Richard Reinsch: Welcome to Liberty Law Talk. Today we’re with Scott Lincicome senior fellow in economic studies at the Cato Institute about industrial policy, its prospects, what it means, and what its consequences would be if we had something like that fully implemented. Scott, as I mentioned is at the Cato Institute in economic studies, he writes on international and domestic economic issues, including trade subsidies, industrial policy, global supply chains, all the things that are in the news, we’re discussing. Scott, glad to have you on the program. Scott Lincicome: Thanks for having me. Good to be here. Richard Reinsch: Thinking about industrial policy and I’ve read a lot of your work on it. What is industrial policy? Scott Lincicome: Great question, because it’s funny to start there, but it’s really necessary because so often you hear, especially from industrial policy advocates it is anything and everything. It is what gave us the iPhone and COVID vaccines and everything in between, you name it. If it is a technological marble of any sort, you will hear that it was a result of industrial policy. The reality is as you and surprisingly, listeners might find out is far different. And that’s because if you look back at the history of industrial policy and we have a lot of it, in not just the United States, but around the world. If you go back to the Hamiltonian report on manufacturers, surely there was some industrial policy baked into that. The question is whether that actually first of all, was fully implemented. The history shows that it really wasn’t. But second, is, was that really effective? Did it actually achieve outcomes that were better than what the market would’ve done and that’s where I think, especially in that Hamiltonian high tariff, industrial intervention era of the 19th century, you really see that at least the scholarship on the issue says that, you know what, it really didn’t work as well as people will claim. Experts tend to coalesce around a few really essential defining characteristics of what is industrial policy. First, you need a national strategy or a plan of some sort. This isn’t just government funding for basic research, for example, where, you give a bunch of smart people grants to do some research, and they might stumble upon some amazing thing while they’re doing their work at some university. You need a national strategy and a plan to achieve some sort of objective. The next thing is you need to then pursue into that strategy. You’re going to have a targeted microeconomic meaning company, industry, firm, specific stuff. Microeconomic policies, things like tariffs or subsidies or localization mandates or the rest. And those policies are going to be intended to achieve specific market beating commercial outcomes. Making that really simple, this isn’t like building a fighter jet, and it’s not just simply to try to achieve some objective that the market could achieve. It’s essentially saying, look, no, the market has failed, and in order to achieve our national strategy, we have to intervene in the market. We have to beat the market. Because there is apparently this market failure. And then the last part is there has to be an element of nationalism in all of this. This is not just simply establishing a prize and saying anybody who can deliver an amazing technology to us gets the prize. We don’t care where you’re from. We don’t care how you do it. This is far different. This is really the government saying, we want this on national soil. We want it to use American workers, American manufacturing. That’s the only way you can qualify for any of these goodies that we just talked about. Richard Reinsch: As I think about things that I hear when I’m out there regarding industrial policy something that frequently gets trotted out and seems to be received with nods by a lot of people in the room. What is said is the internet is the outcome of industrial policy. COVID vaccine strategy, Operation Warp Speed proves industrial policy. Is there ever a need for industrial policy? And is there ever an argument for it? And I think, so another thing you hear is Alexander Hamilton in the famous report are manufacturers. America itself from our founding, some would say is rooted in industrial policy, is comfortable with it. Scott Lincicome: Yeah. And I think that, look, if you go back to Hamiltonian report on manufacturers, surely there was some industrial policy baked into that. The question is whether that actually first of all, was fully implemented. The history shows that it really wasn’t. But second, is, was that really effective? Did it actually achieve outcomes that were better than what the market would’ve done and that’s where I think, especially in that Hamiltonian high tariff, industrial intervention era of the 19th century, you really see that at least the scholarship on the issue says that, you know what, it really didn’t work as well as people will claim. That in fact, it was things like rapid demographic expansion and a lot of other factors that drove America’s rise in the late 19th century. It wasn’t really about industrial policy or trade protectionism. Now, the internet one is a great example of what I was just talking about. If you actually look in the history of the United States government’s involvement in the internet, what you see is that very little of those necessary conditions I just said really apply because certainly there was government involvement. You look back at the creation of certain parts of the network and what became potentially modern email and all these things, but you see that a lot of these things were discovered by happenstance. You had a government contractor working on a different project and needed to develop a certain amount of technology or needed a messaging system through the department of defense, they needed to contact each other. The government wasn’t saying, “We want the internet.” They just, again, these researchers are very smart people on a contract and they stumbled upon it. That’s not industrial strategy. That’s simply, there’s just a government touching the thing. You see that a lot in what we hear are industrial policy victories are oftentimes things that, again, people just stumbled upon and the COVID vaccines, I think are another really great example of where industrial policy gets credited for things that really weren’t a lot of industrial policy. Starting with mRNA research. Well, that was first of all, a basic research grant. The researchers were not trying to achieve some amazing market beating vaccine. But beyond that, you actually see that there’s been some great work looking back at the scientist Katalin Kariko, Drew Weissman who actually weren’t primarily being funded for mRNA research. In fact, his grant was on a totally different subject and they really came into their own when they left the government research apparatus and moved to Moderna and BioNTech the German company that brought it forth. And then with respect to the COVID vaccines themselves, one of the great things about the vaccines is that they really show us what a private market alternative would be. And that’s very rare, because when the government gets involved in something, it’s going to tend to crowd out alternatives and then aha if there’s a success, then that was clearly an industrial policy success. But here, we actually had a really excellent contrast because the Pfizer-BioNTech vaccine was almost entirely a private endeavor. The only thing the US government did, well, two things. First, is they eased regulatory constraints. Richard Reinsch: That was nice of them. Scott Lincicome: Exactly. Allowing vaccine production to go in tandem with testing and all that stuff. Typically, they do those things sequentially. They were allowed to do this all at once, and then the other thing is they said, “We’ll pay you for finished doses.” Now, this is essentially a prize format. If you look into the contract of the Pfizer vaccine with the United States government, there’s an entire section that says that the United States government will have no control over the supply chain. Will have no control over the manufacturing process. We will essentially just bring you on a vaccine and if it gets by the FDA, then you’re going to pay us. That is, again, there’s very little micromanagement and in fact, Pfizer used its own resources, its own manufacturing plant, BioNTech used its own research as well. The government only came in really at the end of the process. People talk about BioNTech got money from the German government, but again, that was after the vaccine had been created. And if Pfizer’s executives before Operation Warp Speed ever even existed were predicting, so in say April of 2020, they were predicting have finished doses by December like they did. And so, you contrast that with a much more government centric approach. And here, in fact, we just had headlines today about Emergent BioSolutions. Emergent BioSolutions has been involved with the US government for about a decade or so. They were a plant in Maryland that was specifically funded by the US government to produce vaccines in time of a pandemic, produce medication. Well, Emergent has produced almost none, almost no… At least in no significant commercial quantities vaccines and the government just canceled their contract because they’ve been having tons of problems in the manufacturing facilities in Maryland and J&J was contract the government arranged for Johnson & Johnson to work with Emergent and early on in the pandemic, you heard from a lot of industrial policy advocates that Emergent, that was it. Clearly, this is going to be the success. And now of course they’re quietly… All of those comments have quietly disappeared. And when you actually look into the history of Emergent, you see that it’s connections with the government, it’s federal contracting and the rest were a problem that they spent a lot of money on lobbying. They spent a lot of money on winning government contracts, but they weren’t so great when it came to actually producing results. And again, in the vaccines, we see that. You have a much more market-oriented vaccine in the Pfizer-BioNTech vaccine, and then you have a much more government-oriented approach in the J&J Emergent. And I think that that provides us really with this incredible contrast that we don’t normally have. And so, I think that’s the type of counter factual we really need to apply to industrial policy supposed successes. Because look, the government’s not going to go all for infinity. There’s going to be some successes in there. And the question though, is were those successes really something that beat the market, that the market could not achieve in the absence of government intervention? [And again, I think the vaccines give us a really excellent teachable moment in that regard. Richard Reinsch: Yeah. And on that point, thinking about the internet, it is the case that government researchers and DARPA stumble onto the technology, create a form of it. But it’s corporations in a market that develop a technology and make it a commercial product that changed the way we all live, basically. Scott Lincicome: Exactly. And that goes for the iPhone too. There’s certainly parts of the iPhone. If you hang out on the internet enough and you are into industrial policy- Richard Reinsch: And I do. Scott Lincicome: …you’re going to run into this meme or picture or whatever that essentially says everything in the iPhone is coming from the government. The government invented the iPhone, right? Richard Reinsch: Yeah. Scott Lincicome: When you dig into that, unfortunately, some researchers have, I wrote about it in my paper, what you see is that certainly, there were some government… A couple guys on a government grant who developed the, I think it was the LCD screen, but they weren’t even trying to develop that technology. They were working on a totally different project, but they needed this tech for what they were doing. But more than that, you look at Taiwan’s economic makeup overall and you see that they are heavily, heavily leveraged in one industry, semiconductors. That’s great when you’re talking about semiconductors, but when you’re talking about biotech and let’s use pharmaceuticals, for example, not so much, they’re laggards. And so, even where you admit there are successes, do you want the government to have that much… Do you want to have an economy that is that unbalanced, that the chances of having bigger problems for not having a more diverse economy are really rather substantial? They stumbled upon it. But the bigger deal is that it took private, took apple and Steve jobs to package all of these different technologies into the iPhone and to develop a manufacturing strategy that involved a lot of globalization and offshoring and all of those nasty things that industrial policy folks, don’t like to achieve a product that would be a success in the commercial market and thus, get consumers to buy it. And that led to all the wonderful upgrades and adaptations and really, the amazing technology that well, I have in my hand right now. And it’s that type of direction or whatever that is really rare in the industrial policy successes, you hear so much about. It’s much more, there are a few things that people stumble upon but then it’s the private actors that create the modern technological miracles. Richard Reinsch: There’s two directions I want to go in. I want to talk about, because I think that brings up just the idea of the knowledge problem, inherent and industrial policy planning, and also I want to talk about other nations in particular Asian nations that we frequently hear about our successes in this regard, but one, just thinking about Steve Jobs’ example and bringing together all these technologies. That’s about specialized knowledge that he in some great way was able to combine along with the people around him and all of the record they had in their industry of thinking about what could actually work and what could we actually build upon and creating this new product. And that gets the famous essay by Friedrich Hayek it was 1948, The Problem of Knowledge and what would a government bureaucrat have to know? When would they have to know it? How would they apply it? What incentive would they have to get it right? And of course, and you’ve been saying this versus, and then compared to what? And is really the thing that they’re trying to do to achieve a political objective on behalf of an ideology or on behalf of a turf battle inside their agency or on behalf of Congress, congressional representative supporting them. All of those things factor in and it just seems like the comparisons ultimately [00:15:00] mean that a government official getting it right is really spectacular. Scott Lincicome: Yeah. And like you were saying, having the specialized knowledge needed to achieve these things is something that requires not only a ton of input from all sorts of different actors. It also requires a willingness and ability to change course quite quickly to admit failure and to then adapt accordingly. Steve Jobs has had some failures too. It wasn’t just all iPhones, iPads and the rest. Richard Reinsch: Yeah. Well, he was fired at one time. Right? And he came back. Scott Lincicome: Right. And so, it’s the willingness to fail that is I think quite often missing from, and again, that’s part of the knowledge process and something that government actors are rarely willing to do. It took Emergent BioSolutions, going back to that company, it took years of failure before the government finally pulled the plug. And thank goodness we had alternative vaccines, because just imagine, if our entire vaccine production was on that model and reliant on the millions of doses that have never left that factory. Think of the damage that that could cause. And so, that gets, I think to another big problem with industrial policy, which is the political influence. That even things that might seem good on paper, even things that might say, “Well, no. We’re going to actually use market input. We’re going to rely on the private sector and all of that.” Very, very often politics intervenes and you have all the public choice issues that arise from that. And that something that looks good on paper after it gets through the sausage baking in Washington, doesn’t look so good when it comes out the other side. And then when it actually fails, it still continues for years and years because it’s hard to turn off the spigot once the technology pork barrel as we call it gets rolling. Richard Reinsch: Yeah. I want to ask you about some Asian supposed successes in industrial policy. You and I, it’s funny, in my research in industrial policy, I stumbled across the amazing statement you found as well, and that’s from the once wanted Japanese ministry of trade, MIDI. And they said, “We thought industrial policy was the source of our success instead we found it was the source of our failure.” Something like that. It’s incredible statement from this once incredible government agency in the Japanese government. Are there successes in say South Korea, Taiwan? Recently, I was at a political economy conference debating this issue and others with people on the right like Warren Cass and he was on a panel and forthrightly said, “The Taiwanese semiconductor industry proves what can happen.” Scott Lincicome: Yeah. Richard Reinsch: And the thing is, well, there has been a great success with semiconductors in Taiwan. We don’t know what would’ve happened without the government getting involved, but to your mind, is the Taiwan Semiconductor success story an industrial policy success story or is it more complicated? Scott Lincicome: Well, yeah. I think it’s certainly more complicated and it’s more complicated in a couple ways. And first is that there’s a lot of myopia from the industrial policy advocates. They see government action, they see a tangible successful outcome and they think aha, that proves we should duplicate that. And it will certainly work as well as it did in that example. Now, the first issue with that though is and this is something you’ve written about as well, is that when you actually dig into what Taiwan did well, their initial innovations were very much Western technology and Western. This was not the government fomenting actual innovation, it was essentially borrowing that tech. You start from that. Now governments have lots of money and they can throw around that money. And certainly, in Taiwan, government subsidies helped boost the industry, but also there was a lot of private action in that. TSMC, the large Taiwan Semiconductor Company is a very well managed private company and government involvement in TSMC is relatively minimal these days. But more than that, you look at Taiwan’s economic makeup overall and you see that they are heavily, heavily leveraged in one industry, semiconductors. That’s great when you’re talking about semiconductors, but when you’re talking about biotech and let’s use pharmaceuticals, for example, not so much, they’re laggards. And so, even where you admit there are successes, do you want the government to have that much… Do you want to have an economy that is that unbalanced, that the chances of having bigger problems for not having a more diverse economy are really rather substantial? Richard Reinsch: Yeah. Scott Lincicome: And then the last part, as you know is the counterfactual. If you look at some of the research, Arvind Panagariya, for example, has done some great work on this. He’s at NYU. And you see that actually Taiwan grew more slowly in its peak industrial policy period than it did outside of those periods. And when you look at other industries outside of Taiwan, so look at South Korea, for example, or Japan, like you mentioned, you actually see that a lot of these companies and these industries ended up being less productive and these big hulking conglomerates that weren’t very innovative or had all sorts of other problems. You certainly say there’s not a world where there aren’t going to be occasional wins, but you have to ask at what cost in terms of the economic makeup of country, in terms of the counterfactuals and the other unintended consequences. Richard Reinsch: I’ve thought, just well you might succeed in the short term. Scott Lincicome: Yeah. Richard Reinsch: Maybe the medium term. One question I’ve thought about in Taiwanese semiconductor success would be, there was government, I think it was a Western executive, maybe it was a Taiwan expatriate, I forget brings this technology and this idea to Taiwan and gets some initial funding through a research institute. And that becomes the basis of the company. But then the company within a couple of years is heavily private. And so, again, like the internet, but what really made it successful was it was private investment. There’s this initial public seed money, but that, to me, isn’t really industrial policy. I don’t think. That’s just, we want the government to do some initial basic investing. And that then creates a lot of momentum for the government doing a lot of things in that regard. But I thought too, what if someone comes up with a better way to design semiconductors and a better way to manufacture them, and you’ve invested in this way and now what? How are you going to retool? That’s also there. Scott Lincicome: First point on the infant industry subsidization and government seed money. This gets to something I wrote about in my paper and have written elsewhere as well, that looking at small developing countries and saying, “Aha, America can and should copy that.” It’s very problematic. The US capital markets are the thickest and most active on the planet. And the idea that we need government seed money for industrial and commercial applications is pretty far-fetched. We are not 1970s Taiwan. And that leaves even aside the political differences and political systems and the rest. Just the same economic arguments that might support some sort of infant industry involvement by the government in a developing economy just really don’t fly in the United States. Richard Reinsch: Yeah. Thinking about, I think the elephant in the room here which seems to give this life is China. Scott Lincicome: Yeah. Richard Reinsch: And thinking about this new missile, hypersonic missile China launched. That made me do a double dig. Not that I think we’re going to go to war with China, but that they seem to be progressing. My impression is they seem to be outdoing us in certain forms of say super computer technology. Obviously, I think this missile they’ve launched is beyond our capability and that all brings to mind this idea again, of maybe the government should be actively engaging in technological discovery and innovation, and then allowing companies then to do something with it. Is that China? Is that what’s going on? Are they a massive success in industrial policy and the interaction between the Chinese state? And I don’t know. I have a hard time thinking of companies being private in China. I know that’s not true. Even the private companies, I think have Chinese government members on their boards. The government is involved in something in every way, but is China this living rebuke and that’s something the economic nationalists point to as well as you know, is maybe we should be more like China. Scott Lincicome: Right. Yeah, there’s a host of problems with that. The first and most basic is, can we be like China? Let’s assume everything is amazing there, that they are dominating in all these technologies. Just, we’ll assume that for the moment, the idea that the US economic and political system would be able to implement China style industrial policies, pretty farfetched. Not only does it require tolerating a lot of cost and a lot of failure and a lot of distortion. But also just simply in sheer terms of how our economic systems are set up, the idea that the United States could somehow be directing bank funding and doing all this type of other stuff with state-owned enterprises is pretty loopy. Barry Naughton, the China expert wrote this great book on Chinese industrial policy and basically said as much. He said the stuff that China can do economically is not really something that Western more market oriented economies can do. That’s the first, I think big problem. The second big problem though, is that when you actually dig into Chinese industrial policy, you see that there are a lot of failures, and certainly there are some successes. They seem to be progressing in AI. You mentioned the hypersonic missile thing. But there are a lot of failures too. For example, China’s been trying for decades to be a champion in semiconductors, and they’re still a decade behind TSMC and Intel and Samsung. Most experts say they might never reach the technological frontier in semiconductors without a massive influx particularly on the human capital side. They need a lot of smart people, but there’s also other hurdles there in terms of materials and equipment and the rest. And so, that’s, I think a huge rebuke because that is one area that the Chinese government has been laser focused for 30 years and they have still not much luck. Automotive, cars is another one. Everybody likes to talk about electric vehicles. Well, China has also been trying to establish a combustion engine industry for decades. They have not done very well there. I think the biggest success is the Chinese acquisition of Volvo, which again, that’s just simply borrowing others’ technology. And there’s several other examples out there of where, even things that look like successes. You say electric vehicles or ship building or the rest have been just immensely costly. We’re talking tens of billions of dollars wasted in bankrupt companies and leveraged loans and the rest. And those are, again, the types of things that well, is that actually good for the Chinese economy, has that actually put them in a stronger position in the long term? And I think the answer there is no. And that gets to the third point, is that regardless of what you think about China’s industrial policy, the fact is that China’s economy and future, they have a lot of significant issues. And it’s funny if I had said this a year ago, people might have laughed at me, but now I think we, in the last year between the crackdowns on private enterprise and entrepreneurship between the Evergrande issue between a lot of folks starting to see China’s debt and demographic problems, China, they are going to get old very soon. They are very top heavy when it comes to the organization of the populous. A lot of old people, not a lot of young people, not a lot of people having babies. Well, that’s a recipe for pretty substantial problems, not just in terms of innovative and productivity, but also things just simply like having a safety net that can function. And then you also look at how the productivity is going there. And a lot of that goes back to… China has significant productivity problems. They are not anywhere near the frontier in most areas. And a lot of that goes back again to their industrial policies. These are state owned enterprises in China are increasingly ascendant. They were receding during the ’90s and early 2000s, but that has changed back. And so, you have a country that, it’s this big hulking ship out there, but then when you look a little closer, you see that it’s old and got some cracks in it. And now, that doesn’t mean that China’s economy’s going to implode. I’m not one of those folks that thinks that China’s on the verge of collapse, but I do think that they have a lot of headwinds and it’s those headwinds that should give us pause. Do we really want first of all, to change the United States economic system because there is this immediate threat of China being a global economic hegemon? That doesn’t seem quite right, but beyond that is, do we want to have all the similar distortions and problems that that type of planning appears to have caused? Richard Reinsch: It seems to be clearly in the last 10 years, something has changed in China regarding the government, which has never been limited by the rule of law, but a much more aggressive, powerful state intervening and killing their golden egg there or- Scott Lincicome: Yeah. Richard Reinsch: …breaking it, which had really launched China economically. Something you also hear a lot about is we invented, our American companies invented software technology and made great gains with it. But the loss has been, they’ve offshored it to China. Scott Lincicome: Right. Richard Reinsch: Or to other countries. And another argument that you then hear is, and of course you and I have a story to tell about that. That makes sense, a logical economic story, but then they say, “But software manufacturing…” Something in the software manufacturing produces ideas for further innovation. And because we don’t do that software manufacturing, we’re missing out on software innovation, what do you make of that argument? Scott Lincicome: Well, it’s a weird argument, I think, because do we want to be truly innovative? Do we want to be the guys who invent the software or do we want to be the guys that just copy it? I’d rather have American companies focused on what’s going to be the next big thing, not focused on simply trying to crank out a bunch of the last big things. And you see this time and time again. If you look at the data on, say US R&D spending, if you look at the data on venture capital, things are still really active in the United States. And in fact, by some measures at all-time highs. We just hit 3% of GDP for research and development spending for the first time ever I think in 2019, which is the last year available and venture capital funding and all these other things have just gone crazy both before and now after the pandemic. And I want folks focused again on the cutting edge and innovative stuff. That’s the stuff that really will define the next 50 years, not the last 50 years. And that’s where we still seem to be headed. Now, look, are there some headwinds and some problems here too? Yeah, sure. But I’d much rather be quite frankly in the United States’ position than China’s in that regard. Richard Reinsch: Yeah. The headwinds you mentioned for China, we have some of those. Scott Lincicome: Yeah. Richard Reinsch: We have demographic problems. We have tremendous debt problems, which we don’t want to actually fix, among other things. All this debate started five or six years ago, industrial policy in America around this constant drip of an argument of manufacturing jobs. And with the loss of manufacturing jobs has hollowed out the middle class. It’s hurt men in particular, it’s been responsible for drug overdose deaths. It’s been responsible for single families and maybe perhaps the decline in our own birth rate. There’s all sorts of things that gets tied to industrial policy to bring back manufacturing jobs. There are cities all over the country that were hit hard by the shift in the 1990s and 2000s. Whether it’s trade with China or automation or just changing industries, moving away from coal or whatever. But we hear a lot about these old industrial cities, what we don’t hear about is that the vast majority of them did adapt. That’s an argument you hear from people I think are smart on a lot of other issues. What would that take? What would it look like? Do you think it’s even possible? I think manufacturing jobs are like 7% of the economy. And I don’t know what number would be good if according to the economic populists, they never say, but what would actually happen if you try to reshore manufacturing jobs? Scott Lincicome: Right. Well, the problem that industrial policy folks have is just a huge contradiction in objectives. On the one hand, they want to have the most innovative and productive companies and manufacturers in advance manufacturing. On the other hand, they want to have a lot of jobs. Well, the problem is that the advanced manufacturing, first of all, the jobs that are there are going to be pretty high skill. They’re going to require if not advanced degrees, at least some, well beyond a high school education, what we call now, gray collar jobs. Yes, you’re working in manufacturing, but also you know how to operate robots, you know how to program some basic programming, that kind of stuff. That’s your first problem. These are not going to be the classic guy working in a steel mill type job, but the bigger problem in advanced manufacturing, there just aren’t a lot of jobs there. And the fact is because they are very capital intensive, they’re going to use again, robots, computers and the rest, and that’s the real story of American manufacturing employment over the really long term. But the bigger problem is that over the long term, going back to say, the 1940s, US manufacturing jobs as a share of employment are just steadily going down, they’re going down at essentially the same clip, and that’s a story of productivity games. There just aren’t a lot of jobs in the advanced, innovative industries that industrial policy folks want. By contrast where the jobs are, are going to be in labor intensive, low wage areas. We have some of those jobs, food manufacturing, for example. We have a very large food manufacturing sector. Most of the food we consume is domestic. Those jobs don’t pay well. You’re lucky if you’re looking at 15 bucks an hour, but they’re the types of jobs that you would need if you’re trying to restore these classic men with a high school degree and nothing more in these small communities and having breadwinner families and all that jazz you hear so much about from industrial policy advocates. Well, yeah. I think theoretically we could reshore these jobs in textiles and the rest, but if we do so they’re going to be tremendously unproductive and thus pretty low paying. And that’s quite frankly, not going to be a good way to orient our economy. I would much rather have industries at the high end and the most innovative and most productive than essentially forcing a certain part of the workforce into these low wage, low productivity sectors. And that’s the trouble we have in some of these issues like so you say male labor force participation and the rest. I don’t think anybody doubts that, hey, there are reasons to be concerned in some of this. There are reasons to be concerned about declining male labor force participation overall, but industrial policy ain’t going to solve the problem. Having just a bunch of additional textile manufacturing in the United States or furniture or food or whatever is not going to solve the problem. These are really complex issues that are some cultural, some demographic, looking at women joining the workforce, some just modernity doing its thing, some related to education and the rest. These are not things that you can just simply flip a switch, impose some textile tariffs and then boom everybody’s having babies again. Richard Reinsch: Yeah, and you mentioned this in your writing that there are a lot of places, regions, cities in America that were heavy industrial and they experienced a decline and then they recovered. Scott Lincicome: Yeah. Richard Reinsch: One you mentioned resonated with me, which is Spartanburg, South Carolina. I’ve been through there a number of times, and it’s a nice city. And you get the sense of this city is robust, economically. Certain places in North Carolina as well, but then you’ve got Pittsburgh, another one, and then you’ve got Youngstown, PA, which never came back, and which… I can’t speak to the decisions that they’ve made but it’s like always wanting someone to save you or always wanting to bring the past back and you’ve just got to let it go and retool, and that hasn’t happened there. And then this question too, of prime age working men. There are a lot of idle men. There’s also a lot of welfare dependency, I think there too. I think there’s a lot of government policies that have made this possible and that rarely gets mentioned. Scott Lincicome: Exactly. Yeah. And that goes back to, I think, the complexity of some of these issues is, is the safety net in some cases doing more harm than good? There have been a series of papers out recently that look at work requirements that were a part of welfare reform in the ’90s and they said that these were at the time these reforms that were accused of being draconian and the rest actually ended up improving the long term out outcomes of single mothers or children in these families that were affected. And those are, again, those types of really more complicated questions, but going back to what you said about Spartanburg versus Youngstown and the rest, and for those who are listening, I wrote an op-ed or a long column on this. But there are cities all over the country that were hit hard by the shift in the 1990s and 2000s. Whether it’s trade with China or automation or just changing industries, moving away from coal or whatever. But we hear a lot about these old industrial cities, what we don’t hear about is that the vast majority of them did adapt. And they adapted, I think in part because of economic policies, I think certain states in particular had really bad economic policies and that makes change more difficult. The other big thing, though, like you said, is that there is this idea of economic nostalgia, that we were a city defined by a certain industry, textiles in Spartanburg or steel in Youngstown, and that’s what we’re going to be. Gosh, darn it, forever. Well, Spartanburg said, “No, you know what…” They saw the writing on the wall in the 1970s and they being industry and political leadership in the state. And so, what did they start doing? Well, they started courting for investors in automotive manufacturing, in tires for Michelin or in automotive in BMW, but also they said, “Look, let’s diversify in the services again.” And they had the willingness and the economic policies in place to adapt and now they’re thriving and those towns, Pittsburgh, another one, those towns are all over the country. We never hear about them. Instead, we hear about Youngstown where Youngstown did not diversify. Youngstown wanted to remain a steel town. Youngstown struggled to do anything beyond that, despite tons of federal intervention. And that I think is the story that we need to tell more on the free market side of things. That certainly some older industrial cities still struggle, but the vast majority of them have moved on. And it’s that contrast, you got to ask, well, why didn’t those cities move on? What were they doing wrong? It’s probably not a failure of federal policy, whether it’s tax, trade or whatever, surely may be some, but it’s far more likely that this is a problem of state and local governance and of other things. I think one of the things we’re looking at in retrospect is that the Milltown economic model where you have a single mill at the center of a town and that the town is undiversified, it’s essentially dependent on a single industry, a single factory or company is a really bad model in terms of withstanding economic shocks. That a diversified city is, and it doesn’t even have to be a place like New York city or San Francisco or whatever. It can be a place like Spartanburg or here in Raleigh, for example, where I live. These are diverse areas and it’s much better to have your eggs in a lot of baskets instead of in one basket. Now, is that a reason for industrial policy or for protectionism or something like that? I think that’s quite manifesting obviously not, but it’s again, an argument and a viewpoint that we rarely hear in the press. It’s all just simply closed mills, shuttered towns and economic populism. Richard Reinsch: Also, there’s this view of America as a, we’re just in this free market country for the last three decades and these jobs just fell prey to the amount of capitalism. Senator Marco Rubio has said that at times, among others and then China got all the jobs and it seems to me it is the case. America has been very actively engaged in trying to keep and protect manufacturing jobs. Scott Lincicome: Yeah. Richard Reinsch: Including steel jobs and that isn’t widely known and it hasn’t worked. And you pointed out in your writing, if you look at countries, Western countries, Germany sticks out, I think France sticks out, that have really tried to manufacture or keep their manufacturing jobs, they too have experienced a decline as well. It’s automation and also offshoring and also consumer decisions as people get wealthier, they buy more refined products and services with that income. And so, that also, but that takes a while to explain that. Scott Lincicome: Yeah, exactly. That brings up another great point is that you hear so much that the plight of the American working class is due to decades of laissez-faire, free market fundamentalism, right? But when you actually dig into the history and the policies, you see that look, first of all, the United States has a lot of protectionism in place. You look across certain industries and across, whether it’s ship building or sugar, or even textiles and apparel and footwear, or then you look at anti-dumping and counter bailing duty policy where we have hundreds of special duties in place specifically intended to protect American workers and American manufacturing. And these things, it turns out that, like standing in the middle of the ocean and promising to stop the waves. It might, maybe you have a little success for a second, but at the end of the day, you’re going to get soaking wet anyway. And that’s because these are bigger global phenomena that are happening all over the world, they tend to happen as countries develop economically. And it’s those seismic forces that are really what’s driving things at the end of the day. And that protectionism most often, and the subsidies and the rest most often do more harm than good by encouraging industries to not innovate in the face of competition. By encouraging workers not to adapt and upgrade their skills or move on to other industries. And by creating bloated industries like the ship building industry, which has had a hundred years of protection from the Jones Act, and now can’t make a ship that’s worth a darn. It costs five times as much to make a ship in the United States, as it does abroad as a result, you’ve seen the slow degradation of the US merchant Marine and all sorts of other distortions. And, by the way, an industry that is far better at lobbying than it is at making ships, because they have a… Honestly, it’s a really impressive lobbying machine to maintain that protection. And so, that’s the sad, but true story of a lot of industrial policy that it just doesn’t work very well in the face of these broader challenges. With that in mind, there are things that do tend to work pretty well. Nothing’s perfect, but we know that whether it’s streamline tax and regulation policy or high skill immigration, or just immigration generally, there are things that do tend to help, but it’s just not, like you said, it’s not an easy solution as opposed to just saying, “I’m going to save all your jobs.” Richard Reinsch: Yeah. It requires patience. It requires a certain amount of prudence and the ability to see things in the long term and- Scott Lincicome: Yeah. And an optimism too. One of the things I like about being on the free market side of things is there’s an inherent optimism in supporting free markets. The idea is that, I actually do think that the US economy for all its worth is a prosperity machine and has been one for a century plus. And I think that individuals can, if given the opportunity can better themselves and can make it. However, you want to describe it. It’s nice to be on that side because quite frankly, the industrial policy side is really quite pessimistic. Workers can’t make it, industries can’t survive, innovation can’t exist without massive subsidies or protection or whatever. And that the best thing that we can do for these communities is to just let them stay etherized or frozen in Amber in a certain period of time that has long since passed instead of giving them a kick in the butt and getting them along the way. Richard Reinsch: Yeah. Scott, maybe we’ll end there. Thank you so much for coming on to discuss what is industrial policy and what it would look like if it were implemented. Appreciate your time. Scott Lincicome: My pleasure. Thanks for having me.

This podcast with criminologist Barry Latzer focuses on the surprising findings in his latest book, The Rise and Fall of Violent Crime in America. Latzer discusses the violent crime wave that began in the mid 1960’s and how its sharp fall in the mid 90s has recast urban life in America. However, Latzer urges humility in understanding the rise and fall of violent crime, pointing to an array of social, economic, and demographic factors as likely reasons for the good news about the downturn in violent crime in the last two decades. While not dismissing recent calls for sentencing reform and a relaxation of aggressive law enforcement, Latzer argues for caution and notes that we remain a violent society as measured by arrests, convictions, and national crime surveys.

Today we’re talking with James Hankins about the problems of liberal learning in our current age and all the many facets of that. He is a Senior Editor of Law & Liberty and a Professor of History at Harvard University. He’s one of the world’s experts on the Italian Renaissance and the humanism of the Italian Renaissance and is the author of the much-lauded, highly-reviewed book Virtue Politics: Soulcraft and Statecraft in Renaissance Italy.

Richard Reinsch (00:04): Today we’re talking with Philip Hamburger about his new book, Purchasing Submission: Conditions, Power and Freedom. We’re glad to welcome Philip Hamburger back to Liberty Law Talk. We featured his work extensively here, including his wonderful book, Is Administrative Law Unlawful? He’s also the author of earlier studies, Law and Judicial Duty and Separation of Church and State. Philip Hamburger (01:15): Well, thank you. It’s great to be here with you. I love these podcasts and everything you all already do, so it’s an honor to be here. Richard Reinsch (01:21): Thank you. Philip Hamburger (01:22): Really appreciate it. Richard Reinsch (01:23): So tell us about this book, Purchasing Submission. Who is purchasing submission? Philip Hamburger (01:30): Right. The government. It’s, of course- Richard Reinsch (01:37): Aren’t they always. Philip Hamburger (01:38): They collect our money and use our own money in a sense to suborn us and to purchase our freedom. And they do it in more interesting ways than I think is commonly recognized. So when the government gives one money or it gives one some other privilege like a license, they often attach a condition to it. You can get a license as long as you let us use a piece of your land, or you can be a lawyer subject to the following conditions, or we’re going to give you research grants, but you have to do the following. And these conditions are widely recognized by scholars of constitutional law and the sort of technical legal question, a technical question as to when conditions violate constitutional rights because, ordinarily a right is violated when some sort of coercion is supplied, some sort of force of law of bought. And so when you’re simply asked, well, how have you done X, Y, and Z, and if so, we’ll give you money. It doesn’t seem terribly pressured and coercive. And as a result, it seems a technical problem, when did these conditions actually violate one’s rights and when do they not, and this whole literature on this. But it’s not just that literature I think is incomplete, I think this fails to recognize what’s actually going on, this much bigger problem. It’s not just the threat to rights. There’s a purchase of consent to a whole new mode of governance, an alternative mode of control. And so when you step back and see that, conditions are no longer a technical problem, that’s actually a profound question of political theory and law. Richard Reinsch (03:12): Thinking about these conditions, which you kind of go through a range of different types of conditions that seem to be attached to privilege as the government is offering you. Do you see yourself as sort of, is this sort of groundbreaking in the sense of people have noticed this, talked about it, there’ve been some judicial notice of it, although I take it from the book, not enough. And you see yourself with this book trying to call our attention to this way the government is increasingly operating by sort of stripping us of rights and offering for porridge. And we give that because we want that. Philip Hamburger (03:55): So I hesitate to say anything I do is groundbreaking, but I do think it is new to see the breadth of the problem and there are two layers to the problem, to the difficulty. One, as we discussed is the threat to rights. They give you money in exchange for giving up some of your speech, for example, which is very common I’m afraid, but it’s a much broader problem in the sense that it’s a new mode of governance. One’s giving up, not just our rights, but one’s freedom of self-government. One way of thinking about it is it’s a new irregular pathway of power. So we’re all familiar with a regular avenue of power through acts of Congress and the courts. And you can get that from School House Rock, or you can get that from the Federalist Papers and the Constitution. Then there’s an alternative pathway of power, an irregular path, which is through administrative rules and adjudications where you’re commanded, do this, don’t do that. And if you violate that, we’re going to bring you in front of the administrative law judge to punish you, make you pay a fine. And that imitates the regular avenue of power in creating binding rules and binding adjudications, but not in our institutions. Those are the constitution, but new institutions that have an unelected law makers, the bureaucrats and judges who aren’t really independent. And that dichotomy between the regular and irregular path between the acts of Congress and administrative rules is quite familiar, but it turns out that’s another irregular path. There are a host of these, but the main one that’s been missed is this purchase of submission because sometimes the government, when it cannot get something through Congress, or doesn’t think it will, and it cannot get an administrative rule because it might be unconstitutional or politically unpalatable, it then will turn to another irregular path, not an agency rule that purports to bind, but rather a condition on the receipt of money. And what’s interesting about these conditions is they do not purport to bind. In fact, the whole point is they’re not binding. They don’t really restrict one, so theory goes because they’re just conditions on the money and that liberates the government to do all sorts of things that never otherwise could have done, things that would have been impossible even to administrative power. So it’s an additional irregular path and therefore profoundly dangerous. Because if you think about this as evasion as a cascade of evasions, you first evade the Constitution through administrative power, and then you evade it yet again through purchasing submission. So it’s moving ever further away from law. Richard Reinsch (06:24): Listening to you now, as I was reading this book, I thought I was reading this book with your other book, Is Administrative Law Unlawful?, in mind. And you’ve been talking about this. There you argued, you weren’t so much concerned with constitutional law regarding the administrative state, what you wanted to show is how the administrative state operates outside the bounds of constitutional norms, basic structural powers and responsibilities and accountability. And as I read this book, I thought, well, he’s done something like that here, too. Philip Hamburger (07:00): I beg to differ. Richard Reinsch (07:01): Yes, sure. Philip Hamburger (07:02): I actually, in the administrative law book, I actually was making a constitutional argument, but it wasn’t the conventional one in case of the doctrines. But rather by showing that there was a danger out there of this irregular power, which was familiar to the framers of the constitution and so we shouldn’t assume that administrative law is something new and unattended to by the constitution. Here, there is some parallel you’re absolutely right, that this is similarly a study of an irregular path of power, but this was actually much worse. If you thought administrative law was bad, worry about conditions. And if you think administrative power is actually okay, just need little trimming at the edges, you shouldn’t be complacent about the next irregular pathway, conditions, because this subverts our rights and undermines our self-governance in a way that administrative power does not. You at least had administrative rule, as published, we all know what it is. And it goes through a process. Conditions don’t have to do that. And many of them are private. Richard Reinsch (08:10): Help us help listeners understand maybe more concretely what you’re describing here. What are prominent instances of conditions that the government uses? Philip Hamburger (08:20): Well, Joe Biden, our president, helps people understand this. And so in that sense, the book is unexpectedly relevant. When the administration tells states, we’re going to give you money for Medicaid and Medicare, but only if you make certain requirements regarding vaccines, what they’re doing is regulating the states and the people within the states through purchase of compliance. When the government gives money to let’s say, Columbia University for research and says, here’s money for research, but the way, though, you have to first assure us that you have institutional review boards, which will censor what one can read and what one can say and what one can publish. What it’s doing is it’s paying these institutions to regulate people like me. It’s a regulatory condition and it’s doubly bad because it works for a private institution. So what we have are a lot of, not just unconstitutional conditions, that violate rights, but conditions that are regulatory, that are substitutes for the command of a statute or the command of an administrative rule. The book actually begins with an explanation of how it happened, an after dinner conversation. I was having a very nice dinner with wonderful friends. And after dinner I offered the foolish question: ‘Why haven’t you published an article that you were circulating in draft?’ And indeed it circulated like samizdat only in manuscript, quite widely read, but not published. He said, oh, I can’t publish it. The IRB won’t let me. Richard Reinsch (09:34): As I was reading your book, one thing that comes to mind is sort of a prior choice, a decision that’s been made that the spending power, that there is sort of a standalone spending power the federal government possesses, and can do whatever it wants, like build a sidewalk for fitness reasons in towns across America, fund that, or be heavily involved in education or things like that, where you say, well, why does the federal government have this power? Well, as I was taught in law school, it’s the spending power. And how do you think about that problem? Philip Hamburger (10:11): It’s funny. I was also taught that, but the difficulty is to find that spending power, I thumbed through the constitution, where is it? Is it on page one, page two? You read through it. It was found there. Article one, section eight gives the power to lay and collect taxes, duties and so forth. And there’s a limit on that power to collect taxes, which, and that limit is you can collect these taxes to pay the debts and provide the common defense, general welfare of the United States. What we’ve done is we’ve replaced the comma after exercises is an inserted, a semi-colon. And in fact, Gouverneur Morris drafting, the constitution tried to do this. And then the convention said, no, no, no, no. This is one clause. You’re not splitting into two, but by interpretation, we’ve created a general spending power. So where it’s spending had to go through individual enumerated powers and that’s what’s limited in subject matter. It now just can be done, is not limited. And so conditions on spending are unlimited, which means you can regulate through conditions in ways that you could not regulate even with the expense of reading of congressional power. It gets worse than this, of course, because the so-called spending power or the limit on the taxing power, has to be for the common defense, general welfare of the United States, which if it means anything is, it doesn’t go to or for the states. So in fact, all the spending and aid to the states is unconstitutional, but the courts have just ignored this. And with that spending to and for the states, a lot can be extorted from them. Richard Reinsch (11:49): And then you couple that with, as I was thinking about it, the ability of the federal government to borrow unlimited amounts of money, and also having vast revenue as well, coming in. It’s an unlimited source of power. And there’s also this aspect of, John Diulio has written about this acronym called, BIGPAP and the idea being that the federal government is able to use states, nonprofits, all sorts of other agencies to in effect, regulate the country without actually doing it itself, but doing it through partnerships. And I was reading your book, I thought, well, so Professor Hamburger has uncovered yet another, is bringing to our attention in a dramatic way, this new mode of power. So how does one go about, I’m just sort of thinking practically here, because you say these are sort of, I mean, one is old Medicare. I mean, that’s obvious but constraints on Medicare, but you said these are a lot of just almost private deals because I read it and I thought, well, this is just another mode of administrative power. Philip Hamburger (12:54): It’s done by the same people, it’s usually done by the agencies, but the agencies don’t just have administrative power, which the power to make rules or edicts or expectations that functions rules. They also can dangle some money in front of you or a privilege like licensing and then say, but we’re only giving this to you after you’ve done something, X, Y, or Z, seeking so-called assurances about what you’ve done. And that’s the mode of control that’s quite profound. They can do almost anything that way. So an agency may pass regulation, continues conditions. So HHS has regulations stipulating the conditions on which universities get research funding and requires establishment of review boards and the like, but much of the conditioning that’s regulatory comes in site visits, private conversations, or just letters. Because these are private deals essentially, all sorts of bad things happen. For one thing, you don’t know whom it applies because only those who consent are subject to it. So in really rare cases, do we know who has submitted to the conditions. You don’t know who has, who hasn’t. What’s more, additional conditions are added in an informal way. And when there’s no way of knowing what these are, even within one’s own institution, because these things are often kept private even within the effected institutions. And this happens to banks and universities. And if it happens to banks and universities, which have so much power, what’s the fate of individual? Richard Reinsch (14:28): As I was also thinking about your book, you think about the administrative state and and it has sort of official legal channels by which it’s supposed to operate in terms of proposing a rule and debating it, implementing it. But then increasingly we know it operates outside of those rules and does a lot of unofficial things. Like say a Dear colleague letter to every university in America, if you want federal funding, you will basically wipe away protections for those accused of sexual assault, longstanding protections. So is that unofficial? Do you see that as, is that conditioning as well? Philip Hamburger (15:04): That’s right. And Title IX has the sex discrimination condition on federal funds to educational institutions. But of course what’s happened is then that gets interpreted in semiformal and then less formal ways. And of course, ultimately it may depend on private conversations. And just to give you an example, Congress hands off regulatory power to the Securities Exchange Commission, hands off power to private regulatory groups and the like, or the exchanges. And they in turn regulate their members, but they regulate their members in ways that are overseen by the SEC. So you’ve essentially privatized regulation under the oversight of the federal government. Now this is highly advantageous, of course, for the federal government. For one thing, they say, we’re not forcing you to do anything, it’s just a private matter. So they can escape any accountability, again, much of it often for that to be private in conversation. And then of course, when rights are violated and there has to be an adjudication, well, there’s no violation of rights, it was just a private organization so no state action. And what’s more, when this adjudication, not only do you not get a jury, you don’t even get an administrative hearing because these are private institutions that can handle it as they wish. So this is complete degradation of our regular system of government through statutes and court proceedings to just private little inquisitorial tribunals and Title IX tribunals are a good example of this. Richard Reinsch (16:41): Thinking about, you said individual rights. In your research, what kept troubling you about this mode of governance? Philip Hamburger (16:51): I got into this, the book actually begins with an explanation of how it happened. An after dinner conversation, I was having a very nice dinner with wonderful friends. And after dinner I made offer the foolish question. Why haven’t you published an article that you were circulating in draft? And indeed it circulated like samizdat only in manuscript, quite widely read, but not published. He said, oh, I can’t publish it. The IRB won’t let me. I said, what? That sounds like the 17th century inquisition. No, no, no, it’s real. I can’t publish it. I could publish it, but they’d never allow me to publish again if I did. And then his wife, a cited geneticist and one of the best in the country said, yes, I lose several children each year this way, because under HIPAA, I can’t consult the tissue banks. And whatever you think about the use of that information, it’s quite sobering that someone with a scientific endeavor cannot consult information in these circumstances. So what was going on here? And I learned it was IRBs. I never heard of them before. Richard Reinsch (17:58): Yeah, talk about this. Philip Hamburger (17:59): Well, I never knew what an IRB was. I thought it was bizarre. And for three years, I refused to do anything about it though I was upset because of course I didn’t want to do administrative law. I didn’t want to do conditions. That’s boring. But it turned out to be ever more interesting. And the final straw was when a friend of mine went and I went and talked to the local ACLU and they said, oh yeah, we know all about this. Indeed, they knew the law beautifully, but they said they weren’t really against it. They weren’t against the censorship. And what institutional review boards, should I talk about that? Richard Reinsch (18:32): Please do. Philip Hamburger (18:34): So most of you have never heard of these things. They’re the ones that introduced the oversight, sensitivity about the speech into campuses ages ago. If I want to do research and want federal funding, I can’t get the money directly, instead under HHS guidelines, I have to get the money to the institution. And that’s because institutions are more easily controlled and institutions then gets the money only if it has made an assurance to the federal government that has established a sort of ethical review of research, institutional review boards. Now that sounds all very jolly, that can’t be bad, but what these institutional review boards are mostly concerned with is speech. They’re worried about insensitive speech or harmful speech to the people who study. For example, if you’re interviewing somebody, if I were to interview a member of the KKK, I don’t really care that much about the harm to the individual, but the IRB will. And I can’t ask questions that might cause not only legal and financial loss to the individual, but also might cause stress. And so then also one can’t publish details that the IRB worries might be harmful individuals. The net result of course, is the complete deadening of research and it’s worse in medicine. So in medicine, when there’s actually a death toll to this because when you discourage research, and by the way, you particularly discouraged research on minorities, one of the goals of IRBs, the net result is of course you don’t have information to save lives. I give you one example just to make this real. Dr. Pronovost of Johns Hopkins, I think it was 2006, did a study of Michigan intensive care units of catheters inserted into the heart. These procedures are necessary to save the life of the patient, but there used to be something like a two-thirds death rate because of infection. So what Pronovost did, went to the intensive care units in Michigan and said, let’s ask the doctors before they do it to wash their hands. And lo and behold, when they washed their hands, they saved, I think 1500 lives just in the course of the study. And then it was shut down by HHS because it did not have sufficient approval from the institutional review board. Nonetheless, by miracle, it gets published. And the publication of this, because of information about keeping clean, how important it is to these operations, has saved 17,000 lives a year in the United States alone. And what this tells you is that the suppression of information, the institutional review boards, even if it only suppresses a few important studies a year, quickly adds up to hundreds of thousands, if not millions of lives lost. That’s sobering. But this is the blessing of conditions. You can suppress speech without accountability. Richard Reinsch (21:16): Where have, in your research, where the federal courts been on conditions? From your book, I take it they’ve largely stood down. How should they step back up? Philip Hamburger (21:32): Well, so the book, although it’s at a broad level about the problem and it’s near political theory, much of it is also technically about law and actually ends the checklist for lawyers and judges. There are things that judges can do. And I think the first step is just to recognize the problem. Once it recognizes the seriousness of the problem, I think there will be a response. The other thing that’s important to do here is to recognize that actually there isn’t much precedent barring the development of doctrine or recognizing the constitution as to say. There are precedents, occasional precedents protecting freedom of speech, for example, but they’re fairly mild. The precedents have very little to say actually about, for example, regulatory conditions. The courts just haven’t recognized the problem. So I think one can go to the courts and ask them to work on this difficulty without even having to undo precedent. Now that’s not entirely true, there are areas where they will have to reconsider precedence, but much of it is just unexplored territory. It’s terra incognita, which is sad. Isn’t it strange, we have a method of government that’s now been in place for at least 70 years, perhaps a little more, but it’s been widespread since the 1960s and we don’t see it. Richard Reinsch (22:56): And I was going to ask you is, so when did this really kick into high gear? Philip Hamburger (23:02): Right. Probably, I’d say the sixties and seventies. Yes. But also in the nineties and since then, where the amount of money spent on the states is massive. Richard Reinsch (23:05): Yeah. You note that in the beginning, that 30, for most states, it’s about 30% of their budget comes from the federal government. And I’ve read previously is state bureaucracies have grown, state employees have grown. Federal government employees really haven’t I’ve read, which kind of speaks to this phenomenon, I think, of indirect government. Philip Hamburger (23:33): Part of it also is that we think of conditions to the states is violating rights. They also regulate state policy in violation of so-called commandeering doctrine. But they don’t just regulate state policy, they actually reshaped state governance, which I don’t think anyone’s really paid attention to other than Martha Derthick in the 1970s. She noted it briefly. Grants to the states when used to convert elected power to administrative power because the federal agencies like to deal with state agencies. They don’t want to deal with state elected officials. And so they give money on the condition, for example, that the power once exercised by selectmen in Massachusetts towns gets handed over to administrators. And there’s a class issue of course, because it means taking power out of folks in a community who may not have college degrees and giving the power to people in Boston who are distanced from the communities, but have PhDs. Richard Reinsch (24:31): Yeah. Oh yeah. In government administration or something. Thinking about this, also you hit too that maybe the New Left was onto something and the protection of privileges in the late sixties, which I thought that was an interesting argument and made sense in light of the book. Philip Hamburger (24:50): I don’t want to praise the New Left generally, but Charles Reich, Charles Reich was brilliant and wrote a piece called “The New Property.” Richard Reinsch (25:02): Right. Philip Hamburger (25:02): And he discusses this problem very accurately and candidly. And he’s worried about it, but he phrases it in terms of property, not power. So if he were here in our conversation with us is I would simply beg him to say, it’s not really new property, it’s a new power. He recognizes that the government is buying its way into regulation and buying its way to adjudication of any process. And he worries about this, but because he’s so focused on the new property, the property that consists of government benefits and the like, he didn’t address the question of power, but he sure was on to it and I must say if there’s any prior scholarship that I thought was illuminating, it was his. It was more on point than I think anything else I’ve read. Richard Reinsch (25:53): That’s interesting because I’ve always seen it as sort of the turning and progressive government in America or the attempt to legitimate it more and more. So I’ve always sort of recoiled from it. So I thought that was an interesting part in your book. Yeah. Philip Hamburger (26:06): Right. So I would not agree with him about the analysis of the new property. I think actually that did a lot of damage to, for example, rights of due process rights. I think that endeavor to get processed for grant, for the denials of, let’s say welfare ended up degrading, diminishing due process across the board, including constraints illustrated, for example, by Hamdan vs Rumsfeld where we now can imprison people without anything more than a neutral adjudicator deciding it, no jury, no judge, et cetera. And that’s a product of this is a new property as well and the attachment of due process to that. But at the same time, I want to give him credit where it’s due. He did understand that there were risks in the purchasing compliance. To the degree conditions are the primary means of privatizing control, privatizing regulation by funneling it through employers, universities, banks, and so forth. There’s a very great danger that all institutions will end up being aligned under centralized control… Richard Reinsch (26:53): More sticky question. I take it you don’t think all conditions are unconstitutional. Philip Hamburger (26:58): No, most conditions… Richard Reinsch (27:00): So how in thinking about the government extending conditions on privileges or attaching them to privileges, how do you sort of work out an analysis like this, it’s something like plea bargaining. What do you think about that? Philip Hamburger (27:11): Right. So most government conditions such as we’ll give you money for an airplane on the condition that it flies are perfectly reasonable and lawful. And the book goes out of its way to emphasize is not a complaint about conditions on the whole. I do see contracts law, and I know the value of conditions. But on the margins, there are conditions that are being used for less innocent purposes and to regulate and deprive people of rights, to control the states and so forth. And that’s what’s very dangerous. So for example, Cass Sunstein discussed nudges. I can’t say that I think most people like being nudged feels more like a push usually, but that’s not necessarily unconstitutional. What becomes problematic is when the conditions deprive one of rights or it’s used as a mode of regulation. And plea bargains, let’s talk about that. Is it 95, 97% of criminal cases end in plea bargains, at least at the federal level. It’s prodigious and many of those conditions are not unreasonable, but they can overstep the line. And it’s an interesting delicate question. So for example, suppose you’re asked to give up your right to a jury trial. Well, that’s not necessarily unconstitutional, the jury trial is not mandatory. You can agree to give it up voluntarily or when you’re given something. But what if you’re asked to give up your jury trial in future cases, that would be different. That’s an attempt to restrict your exercise to the right in the future. More commonly, more typical sort of condition would be to require one to provide testimony or not exercise ones right against self-incrimination. If that extends too far into the future, then I think when runs into constitutional problems, but if it’s confined to the case itself, there needn’t to be a problem. So one has to parse these things in a fairly careful way to get there. What I found most interesting- Richard Reinsch (29:23): And I’m ignorant here, are you saying federal prosecutors are frequently- Philip Hamburger (29:27): I’m talking about federal prosecutors. Richard Reinsch (29:29): Federal prosecutors are frequently reaching beyond the case at hand to future cases with defendants. Philip Hamburger (29:32): I don’t know how frequently it happens. It just happens occasionally, but sometimes it does happen. And then one has to be careful. When we get to the free speech conditions, I think there’s something important to be observed in the word “abridge.” The first amendment is actually carefully worded. Congress should make no law abridging the freedom of speech or of the press. And that word, abridging actually is helpful because when Congress passes a statute that restricts what you can say, one might have a difficult question as to whether or not the law abridges the freedom of speech, but when it or an agency using money on the condition that you similarly restrict your speech, it’s actually much easier because if the condition goes further than what is constitutionally allowed in a direct restraint you know that it’s abridging the freedom of speech, because the word abridging suggests you’re going a little bit further. And so we actually have some clarity in the speech cases. That isn’t always true in some of the Bill of Rights. Richard Reinsch (30:36): So for example, you don’t have to pay taxes, you’re a non-profit, but with that comes all sorts of restrictions on your speech. Philip Hamburger (30:47): Right. And so the limitations on nonprofits, not to get involved in politics, political speech and elections or in lobbying. As we know, I’ve written on this, and it actually, it’s first proposed by Hiram Evans, the rather unlovely Imperial Wizard of Ku Klux Klan, and it’s a way of silencing relatively Orthodox, IE Catholic institutions even if that’s the risk of silencing others. This is a constraint on speech and on political speech. We would’ve thought we’d all be concerned about that, but we’re told reassuringly that no, no, no, it’s just a condition on a privilege, that of tax exemption. But it’s really just saying, you’re going to get different tax rate depending on whether you silence yourself. And once you understand it that way, it’s quite clear this is actually a penalty on speech. But even if you just understand it as a condition, and by the way I say that, because lowered taxes and receiving money are actually quite different. You have a choice as to whether or not you receive money, not as to whether or not you’re on the tax system. But even if you just do this as a condition on a privilege, and there’s no sort of coercion here, this is a condition that one could never impose directly. The only reason it’s been accepted is because it’s thrown in as a condition on a privilege. And that shows how these are used to evade the first amendment. Richard Reinsch (32:16): And I take it. I mean, there is a level of political theory, there’s this sort of assumption here working that rights themselves, property is something that the government really has control of and doles out. So I’m not violating. Like to the nonprofit, it’s like, well, you’re getting this tax deference, aren’t we generous to you. And it’s like, well, why did you assume that it was yours to begin with? I mean, that’s kind of the way I’ve always looked at it. Philip Hamburger (32:46): Right. So this gets back to the debates between Pufendorf and Locke. Pufendorf understood the contract proceeded government, but he thought that property was the product of agreement. And so from that perspective, it wasn’t clear that property necessarily preceded government, could have followed from the government, in which case property is dependent on government. Marcez had a certain priority of government before property and property is really protected. John Locke, so he’s often thought to be responding to Hobbes, is also responding to Pufendorf quietly. And John Locke offers a different account of the development of property. It’s the so-called labor theory of property, put labor into something then it becomes yours. Why would he do this? If you take this as a grand theory of property, it doesn’t explain all property. And so therefore seemed rather weak, but he wasn’t trying to explain all property. He was just trying to show that some property, institutional property, preexists government. And that’s crucial because property is his metaphor, if you will, for all liberty, it’s something that’s yours and that proceeds government. And so that conversation between Pufendorf and Locke, although I think often missed and misunderstood these days is very relevant here, property proceeds government. And by the way, notice if the IRS could treat any sort of tax exemption as largess to which you can attach conditions depriving you of your rights, notice it can just give you a hundred percent taxation. And then when it lets you keep 1%, he says, but of course, on the condition that you could subvert all rights instantly this way. So I don’t think it makes sense. Richard Reinsch (34:34): So the progressive mode of government has to dispense then with, I think that was a lock-in position necessarily if it’s going to be able to move money around and engage in the transfer payments and the regulatory system that it needs to. So it sort of has to disestablish that mode of thinking. You find in the book, I think that Americans have largely accepted this, but maybe they need to be reminded of what they’ve forgotten. Philip Hamburger (35:01): Well, I think what’s happened is that money has appealed to people, as always. And the folks who get money, don’t worry too much about the conditions. But as they pile up, there are profound costs, not only to the individuals and institutions, but also to the whole nature of our society, where we’re turning into a society in which everything can be bought. And I think actually a lot of progressives understand that this is dangerous. A lot of progressives regret commodification as they would put it. And what we’ve done is commodified our government. And there is something which I would have thought people from many different perspectives can agree on that. This is somewhat worrisome. Can I add a thought about the work, just how dangerous this is? Philip Hamburger (35:48): To the degree conditions are the primary means of privatizing control, privatizing regulation by funneling it through employers, universities, banks, and so forth. There’s a very great danger that all institutions will end up being aligned under centralized control and I discuss this towards the end of the book. The danger is that if federal money and policy runs through the states, runs through the banks, runs through the universities, runs even through churches who tried to silence their members to avoid violating 501(c)(3), we end up in the system in which all of institutions are aligned. It used to be because institutions were not aligned in this way, either those institutions were different and because regions were different, you could find some sort of solace, some safety, if not at one level of the system than in another one type of institution or another. If you don’t fit into the banks, you fit into the universities. If you don’t put in there, you can fit in, let’s say in the state government. That’s no longer true because they’re all being aligned in their policies, mostly through conditions also to some degree through direct regulation. And that ultimately is very, very dangerous. Richard Reinsch (37:11): Just to go back to the dear colleague letter to higher education. I mean, did any institutions receiving federal funds object to that? Philip Hamburger (37:17): I don’t know, but there certainly wasn’t mass objection of that. They’re corrupting us with our own money. They’re bankrupting us by dangling in front of us things we can’t afford with conditions that will destroy our freedom. Richard Reinsch (37:21): Yeah. Philip Hamburger (37:24): And notice, it’s one administrator to another. They’re talking to their own people. Richard Reinsch (37:29): And realizing that their institution would fall apart without federal funds. Philip Hamburger (37:34): That’s right. But they fail to realize that their institutions are going to be rendered impotent and unfree and utterly, utterly irrelevant if they accept the conditions. Richard Reinsch (37:46): I can think of, since that letter was issued, a number of private, higher education institutions coming into being, which made it very clear, they would never take federal funds, but those are a few. Philip Hamburger (37:58): Very, very few. Richard Reinsch (37:59): A scattered few. Philip Hamburger (38:01): Right. Hillsdale doesn’t take federal funds, but Hillsdale is a lonely voice. Richard Reinsch (38:06): And I think a lot of these new class, schools that are coming online, they’re very clear even in states like where I’m at in Indiana that have very widespread voucher programs, they will take none of that money because they’re worried about conditions that come with it. Is this just though the way of, I mean, I’m thinking about it. I mean, there is just sort of a, they’re offering people something, they’re going to take it. Philip Hamburger (38:28): Yes. But they’re corrupting us with our own money. They’re bankrupting us by dangling in front of us things we can’t afford with conditions that will destroy our freedom. Richard Reinsch (38:39): And as you think about this, what are the low hanging fruit that could be picked here, the fruit, to try and peel away this mode of governance? Philip Hamburger (38:50): So I think it’s already happening. The states increasingly are being offered money on the condition they submit to conditions, dictating their policies. Certainly any connection with vaccines from like this is happening, right. Or the tax reduction earlier this year, the states were told you could have federal money, but you’re not allowed to reduce your taxes. Richard Reinsch (39:13): Yes. Philip Hamburger (39:14): So this is problematic on many grounds. So one thing it’s a mode of regulation through conditions, which shouldn’t be allowed. For another, it’s the spending into the states, is unlawful. But at the very least, there’s a commandeering doctrine, which really just reflects the structure of our constitution. Now the judges will say, commandeering, that’s about the relationship between two separate sovereigns. Not really. They got that wrong. It’s really about our right of localized self-government, it’s about freedom, not just structure. And the structure depends upon that freedom of localized self-government, so it’s really much more threatening than they think. And although the term commandeering suggests that there has to be coercion or gun to the head, that’s what the Supreme Court’s apt to say, that’s actually the standard for duress in contract law, actually 19th century contract law, not even contemporary contract law. And structural problems, which is what this is, do not need any coercion. You can corrupt the construction of the constitution with money as well as by force. So I think we’re going to see arguments along these lines, arguments, I hope I can draw from the book that in fact commandeering doctrine is grossly misunderstood by the court and that these demands on the states not to lower the taxes or to impose vaccines, the like are unconstitutional interferences with separate sovereignties and with our right of localized self-government. So that’s, I think, would be an opening wedge. Richard Reinsch (40:40): There’s also something, as I’m listening to you, and I’m thinking, I think it was with regard to the states is sort of the increased ideological competition over policies and which policies lead to growth and flourishing, economic flourishing in particular. And it seems to be, you’re also getting this realization amongst both sets of governing elites of how they want to live. And red states are making decisions based on that as to what money they’ll take from the federal government. Witness red states, like Florida, not taking money regarding unemployment benefits because they think it actually would lead to a decreased labor market, depressed labor market. So already it’s almost like politics, the return of politics could also help here. Philip Hamburger (41:22): Possibly. Anything that helps, I think, would be welcome. My fear always has been, we’ll be woken, not by ideas, not by ideology, but by calamity. And it’s a stiff competition. Will it be in foreign matters or domestic matters that our collapsed will get our attention and will it then be too late? I don’t know. Richard Reinsch (41:45): Philip, maybe we’ll end on that note. Philip Hamburger (41:48): Thank you for giving me an optimistic ending. Richard Reinsch (41:50): We’ve been talking with Philip Hamburger, author of the new book, Purchasing Submission, I hope it has the impact all of your other books have had. Thank you for discussing it with us today. Philip Hamburger (42:04): You’re very kind. Good talking with you. Thank you so much.

In this episode of Liberty Law Talk, I discuss with Professor John Inazu his new book Liberty’s Refuge: The Forgotten Freedom of Assembly. Inazu offers his thoughts on resurrecting this most important constitutional doctrine from the doldrums where it languishes as a result of Court rulings.  Consequently, Inazu argues that the freedom of assembly is now unable to offer the full scope of protection to group autonomy that it once did and the harmful affects to associational liberty are increasingly being experienced. He also provides a constitutional and moral argument for a return to this most important of liberties.   Other Related Links at Law and Liberty: Anthony Deardurff reviews Liberty’s Refuge.

Richard Reinsch (00:19): Hello, I’m Richard Reinsch. Today we’re talking with Steven Smith about his new book, Fictions, Lies, and the Authority of Law. Steven Smith is the Warren Distinguished Professor of Law, at the University of San Diego. He’s the author of numerous books, including The Rise and Decline of American Religious Freedom, Law’s Quandary, and, he’s been on this podcast… I think this is your third appearance, Steven, so we’re glad that you’re- Steven Smith (00:47): I think I might be. Richard Reinsch (00:48): … a repeat offender. It was Pagans and Christians in the City, I think was the most recent appearance. Steven Smith (00:53): I think we did have a conversation about that one, yes. Richard Reinsch (00:56): It’s great to have you back, and you’ve written another provocative book here, Fictions, Lies, and the Authority of Law. So tell us, what’s going on? Steven Smith (01:04): Well, the book combines some things I wanted to write about various subjects that are all connected, I think, by the problem of authority and questions of authority. I tried to have a lead into that by quoting Hannah Arendt’s, I think, very intriguing claim that she made about the middle of the last century that authority has disappeared from the modern world. We no longer know what it is. In losing authority, she said, “We have lost the groundwork of the world.” So that’s pretty provocative, but also puzzling and raises lots of questions. So I used that as the way to get into some of these various questions. Some of them are more standard law professor type questions about constitutional interpretation and statutory interpretation, and so forth. Some of them are more straight jurisprudence questions that legal philosophers like H. L. A. Hart and so forth have dealt with. Some of them have to do with things that I think are really on the minds of and kind of worrisome to a lot of people today about cancel culture, living with lies, that sort of stuff, is also the subject of one of the chapters. Richard Reinsch (02:13): Yeah. I’ll confess this. So coming to your book, before I started reading it, what got me interested in it and thinking that this could be an interesting interview is just looking at contemporary America right now. We’ve got this heavy movement, we’ve covered it extensively at Law & Liberty, that insists basically America is founded on a fraud. It goes beyond even the old progressive claim that we’re ill-founded, but that we’re just founded on something like slavery and racism, and the perpetuation of that through our institutions. Then, of course, the way in which political claims are debated, or rather not debated, in many respects, in our country and how we label one another as not just wrong, but people we struggle to even dialogue with. Just thinking about right now, this question about masks reemerging with the Delta Variant in certain states, and are masks going to be required and how we deal with people who don’t want to wear masks and vice versa. All of this, I mean, the general tenor of our politics makes me think there is nothing in our constitutional order that we see as transcending heated contemporary differences. Do you see it that way and has that led into what you’re doing in the book? Steven Smith (03:29): Yes and no. I think, actually, it’s turned out, with all of the anti-racism concerns and the COVID restrictions and so forth, that there are a lot of ways that the book has immediate applications. More than I thought it would have as I was doing it or even when I was pretty much finished with it, which was I finished writing it really almost a couple years ago, before a lot of this happened. You know it takes a while to get something published. In the meantime, it’s been gratifying and alarming to see that I think there are quite a lot of applications to some of our on the ground current practical concerns. One way to get into that, I suppose, would be to say that our system of government is based on the idea that government has to come from the consent of the governed. That’s a foundational proposition. It’s in the Declaration of Independence. It’s been recited innumerable times over the course of our history. That’s kind of axiomatic in many ways. It’s also a privilege familiar, and lots of people have written about this, that that’s a problematic idea. Do we really have the consent of the governed? I deal with that in what I think is a little different way saying, well, in a certain sense, no, it’s a fiction to say that we have the consent of the governed, but we can have accounts of authority, I think, that can be based on fictions if the fictions are widely believed. I try to combine the consent of the governed idea with the idea that people like John Finnis, but other people have developed a coordination account of authority. You know that authority comes from the need for coordination, not just punishing offenders and so forth and anti-social criminals and so forth, but coordination that’ll allow us to coordinate for the public good a lot of our projects that we have. So that we have a need for that and the ability, as Finnis and others say, of some group or institution to provide that coordination is the foundation of authority. I find that to be quite a plausible account, but it creates a question of where do people get or where do some person or institution get that ability to provide coordination. The answer, I think, is, at least in part, they get it because we think they have authority. In our system, we think they have authority goes back to the consent of the governed. So the consent of the governed does sort of figure in authority, even if it is, to some extent, a fiction, I think. If it’s a fiction that’s widely believed and beneficial, I think it can be the basis of actual authority. But if the fiction becomes frayed and so forth, there’s discussion, then the authority can disappear. I think we’re seeing real concerns about that just over the last couple of years. Richard Reinsch (06:24): What do you think Hannah Arendt meant by the modern world faces the evacuation of authority? What did she mean by that? Steven Smith (06:34): She has a long answer on that that traces this back to Roman ideas and so forth. To be honest, I don’t really go into that much because she’s not the only person who has claimed that. I quote several other people who have also said… Søren Kierkegaard for example, and other more recent observers who say that authority has disappeared from the modern world or that it’s very problematic or that we don’t understand what it is. So I say upfront that this isn’t going to be an exegetical sort of work trying to figure out what any person in particular had in mind. But I admit, I use it more as a point of departure to explore. I keep coming back to Arendt’s claim, but I’m still using it less to figure out what exactly she meant and more as a point of departure to consider a lot of things that I mention. Richard Reinsch (07:25): I haven’t read or written a lot, but that ground work of the world. I mean, is this some sort of classical- Steven Smith (07:35): I doubt she meant what I end up- Richard Reinsch (07:37): … classical political philosophy account of reason and politics? I don’t know. Question on consent of the governed though. My understanding, the root of that concept from Harold Berman’s Law and Revolution is monastical reform in the early Medieval Period. The principle being within monasteries, voting amongst the monks on who would be your abbot, what would be the rules that would govern, and the idea being what touches all concerns all and therefore, should receive consent by all. In my understanding, that’s like a natural law root of that, taking man as a dignified being created by God seriously and His reason seriously, therefore, is consent as to what touches him and law. I’ve always thought that’s not someone trying to articulate a fictional account, but maybe a truthful account of who man is and how he should be governed, and then that spreads one account. As Berman documents, that makes its way through a lot of Western legal thinking, in particular in the English Medieval law. Then it comes out in what I would think of as the good Liberalism and the American founding, as… Then it becomes a more general political teaching. So, I guess, when you describe the consent of the governed maybe as a youthful fiction, I think, or it’s a better fiction than other fictions, but what do you make of that? Then also, a consent of the governed, but in American context would be Republican or representative consent. Not consent of each and every person, but of those who have appointed, so necessarily that’s why the Philadelphia Convention wants state ratifying conventions, not just the state legislatures, because it wants that approval apart just from state authorities. So what do you make of all that? Steven Smith (09:38): Good question. A couple points here. One is as far as the genealogy of the concept, I don’t really try to trace that through here. I mean, to the extent, I rely on historical work in this book, it’s more on Edmund Morgan’s, I think, really good book on Inventing the People. He talks about the idea of the people and consent and so forth. But he’s starting with the English Civil Wars in the 17th century, I think, is what he’s mostly talking about and that’s as far back as I go here. But I’m sure the idea does go farther back. Berman’s book, one I’ve relied a lot on for other purposes, but I haven’t really focused on it for this purpose. I do quite a bit of work in the area of religious freedom, and other people do, and trace, you might say, very related ideas way back to Tertullian and so forth, that religion has to be consensual. Those things are not unrelated, I think, to this idea that authority needs to be accepted by… It can’t just be coercively imposed and so forth. So the fundamental idea probably has a lot of roots. It’s also one that I don’t in any way mean to disparage it. I mean, I think it’s a very valuable, and for lots of purposes, it contains real truth. But just in a couple steps, I mean, the most common objection, I think, though to this as an account of the authority of, say, modern governments like ours is that most of us never really did have an opportunity to consent. No one ever sat us down and said, “Do you consent to be governed by this regime? If so, initial here.” We just didn’t. Theorists who try to make up for that with theories of implied consent or constrictive consent say some good things, and I think even relevant and valuable things, but don’t really supply actual consent by most of us. So that’s why I argue that it’s a fiction. But in explaining how a fiction works, I do say that a fiction will work… It needs to satisfy a couple of conditions. One is plausibility. It doesn’t need to be true, but it needs to be true-ish. You can’t really work with a fiction, even a movie or a book and a big political fiction like this unless it is true-ish. The fiction of the consent of the governed, I think, is quite true-ish for our system, but its plausibility does hinge on things like voting rights and freedom of speech. These are all, I think, very valuable things. So it’s a fiction that, though it is partly fictional, that’s had, I think, very beneficial effects. It’s an ennobling fiction, you might say, and one that works to make government, I would say, better, more enlightened, and so forth than it would be coming from some other fiction. For example, the parties for the vanguard of the Proletariat, for example, and it’s going to lead us to the revolution. So it’s a very valuable fiction in that sense. Again, by fiction, I try to carefully distinguish between a fiction and a lie. I mean, those blur together at some point, but they’re not the same thing, I think. In saying that this is a fiction, I don’t mean to be saying it’s our system is based on lies. I think it’s based on things that are partly fictional, but valuable, ennobling fictions in so far as we act on them. Richard Reinsch (12:59): So you’ve used, you said, true-ish, truthful fiction. Is there a truthful account of legal authority and how would we know it? Steven Smith (13:09): Yeah, well, towards the end of the book, I try to get into that because the first chapters are mostly trying to expound the idea that authority can be based on a fiction… what we call authority, the functions of authority can be based on a fiction, but that one of the consequences of that is that is that there are a lot of questions that we perpetually debate, seemingly never reach answers and that one of the reasons for that is that we’re treating what’s at bottom of fiction as if it were a fact, as if there were some fact of the matter that could settle what the Constitution means, for example, for some particular thing or what a statute means. To the extent that those things are based on fictions, there’s not going to be any fact of the matter that can settle a lot of those debates. So I think that helps to explain why we never do reach any sort of real answers and we probably never will, because it’s not the kind of thing that could yield those kinds of answers. But that’s still dealing with, we call it authority, I call it authority in the first part of the book, but later I suggest this might be a faux authority. So if you ask, as you just did, is there any sort of true authority, could there be? The latter chapters, the last two chapters and the epilogue, try to address that question more directly. I might mention the evolution here. Some of this is based on an article I did about 10 years ago which suggested that no, there couldn’t really be true authority. Even God’s authority is not exactly true authority. But reflecting on that in the intervening period, I’ve come to the idea that no, that’s a mistake. I think our modern commitment to autonomy and equality is so emphatic that I think it makes it very difficult for us to recognize what true authority would be. But I argue in the last chapter and the epilogue that, for example, in a Christian perspective, I think there’s, in some ways, a standard answer to this, although one that probably most, even Christians, today no longer think in these terms. That is, yeah, there is a true authority. The king of kings, the early governments that we respect have a kind of authority, but it’s a shadow of the true authority that is there and someday will actually be more operative. I try to explain how that kind of authority could satisfy the conditions of real authority in a way that Earthly governments just really can’t. Richard Reinsch (15:46): Something you also write about in the book is anthropology and the significance of who we think man is, what do we make of ourselves, what are we for, as getting at this question of legal authority. So, as you were saying, the dominant understanding, I think, particularly amongst elite classes, is we’re autonomous, we give the law to ourselves from deep within our conscience, which we conceive of in a very subjective way. Who the human person is is growing in sophistication with his own law giving or her law giving. The other conception of that is, I think you used this term, which I like that term, is that we’re deeply relational and we’re not autonomous. We’re dependent on others for everything, and that’s a recognition of wisdom there, that we need other people not just for contracts, but in deeply embedded ways. But, I guess, my question to you is, and that’s the position you side with, I largely agree with that position, what does that mean though for law and for government? Might that give us a way for thinking about it that moves it beyond a fiction? Even the noble fiction you describe. I say that our system has been based on a fiction, but that’s not the same as a lie. One of the ways of distinguishing is to say, “Is this a proposition that people are willingly entering into, engaging with the fiction the way they do when they go to a movie, for example? Because it’s plausible and because it yields benefits.” In the case of a movie, it might be wisdom or it might be entertainment. In the case of a political fiction, it’s authority, necessarily coordinating authority. Steven Smith (16:58): Well, I guess, I think that… Again, I think this is, and obviously there are lots of different views on this, including lots of different Christian views and so I’m not suggesting that even all Christians would agree with this, but I think it’s actually a fairly common Christian position to say that… Let’s say that the governments of this world have a kind of authority, I sometimes call it faux authority, but I don’t mean that it’s not real or that it’s not valuable. They have a kind of authority, but it isn’t really the ultimate authority. So to that extent, human law, positive law, will never have the really ultimate authority or reflect the kind of ultimate authority that, say, divine law would have. That, I think, is actually a fairly… I don’t think that’s anarchic or nihilistic or anything, I think that’s a pretty healthy understanding to remind us, on the one side, yeah, there is a real authority there, but on the other hand, it isn’t really the ultimate authority and we need to keep that in mind. I think that reminds us of the limits of law. It prevents law and government from becoming objects of idolatry. But in this book, I’m not really trying to argue that on theological grounds at all. I’m just trying to say… My take out point here is actually H. L. A. Hart’s famous argument about the gunman situation where he says a gunman holds you up and says your money or your life. You give him your money, but you don’t say that you were obligated to do so. You might say you were obliged to do so. That was Hart’s point, which quickly, I think, means the gunman didn’t really have authority. The gunman did give you reasons to do something, but it wasn’t truly obligation that he imposed and it wasn’t really authority that the gunman exercised. I try to argue that Hart was right about that and if you extend that logic, that would apply actually to most other contemporary accounts of what we legal theorists and others typically call authority. That closely examined, even if the accounts are persuasive, they don’t really yield authority. They yield reasons to comply, but not truly authority if we think hard about what authority would be. I think that’s the situation we’re in for most legal purposes and so on. Again, there’s nothing particularly worrisome about that. Then someone might well say, “We should be law-abetting anarchists. If we’re decent people, we will follow the law, but not because it truly obligates us or reflects real authority.” I don’t fully agree with that. I think it actually does give us a kind of practical authority, but again, not the ultimate authority. Again, I think that’s healthy to keep that in mind, to recognize that, that this isn’t ultimate authority. Richard Reinsch (19:56): Your chapter on totalitarian governments and through particular experience of Václav Havel in Czechoslovakia and dealing with the Czech Communist government, I thought was instructive of, we can call it a fiction, but I think just a lie about government and what government can do, what it should do regarding people and orders and commands. So that might be… I guess, just, if you contrast that with consent of the governed, it seems to be… If we’re going to say consent of the governed is a fiction, it’s a fiction, I think, tends to build on a truthful, dignified, conception of the human person. Whereas I think what Václav Havel was confronting, and you use of the example of, say, the grocery store owner in Czechoslovakia who complies with the government and puts up some sign or something like that and wants to indicate he’s with the regime to avoid any problems. So that sort of society which is blind obedience and they have control over what you’re doing seems to move in a direction that disregards human nature or thinks it can remake human nature. Steven Smith (21:08): Yeah. So I do have a chapter on that. Honestly, I wrote that chapter mostly five or six years ago I think. It’s become, I think, more relevant in a worrisome way in the intervening years. Richard Reinsch (21:25): You touch on this in the book, but I was thinking of last summer, store owners putting up Black Lives Matter signs to try and protect their property. Videos I’ve seen of people putting their fists in the air to avoid being persecuted while they’re eating or something by marchers and protesters. You talk about that this was well noted, sessions people get put into at work where they have to talk about diversity or inclusivity and say things they don’t really believe because they don’t want to lose their job. So it’s not as foreign as we might think. Steven Smith (22:03): Oh, not at all. As I say, I think, unfortunately much more pertinent than it was when I wrote it five or six years ago. When I did it, I thought, “There are some analogies here,” but I think the analogies are much stronger now than they were then. Let’s just say Havel… A couple points here. I distinguish between fictions and lies. I say that our system has been based on a fiction, but that’s not the same as a lie. One of the ways of distinguishing is to say, “Is this a proposition that people are willingly entering into, engaging with the fiction the way they do when they go to a movie, for example? Because it’s plausible and because it yields benefits.” In the case of a movie, it might be wisdom or it might be entertainment. In the case of a political fiction, it’s authority, necessarily coordinating authority. So as a fiction, what starts out as a fiction becomes less and less plausible and also less and less beneficial if people continue to be basically induced or compelled to recite it. It becomes harder to say that’s just a fiction, then it becomes more of a lie. That’s what Havel said was pervasive in Czechoslovakia that he was living in and was probably true through most of the Communist countries, I think, at that point. He thought that this was just deadening to the soul. So in that chapter, I tried to investigate whether he was right in saying that these were lies, but it turns out to be a more complicated question than it might seem to be at first. But in the end, I think he was right. Also, was he right that this was deadening to the soul as he claimed that it was? I tried to investigate that as well. Anthropology again comes into this, but if you think we are beings who have a special dignity by trying to live in accordance with truth, there’s a sense in which it really is deadening to the soul, I think, to live in a situation in which you are constantly being forced to recite things that you don’t believe. Havel was, I think, a powerful witness to that. Solzhenitsyn was another, and so forth. But I think that’s becoming increasingly true in lots of aspects of our life today. I mean, the book is now a year or two old. Douglas Murray’s book, I’ve forgotten the title, the- Richard Reinsch (24:20): The Madness of Crowds. Steven Smith (24:22): Yeah, yeah. I think makes a pretty good case for that. I just think if you work in the university as I do, that this just becomes more true every year. I don’t know if the trajectory will continue. I certainly hope it won’t. But Havel’s sign, the one that he, in his famous essay, talks about, is the grocer who has to put up “workers of the world unite.” I sometimes thought that academics who might get forced to recite things, do certain training, affirm certain things, maybe ought to just put up a sign in their own windows, and maybe I’ll do this at some point if it comes to that, workers of the world unite as a way of invoking Havel’s essay because I do think this becomes a pretty distressing situation that applies to us as well. Richard Reinsch (25:10): So one question that comes to mind here is so what would account in… How does that good fiction begin to break down? I guess, a related question is what do you make of loyalty? Where does that come from? Steven Smith (25:24): Loyalty. Every now and then, I’ve thought of… Josiah Royce wrote quite a bit about loyalty and self-worth and every now and then, I’ve thought of trying to undertake some project on that, but I never got very far with it. So I think it would be related to this. I think one reason, for example, to cooperate in the project that may be based on what’s, in a certain sense, a fiction is a sense of loyalty to, well, the enterprise, to those who maybe have sacrificed a great deal to get the enterprise going and to start it and so forth. So I think they do relate. But then when you ask something like what’s the difference between a system like ours based on what I regard as a wholesome, let’s say, ennobling fiction and something like a fiction in, well, Soviet Union or Czechoslovakia and so forth. So I think there are a couple differences. One you’ve alluded to already, but some fictions, I think, are going to have more beneficial effects than others. Our fiction of consent of the governed is one that tends to have pretty admirable, desirable implications like it promotes voting rights, it promotes democratic participation, it promotes freedom of speech, I think, because those things all follow from the fiction and make the fiction more plausible or true-ish, and those are good things I think and so forth. Whereas the other fictions won’t be nearly as wholesome or beneficial. Like Marxist fiction, so I would say for example. But the other thing is, I don’t really endorse this idea, I just consider it as a possibility at one point in the book, that maybe fictions have a certain kind of career of life course or something that something begins as a fiction and it seems so true-ish and so ennobling that it just really doesn’t seem like a fiction at all. Maybe saying that government must be based on the consent of the governed. When Thomas Jefferson says it, seems not really even a… more like a self-evident truth as he said. Then perhaps over the course of time, things change, whatever, and the fiction becomes less plausible, so it moves more into the realm of a lie more than a fiction. That may have been true with the sorts of fictions that Havel was talking about. Maybe early in the Communist Revolution, maybe those were such exhilarating propositions that they seemed to be not just fictions. But, by his point, I think it’s clear they’re lies. You wonder whether a similar career might apply to some of our fictions, but I just pose that as a question. I think I’m reluctant to give even a real tentative answer to those. Our nature is to be autonomous, meaning giving law to ourself and so forth. The idea of that we’re, by nature, political beings and that basically our essence does consist in part in relations to others, including within a hierarchy, let’s say, government and so forth, I think that is much closer to the relational view and makes much more sense in those terms. Richard Reinsch (28:09): You talk about by the ’70s, it was hard for most people behind the Iron Curtain to believe in, say, Marxist revolutionary claims because of what they had observed. I think one of the things they had observed and felt was their regime did not respect them as persons and wanted to remake them in an abstracted image and that just hadn’t worked. That raises the question of truth. I think in the case of our regime, what I think has happened in the shorthand is the moral relativism somehow disestablishes truthful claims, but it doesn’t stay in relative land. Somehow relativism has opened itself up to these claims of identity as being the valid way to think about what it means to be a human person. Identity, race, sexuality, gender, whatever. That’s now what a lot of people are latching onto. So something like consent of the governed doesn’t really make a lot of sense because, well, that’s just how the dominant group stays in power or something like that. So I think it’s a two-step process. Relativism then turns inward and looks for another source of… You can’t stay a relativist for very long. It’s sort of has looked for something else and this is pre-reason, pre-logic, it’s an identity and some ascriptive characteristic, and that becomes, well, this is how we should think about government and who we are and blah, blah, blah. Steven Smith (29:42): Yeah. Well, I agree that definitely that sort of trend is very apparent. It may relate to this consent of the governed proposition in a way I hadn’t exactly thought of. But to tell you the truth, I am developing more in another book that I’m working on, pretty much finished, but has more to do with freedom of conscience, but Jefferson’s proposition that we have inalienable rights and the government has to be based on the consent of the governed were based… he claimed were self-evident truths, but they were linked to the idea of a creator who makes these things true and endows us with the rights and so forth. So in a certain sense, they get their normative value from theistic premises, I would say, that I won’t say that people no longer believe them. A lot of people still believe them. I believe them. But that have become publicly unavailable. They’re not available to use in public debate and so forth. So once you get rid of the foundation of those kinds of claims, you move to something else. I think we have moved increasingly to… In this other book that I’m working on on conscience, I think, conscience becomes less of a response to truth and God as it was for Thomas Moore and James Madison and Thomas Jefferson and more of just a matter of personal authenticity. Authenticity then becomes itself problematic because once somebody’s… What gives them their… a person their identity to which they can be authentic. So there’s a natural dissolution into various forms of trying to figure out what identity means. So there is that, I think, movement to identity and I think you see that very clearly in a lot of what I regard as extremely worrisome modern developments and so forth. I guess, in that way, it probably does relate to… It’s not just the proposition that the consent of the governed is in itself a fiction or not entirely true, it’s that the whole meaning of the meaning of the proposition is embedded in a view of the world that no longer is available. That may be another way in which that fiction could break down and become something much less healthy. Richard Reinsch (31:53): I mean, in a way, you’re making the argument in a different key, maybe, than John Courtney Murray made in his 1960 book We Hold These Truths. The natural law framework was sort of coincidental to a lot of the framers’ political thought, although they maybe didn’t realize it as much. But that’s what they’re implicitly drawing on in their writings about revolutionary government and separating from the British and the reasons why. So they’ve got this framework. Some of them understand it, but a lot of them don’t. It’s just in the air. But it’s still available to us as a resource to use to develop arguments for, as Murray says, the natural law framework of our Constitution. Another phrase here is built better than they knew, speaking of what the Founders did. So I’m sympathetic to what you’re doing. One question that comes to mind is is your project, and thinking about authority, does it presume, say, a political liberal, political modern principle that government is artificial and so we have to try and find a way to account for its authority? As opposed to, say, another way of thinking about government is that its natural and man is a political animal. It’s a part of who we are. We’re born into political society. We don’t create it. It wasn’t created at one point in time. Therefore, if it’s natural, then maybe it’s authority isn’t an intractable problem. Steven Smith (33:22): Right. So I guess, I think that suggestion ties very much into some of what comes towards the end of the book and what you and I were discussing a little bit. The really modern prevalent assumption, you could call it Kantian or whatever, but it actually probably comes from lots of places, and that autonomy is our basic nature and the source of our dignity, I think, does imply that there’s something artificial about government. I mean, government is… you got to account for it in terms of some social contract or something or other because it isn’t exactly natural to us. Our nature is to be autonomous, meaning giving law to ourself and so forth. The idea of that we’re, by nature, political beings and that basically our essence does consist in part in relations to others, including within a hierarchy, let’s say, government and so forth, I think that is much closer to the relational view and makes much more sense in those terms. I am a little bit wary about just signing onto that though because, I mean, I think that could go in an unhealthy direction to say our nature is to be submissive to some sort of authority. I think you have to be careful about the nature of the authority to which we should be submissive. But when I try to develop the relational account towards the end, that’s the direction that is going, I think. Richard Reinsch (34:46): Yeah. Well, and it suggests if government is natural and it’s a part of who we are, and as languaged beings, we give reasons, but we’re also radically incomplete, so we need other people, so we need law, we need authority, we’ve got to develop, I think, not… but also the reasons why we continue to do it and uphold it. I think also it’s the anthropology of being relational would suggest there are limits to government. It should uphold these good things of human persons like… Because you suggest in the book, you talked about real authority in the book, but it’s not in government. It’s family. I think you say coaches, friendships. Those are things of authentic authority. So we would want the government to uphold those things because those are really accurate accounts of personhood where we can flourish and that would be a way of thinking about good government versus bad government and what it should do. Steven Smith (35:38): Yeah. The other side of that is conversely you know what you don’t want government to do, is attempt to basically take over, commandeer, interfere with the sources of genuine authority that still exist like family and these other sorts of associations. Because I do suggest that… I mean, not that they are inherently sources of good authority because they can be dysfunctional too, but they can be sources of genuine authority that help us to be constituted as full people, I think. Connections to family and other sorts of mentors and so forth, I think, in the relational view are necessary to basically realizing our personhood. So it’ll be very unfortunate if government decides to impose its norms all of those associations and relations as well, to which there is some tendency, I think, again, there’s a pretty strong tendency in recent decades. Richard Reinsch (36:30): Maybe a final question, a big question, does classical natural law influence you either way here in your argument? When I say classical natural law, I’m meaning this idea that we can participate in discovering the law with others. It’s not that we don’t make it, but we don’t really make it. It’s something that we find. So the participation meaning there’s just something above us or beyond us or for us that we’re going to discover and use in crafting law. Does that shape your thinking about authority or should it? Steven Smith (37:08): Well, I think I would say this, that I don’t really try to develop anything like that in this book. But I think to the extent that the argument is persuasive could be fit nicely into that kind of framework in the way that would make sense of a lot of what we do and so forth. In the classical framework, I guess, I think it would still… So if you take Aquinas, let’s say, as the premier expositor of that sort of view, I think it’ll still follow that governments have authority and that law would be, well, a lot of it would be not directly derived from the natural law, it’d still work through tradition and positive law, determinant, I might say, and so forth. But the government will have a kind of genuine authority. Even then, I think it’s still not the ultimate authority. It needs to be seen as derivative of or modeled on and authorized by ultimate authority and so forth. Then I actually think you can get to a fairly plausible and wholesome picture of the whole condition that way. But that’d be a lot more for me to take on, I think, in this book than I’m really up to. Richard Reinsch (38:23): Maybe something that I’ve wondered is I assume you started writing this book, maybe I’m wrong, because you think we were experiencing a diminution of authority in our country. I guess, maybe just your big thoughts there too. Is that why you wrote the book and did you find something that you didn’t think would be there? Steven Smith (38:43): Yes and no and yes I can say to those two questions. So actually, I mean, I did write some of the different sections at different times in response to more particular concerns or motivations. I got interested seven years ago in just the more jurisprudential question of authority with various legal theorists who try to explain authority and growing out of H. L. A. Hart. I thought that was a pretty interesting and so I did some work on that. Then the middle chapters that have to do more with Constitutional and statutory interpretation are things that I just… I work with those things and occasionally write things relevant to them and those are pretty interesting in their own light. So I already had been working on those, thinking about them, and written some other things related to them. The chapter on living with lies is something that was provoked more by concerns that have just gotten much more intense in the years since I did that thing. I never published that, I think, before, but I had written that some years back. So that was prompted by something else. So the motivation was various, I might say, for the different parts. Then it seemed to me that, particularly using Hannah Arendt’s provocative claim, actually, these things kind of fit together in terms of some overall problem of authority in the modern world. So I did try to connect them up in that way and so forth. But I didn’t initially think of them all as part of a single project prompted by some particular concern. But as it did come together, I just think the concern has grown much more urgent and intense. I mean, I think there are just a lot of what I see as unfortunate directions in our politics and our society, frankly at my own university for that matter. Richard Reinsch (40:24): Yeah. Well, I think it’s when we look and see those in leadership positions in, say, law, government, education, and then those who give us ways of thinking about our time, like media figures, or put thoughts in people’s minds, when they start to lose faith in the country or actively despise it, it seems to me then the country starts to fall apart at that point. Steven Smith (40:51): Right. In a way, I think this book, I hope it doesn’t contribute to that necessarily, but it does give an account of it because, I mean, it does say that in so far as… I mean, this is just the mundane analogy would be if you go to a movie and you or your friend, whoever, who goes with you keeps saying, “This didn’t really happen. This is all…” it’s going to undermine the… A fiction is, I say at one point, a conspiracy where the author and the reader or the hearer agree to participate in something for their common benefit, which involves, in some ways, suspending judgement about certain things, understanding that these are fictions, whether they’re beneficial fictions. If we keep reminding ourselves these are fictions or trashing the fictions and so forth, that will ruin the project. Now, there are reasons for it. I mean, sometimes that’s the appropriate thing. I mean, I think, for example, those in the Communist regimes who undermine the fictions are doing something that was a good thing and so forth. Even though they were undermining that kind of authority. So I’m not saying this is always necessarily a bad thing, but I do think that we see a lot of that going on today, picking up steam and everything. It’s a concern. Interestingly, it ties into… I read something about authority’s the groundwork of the world. I mean, it undermines, I don’t say the ultimate groundwork, I trace that, I think, in the end, suggests that’s more a transcendent ground, but in a more mundane sense, yeah, the groundwork of the world, I think, is really shifting in a way that is troublesome. Richard Reinsch (42:27): Steven Smith, thank you so much for joining us. We’ve been talking with the author of the new book, Fictions, Lies, and the Authority of Law. Thank you so much. Steven Smith (42:34): Thank you. Richard Reinsch (42:36): This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk, available at lawliberty.org.

Richard Reinsch (00:18): Welcome to Liberty Law Talk, I’m Richard Reinsch. Today we’re talking with Mike Gonzalez about his new book, BLM: The Making of a New Marxist Revolution. Mike Gonzalez, a senior fellow at the Heritage Foundation’s Allison Center for Foreign Policy. He’s had 20 years of experience as a journalist. He’s been a speechwriter in the Bush administration, and he writes widely on national identity, diversity, multiculturalism, nationalism, and related issues. Mike is also a regular contributor to Law & Liberty. It’s his first time on Liberty Law Talk, we’re glad to have you on the program, Mike. Mike Gonzalez (00:53): The pleasure is all mine, Richard. Thank you very much for having me on, it’s an honor. Richard Reinsch (00:57): So Mike, as you say in the book a couple of times, and I’ll state it here, the book is about Black Lives Matter and is taking you inside the organization, who funds it, what it believes, what its objectives and purposes are, who composes it, who leads it. But in all of that, you are not, and certainly the purpose of this interview is not to dispute the idea that black lives matter, the sentiment or the statement. We are talking about the organization and suite of organizations or allies who are a part of Black Lives Matter, the movement. And so with that said, what are the goals of Black Lives Matter? Or what is it built on? Mike Gonzalez (01:44): Let me actually first make a comment on what you just said, because I believe there are four things here that are really quite distinct. The first one is the concept. Black lives matter. The concept is unimpeachable and I embrace the concept and I actually never say “All lives matter,” I say “Black lives matter.” I’m very proud to say that. And that is because black Americans have gone through incredible hardships that no other American has gone through. I don’t need to… slavery, Jim Crow, segregation, et cetera, and incredible discrimination. So “Black lives matter” is a great slogan. Then there’s the movement, and I’m not sure what that means. I think that means people who turned out to the demonstrations and the marches and were peaceful about it, or who embraced the concept. Then they are the organizations. The organizations are primarily as you very well put, it’s a suite of organizations, but there are two main ones. If you Google Black Lives Matter, Google sends you to the Black Lives Matter Global Network Foundation, BLMGNF. That is the premier, the flagship organization, that is itself the coalition. And then there’s the Movement for Black Lives, which is yet another coalition, but very important. It was set up right after Ferguson. And then fourth, there are the founders of these organizations and the founders are all Marxists. They say they’re Marxist, it’s not me saying they’re Marxist. And then we go into your question, what are their goals? Well, if you listen to the founders and if the journalists listen to the founders, they have been very candid. Alicia Garza, one of the three founders said very clearly to a group of Maine Marxists in 2019. So not that long ago, that what she wanted was “the dismantling of the organizing principle of this society.” Quote unquote. That what she wanted was to change how we’re organized as a society. So for those listening at home, that means not just things that are racist in America, it is everything. It’s your son’s little league game, it’s your daughter’s volleyball team, it is your book club. It’s everything, it’s American lives, it’s our way of life. And they’re very clear that they’re Marxist. Patrisse Cullors, a second, also a very important former executive director of BLMGNF, and also a founder of Black Lives Matter. She said very clearly, and she states it all the time that her and Alicia Garza are Marxist, and she actually uses the term trained Marxist. And this is a very recent, there’s a very good reason and why she says trained, that’s because she was recruited by Eric Mann. Now that is his word. Eric Mann said he recruited Patrisse Cullors. Eric Mann is a former member of the Weather Underground. That was an FBI designated terrorist group in the ’60s and ’70s. A lot of the members spent time in prison because they tried to use terrorist tactics to bring revolution to America. Eric Mann spent time in prison. And then he set up the Labor Community Strategy Center in Los Angeles, which recruited Patrisse Cullors and trained her in Marxism. Alicia Garza too, was trained in Marxism-Leninism, she has said this herself. So that is who they are and what they want. They hate capitalism. They say that capitalism is racist and needs to be destroyed and smashed, and they like Marxism-Leninism. So it’s the organizations and the founders, not the concept to which I subscribe. Richard Reinsch (05:19): Talk about the ideological structure here. A term we hear a lot, critical race theory, we also hear the term anti-racism. Talk in depth about critical race theory, what it is, where it comes from. Mike Gonzalez (05:36): So critical race theory is really the academic discipline behind Black Lives Matter. It emerges in law schools in America in the late ’70s, and then really gathers strength in the ’80s. It comes from critical legal theory or critical legal studies, which postulated that American racism was… That the systems of oppression, that the inequality was written into the law, by people with money, by the powerful who wanted to perpetuate their power and they wanted to keep it, and they wrote the American laws to do that. Now, black professors and black law students attending these conferences of critical legal theorists agreed with all that, but then they added, “but all these people are white. And what this is, is just racism. And you’re refusing to deal with that.” So they had incredible arguments, and in 1989, they left, they split, they created their own organization called critical race theory, which is the first time that that term is used. It was at a convent outside Madison, Wisconsin. The organizer was Kimberle Crenshaw, a law professor. Richard Reinsch (06:49): Did you say a convent? Mike Gonzalez (06:49): A convent. Richard Reinsch (06:52): Okay. Mike Gonzalez (06:54): A former convent outside of Madison, Wisconsin. In fact, just a few years later, Richard Delgado, one of the godfathers of CRT, of critical race theory gave an interview in which he said that they were all there, these two dozen law professors, and looking at the crucifixes and looking at the stained glass windows. And he said, “It was an odd place for a bunch of Marxists.” This is Richard Delgado. Indeed, it was an odd place for a bunch of Marxists. So what critical race theory believes is that racism is not individual, it’s not an individual sin that people commit when they refuse to follow Christ’s dictum to love thy neighbor, when they refuse to love their neighbor because of their race. According to critical race theories, it’s nothing to do with an individual, individual practice or individual beliefs or individual sin. It’s a systemic thing that all of American society is suffused with racism, and has been so since the founding. And then they, these law professors kind of took over or in the ’90s, kind of became dominant in the civil rights domain, within the law schools. They evicted their white colleagues because they… the critical legal theorists, they evicted them and they became dominant. But they had very limited impact on public policy for about 20 years. And then in the last 10 years or so, they begin to really grow in K-12. They begin to get its grips on education, primary education, secondary education, but then it really explodes with 2020, with Black Lives Matter, which is the subject of my book, BLM: The Making of a New Marxist Revolution. And then it enters all aspects of our lives. This is why we’re all talking about critical race, why I’m traveling the country from coast to coast, I’ve been to 15 cities in the last three months. I’ll be in another 12 cities in the next three months talking about critical race theory, because Americas are up in arms about what is being taught to their children. Now I should add parenthetically, and maybe you want to ask me more about that. That critical legal theory itself is an outgrowth of critical theory, which was born in Germany, in the ’20s and ’30s. And was again, a Marxist group of scholars who believed that they had to criticize and really ridicule all institutions in society, in order to introduce the idea of revolution. So that in a nutshell, the intellectual pedigree of these disciplines, critical race theory, critical legal theory, and critical theory. Richard Reinsch (09:31): Critical theory come to this country in the 1930s in the forms of intellectuals practicing it. And when you say it’s criticizing every aspect of society, I assume that’s according to Marxism. Mike Gonzalez (09:45): Yeah, no, they- Richard Reinsch (09:46): And one of the things they want to do, it seems from what I’ve read is, they want to take things that Americans take for granted and enjoy like consumer behavior and ridicule that. Mike Gonzalez (09:58): Yeah. They want to denigrate all aspects of our lives. They sit there, they’re very conflicted. And in the early ’20s, they realize that what Marks and Engels had promised, which was revolutions everywhere, the working class, the proletariat rising and overthrowing the capital as the bourgeoisie, it’s just not happening. It failed in Germany, failed in Italy. It only succeeds in a backwater place called Russia, and it succeeds very temporarily in Hungary. So then they begin to ask themselves, all these communists, “Why?” And they ask them in Germany and Italy especially, where revolutions fail in 1919. And they’ll come up with the same answer, whether it’s Antonio Gramsci in Italy or Maxwell Horkheimer and the Frankfurt School in Germany. And that is, they realize that the worker has embraced religion, has embraced God, has embraced the family, has embraced capitalism and has embraced the nation-state. He’s religious, likes his family and he’s patriotic. And so they think that the worker has false consciousness. So as you rightly put it, because of the Third Reich, they come here, Columbia Teachers College offers them a place where they can gather and work. And so people like Maxwell Horkheimer the director of the Institute. We call it the Frankfurt School, but it’s really called the Institute for Social Research. It was first of all going to be called the Institute for Marxism, then they realized that that was too upfront. They really tried to hide their Marxism, but they’re Marxists. If you read Horkheimer and for my sins I do, you realize that they themselves say it, they admired the Soviet Union. So they come to America and they hate America. They hate America even more than they hated the European worker. They think this place that offers them this salvation… But they’re very curious about America, but at the same time, they say, “Well, the Americans are a bunch of boobs. They go to their movies, they’re happy. They have their Hi-Fi sets, and they have this split level homes.” I’m quoting Horkheimer there. And Horkheimer before he dies, by the way, he gives this interview in which he says, “Look, capitalism is better at producing material reward. The material needs of the individual are better taken care of by capitalism. And that’s what makes capitalism so dangerous because it prevents revolution.” And so that is really their work, is to denigrate all the institutions, the family, capitalist system, which they think is irrational, even the nation-state in some ways. They want to get all these out of the way. Richard Reinsch (12:38): It’s critical legal theory itself, I think as you were alluding to. Kind of a straight Marxist critique of the law rooting it in power and wealth, and it’s on behalf of that class, the capitalist class that our laws have been written and enforced. And critical race theory changes that in many respects, not changes it, but inserts race as the explicit motivation. Mike Gonzalez (13:03): Yeah. Right. Richard Reinsch (13:03): And that’s what we’re dealing with now is, race becomes the prism through which we understand all of American life and institutions. Trying to also get a grip on the ideology behind BLM is, to my mind what they do with history. In the sense of, it’s just a battle of narratives. And heard Nikole Hannah-Jones say this about the founding, “We are contesting the dominant narrative with new facts.” But the facts aren’t really facts, they’re interpretive methods to sort of change thinking. So history itself becomes very plastic. Mike Gonzalez (13:38): Yeah, no. They try to undo, and I’m going to paraphrase Aristotle here. Aristotle had this great maxim that says that, “The only thing that’s denied to the gods is to undo what has been done.” Well, they tried to undo that, they tried to do what has been denied to the gods. They tried to say, “No, these facts didn’t happen. Or these facts are going to be interpreted in this other way.” Another old maxim, “He who controls the past controls the future.” So they tried to reinvent history along their lines alone. But when they do that, you mention Nikole Hannah-Jones, they just plainly lie. So when Nikole Hannah-Jones says, “well, the revolution was fought because the colonist feared that the mother country Britain was going to take away the institution of slavery.” That is just an outright lie. She gets that from a court decision, the Somerset decision in London, in the ’70s. In which a slave who had been brought by an American planter to London, is found not to be a slave. But that’s just a minuscule, that did not matter at all. That’s not the reason… It came after the 1760s with John Adams, called The Revolution of the Mind. By that time the wheels are going. So Nikole Hannah-Jones, is a complete fabrication, that this is what motivated the revolution. And yet they say it. The New York Times had to actually retract that part because it was so embarrassing. But you’re quite right when you talk about critical legal theory. What the critical theorists did in the ’60s, is that they strongly influenced the New Left, cap N, cap L, especially Herbert Marcuse. And out of that ferment, grew critical legal theory. In fact, the godfather of critical legal theory, Duncan Kennedy said in an essay quote, “I was very influenced from the beginning by the two strands of confidential thought, the critical theory, the Western Marxist and post Marxist strand, which include Herbert Marcuse” et cetera. So he is a, strongly Duncan Kennedy and the other critical legal theorists, influenced by critical theory, but they just apply it to the law. They say, “Yes, this is super structure,” which is a big thing for the critical theorists. It’s almost like the movie, The Matrix. There’s a super structure that is oppressive, but the critical legal theorists say, “It’s written into the law.” You’re quite right. What the critical race theorist do, their innovation is to say, “It’s race.” And race is the big thing in America, as we know. So they look at everything through that lens. Richard Reinsch (16:13): Give us something else, another term we hear a lot, structural racism, systemic racism. How are they defining those? Mike Gonzalez (16:22): So that is really the apex of critical race theory. As I said, they believe that racism is systemic, structural. It’s built as Richard Delgado says, “Into the little things that we do in everyday life.” And so it’s the little things we do in everyday life that need to be replaced. The power struggle needs to overthrow the way we just organize as a country. That is very similar to what the BLM founder, Alicia Garza says, that we need to get rid of the organizing principle of society. So it’s not just racist laws or racist events, for which we have very strong laws already, by the way. We have the civil rights act. And if an employer can be shown to have acted in a racist manner, to have made a racist decision, he or she can be prosecuted and rightly so. We need to strongly prosecute people who have acted in a racist manner in the public sphere, where it is illegal to do so. So we do have very good laws already, thank God. Until 1964, we had legally imposed racism. In the South, even if you wanted to sell a sandwich at a lunch counter to a black person, you couldn’t because the law forced you to say, “No, I can’t.” We changed that, and thank God for that. With the promise that we’re going to have color blind policy hence forth. The critical race theorists hate that part of the Civil Rights Act and Civil Rights Movement. They hate the promise of color blindness, and so does BLM. They want to have color conscious policies. Richard Reinsch (18:09): So this is interesting too, as I read some of the literature from critical race theory, it seems to me with the Civil Rights Act, the way they’re reading it is, it still protects capitalism. And what it’s saying is, we have these competitive markets for jobs, education, incomes, and sometimes there are these breakdowns, there are baddies, they discriminate on the basis of race and we’re going to help correct for that and make that difficult to do, and we’re going to punish it if it happens. But it’s still preserving the structure. And I take it, and this is like the intersectionality point, it’s increasing the ways in which wrongs can happen. We’re not really about that, we’re about something else. We’re about saying that, “Well, racism is actually so embedded that we need to really get inside the government and remake it and remake how it interacts with the economy, civil society,” et cetera. Mike Gonzalez (19:06): Yeah. Again, to quote Delgado, he says that, “Racism happens in the ordinary business of society.” But by the way, all critical race theorists and all the founders of Black Lives Matter, hate capitalism. And this is not just the founders of Black Lives Matter, but this includes the retail practitioners of critical race theory, Ibram X. Kendi, Robin DiAngelo, they’re all on the record as saying that capitalism is racist and bad. And that is because they say that capitalism rewards the wrong criteria, that we have to change their criteria. It’s not punctuality or hard work that we need to reward, we need to reward other areas of life, which they never really define. This is the old criticism of capitalism. For example, somebody who can hit a curve ball has a contract for $400 million, or somebody who’s able to come up with an option to a new option or a put, can make millions and millions of dollars. Whereas a teacher has a salary that’s $50,000. They say that is unfair, that’s a result of capitalism. Obviously you’re looking at a skillset. The people who can hit a curve ball are very, very, very few. And as long as there are thousands and thousands of fans, including myself, are willing to go to a ballpark, that person who has the ability to hit a curve ball is going to make a lot of money and should be rewarded. But they’re at war with that system. Richard Reinsch (20:43): On this point, on Black Lives Matter in this… The way I think of it is like, it would be a racialized socialist system as I read this work. And it’s the structural racism licenses tremendous power to get to that point. I wanted to just think for a minute about, you’ve written this book and you said, you’re traveling a lot and dealing with critical race theory in the schools. Black Lives Matter this time last year looked ascendant, looked powerful, had a Democratic party unwilling to criticize it, unwilling to link it to any of the violent protests that were happening. Although, I think the linkages were obvious, you talk about those in the book. Seems to me though, that’s not the case a year later, in the same way. It does seem like a lot of Americans, including a lot of minorities have confronted this and don’t like it, and the progress has been halted, even though there’s still these ongoing attempts to do things. But seems to me a lot of Americans have woken up. And that was my worry last summer was, where is everybody? Mike Gonzalez (21:53): Well, there’s two things here. One is, we’re very much living with the effects of Black Lives Matter in the summer of 2020. We have what I call the twin legacies of 2020 and Black Lives Matter. One is the critical race theory, which has now in invaded all aspects of our lives. That is a direct result of the summer of 2020 and Black Lives Matter. The reason why your daughter, her AP Spanish class just spent the whole semester studying systems of oppression in Guatemala rather than Cervantes, that is a direct result of Black Lives Matter. The reason why many people listening to us right now will be dragged by HR into a quote unquote anti-racism training program in their places of work, which are quite racist or break the law themselves, that is a result of Black Lives Matter. So that’s one legacy. The other one is a huge spike in crime, in homicides that we’re seeing in our cities. And we put anywhere between 25% and 35% in 50 to 75 largest cities in America, where a lot of Americans live, especially impoverished Americans, that is also the result of Black Lives Matter, and studies substantiate that. So the America that we live in today has made worse and inferior because of Black Lives Matter. Now, what you said is exactly right. A lot of Americans are saying, “No, we don’t like this.” That’s the reason why you see these divisive conflicts arising from coast to coast. Because Americans who are quite attached to Liberty uniquely, exceptionally attached to Liberty, say, “No, we don’t want our lives torn up this way. And we don’t want the system thrown out this way. And we don’t want the foundations of America to be pulled out from under us.” And so opinion polls have shown that support for Black Lives Matter has steadily declined. But that is because a lot of people like me, a lot of people… not just me, a lot of people have been writing this, but not the press, that the journalist not writing this. So I have two people whom I blame for the fact that many Americans still do not know the truth about Black Lives Matter. One is the mainstream media, they did not cover Black Lives Matter. And the other one is the political class. The Republican party has not been great in this. Yeah, they’ll pound the table about Antifa. And that’s because Antifa is… We don’t know Antifa as well, but it looks like there’s a lot more white than Black Lives Matter. Antifa doesn’t have Black Lives Matter in its title, but Antifa doesn’t have anywhere near the power that Black Lives Matter does. Black Lives Matter has a curriculum now that is being taught in the majority of the countries 14,000 school districts. Black Lives Matter has a bill in Congress. Black Lives Matter is partnering with the musical Hamilton. So even though we hear less about it and there’s less support, we’re living in a Black Lives Matter world. Richard Reinsch (24:53): It’s interesting too… I didn’t know it’ll be in majority of school districts, that’s interesting. One of the things that’s worked in their favor I think, in a sense of the systemic racism point is, there are pretty stark differences between whites and blacks on wealth differences, income differences, health differences, private property ownership, home ownership, things like that. And we can debate the causes of that. You and I probably agree on the causes, but that’s not what most people in official positions of power are willing to accept. And that seems to give rise to saying, “Oh yeah, this is systemic racism.” So I guess one question is, how do you deal with that point? We can talk about causes, we can try to make the arguments, but it’s difficult to break through in that regard. And something else is this point about crime, that BLM has always been associated with, has latched on to. The violent crime, mass incarceration and these differences in incarceration rates between blacks, and primarily black men and white men. How should we think about that? Mike Gonzalez (26:06): Well, that’s one of the reasons I wrote my book and it’s all in my book, I want to expose all of this. Look, if we want to solve all these problems, we need to talk about them. We need to talk about the causes of the disparities. First of all, we need to disaggregate black, we need to disaggregate the data and whites. We need to look at for example, if you disaggregate from country of origin, you realize the Nigerian Americans and Ghanaian Americans have a much higher income per household than white Americans. Professor at Columbia University, Van Tran who does very interesting studies, looking at the second generation West Indians in New York. Why second generation? Because they’re the children of immigrants. The immigrant is the first generation. So they don’t have an accent. They have what Van Tran calls zero visibility as an immigrant and 100% visibility as blacks. So in other words, they’re going to encounter racism. If there’s a racist store owner and they’re walking into the store, the store owner is going to be chasing them around. If it’s a racist policeman, the policeman is going to be harder on them because they’re black. However, the second generation West Indians that have been looked at by this professor at Columbia in New York, have closed the gap across eight measures with whites and not completely, but a great deal. And why is that? He’s looked at the family structure. Not only is the family intact, but the parents are very strict. They live in the same neighborhoods in New York, they live in the same inner city neighborhoods and yet they force their children to come in. When the lights go on the children, come in, they succumb less to peer pressure. There’s a number of reasons why they do better in the cultural indicators. And then you have also to look at black Americans, native black Americans with intact family. Again, the measurements improve vastly. So you have to disaggregate… You have to look at that and white Americans, and look at white Americans with intact families and white Americans with no family, the father is not there. All they did is this functions that we know about, they don’t do very well. Family dysfunction in this structure of family is an equal opportunity killer, is color blind. So it depends on how we look at the data and how we look at the cultural indicators, and then we’ll have a much better picture. But in terms of mass incarceration, as I’ve mentioned in my book in 2019, the percentage of black Americans who were being put in prison had been declining at a much faster rate than that of whites. So that was improving just as we entered the year of 2020, after the harrowing death of George Floyd, and the deft use of that video by the Black Lives Matters organizations. Richard Reinsch (29:16): Excuse me, you have an interesting history in the book which I was not aware of. The Soviet Union forms and pretty quickly they were thinking about ways they can infiltrate countries. This is a missionary… communism being a missionary ideology. And one way they think they can penetrate America is through the injustices that black Americans had experienced. And they start reaching out to intellectuals first to try to find ways to build inroads. And as I read your book, I took you to be making the point that this is just a common problem in America, the racism that we’ve had. And it becomes a source of… It’s been very difficult to deal with. But it becomes a point of infiltration. And it’s been there, it predates Black Lives Matter. As you pointed in the book, you go back to the ’70s and the ’60s. You have an interesting chapter, “Then the ’60s Happened,” in terms of a change in thinking amongst intellectuals about how to use race, or what racism should mean in the law. So this is ongoing, but the point being, I think is… your point being, it’s not about the racism. Racism is the entry point to increase or demonstrably increase socialism in American lives and thinking. Mike Gonzalez (30:45): Yeah, that’s an excellent point, Richard. Actually thinking back to the ’20s, right after the Soviet Union is created. And they really see huge potential, they actually want to divide America into black America and white America, and they invite black intellectuals… Let’s not forget that at the same time, you have the Harlem Renaissance, which had seen incredible outpouring of writing of music, of a population that had been enslaved just a few decades earlier, shows what it can do once it’s free. All these great… Langston Hughes is a good writer, and yet they become enamored of the Soviet Union, and then he goes to the Soviet Union. W.E.B Du Bois, a very insightful black writer also becomes in love with the Soviet Union. In fact, he applies to join the party right before he dies in the ’60s, he goes to see Mao and everything else. However, rank and file black Americans have no truck with this, they don’t want it. All they’re asking for is for their white compatriots to accept them into American life. They want to be accepted. They don’t like communism. They understand that communism is going to destroy their families, it’s going to destroy their livelihoods. So there’s a rejection. And in fact, the Soviet Union in the ’50s ends up giving up. It realizes that black America has been a complete failure and it gives up this idea of dividing America. It has won only intellectuals. And just like it does with white Americans, by the way. It won only intellectuals. Rank and file families, whether they’re black or white of Americans say, “No, thank you” to the Soviet Union. In the 1960s, following the Cuban Revolution and the Cultural Revolution in China, we have a lot of American students do become radicalized. But also they’re radicalized by the fact that the critical theorists are here. Marcuse, the guru of the new left. And then you do have the Black Panthers. You have the Weathermen, you have Students for Democratic Society. You have all these radical groups running around, the Black Liberation Army, that are quite the Malcolm X, that are quite Marxist and quite revolutionary in their outlook, Stokely Carmichael goes to Havana and so forth. And that is really the people from that era go on to influence Black Lives Matter. Let’s not forget that the intellectual mentor of the Black Lives Matters organizations founders is none other than Angela Davis. Angela Davis is the grand old Dame of American communism. She runs on the communist party ticket as vice-president twice. She still goes to colleges, universities, she’s still around and she’s very active. She goes to college and universities, she says, “I’m a communist, and I’ve always been a communist.” And these poor college students from Santa Barbara to UVA stand up and give her a rousing standing ovation because they don’t know any better. And she was a student of Marcuse, Herbert Marcuse at Brandeis. So there’s a direct link between the critical theorists and Black Lives Matter through Angela Davis. Which as, I pointed out in my book, BLM: The Making of a new Marxist Revolution. Richard Reinsch (34:01): You talk about the ’60s happened, you have a chapter call that. What do you mean? How did that change? Mike Gonzalez (34:10): Well, as I said, I think that the… First of all, there’s Vietnam. Second of all, blacks have had it with segregation in the south, and they’re quite rightly demonstrating and marching. And all of a sudden these suburban white kids in the north are seeing on TV what is taking place, and they rightly don’t want to ignore it anymore. And then there’s the Vietnam war, which is kind of leaderless and Johnson just gets us further into it, without really any plan for success. And that provides a spark for, I think, a lot of radicals to come in and try to revolutionize Americans. The leaders of the Weathermen look at Che and look at Fidel Castro, and they say, “These are white law students or white medical students who are able to revolutionize an entire society, we can do the same thing here.” Of course, they can’t. And they proved to be the keystone crux of terrorism. But they, as I said, I think their main influence… Because they failed to revolutionize America. America does come through, but now the people they have intellectually influenced are changing us more deeply than they ever dreamed in the ’60s. Richard Reinsch (35:30): Thinking about this moment that we’re in, what do you make of the success of Black Lives Matter in the suburbs? I know we’ve been talking about it. You’ve been describing it with a Marxist analysis, has having built on a Marxist analysis, I don’t dispute that. But what do you think is going on in say wealthy suburbs? I think about the one I live in where we had Black Lives Matter protests, which were just basically white kids. What do you think is going on there? Is this a feeling of religious like characteristics, of this movement filling a need in their lives, a void in their lives or what’s going on? Mike Gonzalez (36:06): Yeah, that’s a good question. I do discuss in my chapter on the ’60s, the manipulation of white guilt. And I think that a lot of people looked at the harrowing death of George Floyd, this awful nine minutes captured on film or video rather, and they were… Nobody looked at that and came away not disgusted by it. And I think the message that Black Lives Matter wants is social justice, has resonated because it has been filtered by the press. The press will not mention any of the things I mentioned in my book. They will not mention that the Black Lives Matter leaders are Marxists. They never mentioned that they want to completely change the American system, American society. The press just says that what they want to do is discuss history for the first time, that people like me, we don’t want history to be discussed. That is a complete canard by the way. And not only do… I want more history to be taught. I want Frederick Douglass, I want even W.E.B Du Bois, even though I disagree with him, I want him taught. I want American students to learn more about this, not less. And I tell you that I’m in close contact with everyone in my space. And I don’t know anybody who says, “No, history should not be taught.” Whether it’s the history of slavery or segregation or Jim Crow. So I think that the people in the suburbs, good Americans, my neighbors, who pitch Black Lives Matter signs on their lawns, in many ways, they’re completely unaware of what is taking place. They completely unaware of who they are, the Black Lives Matter leaders, they lead busy lives. They don’t want their lifestyle to be upended. They don’t want their lifestyle to… If they did, they would just sell their big houses in the suburbs and share the money with the poor. So that’s not what they want. They don’t want their lives to change, they just want social justice. What they’re embracing though, when they embrace Black Lives Matter, the organizations, is something that will have very nefarious consequences on everybody. Now, there are people who, I don’t know how, make the case and say, “Well, you have to differentiate the leaders and the organizations from the movement.” The movement is a formless word. What matters is the organizations. They have millions and millions and millions of dollars. They have a bill in Congress, they’re making real change in America. The Soviet Union had a great term for people who just went along and refuse to believe that the Soviet Union was evil, they called them useful idiots. That’s a harsh term to use for people who are well-intentioned but misinformed today regarding Black Lives Matter. But there is a certain link there to the old Soviet term. Richard Reinsch (39:05): Essentially, one of the ways, something that we’re seeing now, federal courts turn back this attempt… and I think this is directly related to BLM, the Biden administration through the agricultural department. Making loans available to farmers who are minorities, but not to white farmers who may be even more financially disadvantaged, who knows. And the court system said, “Well, you can’t do that. We have laws here about discrimination, what it entails, how to prove it. And you’re offering this loan to someone just on the basis of skin color, without even proving the discrimination or any of the ways we tried to have evidence for that.” So that’s just one sign of… And it’s quite striking to me to think about. And a lot of state governments have done similar things. So we really are dividing ourselves up by race at that point., if that were to continue. Mike Gonzalez (39:59): This is a ginormous step backward. This is something that is very serious and we must really be very aware of, and it’s also a direct result of Black Lives Matter. Because this is the first time since the end of Jim Crow that we have the US government not affording Americans equal protection under the law because of their race. We decided as a country that we’re going to stop doing that. We decided as a country that the Plessy era did not work, the separate but equal did not work, that discriminating on the basis of race did not work. To go back to that, which is exactly what CRT and BLM wants, it would be… In fact, I think most Americans would say, “No, you’re quite right. A judge in Florida said that the Raphael Warnock amendment that president Biden so unwisely signed into law was unconstitutional, and you can make these decisions based on pigmentation.” And thank God for that. And I hope that every time this is tried again, a judge will step in and say, “This is little matter of the constitution, you can’t do that.” Richard Reinsch (41:15): So it seems to me, it’s interesting sort of that parts of the ideology, trying to find legal application. So it seems to me like defund the police has already proven to be a failure, as we knew it would. Seems to be in the bluest of jurisdictions that it’s being turned back. And even those leaders in those cities, while they might say defund the police, they’re also trying to recruit more police, the articles that I’ve read. But something like this, like making loans available, you can sell that as, “Well, we’re trying to help people who are the victims of past discrimination,” something like that. And that might actually work. So it seems there’s different parts of the agenda that might have greater or lesser amounts of success. Mike Gonzalez (41:56): Well, it didn’t work. Because we could say, “If you can show how somebody was discriminated against and he incurred a loss because of the discrimination, we can make him whole,” but you have to have evidentiary rules. We have to be able to prove that this happened, in which case somebody broke the law and we’re going to make a right. That is different from a blanket, “We’re going to give Oprah Winfrey this benefit, and we’re going to give Ted Cruz and Marco Rubio this benefit, that we’re going to deny some poor sharecropper in Alabama because his ancestry came from Northern Ireland.” That just doesn’t sell. With regards to the defund the police, I visit the Black Lives Matter site fairly often. They’re putting up all sorts of videos on how successful they’re being in stopping the building, not just the prisons, but the building of prison hospitals and prison psychiatric wards. What do they think they’re doing? They’re very proud of this. So they’re proud of the fact that they’re stopping the building of hospitals, where are sick prisoners going to go? What they want, and Patrisse Cullors is very open about this in a video she made just a few months ago, is they want to not just defund the police, they want to end the prison system and they want to end the court system, and no society can live like that. And we also have the rogue prosecutors in American cities, in San Francisco, in Boston, in LA, in many different places, even nearby in Virginia, which the police are making fewer arrests because they’re pulling back, surprise, surprise, because of the criticism they’ve come under. But when they do make arrests, the prosecutors are putting these people back onto the street. They’re not prosecuting, they’re not charging them with anything. Do you want to know why have a 25 to 35% increase in the homicide rate? There is a pretty good reason why. So I think even though politically to say defund the police… And by the way, Cori Bush just made a video two weeks ago, this Congresswoman who’s a BLM supporter saying, “No, I want to defund the police. We need to get rid of the police.” So I think we’re living, even though we may not know it, we’re living in a BLM world. Richard Reinsch (44:29): That’s interesting. So as you have traveled and thought about these issues a lot, what do you think is key to getting beyond this moment? Mike Gonzalez (44:38): I think exposure of the issues, was just the reason I wrote my book, BLM: The Making of a New Marxist Revolution. I think to prove to people… I think that’s already succeeded, as you put it yourself earlier, support. The polls show that yes, especially among white Americans and this Americans who designated themselves as Hispanic, support for BLM has dropped substantially. I think that we need to continue to do this work. I think we need to have a real reckoning in America. Not the false faux racial reckoning, that the journalists, that the media class tried to pretend that we had last year. We need to have a real reckoning of who we are as a country. What do our would be leaders, people who want to lead us, what are they saying? Do they think we’re evil? Do they think that we’re systemically racist? Do they think we need to overturn the system? We need to put them on the spot and then make them accountable. And so I think that that is the way. First, we need to have a revolution of the mind, so like the colonist had in the 1760s when Britain had intolerable acts, and then we need to act on that revolution of the mind. Once we change minds, the politicians, even the bad politicians will do the right thing. That’s a Milton Friedman quote. “We can’t expect just the good politicians, we need to create such an environment in which the bad politicians will do the right thing.” Richard Reinsch (46:05): All right, Mike Gonzales. We’ve been talking with the author of BLM. Thank you so much for your time today. Mike Gonzalez (46:11): Thank you very much.

Angelo Codevilla comes to Liberty Law Talk to discuss his latest book To Make and Keep Peace Among Ourselves and with All Nations. Our conversation focuses on Codevilla’s main argument that American statesmen increasingly fail to understand the nature and purpose of statecraft: the achievement of peace. So what does it mean to achieve America’s peace? To do so, Codevilla insists, requires concrete evaluation of the means and ends necessary to protect American interests. This requires particular judgments about power, interests, and the practial reality we are confronted with. Our practice, for well nigh a century, has been to speak in glittering generalities about America’s role in the world as a force for democratic and humanitarian progress, refusing to recognize the unwieldy consequences that result from applying abstract ideals in a Hobbesian environment. The refusal to be frank about how military victory must be used to achieve a peace on American terms not only produces unending conflicts with no clear idea of victory, but also leads to deep reverberations in domestic politics as coalitions form around perceived patriotic and traitorous courses of action. Post 9/11 politics, anyone? We also explore what Codevilla perceives as the failures of our major schools of foreign policy. The neoconservative believes that an aggressive America must give a shove to the forces of global democratic progress, while the internationalist has a similar end in view but wants to secure it by reducing American power in the world, harnessing and moralizing our power and interests through an array of multilateral institutions and treaties.  In a different vein, the realist assumes that all nations have the same kinds of interests and pursue the same goals regardless of the ideological cast of regimes and governments. All three approaches have been tried repeatedly, but, Codevilla argues, America’s interests have not been secured. Even though our nation wins its battles and wars, we lose our peace. Where then to look for wisdom in the practice of successful statecraft? That is where the conversation begins.

This next episode of Liberty Law Talk is with Steven Smith on his new book The Rise and Decline of American Religious Freedom. Our conversation explores Smith’s challenge to the dominant academic narrative that the Supreme Court’s mid-twentieth century decisions imposing secular neutrality vindicated the religion clauses of the First Amendment. In this version, their essence was to secure a government free of religion, tout court. But what if the First Amendment’s original public meaning and subsequent practice reflected a very different essence? Our conversation begins with the history of the ratification of the First Amendment. What do we make of the fact that the religion clauses were scarcely debated in the Congress that approved them? Smith argues that this should dissolve any notion that a grand constitutional moment occurred and that gave us the religion clauses as “articles of faith” in secularism. We discuss Smith’s view that the lack of debate owed to an existing consensus that wanted to prevent the national government establishing a national church while the states would continue their established churches, in some cases, and other lesser forms of religious influence in their laws. Contrary, Smith argues, to a national standard of religious freedom or secularism, the constitutional course was “contestation” or an ongoing conflict between religious and secular claims. Thus the Court’s separationist jurisprudence of mid twentieth century, Smith discusses, was a departure from an original understanding of religious liberty and its practice for most of our history. Smith also discusses and disputes the view that American religious freedom is an outcome of the Enlightenment. His controversial claim is that it is a recovery of a key concept of Western civilization, freedom of the church, and, its later Protestant development, freedom of the “inner church” or conscience. Recovery is here stressed because it was modern political development, Smith notes, that had subordinated the church to the state and stripped it of institutional freedom.

Richard Reinsch (00:19): Hello, and welcome to Liberty Law Talk I’m Richard Reinsch. Today we’re talking with John McGinnis about the recently concluded Supreme Court term of 2020 and 2021. John McGinnis, many of you will know is a contributing editor at Law & Liberty. He’s also the George C. Dix Professor in Constitutional Law at Northwestern University. He’s the author of a number of books, including Accelerating Democracy, Princeton University Press. He’s co-author with Mike Rappaport of Originalism and The Good Constitution published by Harvard Press. He has published in leading law reviews, Harvard, Chicago, Stanford, Yale, and in many journals of public opinion, National Affairs, National Review, Wall Street Journal, among many others. So John, we’re glad to have you to talk about the Supreme Court term. John McGinnis (01:05): Glad to be here. Richard Reinsch (01:07): So overall, what we should note about this term, all of the cases were heard by teleconference because of the pandemic. We welcomed a new member of the Court Amy Coney Barrett, confirmed before the presidential election, and so in that sense something new. But how would you characterize this term? Any startling developments that you’ve read, John? One way of thinking about Justice Kavanaugh and Justice Roberts is I think they are, people who’re more attuned, more concerned about the political reputational capital of the Court there. John McGinnis (01:28): Well, I do think it is important to understand that this is a new Court. I think it is well said that when always as a new Court, whenever a new justice joins and so the dynamics change. And I think this is the case more so than with other changes, because of course Amy Coney Barrett replaced Ruth Bader Ginsburg, and that is a dramatic change in jurisprudence, ideology. The only a comparable change in modern time, I think is that between Thurgood Marshall and Clarence Thomas. And you might say that this is even greater because this really solidifies, as many have said, a majority of some people would call conservative, other people might call it a more formalist, in jurisprudential terms, majority on the Court. And the reason that’s important, I think going forward in the longterm is I think, the justices particularly someone like John Roberts is very concerned about 5-4 decisions. And I think 6-3 decisions may give them a sense that there’s a little more leeway to rule even the way he would like. And so those are important changes of the Court. With Justice Barrett, I think we saw in the first term, a fairly cautious judge, this is not a surprise. Again, Court watchers think that to get their sea legs justices have to be on the Court for around four, five years, and that’s when one really takes their measure. On the other hand, Justice Barrett, I think has been quite clear in some of her cases that she’s an originalist, at least when there’s no clear precedent online, I think that’s… On the other hand, she’s cautious about changing the Court’s precedent. She’s not going to be someone like, for instance, Justice Thomas, who’s willing to simply throw out precedent when it conflicts with the original meaning, if there has been some precedent. Good example of that is the Fulton case in which he wrote a concurrence suggesting she doesn’t think the famous case of Smith is correctly decided. If you recall that case was one in which Justice Scalia said that, so long as the law was neutral, you really could not have protection under the free exercise clause. She doesn’t think that’s right, but she’s very cautious about throwing it out, which is not to know exactly what’s going to come afterwards. And that’s very much in contrast with not only Justice Thomas, Justice Gorsuch and in that case, Justice Alito were more willing to overrule precedent. So I do think we see both an originalist and a cautious judge in the newest addition to the Court. Richard Reinsch (04:20): And Barrett’s appointment to the Court also makes you suggest on Law & Liberty, not suggest, but argued, Justice Kavanaugh to be the new median justice on the Court. John McGinnis (04:32): I think that’s right, and that is born out by the statistics. I think I suggested that was likely going in and then at least this is one prediction I think that was right. He was in the majority, I think something on the order of 98% of the time. And that’s a pretty good indication, you’re the median of the Court when you’re at that height of joining the majority. And that’s not a surprise in some sense, I think. One way of thinking about Justice Kavanaugh and Justice Roberts is I think they are, people who’re more attuned, more concerned about the political reputational capital of the Court there. Of course, Washington insiders in a way that the other judges and the conservative majority are not, who spent a good deal of their time outside Washington. And I think people who are in Washington just are necessarily going to be looking out on things, reflect off that small beltway community. Richard Reinsch (05:38): Yeah. Not a problem for Clarence Thomas, even though he did spend a good portion of his career in Washington prior to the Court. John McGinnis (05:44): That’s right, that’s a good distinction. But of course, Clarence Thomas is I think someone who’s very consciously established himself in complete contrast to the establishment, particularly in the area he worked in, civil rights. So I think that makes him a little different showing a kind of willingness to buck the establishment, even at the cost of public perceptions. So I think he’s a little different and I think you’re right about that. But the other judges are sort of quintessential Washington insiders, talking about Roberts and Kavanaugh. Richard Reinsch (06:18): Let me ask you a question from a different angle. Just something that occurred to me thinking about this interview. This is an incredibly contentious period in our nation’s politics, do we find this tumultuous politics in any way finding reflection in the Court’s opinions for this term? John McGinnis (06:34): I think we do. I think we find it most in the voting rights opinion, the case I’d never know quite how- Richard Reinsch (06:41): Brnovich vs. DNC perhaps? John McGinnis (06:44): Brnovich. Richard Reinsch (06:44): Yeah. John McGinnis (06:44): There, I think we see, and voting rights of course has been a fault line between the parties. And that was a very bitter dissent by Kagan, somewhat uncharacteristically. So in my view, so what, I’m happy to go into the facts of that case, if that’s some interest. So this is a voting rights case about a question about a federal statute, whether the federal voting rights statute makes certain laws in Arizona illegal. And Arizona had two kinds of laws. One was a requirement that, if you did in-person voting and Arizona allows quite a bit of in-mail voting, it’s allows early voting. But if you did an in-person voting on election day, you have to vote in the right precinct or your vote won’t be counted. And also it has what is called anti-harvesting provision, suggesting that while you can mail in your own ballot and maybe a family member can, people who are unrelated to you can’t collect a lot of ballots and mail them in. The concern there is not only fraud, but that there can be undue influence exercise too. For people to say, “Well, here’s a ballot, please mark it in the way I’d like.” And that’s a problem. So the question was, the provision of the statute that requires an equal opportunity for all groups to vote. And there was some very small disparate impact on African-Americans, but we’re talking, I think in some cases 10ths of a percentage point, very small disparate impact. And the question was, was that enough to invalidate these laws? Even the Biden administration said, no. The Trump administration had said no, the Biden administration did not change the position. And the question is, how do you interpret what is an equal opportunity? The Senate said, “Well, it’s an effects test.” So essentially you have to have an incredibly strong reason, even if there’s any disparate impact. The majority said, “No, that’s not the right way to read the statute.” And I think the very powerful argument here is, in the House, there was a provision that was like that, an effects test. But when it got to the Senate, the Senate added a lot of language saying, “We’ve got to look at the total circumstances and you just have to make sure everyone has an equal opportunity to vote.” And I think the majority correctly said that was not an attempt to change all of the voting laws to make sure that there were no disparate effects, because that would have made that language rather superfluous given the change from the House. So I think the majority is right there, but not surprisingly given the fault lines we see about Voting Rights Act, I think that was the most divisive issue in the entire Court term. Richard Reinsch (09:37): So that opinion will have consequences rippling out in our politics and future elections. As we see, say Republican state legislatures trying to, I don’t say reduce the number of people that can vote, but putting up just more strictures on voting. Making sure it seems to me, they want to have more in-person voting, but they seem to be, the view is those provisions will be more insulated from legal challenge after this opinion. John McGinnis (10:03): Yes, I think that’s right. And note, a lot of these provisions actually are just going back to what the rules were, not all of them, but a lot of them were going back to what the rules were pre-pandemic. And so if the dissent had been correct, I think even those kind of rules would have been really opened the challenge. But the majority said, “Well, the laws have been around a long time.” The laws for instance were around at the time that this federal statute passed. And there was only a relatively small disparate impact, and there seem to be some reason for them, this does not intend to wipe away those laws. So I think it is an important decision that allows for more state authority to change their election laws. But it’s not a carte blanche by any means, if there’s a substantial disparate impact, if there really don’t are no good reasons, and this is a new kind of law, these laws are still open to challenge other than the majority’s opinion. Richard Reinsch (11:01): So I want to get to ad law and any implications for ad law in this term. But let’s talk Fulton vs. Philadelphia. Another contentious case with connections to our politics, which the Supreme Court ruled that the City of Philadelphia could not prevent Catholic charities from being involved in its adoption programs because even though that agency did not refer adoptions to same-sex couples. I disagree with those who said, that really the majority opinion does not improve the situation for religious believers. In the sense it does, if there’s any kind of administrative exception, you got to make a free exercise challenge. And even if it’s not an exercised administrative exception. John McGinnis (11:29): That’s right. And what distinguishes this case from the Brnovich case is that it’s a… well, not a unanimous opinion, it’s a unanimous result. All of the justices said that what Philadelphia did was illegal, but there were two very different approaches. And they’re kind of characteristic like the approach that came in the majority from the Chief Justice was I think, a really a characteristic kind of a decision. Working within the law to make it more friendly to free exercise. Doctrinally, the concurrence by Judge Alito wanted really to overturn Smith. So beginning with a majority opinion, the majority opinion plays on one aspect of Smith. Smith says that, “The laws to be insulated from challenge under free exercise have to be laws of general applicability.” And the argument was, well, this law that’s saying they could not participate because they wouldn’t refer about same-sex couples was not a law of general applicability, because the law itself permitted administrative exceptions, and that made it not generally applicable. The interesting thing about that was that there hadn’t been any administrative exceptions. So this shows quite a weakening in some sense of general applicability. Even if you have the possibility of administrative exceptions, that means the law is not generally applicable and you can make a free exercise challenges to it. And that’s quite important. Indeed, it suggests that in some ways, state laws are more vulnerable if they have administrative exception which they haven’t used. Because if they do use administrative exceptions, well then you can compare them and say, “Well, is this comparable to the exceptions, the religious organization wants?” But here there was no exception at all, and that made the law vulnerable. So I think it’s an important doctrinal move and so I disagree with those who said, that really the majority opinion does not improve the situation for religious believers. In the sense it does, if there’s any kind of administrative exception, you got to make a free exercise challenge. And even if it’s not an exercised administrative exception. Richard Reinsch (13:51): So you’re saying, just for my clarification, the law at issue in the City of Philadelphia allowed for exceptions to a non-discrimination policy, but those were never actually exercised by the agencies participating in the program. John McGinnis (14:08): That’s correct. Richard Reinsch (14:08): And that’s funny, because I read one of the administrative exceptions was race, that agencies could discriminate on the basis of race. John McGinnis (14:17): Well, they could, but as I understand it, this had not been an exercise exception. In other words, they had not permitted agencies to do that. So I think that is significant that there was no part of the opinion that if indeed an agency had permitted an exception, I think there would have been questions of, “Well, is this comparable? Are there stronger reasons for denying the religious exception than the other exception.” But I think there were no actual exceptions granted, at least in the specific respect that the religious agency was asking for an exception. I think that’s one of the significant aspects of the case myself. Richard Reinsch (15:02): On this, we’re talking about Scalia’s opinion, a famous opinion in the Peyote case, Smith case, whatever you want to call it, in Oregon in the early ’90s. Do you sense in the opinion a desire to overturn that reasoning? John McGinnis (15:22): Well so there are two concurring opinions. One the Alito’s opinion says it should be overturned and goes to a very long historical originalist analysis. Richard Reinsch (15:33): Did you find Alito to be correct in that regard? John McGinnis (15:36): I think that’s a hard question as a scholar, I’d want to study it a longer time. I think he makes some very powerful points. It’s certainly more persuasive than Justice Scalia’s opinion as at least as understood as an originalist opinion. One of the striking things about Smith is for the most famous originalists on the Court, how little originalist analysis there is. And so in that sense, I think just as Alito is pushing against an open door and makes a persuasive case, Justice Barrett I think is persuaded by the textual argument that, the free exercise clause doesn’t seem to be a clause about neutrality and we are actually allowed free speech claims even about laws that would neutrally apply to all speech. So it seems anomalous to understand free exercise in that way, and structural arguments like that, I think our originalist argument. So in that sense, I would say that I am persuaded at the moment at least of Justice Alito is position, but open as always I think an originalist must be, to arguments on the other side based on evidence. Richard Reinsch (16:52): So Barrett’s claim is something like, religion in the first amendment is actually regarded like speech, it’s good. It’s a good thing and we want to protect it. And laws of neutral applicability aren’t really the issue, it’s are you impinging on religion period, and that automatically triggers a claim. John McGinnis (17:12): Right. And that structurally appears to be the way rights work, and so why should religion be different in that respect? So that’s their argument. She’s not persuaded, she says in her concurrence by another kind of argument, which is that historically people were granted exceptions. And the problem with that argument is that exemptions, is that seems to be a kind of common law argument, and maybe it didn’t carry over to the Constitution. So I think that is perhaps less clear. In any event, the difficulty then for Barrett is because she doesn’t have that historical understanding of when exemptions were granted. That’s one of the things that worries her because she doesn’t have a test that is a touchstone for when you should grant exemptions. Whereas I think Alito looking at the history says there is a test and it’s something that may approach something on the order of strict scrutiny. So that’s the difference between Justice Barrett and Justice Alito in Fulton, and why Justice Barrett I think, is not willing at least at the moment to overrule Smith, which is a little unclear what should replace it. Richard Reinsch (18:28): Okay. So now John, we were talking before the podcast that you said every Supreme Court seems to have its heart at a certain area of the law. And perhaps this Court has its heart in the era of administrative law. What happened in this important body of law this term? John McGinnis (18:45): I think that’s right. I think Rehnquist Court you can describe is very focused on federalism, and this Court very focused on administrative law. And I think indeed Trump’s appointments through the White House counsel of McGahn certainly Gorsuch and Kavanaugh, were appointed in large view for their skepticism about certain doctrines of administrative law. And their concern about the administrative state as a headless power that really was unaccountable. And we see these appointments bearing fruit, I think in two very important cases in this term. And one is the case of Collins, which is a case about an obscure, I know there are hundreds or 150 or so federal agencies. That’s probably one your listeners haven’t heard of them. I hope I get this right, The Federal Housing Finance Agency. Richard Reinsch (19:39): I think that’s right. Yeah. FHFA. John McGinnis (19:42): It’s director is insulated from removal. And the argument was based on another case about the Consumer Financial Protection Bureau, where its director was also insulated from removal. And the Court said, “Well, you can’t do that.” You might be able to have multi-member boards because we have precedent on that. But the basic argument, they basically accept the unitary executive argument, that’s the background principle. By unitary executive we mean, the president is in charge of the executive branch and therefore must be able to fire his subordinates. And they accept that in this case and say, there really aren’t any strong distinctions between this and the CFPB. There were a few distinctions, CFPB couldn’t make its own budget, but they said these weren’t strong enough. What’s really significant about this case is the amicus who is appointed to defend it after the Trump administration would not defend the constitutionality of this statute and said, “Well, you could put others in its place. For instance, well, what about the chairman of various federal agencies and other actors who seem to have authority that they exercise without going through a board. And the Court, doesn’t say those are not open to challenge. Indeed, it seems to be inviting a challenge.” So my impression is that what’s going on here is, they’re going to cut back and back on some vulnerable precedent. The precedent of Humphrey’s Executor, which says, at least that wards, like the FTC, the FCC can be insulated from removal. And we say, “Well, the chairman can’t be insulated from removal.” And I think ultimately they’re trying to isolate those cases, and we may even see Humphrey’s Executor overruled once you get enough of these cases, they’ll say, “Well, this case is really an isolated anomaly and then kick it over.” So I think we may be seeing this slow, but complete triumph of this theory of the unitary executive. That’s the significance in my view of Collins. Richard Reinsch (21:53): The so-called independent agencies and commissions just for our listeners, their heads, or their board of commissioners or agencies or whatever you want to call them, are insulated from removal, exactly why? John McGinnis (22:11): Well, the theory before was that, I think here’s the theory that because these agencies get not only executive power, they are rulemakings, they make judicial decisions, they’re not purely executive agencies and therefore they should be insulated from the president’s whims. I think that’s the argument. The difficultly with that argument is the whole theory of why they can be in the executive branch is, they have to be executive agencies and that’s the anomaly here. So once you decide that Congress can delegate power to the executive, you have to say, “Well, it’s really executive power it’s exercise. And the executive branch can’t exercise legislative power.” And so the theory in favor of insulation is in conflict with the theory of delegation itself. Richard Reinsch (23:05): Okay. But the people in those roles, they’re not directly challenged here. It’s an agency head insulated from presidential removal. That’s where the Court seems to be pulling us in. John McGinnis (23:17): Going I think. That’s my… Because as I say, I think this is one area I think that Roberts and Kavanaugh may care more about as Washington insiders actually. And one other point I would make, I’m making a kind of formalist argument, which I think is the right argument. I think there’s also a realist argument about why Republican appointees are much less sympathetic to independent agencies and indeed independent inferior officers, because the bureaucracy leans left, there’s enormous evidence of that. And so if you don’t have the precedent tugging on the other side, it means it’s going to be much harder for Republican administrations to do what they want to do. Because it’s quite understandable that agency heads they’re going to say, “Well, I better get along with the bureaucracy, otherwise it’s going to be more difficult for me.” Of course, if the president says, “I’m going to fire you, unless you go with my program,” there’s a vector the other way. And so I think there’s a realist as well as a formalist reason that we’re likely to see a continuation of the whittling away of these exceptions to the unitary executive. Richard Reinsch (24:33): I wanted to ask you briefly about this case, because it puzzled me just in my own knowledge and thinking about how unions organize. Cedar Point Nursery, 6-3 decision that union organizers can’t compel their way onto, in this case it was corporate agricultural property, to engage in union organizing. And I guess, and I’m sure you have better command of the facts than me, but isn’t it always the case though that a union has to go on to company property to organize? Is this a significant case or not? John McGinnis (25:06): Actually I don’t think it is always the case that they have to go on company property to organize, as I understand it, I’m not an expert in labor law, this was a kind of particularly California statute. So I don’t think it is a national statute and the Court doesn’t say that you can’t go, you can’t grant easement that you’d have to pay some amount of money for it. That’s the significance of this case. It’s a 6-3 decision where the majority says that, “We’ve got to have a bright line here. Physical invasion takes away people’s property.” So I don’t think it’s the case. The Court makes it very clear that government officials can come on to people’s property because the common law was understood that they could do so because there may be laws to enforce. It’s very different when you allow private individuals to come on to the property. So I think the significance of this case is in some sense, it’s also a regulatory case and Breyer has as he often does a multifactor test to say why this isn’t a taking. Here the Court is giving a clear rule and saying that regulation just can’t whittle it away, and you’re going to have to pay to be able to get onto a property. So I think that’s the significance of this case, that the alternative, it means that everything is kind of up to regulation. You don’t have clear rights that are protected by the Constitution, they can be whittled away. Richard Reinsch (26:42): A question in my mind in thinking about this case and the facts would be different, but it seems to me there’s a carryover with this desire to regulate social media companies, what they can say, what they can’t say. I don’t know if you find a connection there, but just the ability to tell them as a government, well kind of go onto their property and give them commands and instructions. Do you find any connection there? John McGinnis (27:09): I think it is. So your argument would be that, so the government regulates, so you’ve got to permit other people to speak. And that’s a lot like going on to other people’s property to speak, and I think there’s something to that. Of course, one is a first amendment case, another is a property case. The government in a property’s case can require you to let people on your property, they just have to pay for the right to access. The first amendment is often a trump card that the government can’t force you to allow someone to speak in your newspaper, regardless of whether it pays for it. So in that sense, it’s different, but there is a similarity that in both kinds of cases, the government is permitting an intrusion of someone into your space. Richard Reinsch (28:01): Okay. Now this prompts, I think an easy segue into the next case we should talk about. Americans For Prosperity, a California case implicating the first amendment. California law mandated donor disclosure by non-profits to the state of California. And this was required by California law. And the Supreme Court ruled 6-3 that this impinged, the first amendment rights. Is this a significant victory for free speech? John McGinnis (28:26): I think it is a significant victory for free speech. And what it shows is that the majority is taking account. And that is one point I think, needs to be underscored about Supreme Courts generally. Even if you’re an originalist, even if you want to follow precedent, the question is you still have to apply precedence to the facts of the world. And I think this case should be understood as, recognizing the reality of cancel culture. So I think the way to understand the case is to think of the case that it builds on. It builds on cases from the south in the civil rights era, when some Southern states required organizations to disclose their members. And it was pretty obvious that although these laws were often neutral, that they were hoping to disclose the membership of the NAACP. And that was really obviously quite problematic. And what prompted the Court to say that, “Well, you have to have some really good reasons for that, and it has to be pretty narrowly tailored. Otherwise, we think we’re ferreting out that you’re really trying to make it harder to speak, by revealing donors and members.” So that’s that era. We’re now in a new era and you might say, “Wow, it’s not as terrible, of course, as the era of Jim Crow and the era that people are fighting against segregation.” On the other hand, we have a pervasive issue here of the cancel culture. And I think that’s what’s behind this and in sense it’s say, “Well, we may have a more general cultural issue, particularly with the social media and having your name be able to be put up in lights and being fired from your job, that we’re all a bit more vulnerable in this era.” So I think it’s not only an important first amendment case, in my view underneath it all, is an important recognition that the world of social media has made people more vulnerable to having their decisions about who to support broadcast to the world and used to harass them. And so in that sense, it’s I think a very important case. I would just underscore that these cases really show how important it is to understand that these Supreme Court cases are not just doctrinal, they reflect our underlying cultural moment, the cancel culture, the culture of indoctrination in schools. Those larger issues are very much on the justices minds when they decide these cases. Richard Reinsch (30:47): We also have significant instances in recent years where donor information of nonprofits or to political arms released to the government, found its way into the public square. John McGinnis (30:59): Well that’s of course actually true of that case, but so- Richard Reinsch (31:02): And it happened… In California, one goes back to the same sex marriage referendum, where lots of people lost their jobs in California when that emerged, they had donated to the anti same-sex marriage groups. So yeah. John McGinnis (31:16): Well, I think that’s on the Court’s mind. But I think it’s interesting that in this very case, and just to go back to the facts of this case, this is about charities and having that there was a requirement that you list all the important donors to your charity. And then that was what was being challenged here. California had, well, they said they would keep them confidential, they had released many of these donors. So again, and the example was California didn’t seem to be being very careful and maybe for political reasons releasing these donors, or at least not being cautious. But it’s interesting, the Court… you could have written a more narrow opinion. You could have said, “Well, there’s clearly a chilling effect in California, at least for the next 10 years, because who’s going to believe California they’re not going to do the same thing?” But the Court did not… it wasn’t as narrow as that. In some sense, the dissent, I think said, “Well… the dissent said this.” If you’re really sad just about the facts of this case, that you didn’t think they should have to give in this information, maybe you have a point. Their real problem was the more general requirements for information generally about donors that even if it hadn’t been disclosed in recent times, even that, you have to have a very strong reason not to show that it’s important for enforcement and you can’t do it another way. And I think that’s what suggests that the court is not wedded to the particular facts of disclosure, but to the general fear of cancel culture, that as you correctly point out, they have its origins and epicenter in California. Richard Reinsch (33:03): Another first amendment case, Mahanoy Area School District, a case in Pennsylvania where a teenager didn’t make the cheerleading varsity squad. So on social media, she used the F word several times to refer to her school. And then she was then removed from the junior varsity team that she had made. And the Supreme Court ruled, “Social media used by a student in vulgar fashioned can’t be used to discipline the student.” As I read the case, what also was in my mind was critical race theory and other attempts more recently by governments to impose sort of a more comprehensive doctrine on students, and parents and students objecting to this. And it seems to me, this case might actually offer greater protection to those who are objecting to government policies inside schools, in terms of how they might react to them on social media, other than just the narrow facts of the case. What do you think? John McGinnis (33:59): I think that’s right, just as I think cancel culture is in the mind, at least of some of the justices in the previous case as least that’s how I would connect them. The culture of indoctrination is on the minds of some of the justices, particularly I think that’s true of the Alito, Gorsuch concurrence here, which I think makes it… So let me suggest that this majority opinion is by Breyer, and as with all of Breyer’s opinions, it’s a multifactor test of whether you can possibly discipline students for off-campus social media expression. And he says, “No, you can’t do it in this case. They didn’t really have a very good reason.” And I think it gives a kind of presumption against it if you’re off-campus. And I think the reason that in my view, that’s a correct presumption and it should be a pretty strong presumption is that, I think the reason that schools can discipline students for on campus action is, one, necessity, of course you can require people to talk about math in math class and not talk about anything else, but also there are sort of acting in Loco parentis, and that’s a venerable doctrine that was around when the time the constitution was created. But once they get off campus, I think it’s really hard to say that a school can be acting in Loco parentis. And so I think Alito, Gorsuch concurrence, while I’m not saying that’s an absolute bar, tries to erect a pretty strong barrier. And I think that’s one of the reasons I think they fear that whatever, what concerns about indoctrination within the schools, that schools will try to, at least some schools may start to regulate speech outside of schools, to create a new and worrying orthodoxy. So I think you’re absolutely right. And so I would just underscore that these cases really show how important it is to understand that these Supreme Court cases are not just doctrinal, they reflect our underlying cultural moment, the cancel culture, the culture of indoctrination in schools. Those larger issues are very much on the justices minds when they decide these cases. Richard Reinsch (36:28): Okay. Is it worth talking about California v Texas? Perhaps last of the grand challenges to Obamacare we’ll see. John McGinnis (36:36): I think there’s not much there, frankly. I think that it was pretty clear who was going to lose all. And it was lost on a very technical standing issue. And I don’t think… Well, of course, standing issues or issues interesting to lawyers, I think are little interest to people outside the law. Moreover, many people think the standing doctrine is one of the most manipulable doctrines. And so you might well think that the majority of the Court just wanted to dispose of this. They didn’t think, I think ultimately that it was a very good argument. I think just practically that this could strike down all of Obamacare, because Obamacare… I think the real reason had been the statute had been passed at not wholly again, but had been passed. And so it’s very hard to understand how it could be passed and yet you could say that the result of taking out the- Richard Reinsch (37:37): Mandate. John McGinnis (37:38): … the mandate and understanding it’s being an unconstitutional tax and now having no money being paid, how one can understand that, by taking that out one could destroy all of Obamacare. I think people like Roberts and others thought that would have been seeming to encroach on Congress’s power, Congress had never made a decision to get rid of Obamacare. So I think that the decision here was for ordained and the standing issue was a way to put the challenge out of its misery. Richard Reinsch (38:10): Okay. So I’ll introduce this case by way of saying I was reading in, I think it was The Wall Street Journal, the famous coach of the University of Alabama football team. Nick Saban said that his quarterback, who is all of 18 years old is now worth several hundred thousand dollars, because of name and likeness contracts he’s received. And that results, if I’m not mistaken from this opinion, NCAA vs Alston, where the NCAA was ruled to have violated antitrust law with strict limits it had held on student athlete compensation. So it seems to me, this has the potential really to change the nature of highly competitive college sports. John McGinnis (38:49): I think that’s right. Again, I think it’s very interesting culturally this case, as an antitrust case, and I teach antitrust. I don’t think it’s that surprising a case. So let me give you some background. This is a kind of what I call an antitrust, a frenemies case. So the NCAA is an interesting position. On the one hand, in some sense, it’s constituting the sport of college football. On the other hand, of course the teams are competitors, and so that’s why it’s a frenemies case. So they have to have the ability to constitute the rules of the game. They all have to play the same game and they also have to even constitute the idea that this is somehow different from professional sports, that it’s amateur sports. The difficulty though is that, unlike constituting the rules of the game, where the Court’s going to give a lot of deference to what it does, the restriction on any kind of compensation, including image compensation, including extra support for students, really goes to the heart of antitrust it goes to competition for labor, for wages. And so I think what the Court saw was this is going to be decided under a rule of reason case. The rule of reason is you’re going to look at both sides, what’s the justifications of the partnership as it were, the NCAA are for this? But you’re also going to look at it’s a substantial effect on hurting competition, the competition between college athletes to go to what, which school they’re going to be going to, and getting out as high a compensation as they can. And they pretty much defer here to the district court’s findings, which were that this was a substantial intrusion on the ability of these students to compete and to earn money, I think there’s no doubt about that. And their other point was there were a lot of surveys here and it’s suggested that so long as they weren’t actually paid a salary, but they got image money and things of that sort, people weren’t awfully bothered by the fact that they wouldn’t be amateurs in the classic sense. And I think that tells us also a lot about our culture. And that also doesn’t surprise me and the Olympics Of course, was once wholly amateur, people were not bothered by a moving away from that line. And I think the Court is in that sense reflecting or the district Court is reflecting and looking at the survey data, is that this really isn’t necessary for college football to survive as independently from professional football. You need to have, maybe you have some line, you can’t be paid a big salary, but we can still allow these college athletes to benefit from their talents. And I think there’s also a sense, the other cultural factors, is there is a recognition at least that many of these big sports college schools, that some of these students spend all their time on the field and not learning much. And they actually don’t have great prospects, if they don’t get into professional football, they don’t have great prospects with their college degree. And so why shouldn’t they be able to earn a little more money now? So that’s, I think what’s going behind. I don’t think it dramatically changes antitrust doctrine, what it dramatically may change is the nature of college sports. Richard Reinsch (42:07): It’s interesting hearing you say, it’s not an innovation in antitrust doctrine. It sounds to me like you’re saying it’s sort of brass tacks and fundamentals of antitrust doctrine. And yet it took… this has been an issue for decades, and only now finds a resolution, that’s interesting. John McGinnis (42:23): Well, I think one reason is, is I think at one point, and this goes to the cultural point. At one point, I do think there was an image in people’s mind of the student athlete that really was sacrosanct, but now when it’s people have understood perhaps more about what student athletes are like, is understood more I think in the public’s mind that isn’t as true anymore. And so you actually could say, well, maybe 40 years ago the case should’ve come out the other way, because this was necessary to constitute, people wouldn’t have been interested in college sports, if they had felt that they were being paid at all, that that was so important to their sense of what it was to watch college sports, but I think that’s probably not true today. So as the facts change, the law changes, it changes often. And I think this may be another example of that, and we’ve seen several. If I’d say, that’s one of the themes of our discussion. The rise of cancel culture, the concern about indoctrination, and now I think just the sense of the permeability of the status between amateur and professional. These all are crucial changes in the culture that are driving Supreme Court opinions. Richard Reinsch (43:40): Maybe we’ll end with, as an originalist, as a formalist, as a classical liberal, were you satisfied with this term or crucial exceptions that disappointed you, or what would be your final thoughts here? John McGinnis (43:53): I’m satisfied with this Court term as a beginning. I certainly think the Court has many things to work out if we’re to move more back to originalism, and particularly the relationship between originalism and precedent, and that’s where the Court made a lot of progress on thinking that through. I think Justice Barrett is going to be one of the most key judges in that respect, whose concurrence and fault really doesn’t attempt to do that. Other than to suggests she’s not with Justice Thomas and being willing to overthrow precedent. That’s the real question going forward. I think there’s little doubt that a majority of the justices are good faith originalists when there’s no precedent. And that’s good for classical liberalism in so far as I think we have a constitution that by and large is a charter for classical liberalism. The difficulty of course is, we’ve had 40, 50 years of precedents that are not originalists. What do you do with them? We have Justice Thomas whose view is pretty much, “So we get rid of them.” We have Justice Roberts who I think is very reluctant to overturn them. The question is, can there be a via media between these? And that’s really where I look to Justice Barrett to be an intellectual leader. And we haven’t seen that so far, but that’s not a surprise, that would be a tall order to ask her in her first term on the court. Richard Reinsch (45:20): Well it looks like there will be opportunities coming in the next term. John McGinnis (45:24): Absolutely. The Dobbs case about abortion, I think being the most important case that’s come for many years. Richard Reinsch (45:32): We’ll be looking for your commentary on that, John. John McGinnis, thank you so much for joining us to discuss the Supreme Court term 2020-2021. John McGinnis (45:40): Glad to. Thanks Richard. Richard Reinsch (45:44): This is Richard Reinsch. You’ve been listening to another episode of Liberty Law talk, available at lawliberty.org.