendency of human beings to sin, it sometimes can seem that actually political community exists more as a corrective to fallen human nature. It might be even a punishment for fallen human nature, and that’s one interpretation often offered of the great thinker, theologian, and bishop Saint Augustine of Hippo that he was proposing politics as primarily a remedy against political community, primarily as a corrective to sin. It’s hard to pin him down on that, and I’m not so inclined to think that he’s so… Augustine was an Augustinian, but it’s certainly there. It’s certainly there to be had, and there’s no question. And Aristotle recognizes this, too, that political community often has to restrain the wicked, as you might say. That there are people who are vicious, and many people, whether they are generally good or not who could do bad things. And political community has to restrain those kinds of crimes. Cicero has an ambiguous role in this conversation, and it’s in the work of the great medieval historian of political thought, Cary Nederman, that we really see Cicero come to play. In De Regno, he suggests that Cicero is a via media between Aristotle and Augustine, and there are indeed places in Aquinas’ work where you might think yeah, I think that’s true. I think it’s true that there’s something Ciceronian going on in this work. And it matters for a number of reasons, but the first one is that some people get frustrated with the political thought of medieval and ancient thinkers because modern thinkers might think that this political thought is just too metaphysical, that it just presupposes that these structures and institutions just sprout out of human nature. But all of these thinkers know that politics is very hard work, and it’s not magic, and indeed the attainment of virtue is an act of perseverance for a person and for a community day in and day out. And part of what Cicero is emphasizing, or what you might think he’s emphasizing for Aquinas, is that yes human beings are naturally political and authority is really important. That the development of healthy forms of authority in a community are an achievement. They’re not simply something that you can take for granted. There’s a lot more I could say about that, but I think I’ve said quite a bit already, so… James M. Patterson So, one thing that’s part of this tripartite interpretive device, from what I understand you’re saying is that the readings of Augustine, Aristotle, and Cicero are a little schematic, right? They’re not quite fair to the authors themselves, but useful for organizing our understanding of what Aquinas is doing. And also, one of the things that is part of your reading of De Regno is that only one of these figures is actually a Christian, and this corresponds to the fact that much of the political regime that Aquinas talks about is rooted in our understanding of nature, and not necessarily of grace or revelation. But, we’ll leave that to the side just for a second, because one of the things I think people overlook about De Regno is that it is not like a lot of other things that Aquinas writes. And this has an impact on the way Aquinas writes this book, that I think people tend to misunderstand. For example, Aquinas seems to be very pro-monarchy in De Regno. Was he a monarchist, and if so, what do we make of what he has to say about the mixed regime being the best regime in The Summa? William McCormick Those are fundamental questions. Because Aquinas is writing for a royal audience, we expect him to have positive things to say about monarchy. Not in the sense that he’s committing flattery or lying, but in the sense that I think he’s going to want to take seriously the advantages of the regime to which he’s responding. There’s no question that for much of human history, monarchy was the primary form of politics, the primary regime form in many places. In times and places in Christendom, monarchy was uncritically accepted in the way that many people today would uncritically accept democracy. And that’s really important to say. I think it’s safe to say that in De Regno, as well as in The Summa that Aquinas first and foremost is going to want to affirm the legitimacy of a variety of regime forms. And this is something that you have to keep hammering home to a modern audience that actually there are many different forms of legitimate government. There might be a best one, but the best one might not always be the one that’s most practical. As you know, as well as I do, that Aristotle and Cicero too, and Plato, in their own ways spent a lot of time asking what kind of regime forms are good for different kinds of countries and regimes? So, today we would just say, oh, democracy is the best for every country, end of story. But, you might think that given the varied fortunes of democracy today and certainly since ’45, even if you loved democracy, you might say, “Yeah, there are places where it works and places where it’s more aspirational.” So, I think it’s fair to say, I think you can argue that Aristotle sees really good aspects to monarchy and nevertheless, the mixed regime is much more plausible and much more effective for most settings. Also, bearing in mind that I think for Aquinas, the distance between monarchy and the mixed regime is not as great as it is for us, because he’s not talking about the absolutist monarchies of the 17th and 18th centuries, which could never have existed without the… well, for one thing, without the nation-state, and without the absolutism that went with the post-reformation dispensation. So, he’s talking about monarchies that are heavily constrained, conditioned, and formed by other social bodies, and by norms and unwritten constitutions and in some cases different ethnic and tribal groups. These are not absolutist monarchies. So, there is a distinction for him between a monarchy and the mixed regime, but it’s not as great as I think for him, as it is for us. James M. Patterson So, there’s a sense in which Aquinas is not really recommending a sacral kingship. You talk about towards the end of the book where that the person responsible for the political operation of a monarchy has their authority directly ordered from God, and therefore cannot be questioned by any institutions beneath that order, right? That’s not the kind of monarchy that Aquinas is contemplating? William McCormick No, there is no whiff of divine right monarchy here. Certainly monarchy and all political form is blessed by God and can be blessed and supported by the church, but you don’t need revelation to know what good governance looks like at its most fundamental levels. And that’s why I think why it’s so important that Aquinas has so much use for non-Christian thinkers. Again, he’s not a Baroque Era, or Romantic Era thinker who thinks Christianity turned everything upside down. In fact, that’s why I can’t recommend enough the work of my mentor, the late great Jim Shaw, who was constantly asking, “What does Christianity have to say to politics?” And he would often put this in provocative ways like, “Read the New Testament, read the gospels. How much politics is there? How many times did Jesus call for the overthrowing of regimes?” In some ways, you can say Christianity is a lot less obviously political than Islam and Judaism, although I’m not an expert in either of those, so I don’t claim to have much more to say about it than that. I leave that to Remi Brague and others. But I think it is fair to say that yeah, at the very least I’ll just say there’s no divine right monarchy here. James M. Patterson Yeah, I think that’s right. William McCormick Stop where I started. James M. Patterson Yeah. That’s right. So, another thing that is an odd contradiction in De Regno is that he’s not a fan of tyrannicide in De Regno, but in the earlier, very young Aquinas and the Commentary on the Sentences seems to favor it. And we’ve already gotten a hint of why you would want not to endorse tyrannicide given that De Regno is written for a king. You don’t necessarily want to sign his death warrant when writing him something. But then again, the reason why that’s interesting is because as you really stress in the book, Aquinas is very interested in describing tyranny. Why on earth would you even talk about that to a king? William McCormick It is a really surprising topic to bring up, as you say. And again, it’s another place where genre is so important. This isn’t a treatise. It is a letter written to a king, a specula principum, A Mirror of Princes. And so, to bring up such a delicate issue to a royal reader would seem to be… well, anyway, surprising. It’s incredible too, that Aquinas distinguishes between mild and excessive tyranny in the work, and he suggests that mild tyranny is not altogether uncommon and it’s reformable. So, apparently taking from Aristotle’s discussion of politics, in the Politics, he says one of the ways to preserve a tyranny is actually to convert it into a just regime, is to divert it back to the proper ends of politics. And I think part of the emphasis, there’s so many reasons why he brings up tyranny, but I think part of what he wants to emphasize throughout this work is something that’s pretty boring, that would never make any newspaper headlines, would never get you a journal article, and that’s that politics is really hard work. It is very hard work, and the day in and the day out are far less attractive than the glory, the riches, the Twitter fandom of politics today, or 800 years ago. But that’s what he’s asking the king to turn his attention to, the daily work of politics. And so, there’s a way in which Aquinas wants to comfort the king to say it’s very difficult, and you will fail frequently, and he wants to confront arrogant, proud political elites with their frailty and their limitations. And he wants to do so, I think, in careful ways, but I think he also needs to make that clear. There’s also a really fun implication of all of this, which is that if politics is really hard work, then in stagecraft is a difficult task to which kings can only barely pretend to have any competence in, then how much less can the king claim power over the church? How much more ridiculous is the notion of civil religion? And we see later in De Regno that that’s exactly where Aquinas takes that line of thought. But yeah, if politics is really hard work, and I don’t think you can say that enough, because in most times and most places, I do think leaders rather avoid leading and would rather… well, whatever their generation’s equivalent to Twitter is, that’s what they would want to do. James M. Patterson Joust, I don’t know. William McCormick Well, that’s… yeah. Games, bread, and circuses. That, yeah. James M. Patterson Yeah. So, what is the role of the common good here? That seems to be very vital to the distinction between a monarchy or a good government by the one, and tyranny, which is the evil government of the one. And its significance I guess can’t be overstated considering that tyranny is the worst regime. Most cases, I think you say that at some points, Aquinas maybe contemplates oligarchy might, but we’ll wait for that answer, I guess. What is the role of the common good here? William McCormick Well, the common good is everything. I mean, the common good obviously as you know probably better than I do, is a multivalent term, and certainly what Aquinas is trying to point to in part of the common good is that the common good just is the actualization of the being, the perfection of the citizens in their harmony, in their proper orientation. And the common good isn’t just a set of conditions that allows each person to flourish in his or her own ways. It’s not just an extrinsic good yeah, that the community pursues, but the common good really does mean that human beings can be properly human. And that has maybe a paradoxical or a counterintuitive implication, which is that politics really needs to know its limitations, and politicians need to know that they are not God, and that they are not churchmen for that matter. Precisely because if politics is going to serve the common good, then it has a negative task of not offering a totalizing vision of humanity, of the good of the human person that stamps out those legitimate ends. And this is where you get into all kinds of questions about whether Aquinas was a Whig, or was he some kind of liberal, and obviously those are difficult questions, because there’s so much anachronism and baggage in those conversations. James M. Patterson Absolutely. William McCormick But there’s no doubt that Aquinas is in favor of a limited government or constitutionalism in the broad sense of those terms. Obviously, again, those are anachronistic, but the government is directed and limited and formed according to him by the common good of the human community. So, it’s the most important thing and the least important thing, because you have to flesh out what that means. And again, that’s where he’s going to want to say what are the virtues, the concrete virtues, that a regime is cultivating in its persons, in its citizens? James M. Patterson One way to get at the limit there is in this distinction that you set up earlier in the book between the Liber and the Servus. I was taught classical pronunciation, so I never know how to do the church Latin pronunciations. The idea of there being people who were free in some sense, and those people who are servants or slaves of some variety, in which case a person who is free somehow has a superior place in society in part because they’re more capable of securing for themselves a good that is not just for themselves, but most especially the common good. So, is that right reading of that distinction, or how would you rephrase that, or what do you make of that use in terms of describing the common good in Aquinas? William McCormick Oh, it’s very good and it’s very important. I think that today, of course, we primarily think of freedom in terms of a negative freedom, a freedom from. And that’s very important. There are a lot of negative factors, actors, in the world that you want to be free from. Free from hunger, free from poverty, free from unjust domination, but of course on the other hand, there’s a notion of positive freedom, which is a freedom for, and people probably know the great Dominican Servais Pinckaers has done amazing work on this distinction. And for Aquinas, the Liber, the human person who is free, the human person who is free is free fundamentally if he or she is able to become who he or she is meant to be. If they can really become excellent. And so, a Liber, the free person, so Liber as in Liberal or free, that’s the agent who can participate in the cultivation of his or her own good, and as you say, in the good of other persons. And that’s another aspect that divides a lot of modern from pre-modern notions of freedom, of course, is that freedom in this rich sense of excellence, often draws you closer, into closer association with other persons. Because we are, as McIntyre would say, rational, dependent, animals. We can’t perfect ourselves by ourselves, and there’s so many reasons why that’s the case. But so the kind of autonomy or freedom that would cut us off from other people, that’s not what Aquinas is about. And the Servus… I was also taught classical Latin, by the way, so it’s an occupational hazard. You out yourself with your Latin pronunciation. On the one hand, I think they’re important historic questions about what Aquinas thought about slavery, and what he thought about natural slavery and those debates take you back to Aristotle but also take you forward to debates today. But, I think it’s very possible to abstract these considerations and say yeah, that there are people who are, because of social circumstances, political circumstances, are not able to actualize their freedoms in the rich sense here. That they’re not in a good place, in a good position, to be free for excellence. And I think today, we would say that’s unjust. There’s nothing natural or good about that. Again, I’m not a expert on Aquinas on slavery, but the Liber/Servus distinction is, I think, very important for getting… yeah, for drilling down to what Aquinas means by the common good and how the Liber is called to participate. And again, this is 13th Century stuff. This is not John Locke, this is not Thomas Jefferson or Isaiah Berlin. So, you’re seeing some of the wonderful medieval roots of the best, I think, of the Anglo-American tradition here. James M. Patterson One of the things that appears to be part of the Liber category is the king himself. And the significance for this distinction of Liber and Servus is that what makes the king a Liber in this case is that he’s actually a servant of God. In this case, it’s not to be understood that he’s a servant of God because God ordains him directly in some kind of unique sacral description that we had before, but one of the problems you see Aquinas address, as you describe in the book, the Christian structure of politics, is that why should a king govern at all, let alone govern well? So, what is the king’s reward? William McCormick It’s a great question, and it’s so powerful rhetorically in the book because Aquinas is very aware, as with many great medieval and ancient philosophers, that whatever Aquinas thinks about virtue, many political leaders are not ruling so that they can become more virtuous. So, you have to do a pretty thorough-going critique- James M. Patterson Unlike today, right though? William McCormick Well, there’s that. I think that Aquinas, like Aristotle, like Cicero, like Seneca, like so many great pre-modern authors, confronts what are often taken to be the great rewards of politics. Riches, honor, glory, and the pride and vainglory and arrogance that go along with that. And so, when Aquinas poses this question of the reward of the king, it comes after he’s detailed some of the great difficulties of ruling, and so you’re expecting that there would have to be a pretty amazing reward for the king for it to be worth all of this. And it’s true. It is the case, and not only is it not riches, honors, glory and other things that are passing, it’s something eternal. Something everlasting, the beatific vision, happiness with God. And what’s striking, of course too, is that Aquinas argues that the end, the reward of the king, is not actually different from the reward toward which the king is hopefully shepherding his people. But just as the citizens, all human persons are called to be in union with God to contemplate God on that last day, that the king himself, that his vocation as the king is to move in that direction as well. So, it’s not something its own little path, its own little diversion from the universal call to holiness as we might say today, but it really is the end of every human person. James M. Patterson This is a vision of governance that differs pretty profoundly from the modern vision as you mentioned. But also, one of the problems with the modern treatment of the common good, we see this, at least in my view, with some of the more recent criticisms of liberalism, surface seen among conservative Catholics today, is that because the common good is precisely common, it’s ordered to coming prior to any private good, right? So, the idea of civil peace would come prior to, for example, the ownership of a particular car. How is it that Aquinas avoids turning the common good into something totalitarian, right? Something that makes claims on all forms of personal liberty, thus reducing everyone to a Servus rather than a Liber? William McCormick I think there are people who have definitely thought about this question more than I have, and I think it’s an important question to address to Aquinas, partially because I think he’s less concerned with totalitarian political projects than we are, and certainly the 20th Century was one of the saddest centuries in modernity for this issue. This issue, obviously it’s more than just an issue. But, I think one of the constant refrains in this book, which is quite powerful, is that the king is not God. And Aquinas is clear in this, particularly in Book Two, but in other places as well, that God creates and His part of creating, of course, is to set ends for created objects and created persons. And the king, like all humans, all he can do… and it’s a pretty significant task, but his job is within that order of created goods. He orders them, governs them towards the end that was set by God. In other words, there is a pretty definite vision here of how God has set up creation, and the king is fundamentally unjust, and any person is fundamentally unjust if they somehow seek to direct those creatures away from their God-appointed ends. Which is very important, because there are so many totalitarian visions of politics we know that build a whole quasi-religion out of what the point of a human life is and how the community is to be ordered. And somebody like Mussolini, of course, trying to cover the state in glory and trying to fundamentally idolatrous vision of politics. So, I think that for Aquinas, one of the main limitations on politics is precisely that the king is not God, and that to try to set himself up as God is the worst… it’s heresy, it’s blasphemy, but it’s idolatry in a really practical sense. You think of John Milton’s Satan. “Evil be my good,” that’s precisely what Aquinas says a king cannot do. James M. Patterson So, as you said a little earlier, and as you do a wonderful job of explaining in the book, this is a specula. This is a Mirror of Princes, and for many readers, and for many listeners to this podcast, they’ll be more familiar with another specula, and it’s unfair, because it was a subversion of the genre. And this, of course, is Machiavelli’s The Prince. And one of my favorite parts of this book was your discussion of how Machiavelli and Aquinas differ in their treatment of a figure of great importance to both of them, and that is Moses. So, I think this ties closely to the question that we just had about the king and the common good. So, what do we see here in this discussion, and tell me more about it? William McCormick Moses is one of the most fascinating figures in the history of political thought, and I think a lot of people are surprised to see how often he’s invoked by Aquinas, how often he’s invoked by Spinoza in very [inaudible 00:30:00] ways. James M. Patterson This is true. William McCormick And certainly Hobbes. Thomas Hobbes has, obviously, no use for Moses even though he’s deeply envious of him in a pathological way. And Machiavelli admires Moses for the same reasons. James M. Patterson I want to apologize to listeners who are fond of Hobbes, but I cannot get enough Hobbes bashing in any way possible, so I am only encouraging this. William McCormick You’ll find no love for Hobbes in my corner. I think he is very profoundly, interestingly wrong. He’s never wrong in a yeah, in a boring way. When he is wrong, he is really importantly wrong. Anyway, we can get into that later. James M. Patterson Different podcast. William McCormick Machiavelli’s The Prince is such an engrossing text, and the treatment of Moses is incredible, because Machiavelli says, as many know, he says he’s not going to treat on Moses, because obviously Moses was a prophet and a man of God. And that really is Aquinas’ point of departure, that Moses was such a brilliant leader because in a really privileged way, he saw the ends that God had set for the Hebrew people. And indeed, there was a covenant. It wasn’t just the general ends from creation, but God had entered into a covenant with His people, and Moses faithfully shepherded them within that framework. That sounds like a legalistic term, but Moses sought to help them be faithful to that covenant. But Moses gets a different treatment in Machiavelli, and Machiavelli is so fascinated in what he calls unarmed prophets. Probably because Machiavelli was hoping to become an unarmed prophet of a sort. For Machiavelli, Moses is so fascinating because he thinks of Moses as one of the greatest charlatans and frauds of all time. He came up with this kooky religion, and he was able to use it to control the people very effectively. So, he wishes somebody like Cesare Borgia could have done a better job in that direction. But, you couldn’t see a greater contrast in their treatments that… and it really reflects how they understand virtue, that to be, for Aquinas, to be godly, to be virtuous, to be just, is to follow God’s commandments, is to obey his creative, or to conform yourself toward it. And it’s not a bad thing. It actually makes you more of who you’re called to be. But, for Machiavelli, as you know, virtue is a euphemism for… well, it can be many things. But it often just means a crafty strength that can be used for what’s sometimes understood as good, and sometimes for what’s good is evil. Machiavelli thinks that distinction between good and evil matters, because appearances can be used to influence and control. But yeah, for Machiavelli, Moses really is this crafty charlatan who’s able to manipulate the masses. And it’s a really disgusting picture of Moses. It’s deeply anti-Semitic of course. James M. Patterson Sure. William McCormick Yeah. But the contract between The Prince and De Regno are fascinating. I’m glad you brought it up. I had to cut so much of that stuff out of the book, so I’m hoping to put it somewhere else someday. James M. Patterson Well, I would be very excited to read the… I did not know that you had to cut stuff from there. But as I was reading it, I was wanting more, so clearly I should not be editing these books. Right? Because I’d be like, “Oh, digression on Moses? Yes, please.” William McCormick Thank God for good editors. They save academics from themselves every single day. Every single day. James M. Patterson It is true. It’s true. I don’t know how they do it. So, we’re coming to a little past 30 minutes, and so we should start looking towards a bigger picture before we close, which is why De Regno? Have I been saying… you say De Regno, and I’m wondering I’m saying this… am I saying this right? William McCormick No, no. It’s fine. The gn in Latin is sometimes pronounced like the gn in Italian by people more in medieval studies or more ecclesiastical circles, but you’re saying it just fine. James M. Patterson Okay. That’s always that problem with students, right, where the students have read more than they’ve said? William McCormick Exactly. Right. James M. Patterson So they’ll start saying words incorrectly. So, let’s just go with me just being a brilliant student. William McCormick Please. Please. It’s a good problem to have. It’s a great problem to have. James M. Patterson So, why write this book in the year of our lord 2021 and 2022? William McCormick Well, I think the short answer is that Aquinas has a great deal to teach us, and I think that the vision of politics were sometimes handed down, that said to be from him, coming from the Treatise on Law, or the Question on Law. It’s really beautiful, it’s really important, but I think that De Regno offers a far more supple vision of politics coming from Aquinas. Certainly we live in times when all of these categories, every single major concept we discussed, they are contested. And so, some of them really should be. I mean, the history of politics is littered with the really egregious invocations of these terms. But I think that there’s still so much to be said about the classical notions of justice, of right, of law, of the common good, and what those aren’t straight jackets that conform us to very narrow visions of politics. They actually are congruent with a very ample vision of prudence, with a very ample application across a variety of different regimes across different circumstances in which humans find themselves acting politically. And I’ll just say this, I mean to go back to what I started with, we’re in a really strange moment in the 21st Century, and maybe we have been for much of late modernity, I don’t know. We’re suffering from a lack of confidence in our political institutions and in our norms and values, and so I’m one of those people who suggest that there’s a great deal to be learned from the past. And if nothing else, this is an act of ressourcement, as it were. Trying to uncover some of the tradition that we don’t need to reinvent the wheel. I think everything we’re saying has already been said a couple of times, but we certainly need to be reminded of them regularly, apparently. James M. Patterson That’s right. At least he gives us the right questions. I happen to be pretty sympathetic to the answers, especially as you interpret them in your book The Christian Structure of Politics: On De Regno of Thomas Aquinas. There’s my reformed pronunciation. Thank you so much for this wonderful conversation, and the next time you’re going to be on here, it’s going to be on that article that’s going to come out on the Treatments of Moses. Look, that’s coming out, right? I’ll see it done. William McCormick Well, with this kind of encouragement, I think I have to. It’s moving to the top of the to-do list. Thank you.  I appreciate that encouragement, and yeah. Thank you so much for having me. This was delightful. James M. Patterson Thank you so much.

Samuel Gregg: Hello. Welcome to Liberty Law Talk. My name is Sam Gregg and I am distinguished fellow in political economy at the American Institute for Economic Research, and I’m also contributing editor at Law & Liberty. Thanks for joining us today. 260 years ago in 1762, a middle-aged professor at the University of Glasgow was delivering as part of his normal teaching load you might say a series of lectures on jurisprudence. And in that audience a number of students were busy taking notes as any good student, I suppose, does even today. One set of those notes, however, was discovered in 1895. So over 130 years later. And it had come into the hands of an Edinburgh lawyer. Now, normally discovery of this type would be neither here nor there, except for the fact that these notes were from lectures delivered by Adam Smith, the great Scottish enlightenment thinker whose Wealth of Nations was a book that literally changed the world. That book, as well as Smith’s other writings including the book we’re going to be discussing today, Adam Smith’s lectures on jurisprudence, have all been published by Liberty Fund. And I think it’s fair to say that lectures on jurisprudence is perhaps the least known of Smith’s words that have come down to us today. So joining me to discuss lectures on jurisprudence, it’s my great pleasure to welcome to Liberty Law Talk today professor James T. Otteson. He is the John T. Ryan Jr. professor in business ethics at the Mendoza College of Business at the University of Notre Dame. He specializes in business ethics, political economy, history of economic thought, and 18th-century Moral Philosophy. Previously professor Otteson taught at Wake Forest University, Yeshiva University, Georgetown University, and the University of Alabama. Some of his books include Adam Smith’s Marketplace of Life, 2002. Actual Ethics, 2006. Adam Smith, 2013. The End of Socialism, 2014. And The Essential Adam Smith, 2018. And his forthcoming book, Reexamining The Ethics of Wealth Distribution. He has a BA from Notre Dame and he also has a Ph.D. from the University of Chicago. He’s also, in my view, my humble opinion, perhaps one of the world’s leading Adam Smith scholars today. Today he’s joining me to discuss, as you may have guessed from his bio, Adam Smith and, more specifically, some of his writings that have received less attention—in particular Smith’s lectures on jurisprudence. Jim, welcome to the Liberty Law Talk. James Otteson: Thank you so much, Sam. It’s my pleasure to be with you. Thank you for having me. Samuel Gregg: So I thought we might begin by putting these lectures of Adam Smith in their context. So, can you tell us a little bit about how it was that Adam Smith came to be giving lectures on legal philosophy in the 1760s? James Otteson: I’m happy to do that and you’re quite right. The lectures on jurisprudence are not something that get discussed very much anymore. So Adam Smith was the author of two published books, only two. The first was The Theory of Moral Sentiments, which came out in 1759 in the first edition, and then the now much more famous inquiry into the nature and causes of The Wealth of Nations, which came out in 1776. So rather auspicious year. But those were the only two books that he actually published. They each went through several editions. He was born in 1723. He died in 1790. About a week before he died, he called a couple of his colleagues to his quarters. I guess he had a bit of a notion that it wouldn’t be much longer that he would be alive. He asked them to burn his manuscripts, and so those colleagues actually burned 16 volumes of manuscripts. We can only guess what was in them, but one set of documents that was probably in those burned manuscripts was what we now have as the lectures on jurisprudence. So these lecture notes, as you mentioned, were first discovered in 1895; they were the student notes from two different years that he had given this course called lectures on jurisprudence. He was teaching jurisprudence at the University of Glasgow. He first started at the University of Glasgow in 1751 as a professor. He was only 28 years old. In 1752 after just one year, the prior professor who had been the Chair of Moral Philosophy at Glasgow passed away and so Smith became the Chair of Moral Philosophy at the University of Glasgow in 1752. He was only 29 years old if you can imagine. And he began giving, among other things, these lectures on jurisprudence and that’s what we have. Samuel Gregg: So tell us a little bit about how Smith saw jurisprudence fitting into the wider scheme of university education that he was engaged in teaching. James Otteson: Yeah. So as a Chair of Moral Philosophy, so something to note about professorships in the 18th century in Britain and in Scotland in particular, people were considered professors of one of two things. Either you are a professor of moral philosophy or you’re a professor of natural philosophy. So natural philosophy was all of the subjects that related to the natural world, the non-human natural world. So everything from astronomy to what we would now, now that it has been subsequently broken up into disciplines like geology and botany and all these other fields that study the natural world. That was under natural philosophy. And then moral philosophy, which is what Smith was, that was a field that pertained to all of the aspects of the study of human behavior. So everything we would today recognize as being in psychology, in human history, in politics, and also in moral philosophy. And all of those were fields that Smith was teaching in. So as the Chair of Moral Philosophy in Glasgow, he was teaching a range of courses—everything from logic to natural theology to moral philosophy and then to jurisprudence, which was, at the time and what Smith considered it, he study of the laws and regulations that were required essentially for a successful society. So when Smith was giving lectures on jurisprudence what he was effectively doing is giving kind of two parts of it. One was the history of the development of human societies. So he gave his theory about why you had different kinds of governments and different kinds of laws and regulations in different humans societies. And then also he was making recommendations about, given the kinds of goals that we might have in human society, what kinds of laws, regulations, et cetera, should we have? All of that fell under the topic of jurisprudence as one part of the study of human life and human behavior. Samuel Gregg: So clearly jurisprudence in the way it was taught, in the way it was understood in the 18th-century, particularly in the Scottish universities at the time, it clearly embraced a lot more than would typically be put under that type of topic today. So can you tell us something about the actual structure of Smith’s lectures on jurisprudence? James Otteson: Yeah. So it was a year long course that typically met every single day. So you would meet once a day for nearly a full calendar year. So it was quite a bit of material. It wasn’t just a three month long course, which you would get in college today, but the structure of it started out with what the subject matter of jurisprudence was and then began working out Smith’s theory as it were of jurisprudence. So everything having to do with, according to Smith anyway and Mr. Smith’s understanding, jurisprudence started with a conception of justice. What actually is justice? What are the different conceptions of justice? Then what are, he called police or what we might call policy today? So what are the rules or regulations or laws that are appropriate to the conceptions of justice? What are the proper objects of justice? Meaning what kinds of things should justice pay attention to and therefore what should the government pay attention to? But he also, in his course on jurisprudence, went into the area that we would now think of as more appropriate to economics or his Wealth of Nation’s book. He talked about revenue. So where did the government get its money? Where does wealth come from? So he talked about that as well. And then also, how do you protect the government and how do you protect society? So things like military and arms, et cetera. So it was quite a wide-ranging course, quite a wide ranging topic. And he went into enormous amount of detail, both historical—so, descriptive talking about how different times and different places approached these topics, and then also normative or prescriptive. What he thought we should actually have. What would be good for Scotland? What was good for Britain? What was good for Europe? What was good for even the Americas? He was talking about what was going on in the Americas at the time. Samuel Gregg: So, I’d like to come back a little later to talk about a few of those things that you just mentioned, in particular, some of the topics that get included under particular parts of his lectures on jurisprudence. But before we do that, I’ve got another question. I imagine that like any professor, there were things that Smith was obliged to teach if only because the people sitting in the class, many of them I suspect would’ve gone on to become practicing lawyers and practicing lawyers need to know certain things that have relatively little to do with the philosophical preferences or interests of a given lecturer. So you do something like contracts or torts or whatever it happens to be. And it’s like a sort of professional training, but that said, I imagine, just any other professor, there were particular emphasis that Smith would have brought to bear, or at least tried to bring into the discussion, during his lecturing. So I was wondering if you could tell us what some of those particular emphasis may have been. James Otteson: Yeah. You’re quite right about all of that. I mean, we do have one anecdote about Smith that I’ll just relate to give you a little bit of a glimpse of what seems to have been his personality. When he first started teaching at the University of Glasgow in 1751, he was asked to teach a course on logic. And one of his students, who reported many years later about what that course was like, noted that Smith began the course and spent about the first week or so of the course teaching what he was supposed to teach. And then he immediately started going off onto other subjects, which were much closer to what we might think of in the Wealth of Nations and the lectures on jurisprudence even in his logic course. Even as a young man, he was only 28 at the time, he had a bit of an independent streak, but you’re right. The course on jurisprudence was in part intended. It was supposed to prepare people for a profession in the law. So many future attorneys would’ve been in the audience. And one of the central subjects, I mean, there are lots of things that were supposed to have been covered, but one of the things, and I think this might be a particular interest and maybe is even behind the question you’re asking, one of the things that Smith would’ve been expected to talk about was natural law. So he would’ve been expected to review Locke and other major figures in the history of, especially British natural law theory and British common law as informed by British by natural law theory. And so in fact, he did do that. And one of the things that’s interesting about it. So he talked quite a bit about Locke and others. If we’re talking about what constitutes an injury, and there are different theories of justice, what constitutes an injury? Well you can be injured, as Smith said, as a human being, as a man, as a member of a family, as a member of a state. You can be injured in your body, in your property, in your reputation center. So he walks through these things all with this kind of background of a sort of Lockian natural law. One of the things that I think is interesting about this, though, is that if you look at the other works that Smith talked about, that wrote, The Theory of Moral Sentiments or the Wealth of Nations, almost all of that is absent. There’s virtually no talk of natural law, no talk of natural rights. So he did it, he discussed it in his lectures on jurisprudence. So he is obviously aware of the tradition, took it very seriously, but it did not come to inform much of his own theories. Samuel Gregg: Well that’s interesting as well because I was going to ask you about that and the way he talks about natural rights. And as you say, he does make reference to people like Locke. Although it’s not entirely clear that he accepts Locke’s own particular thesis, but like any professor, you have to teach things you don’t necessarily agree with because some of these ideas were taken very seriously by judges and lawyers at the time. But there’s two particular influences I’d like to, if indeed they are there, that I’d be interested in hearing you say more about, and that is the two H’s, David Hume and Francis Hutcheson. Do you have any sense of any particular influences of their thought upon these lectures? Smith suggests that if 20% of the revenue of society [is] being taken by taxation, then citizens should take a long, hard look at whether that’s really benefiting them and enabling the increase of prosperity, or is it just satisfying the needs of people in government. James Otteson: Yes. That’s a good question. I think both of them were quite influential on Smith’s thought. And they may help explain why it is that when Smith came to develop his own theories about justice and then ultimately about what we consider economics and the Wealth of Nations, that there’s not a lot of reliance on natural law or natural law theory. I think certainly with Hutcheson and also with Hume, Smith’s takes something of an empirical approach to these questions and he develops a theory, for example, of government. When he’s talking about the origins of government, he explicitly rejects in the lectures on jurisprudence Locke’s theory of a kind of original contract. Samuel Gregg: A sort of state of nature. James Otteson: Yeah. I mean, it wasn’t only Locke who had this view, but I think here you do see the influence of Hume in particular, but Smith says, now that this is just a fiction. There really wasn’t any original contract. There was nothing like an original contract. There was no state of nature when men came together and decided what the form of government should be. It’s much more of an evolutionary process. So one thing that he gets from Hume I think is something like a developmental process as human society developed through these stages. So he offers a theory of stages of human society; You begin with hunters. Human beings are basically hunting parties where there’s no government at all, according to Smith. They eventually develop into shepherds where they have their own herds of animals. At that point, they develop something of a root. That’s the first stage of actual government according to Smith. They develop something of a rude state of monarchy. Then they develop into farming and agriculture where they have land and property. At that point they need a little bit more sophisticated government that’s going to have conceptions of justice that apply to property in particular. And I think we see some influence from Hutcheson in the importance of property. The kind of government appropriate there Smith thinks is aristocracy. And then the fourth and final stage, according to Smith, of human, social, or societal development is what he calls democracy. This emerges when human society develops to the stage where commerce becomes the dominant economic activity of society. That’s the highest final stage. So at all of these stages, the applicable conceptions of justice and the right proper sets of laws and regulations or the proper form of government, changes according to human development as Smith argues. And that I think really is a very large influence of this kind of developmental and observational approach that shows the influence of people like Hume in particular, but also Hutcheson. Samuel Gregg: You mentioned the civilizational development theory. I imagine this also reflects Lord Kames as well, right, because as I understand it, his thinking about law and society in general is very shaped by this particular type of account of Hume at the development of human civilization. James Otteson: Yes. That’s a good observation, Sam. And I think these are elements of what came to be known as, and is sometimes called, the Scottish historical school of social science, which is we’re going to try to apply the approach that Isaac Newton had such great success with for the natural world. We’re going to try to apply that to the human world and what that means is we’re going to try to actually look at various kinds of experiments that human beings have run. And by experiments, different human societies in different times and places. We’re going to see what kinds of principles we can see might be at work in these things, but it’s not an apriori deduction. It’s not sitting in our offices and trying to intuit or God’s will, for example, and figure out what the essential nature of human beings is. And instead we’re going we’re going to look at the world empirically and I think that is influential, you’re right, Kames. I mean, in others, we’re talking about the development of language, the development of law, the development of governments, all of this was this new way of trying to understand human society as being a process of historical development over time. Samuel Gregg: So I’d like to shift the discussion now to a topic which I’m sure you’ve thought a great deal about, which is lectures on jurisprudence and its relationship to the more well-known texts of Adam Smith, specifically The Theory of Moral Sentiment and his Wealth of Nations. So these lectures were, at least the notes that we have of these lectures, were recorded after the publication of The Theory of Moral Sentiments in 1759. So, do you see traces of elements of some of the thought that’s expressed in Smith’s Theory of Moral Sentiments within parts or even sections of his lectures on jurisprudence? James Otteson: That’s a good question. I do see a couple. In fact, I see a handful, but I’ll just mention a couple. So first of all in the conception of justice that Smith discusses and lectures on jurisprudence, he had already articulated in The Theory of Moral Sentiments. So as you mentioned, Theory of Moral Sentiments comes out a couple of years before the first report of the lectures that we get on jurisprudence. But right at the beginning of the lectures on jurisprudence, Smith talks about justice being what he calls securing people from injury. So, the kind of justice he’s interested in is protecting people against incursions on their persons, on their property, or on their voluntary contracts or voluntary promises as he said. It’s the kind of negative conception of justice. In other words, you’re acting justly as long as you refrain from imposing harm or injury onto another person. That’s exactly the conception of justice that he had articulated and quite carefully in The Theory of Moral Sentiments. So in The Theory of Moral Sentiments, this is the development, this is the conception of justice. He says that in all societies, it’s both necessary and sufficient for human society to exist. And all of the positive moral duties of friendship and loyalty and charity, these sorts of things are what he calls the embellishments of society, but they’re not necessary for society to exist. So in the lectures on jurisprudence, he elaborates on exactly that. Why is this negative conception of justice so necessary for the existence of any kind of human society whatsoever? And how does it apply to various aspects of human society from your bodily person to your property? What kinds of property even potentially your reputation, et cetera. So that’s one way where I see a clear connection, but I will mention if you allow me just one other. So in The Theory of Moral Sentiments, Smith develops this claim about sort of the ultimate or final adjudicator of moral propriety is what he calls the impartial spectator. So if you want to know whether you’re acting rightly or wrongly you imagine what a disinterested person who fully knows your situation, an impartial spectator he calls them, what would such a person think about what you are doing and how would such a person judge your behavior? That notion of the impartial spectator is all over in the lectures on jurisprudence. In particular on what counts as property. So it’s very interesting. I think Smith developed something of an impartial spectator theory of property. So in other words, how long do you have to be farming a particular plot of land in order for you now to have property rights in it? Smith’s answer to that is, “Well what would an impartial spectator think?” Samuel Gregg: Does he actually use that expression? James Otteson: Oh yes, he does. He does. In fact, quite repeatedly. So he connects it with what he thinks is reasonable. So he says, “What would a reasonable person think is long enough possession to now entail rights to land,” let’s say. Well the impartial spectator is the way you imagine what is reasonable. Or what’s a reasonable contract of employment? Ask yourself what an impartial spectator would think. So that’s a kind of impartial spectator theory of property, of contracts, etc. That’s all through the lectures on jurisprudence and he develops that first in The Theory of Moral Sentiments. Samuel Gregg: Well let’s shift to the second and of course the best known of Smith’s works, the Wealth of Nations, published, of course, in that momentous year of 1776. Now, the Wealth of Nations is published after these notes on jurisprudence were taken. And I should mention that it wasn’t very long after these notes on jurisprudence were recorded that Smith effectively retired as professor of Moral Philosophy at the University of Glasgow. So, I guess my question to you is this—In what way do we find particular ideas expressed in the lectures on jurisprudence, in what way do we find some of these ideas manifesting themselves in the Wealth of Nations? James Otteson: So in a handful of ways. It’s a good question. So you’re right that Smith actually retired, as you say, from being a professor at the University of Glasgow in 1764. He was the ripe old age of 41, but he left to become a personal tutor to the Duke of Buccleuch. So he did some traveling with the Duke of Buccleuch, became his personal tutor, and it wasn’t until 1776 that the Wealth of Nations was published. And remember, the lectures on jurisprudence, what we have are students notes from his lectures. So we don’t still have Smith’s own lecture notes. We have carefully compiled, in fact extraordinarily carefully compiled notes, but they are students’ notes, not Smith’s own notes. But one aspect of the lectures on jurisprudence, one aspect of the course that he taught and so therefore part of the lecture notes that we have, pertains to what Smith calls revenue. So governments at different stages of their development will have different proper activities and some of these proper activities will require revenue to execute. So for example, once we’ve gone from say farming to commerce, Smith thinks we’re going to need to have protection against foreign aggression. We’re going to need to have protection even against internal or domestic aggression. And against foreign aggression that requires some kind of military, an army, perhaps a Navy, protecting us against domestic aggression that requires police and courts, et cetera. All of that is pertaining to property. So as human societies develop, they begin to have a much greater dependence on property and property can only serve the function it’s going to serve if it’s protected, if people are secure in their property. So they need police, courts, et cetera, domestically and militarily for foreign aggression. In both of those cases, what Smith is assuming, which will become much more evident in the Wealth of Nations, is that what we want is increasing prosperity for our society. So we want increasingly to generate revenue that will enable us to alleviate poverty, to increase the resources—what he calls the necessaries and conveniences that are available to people in our society, including in particular the poor—and in order to enable that to happen we need a government that’s going to protect property and that means we’re going to have to think about we, meaning people who are setting policy in the government, are going to have to think about how do we get the revenue that would enable us to support police, courts, military, et cetera? So you get a lot of discussion in the lectures on jurisprudence about what are the best ways to tax? What are bad ways to tax? What are the good things to tax for? What are bad things to tax for? And he’s very sensitive to not allowing taxation policy to actually inhibit the growth and prosperity and vitality of a society.—to serve it rather than for society to serve it. And I would just mention he, on more than one occasion in the lectures on jurisprudence, talks about the right to revolt. So he does think that onerous taxation can actually justify a right to revolt and a couple of times he says that, if taxation reaches the level of something like half of our revenue, if the government is consuming half of our revenue through taxation, then maybe we should revolt because that means that the purposes it’s serving are the government’s own services rather than the prosperity of society more generally. One place he actually suggests that not just half, but even if it’s a fifth, one fifth, so 20% of the revenue of society, if that’s being taken by taxation, then citizens should take a long, hard look at whether that’s really benefiting them and enabling the increase of prosperity, or is it just satisfying the needs of people in government? Samuel Gregg: It sort of reminds me of what you just said. Reminds me of what John Maynard Keynes once wrote in a letter where he said that something like 25% of income is the upper limit he thought was appropriate for the government to take by way of taxation. So we are clearly living in a very different world today by that standard. And that brings me to my next question and you’ve sort of alluded to this. When you read these lectures, what do you think they tell us about Smith’s view of the role of government in the economy? Because you look at part two of the lectures on jurisprudence, which of course is entitled of police, which goes back to something you mentioned before, the way in which this text or this series of lectures were structured. So I’m wondering what you think these lectures tell us, at least at this point of time in Smith’s life and thinking, what he thinks is the proper role of government in the economy? James Otteson: That’s a good question. It’s a big question. So, I think what we see here is Smith’s thinking about this probably evolving as a result of his study of the history of human experiments in government and in society. So he is astonishingly learned when it comes to human history and different experiments in human society. And if you read through the lectures on jurisprudence, you see examples drawn from numerous countries, numerous areas, and he’s not just a cursory familiarity. He’s actually done some very careful reading of law books and statutes, et cetera. So he’s very well learned, but I think what we see is his thinking about this is evolving. And what he’s beginning to think is that the proper role of government is to enable people, individuals, human beings, and groups of individuals, to improve their own lives rather than working directly to give them or improve their lives for them. So I think what he’s beginning to do is to sort invert the classical or at least a very influential classical view about the role of say elites in society where if you think about Plato’s Republic, for example, going all the way back to Plato and the Republic, what’s the role of the intellectual elite in society? Well according to Plato, the philosopher should be kings or queens. They’re the ones who understand the good of society. They should organize society in terms of the good. In the lectures on jurisprudence what I think you see Smith seeing is that there have been so many attempts and experiments at this that so often don’t seem to work out the way we want them to that perhaps what government should do and what elites in government should do is instead lower their aims a bit. Rather than “I’m going to create the ideally good city or the ideally good state or the ideally good country,” instead maybe what we should first try to do is to create conditions in which individuals can improve their own lives. And that’s sort of lowering the sights quite a bit. You’re no longer the philosopher king who’s going to determine the entire composition of society, but instead I think what Smith thinks is that this is something that might actually be achievable. In other words, in the real world with real human beings facing the cognitive and resource limits that we have, maybe something that’s achievable and would not be such a small achievement. Samuel Gregg: So we’re getting close to the end of this Liberty Law Talk podcast episode and I’d like to conclude by asking you the following sort of very generic question, but I think it would be important for our listeners to hear your thoughts about. If there’s any part of the lectures on jurisprudence that you would recommend to those people who are interested in law, politics, political economy, or even just the history of ideas, what would be the parts of the text that you would strongly recommend for our listeners? James Otteson: Okay. That’s a great question, Sam. So we have two students’ notes from the lectures on jurisprudence. I think I would look at the second set of notes. It’s the report dated 1766. Sometimes called lectures on jurisprudence letter B. So the second set of notes. I think those are a little bit more comprehensive and a little bit more carefully constructed, but I think really all you have to do is read the first 20 pages or so. So if you just read the part one of justice, you’re going to get quite a bit of the actual meat of Smith’s theory, including his discussion of Locke and the American founding, his rejection of the notion of an original contract. You’re going to get some of his discussion of the stages of development of society from hunters to shepherds, farming, commerce, and the different kinds of government that he thinks is appropriate to it. And you’re even going to get, even in just the first 20 pages or so, you’re going to get a little discussion of how successful different kinds of government were in, on the one hand protecting the liberty of their subjects and on the other hand, encouraging prosperity. So I would say if you look at say the first 30 or so pages of the second report, that would be the first place I would recommend. Samuel Gregg: Well thank you very much, professor Otteson. I know you’re a busy man and you’ve got other things you need to do, but we’re very grateful that you’ve joined us today on Liberty Law Talk to discuss those lectures on jurisprudence, which I suspect you wish more students of Adam Smith and the Scottish enlightenment knew more about. So James Otteson, thank you very much for being with us. James Otteson: My pleasure. Thank you very much, Sam.

Over the last few weeks of the recently-concluded term, the Supreme Court handed down one blockbuster decision after another on issues including religious liberty, guns, the limits of the administrative state, and of course abortion. The decisions have sent shockwaves through the political system, and many are saying that this term will go down as one of the most important turning points in the history of the Court, as it shifts sharply in a more originalist direction. John McGinnis joins Liberty Law Talk to discuss the monumental decisions in Dobbs v. Jackson Women’s Health, NY State Rifle & Pistol Association v. Bruen, Carson v. Makin, Kennedy v. Bremerton, and West Virginia v. EPA.