Editor’s note: This was originally posted on December 17, 2016. What is American civil religion? And has it been distorted to the extent that it has undermined our nation’s foreign policy? The eminent historian and scholar Walter McDougall, author of the new book, The Tragedy of U.S. Foreign Policy, joins this edition of Liberty Law Talk to discuss these questions.

Editor’s Note: This podcast was originally posted on October 13, 2014. This conversation with Roger Scruton engages his defense of the conservative disposition. Scruton’s just-released book, How to be a Conservative, might be said to take on the challenge Friedrich Hayek issued in his famous essay “Why I Am Not a Conservative.” There, you will recall, Hayek argued that conservatism does not offer a program, or any substantive content that would affirm a free society. It is always in prudential retreat. This conversation explores Scruton’s Burkean-informed notion that tradition and habit aren’t blind guides, but are teachers and modes of social knowledge by which the perennial problem of social coordination is solved. Here begins the basis of Scruton’s elemental defense of the free society and how common law, tradition, associations, religion, and the boring nation-state are integral to its existence. We begin with the law that governs the contractual relationships of people, a law not shaped by the legislature, but by social and economic interactions. We can say, Scruton observes, that this law is the people’s common law, one that guarantees their property and associations. Centralization is impatient with this private ordering and attempts to upend it with efficient legislation. While European elites look to the transnational governance of the European Union as the condition of peace and prosperity, Scruton puts before us the nation-state and its borders as the first order of democracy and political accountability. Scruton notes that limited government is about being relational in a particular spot, ring-fenced by borders, and that allows a common life to develop and evolve. Rulers and ruled can hold one another accountable because the terms of government have emerged from the people of this defined group with their particular history, myths, and shared commitments. Such forms of social, moral, and political capital are eroded, Scruton argues, by a boundless and unaccountable European Union, for whom the principle of subsidiarity is, paradoxically, only the powers that Brussels decides to let member states retain rather than a bottom up conception of government and order. In this regard, we also discuss the “to hell with us” mentality that is multiculturalism. Scruton notes that it’s cold comfort that major leaders are belatedly coming to terms with its wreckage. Multiculturalism’s existence in the government education system, laws limiting speech, and the soft tyranny of political correctness have ensured its ability to redefine life in his native United Kingdom and throughout much of Europe. Finally, this conversation explores Scruton’s argument that a free market depends not only on an Austrian understanding of the need for local knowledge but on traditions that encircle goods, practices, relationships, excepting these from the market itself. In short, Scruton argues, an enduring free market will have the sense to recognize its limitations. There really can’t be markets in everything. I look forward to your thoughts on this podcast.

Is it true what they say about planning and centralized government power? Award-winning author Amity Shlaes in her new book Great Society answers in the affirmative. This wide-ranging discussion examines the intentions and consequences of this momentous quest for planning and power by the federal government. Richard Reinsch: Today we’re talking with Amity Shlaes about her new book, Great Society: A New History. Amity is the author of four New York Times bestsellers, The Forgotten Man: A New History of the Great Depression; The Greedy Hand: How Taxes Drive Americans Crazy; and a biography of Calvin Coolidge entitled, Coolidge, which she appeared on this program, one of our first interviewers when we started this program. So Amity, glad to welcome you back, and the book has been getting a lot of attention and a lot of reviews from what I can tell, so congratulations. Amity Shlaes: Well, thank you. Glad to be back. Richard Reinsch: Sketch for us what was the Great Society? Amity Shlaes:  I think if you start with where we are now; a whole lot of idealism from young people, a generational divide; young people don’t think older people appreciate their concerns; youth talking to Boomers. That’s the way it felt in the early ’60s, so my book is about idealists who were young; some socialist, some idealistic, some capitalist; and what they wanted to make their society not just good, but to superlative, great, and this was the common goal. So, that’s the early ’60s. The Great Society was also a program, but the ultimate question is how do you get to great? Do you get to great by the public sector or the private sector? And over and over again, we chose the public sector as our vehicle and tool. It didn’t work out. So the Great Society was a 1960s program that foreshadowed all the programs we are suggesting now, and we can also see its results, and the were ranging from sub-optimal to horrible. Richard Reinsch: When I think about the Great Society, I always think about President Johnson’s commencement address, 1964, at the University of Michigan where he issues the call and he says, “We will build a Great Society.” And I also think about his speech, I think it was a year later, you talk about it, at Howard University and the famous metaphor of life is a race. And because of the way blacks have been treated in America, the race wasn’t fair and this necessitated government intervention. But you don’t necessarily start there. You start with the show Bonanza, and you start with the Port Huron Statement of 1962. Why? Amity Shlaes:  Well, Bonanza was the very popular show that commenced in the ’60s and it really wasn’t just about going somewhere as a lone cowboy; or I don’t know, winning the girl, or killing the bad guy, or rounding him up, corralling him. It was a cowboy show of a new genre. It was a cowboy show about what you do once you’ve settled in a community and you already are rich. It was a cowboy show about what to do with money and how to behave. So on Ponderosa, the family are always trying to show others how to behave; to civilize the Main Street of the frontier town. And that was different, and it really did reflect the ’60s; the Bonanza thesis, the Bonanza subjects, which were how do we share wealth and how do we build civilization and make it better or great? So that’s why I started with Bonanza. The book also ends with Bonanza. Bonanza was an iconic show. It was extremely popular, and another reason it’s important is the word bonanza. In the early ’60s, most Americans thought that to be rich was our God-given right and the wealth just came from somewhere, a cornucopia or bonanza, and they took it for granted. They focused on the redistribution of it or the perpetuation of it, but they took it for granted. And what the book shows is that wealth and growth are not to be taken for granted; that you can slow growth through government policy or individual behavior, so bonanza is the theme throughout. It suggests that an emphasis on redistribution is probably ill-advised because then you have less to redistribute. Richard Reinsch: Because I was reading that chapter and thinking about the word confident and use that word in the introduction, that a confidence drives this period, drives the policy making period. The reaction, you talk about confidence. Amity Shlaes:  Confident, yes. They were very confident, and that, I think that’s similar to now because people think that it’s also our God-given right to see the Dow Jones Industrial Average of the S&P go up forever. Confidence, right? It’s the money’s there, the dollar is king no matter what we do. So that’s very interesting. Richard Reinsch: The contrast though would be with your earlier work, Coolidge, because you note that Coolidge begins with thinking intensively about not wealth, but the absence of it and how one could, in grasping for it, come into ruin through debt. And so you thought about frugality, you thought about work, you thought about careful living. And yet, now we’re in this period where riches themselves seem to have overwhelmed more realistic concerns. Amity Shlaes:  Yes. Coolidge was a cautious man. He didn’t believe you should leverage yourself to the hilt. He didn’t believe in taking an unnecessary risk in any area of life, not just materially. He believed in holding back. Given the choice between a possible good and doing nothing, he would sometimes do nothing because he would say with the possible good may come an unknown bad. Rather interesting. In the ’60s … let’s go back to the ’20s. In the ’20s, there was the sense that America had to earn its status as super power. It was a temporary, acting super power at the end of World War I, but its predominance was not assured or rated as necessarily permanent. It wanted to become the permanent super power, so Coolidge and his Treasury Secretary, Mellon, pursued policies to that end, which included balancing the budget. Any day, the dollar could go down and sterling could go up. That sterling had been the predominant currency in the 19th century, why shouldn’t it be again? If our policy was too foolish, we’re too foolish, then England would prevail and our dollar would lose. So Coolidge was protective, prophylactic, cautious. And, then, I do cover the 1930s in Forgotten Man, and in Forgotten Man you have a call to a collective effort by Franklin Roosevelt and even Herbert Hoover before him, and that call is different because it’s in the face of want. One in four men was unemployed in 1932. Too, we have something in the ’60s much more similar to today. We’re all doing pretty well, but we’re not happy with all the result. We want to go from good to great. So this period is unusual in that we feel super rich. I’m trying to think of another period like it. But we feel pretty rich; we just feel everything isn’t quite fair, which is different from people are starving. You can argue people are starving, but it’s hard to make that argument today, some attempt at it. Richard Reinsch: Something that I brought up earlier, so I said maybe the wealthiest generation in American history, the Boomers, I guess it would be early Boomers who drafted the Port Huron Statement, 1962. You include that in the second chapter as a way of thinking about the Great Society, but what’s the connection there? Amity Shlaes: Well, we’re speaking of idealism, so the kind of Earth Day or Woke Day or Global Warming Day that you would have now was a historic meeting on Lake Huron, or in Port Huron, which happened also by the way to be the childhood dwelling of Thomas Edison. Anyway, in this otherwise unknown town, a bunch of students came together and this is a mythical story in popular cinema; the references to the Port Huron Statement of “I participated in the Port Huron Statement. I was there,” because the people who attended, some became legendary later. And the statement itself, when you look at it, is kind of benign and rambling. It looks like a C-grade essay, undergraduate paper about the future. It rambles all over the place; has a few good ideas, but not coherent. And it was written by a group. Nonetheless, some of those people went on to, basically this was the time of the formation of Students for a Democratic Society. Tom Hayden, one of the leaders of the group, went on into the violent period of SDS, and the Yippies and so on. So this is where it got its start, in a kind of benign student meeting; meeting for all students, activists coming from across the country in their little cars; talking about this and that; really trivial stuff like what time a boy must leave a girl’s dormitory; remember, this is the early ’60s, not the late ’60s; at night. And I tried to describe this because this was the left idealism basically, there were some libertarians but it was a left idealism. And what’s interesting is the attendees didn’t imagine they’d get anywhere, and yet pretty soon, some of their ideas were being implemented as policy by the Johnson administration. It was sort of an accident, but the Johnson administration had left after Kennedy, so Michael Harrington, a socialist who’s one of the characters, actually got into the office that formed the new poverty law, the Office of Economic Opportunity. He worked with Sargent Shriver, the poverty tsar. So that went from sort of meaningless, goofy students to meaningful participants in society in the ’60s very fast. And the surprise for me in writing this, oh the students went there and I always thought they were very independent. You know, and they got together. And this was away from the establishment, that was the point. What I learned in the research for this book about Port Huron, imagine dumpy cabin files with students staying up all night smoking, writing paragraphs and reading them to each other, was that the event was more or less funded by organized labor. The camp itself, Port Huron, which is also called Four Freedoms after Roosevelt, was owned by organized labor. And how did this all happen? The University of Michigan is in Michigan, where the UAW, the mighty, mighty United Auto Workers were. One of the Michigan undergrads, a young lady names Sharon Jeffrey, was the daughter of the aide de camp of Walter Reuther, the head of the UAW. And you can imagine this from the point of view of the UAW, they say, “Well, a lot of people seem to be going to college these days. We’re an industrial union, but we appreciate college, and we certainly want 10 million peoples’ worth of union dues to flow into our coffers; and we want to be the future, we don’t want to be just a bunch of has-beens old workers. We want to capture the young generation, so we’ll likely fund a student movement.” That was the thinking, you know. And they were to be, if they had the wrong ideas … because the UAW and the AFL-CIO at that time were not communist. They were bitter enemies of the Soviet Union and the Soviet regime, but they had social/social democratic ideals. And one of the problems with these young people, one of the early fights was that the Port Huron statement was insufficiently anti-Soviet for the unions’ tastes. And they didn’t want to get in trouble, either, so you imagine this whole thing; they’re funding these young people, they’re giving them a long leash. I tweeted on check that went out to paper; Tom Hayden, the legendary progressive left leader, and I just didn’t realize until I researched in the Wayne State library and so on to what extent the union funded the student movement, and what a kind of frustration that must have been because the left student movement handed the 1968 election to Richard Nixon, who hated labor more or less. So the unions who funded the young student movement hurt themselves through this funding in the bitterest of fashions that the union leaders felt totally betrayed by the students. Richard Reinsch: Unintended consequences. That also- Amity Shlaes:  No, the first example of unintended consequence. Yes. Richard Reinsch: I also want to get your perspective on what encompasses the Great Society? I mean, you talk about the War on Poverty in the book; you talk about the housing policies and then sort of this domestic policy front, but what else? Should we include the space exploration program? Should we include the Vietnam war? Amity Shlaes: Well, Johnson defined it: classrooms, countrysides, cities. Those were his three areas for a Great Society at that Michigan speech, where Walter Reuther was there at the end to thank him for giving it, by the way. So they were going to have efforts to improve education, and we have a number of laws, some of which helped created our student debt problem; university funding, K-through-12 funding, that came out of the Great Society. The very first component was something called the Office of Economic Opportunity, which was the poverty obliteration office led by poverty tsar, Sarge Shriver. Countryside, there was a program, a hillbilly elegy program we would say on funding Appalachia and the extreme poverty there. Michael Harrington, the author of a book called The Other America, about poverty, and he had great thoughts about Appalachia. So Johnson promised to cure poverty, not to create a palliative, but to cure it … Richard Reinsch: To cure it? Amity Shlaes: And then like any project, Great Society or any of them, Great Society morphed, and one of my thesis is that Nixon, a Republican whom we would expect to be different, and was different in attitude, actually ended it for political reasons of continuing the Great Society. For example, he expanded or permitted the vast expansion of food stamps, so it was just a bigger state. I think you’re asking about civil rights, and what’s interesting there, and you really picked it up, is at first the Great Society was about equality of opportunity. That’s pretty clear. That didn’t seem enough to Johnson, so he asked after Michigan, at Howard U., in another commencement speech, for equality of results. That was an official call for a lot of programs we know of now, whether in business or affirmative action, or, or, or … And that was a shift with which everyone was not comfortable. So you have a society where, in 1961 when he’s being inaugurated, Kennedy says, “Ask not what your country can do for you; ask what you can do for your country,” to we’ve got to help everyone. We owe you, which is what it became by 1966 or ’67. And later in the period, the courts cooperated very much. For example, there’s a Supreme Court case I describe called Goldberg v. Kelly, that basically said welfare is property. It’s your money and you are super entitled to it, not just entitled. It’s property like a patent that you wrong when you had an invention, so you have a complete switch in what individuals in their society within 10 years. It’s dramatic. Richard Reinsch:  Is it also thinking about, I suppose Vietnam; you talked some about McNamara, it was even the way that war was fought at times; sort of the technocratic approach to it that somehow there was a strategy in a way to pursue it without actually fighting a typical war of holding ground or removing the enemy? But you could conceive of it I guess in a more tactical, precise way. Amity Shlaes: Yes. So there’s The Best and the Brightest was the book by David Halberstam that shows what fools the planners of the Vietnam war were. And Max Boot has written about this very persuasively, too. McNamara had an idea about bombing and how it might work that didn’t correlate to reality. It just correlated to his spreadsheets, and that was part of the insanity of Vietnam. Here he was fighting against guerrillas as if they were the German army with tanks, and I always thought The Best and Brightest, that was about foreign policy. But what you discover when you look is we had the same high appreciation of intelligence, technocracy, and planning; long live consultants, long live business school graduates in domestic policy. And some of the characters carry over. McGeorge Bundy; McNamara, who after being Defense Secretary, failing as the Defense Secretary, went over and was equally foolish and also tragic in his result at the World Bank. And one thing McNamara did gives you a good idea, I noticed this because it just blew my mind, no respect for some other space, whether it’s the local space, the regional space, the state space, the space of face; no respect for any of that. So McNamara, because he was a numbers person, figured out that if there were fewer people, maybe more resources would be available. That was his answer to scarcity. And so he was for zero population. Okay, whatever. And there were others like that, but where did he choose to deliver an address on this? At Notre Dame. Amity Shlaes:  So that kind of insult that you have to work hard … I mean, it takes a lot of talent to be that insulting, and he was. Richard Reinsch: So he was that arrogant? Amity Shlaes: Yeah. That arrogant and that insulting to not see what damage he might do, what offense he might bring, by arguing for birth control and zero population in front of the Catholic Church. You know, that’s not the only example but he’s kind of almost like Asperger-y, that people who have diagnoses now. He did not, he was so smart, he did not pick up stuff. And the tragic part was, the government used and applied his policies or the World Bank did. So you think of something like the sterilization of men in India, that came out of the mindset that McNamara shared. Less people, better. We distribute resources, and resources can’t really grow because by the way, we’re socialist, right, so we slow production. Julian Simon and Paul Ehrlich are also characters. Those were the two opponents; one who believed that the world would run out of everything, Erlich; and the other, Simon, that growth would make life quite pleasant and more efficient in the future. And of course, mathematically Simon won that, but in the time of my book of Great Society, it looked like Erlich might. Amity Shlaes:  And there’s also something called the Club of Rome. And that believes in zero growth, I guess it shows that first you aim for great, then you become profoundly pessimistic. Richard Reinsch: So let me ask you this. We’ve been talking about sort of the intellectual architecture of the Great Society. Criticism of your book in the New York Times earlier this week I think, Binyamin Applebaum said why didn’t you include in your book more of a description of Medicare, Medicaid, food stamps, and Head Start, if I’ve got it all, which he says were enormously beneficial parts of the Great Society, and I’m curious what your response is. Amity Shlaes: Well, I tried to do the book in real time. And if you imagine to write the way they felt, and then we know what the consequences are, right? So what were they thinking to create a giant program like Medicare, which is worse in terms of our obligations and shortfalls in Social Security, which we tend to think is the biggest program of all. Well at the time, and this is another example of unintended consequences, I don’t think they thought that much. Here’s what was in Johnson’s mind, and you can see that because he went to sign the healthcare amendment; there were amendments to Social Security; with Harry Truman, who had failed to get through some sort of nationalized healthcare in the past. They wanted to honor Truman and say I’m doing what, something of what you thought healthcare for seniors and poor people, but basically Johnson wanted to honor Truman and bolster his party, one. Two, the war was on and Johnson wanted to throw poor and old people a really good bone because hundreds of thousands of young men were going very suddenly to southeast Asia, and some dying there. Three, he’d never imagined they would be as big as they are. So I think the New York Times review by Applebaum was a little Whig version of history; that is, it’s looking back with more knowledge than we had at the time. In Johnson’s time, old men were dead by the time they were 70. They didn’t live ’til they were 90. Richard Reinsch:  Yeah, that’s how the welfare state works. Amity Shlaes: Right. So Medicare would work if everyone died very early, right? And Medicaid would work if the War on Poverty were won because there would be no poor people to claim Medicare. So this is another example in my mind of a real unintended consequence. One of the amusing characters, and for me to say and they were wrong and it was the centerpiece of the Great Society is to misrepresent what they thought at the time of … Richard Reinsch:  And I thought as well that is there something new about, I mean with Head Start; but is there something new about those proposals, or as just as being long-standing goals behind the creation of a welfare state, versus what I take you to be arguing the Great Society, that there’s this policy innovation, federal government power thing going on that drives the Great Society, like Sargent Shriver. As I read, I’ve never read much about him until your book, and he really is an example of someone who means well. I mean, it just seems like he fundamentally believes in what he’s doing in national service in helping the poor, and is producing all manner of problems. Amity Shlaes:  Well, he’s an argument against social conservatism in politics because he really wasn’t a lefty. What he was saying was we must get things done that we normally do with the church, such as encourage marriage and help poor people by giving out alms. That can translate to government. The government is just a bigger charity, or it should be, and certainly we can afford that it might be. Therefore, I will do what I do at in my church at home, home and office in Washington 10,000 times larger. It didn’t work because you are cut off from your community because the federal government really can’t direct people to give up poverty and adapt a got-to-work ethic. It cannot direct how people marry or don’t. It’s just ill equipped for that, even now. So if you’re a left conservative, sorry … if you’re a left big government person or a right one, you can take some sad lessons from Sargent Shriver. He was such a nice man, and you think his wife was … Well, they did the Peace Corps. He did that. His wife did Special Olympics, and he did Great Society. Which do we like the best? Personally I like Special Olympics. Because it’s about what you could do if you try. The Peace Corps sounds nice, but it often terrifyingly naïve and sometimes hurts the places it aims to help. And the Poverty Office, Shriver was sort of foisted into the job by Johnson, had so many perverse outcomes and not at all he was intended, and it kind of ruined his career because Johnson, being an opportunistic rat fink, abandoned Shriver and sent him off to Paris to lick his wounds. Richard Reinsch: So the War on Poverty fails? And just in general, an idea of domestic policy as a war, is incredibly dangerous. Amity Shlaes: There’s a limit to what domestic policy can do. And in the book, what I try to give a sense of they tried; they failed at one thing, totally tried another thing, that failed; totally tried another thing, and each time in some way or another, the new way was more grandiose. It was always more, more, more, so the housing bill cost more than the poverty bill because it came later, and so on. It’s just more, more, more, and even more did not help or get you closer to great. Richard Reinsch: So maybe we’re talking about this generally, talk about the sources of the unexpected tragedies of the Great Society. I think your chapter on housing was just, it left me truly sad. Amity Shlaes: Well, you know the book’s about planning, so it actually starts in the ’50s to where our first ambition toward great involved housing. And we had urban renewal, which was premised on the idea that you should bulldoze whole areas of downtown and build utopian housing, hopefully in the international school, for poor people. And what that did was group poor people who may not have loved their tenement, but may have felt some connection to it and certainly chose which tenement they lived in within their ghetto at least, and put them all willy-nilly, more or less in tall skyscrapers, and insisted that the fathers in the family stay away because the families wouldn’t get welfare benefits or be entitled to live in subsidized housing. These welfare specifics often. And in the institution that I profile is the housing projects, the largest called Pruitt-Igo in St. Louis, and there were a few premises, additional premises to Pruitt-Igo. One was that St. Louis would always grow, so if they packed these buildings dense enough, eventually people would move from poverty into working class and would be able to pay the rent. And if there were enough of them, the housing projects could support the poor and be concerned. Well, the growth stayed away. And so the simple arithmetic of the solvency of Pruitt-Igo just didn’t work. There was way too much vacancy, and then bad gangs moved into the empty apartments or took over the halls, and there were too few tenants, too few working tenants and very few men to fight back those teenage and mobs, what’s become a sad cliché, right? So that’s what went on, and over and over again in the ’60s, including with Sargent Shriver and actually Romney, George Romney, the father of Mitt who was Housing Secretary, they tried to fix Pruitt-Igo, and the idea was always build something big or bigger; cars are important; streets, a pedestrian zone is not important; and we know what we’re doing. This is so much of a piece with the bombing of North Vietnam; it’s sort of like the … it’s a very similar bird’s eye view of a very specific place. Amity Shlaes: And in the case of Pruitt-Igo, what I argue is big housing’s not a good idea. Sometimes small housing started by locals is much better. And the person I bring in here who economists don’t normally bring in, but I think she is Jane Jacob, who in New York protected Greenwich Village from the highway builder, the housing and highway tsar, the infrastructure tsar, Robert Moses. And she said, “What a minute. My street might seem tacky. It might be blighted. You could condemn it under Berman v. Parker, the Supreme Court decision, but I think it can un-slum. I think it’s on its way to un-slumming because people here like it.” So she talked a lot about that, and she talked about the importance of architecture and houses with eyes. The International School might be fashionable again now, but it’s just profoundly isolating in terms of mentality. You know, it’s really collective. It’s not forgiving. it’s not everyone his own window; it’s a common space. Modern architecture was a disaster in terms of poor people because it isolated them in tall buildings and put parks around with no commerce. In Jane Jacobs’ The Death and Life of American Cities, it’s still a prophetic book; very easy to read by the way. I recommend it, the audio, about how neighborhoods can cure themselves and how you actually are doing malpractice surgery when you roll highways through. Not everyone likes cars; even some Republicans are pedestrians by nature. When we talk about this, I always hear from Republicans ‘Republicans like cars.’ I don’t believe that. I think some people are car people, and some people are go on foot people, and they’re for both parties. Anyway, Jane Jacobs wasn’t of a party. She was really independent and very much opposed to the war by the way, but she’s this little lady, very good architectural journalist, but just one lady who led the fight against Moses, and really the fight against the Great Society housing. I want to mention one other thing. There was complete hypocrisy in terms of housing policy in the United States subsequent to World War II, and amplified in the [inaudible 00:33:28] period and ’60s period. On the one hand for the middle class people, we had this kind of Tocqueville policy, which is you go to a town; we’ll subsidize your house if you’re a veteran or in some other way through Fannie May and Freddie Mack, and you’ll get a house and you’ll become part of a community, and your children will play with the other children in the cul de sac, and you will go to church together. That’s kind of the middle class of City Vision. So the middle class people get Tocqueville; the poor people get Karl Marx. You will live in a tall building in a city, and then as an anonymous worker, you will get into an anonymous tram or something like that, and ride to your factory, which by the way hasn’t materialized because that’s what workers like. And you have to ask yourself what would have happened if we had done Tocqueville for poor people as well. This idea dawned on planners by the end of the ’60s, and you see that led by Chuck Percy, the Senator from Illinois. And by some people’s names we know such as Clifton Muse and John McLowry. They worked on housing policy that would help enable poor people to buy homes and get property. So the real debate for us is do we think property is necessary in the Tocqueville vision, and I would say absolutely. I don’t believe renting or defensible suffices unless you’re in a very strong community where, a religious community say, where the management, the leader of the church rents. I believe individuals should own their property. Jane Jacobs didn’t go that far, but her data did. And the real tragedy was that we condescended to poor people with this tacky, ill thought out, Marxist policy in terms of housing. Richard Reinsch: I guess, listening to you I was thinking about, which a lot of conservatives rejected later in the Obama administration, I don’t know if this’ll be an example of that whereby it was proposed policies of moving say urban poor out of inner cities or downhill cities, and moving them into, out into suburbs, surrounding suburbs. I wonder if that’s maybe an example. You also noted the Detroit riot, that it started at the epicenter of where people had been relocated once the neighborhood had been destroyed. Right. There’s a wonderful … I mean, you’re saying that the Obama administration recommended moving poor people out of cities? Richard Reinsch: Out of cities and out to … Amity Shlaes: Is that what they did? Richard Reinsch: The recommendation was that. I think Ben Carson canceled it, but the idea was you had to move them into surrounding towns and into homes. Yeah, thinks like that, but I’m not actually an expert on the policy. Amity Shlaes: Well, we do have a policy. Now we have basically rental vouchers, which came out of this period which gives people more choice. They can take their money and go look for housing that will accept their voucher, and they’re going to make sure there is such housing. But the idea of moving people en group outside of cities is crazy. Richard Reinsch:               Well, the cynicism there, too, is then you would move wealthy people probably back into the land they left and you would have a … Amity Shlaes: You move … right. So they move them to some safe place like Ferguson, Missouri. That’s really safe for Michael Brown. This is the young man who was shot in Ferguson. Misery doesn’t care where it lives, and sometimes misery does better in the city. So there you are. I don’t know. I don’t think the suburbs are any better or worse. Sometimes they’re worse because you need a car. So there we are. Richard Reinsch: Well, Watts and Detroit, so we have the Great Society programs being implemented, and then we get riots. You have a chapter on these events, and mayors in your book report being very fearful of protests and riots breaking out in Los Angeles and other cities throughout the country, and yet we’re the cusp of this vast revolutionary pro-government change. Amity Shlaes: Well the standard history of the period is there was nothing, and then the federal government came along and did something for poverty. And what that history overlooks is the entire tradition of towns dealing with poverty in their towns. That was the scope of the town, the municipal authority, or maybe state as we discussed, but not really a federal job. So when the Johnson administration came through, it sent sort of virtual bulldozers to run over policies of mayors and towns. And you know what, the mayors were elected to take care of the town, so they had the reasonable claim to authority here. Amity Shlaes: And I always learned that Mayor Daley of Chicago was a corrupt creep, right, and that Mayor Yorty of Los Angeles didn’t care about poor people, and none of this was true. What happened was you have a jurisdictional clash. The mayors had poverty programs, and if they were Democrats they expected to get federal money for them. They had helped to elect Johnson; they deserved poverty money. They had a poverty office. Mayor Daley took all his poverty ideas and put them in a big box, and mailed them to the poverty tsar, “Here’s what Chicago, what your appropriation should be for, my Chicago plan. Yours, Richard J. Daley.” But Sargent Shriver and the administration, that would be the Johnson administration, didn’t think that way. They wanted their own poverty programs. They wanted to be like the Peace Corps going in, ignoring all jurisdictions, all government, all past, church, everything, and do their own thing, and so there was a real clash. And in the case of Los Angeles, this is kind of the sense of federalism. It’s a federalist uprising by the mayors. But in the fight, Los Angeles didn’t get the money Mayor Sam Yorty was expecting to get, and he had promised a lot of jobs to young people over the summer. And the fight between Mayor Yorty, who wasn’t wrong, and the federal government, which was more wrong but not entirely, delayed help for Los Angeles, froze the city, and contributed to the explosive environment in which the Watts riot occurred. It’s not as though … what happened was Yorty said there will be jobs paid for by the federal government. We will give you a great summer. I’m not saying I approve of that because the government does that, but he established that expectation among the citizens of Los Angeles. And then when the presents did not materialize, the people were all the more, became all the more cynical and angry. In Detroit, what happened was slightly different and that was later. In Detroit, one reason there was so much anger in Detroit was that sort of delayed built up anger over urban renewal. The whole community there was still angry over being displaced, their favorite streets being mowed over by these bulldozers, and the newspapers commented that at the time. Mixed in there is the selective service, going to Vietnam, the switch to higher skilled jobs that come as the economy develops. Muscle, there was less of a premium on muscle and more of a premium on training or thought. Even in the 1960s, there had been the [inaudible 00:41:39], so what’s going to happen. But these were all factors. I was just going to say I ended up liking the mayors, these mayors I always thought were so awful. But they were like, “We don’t want any Marxists coming in our city. We have our own poverty plan and here it is.” David Beito has written a wonderful book, which I’m sure you’ve mentioned on your show, called Mutual Aid to the Welfare State, about all the places and institutions existed in a kind of incomplete but rather extensive patchwork across the country that was Tocqueville’s America, so you’d have the Italian-American burial service, the Irish-American family insurance, the church. It didn’t mean everyone was always taken care of, but a lot of people were and there was a plus because it was by the community. Effectively, a community can always serve its people better than someone far away. It’s very rare for someone far away to guess that your school needs a gym, not a computer, and you think a gym would be more important because you happen to have 20 computers. Someone in Washington is terrible at judging that, so there are very few examples. In the book, I kind of make the call that if eight percent of the people who are black can vote in Mississippi, there’s something wrong with that; more the people of Mississippi should be able to vote. So maybe the Voting Rights Act and the Civil Rights Act were necessary, but not the laws after that. Richard Reinsch: Thinking here also, you know the Great Society spreads across the Kennedy, Johnson, and also the Nixon administration. We get in the Nixon administration, Daniel Patrick Moynihan emerges and the family, what comes to be called the Family Assistance Plan and something like a guaranteed income, which is now in vogue again, but we get a forerunner of that, a taste. And then you know Moynihan loses a lot of these battles, but how does this and this seems to me, part of your book that I thought relevant, and is particular the discussion of this Disraeli, Benjamin Disraeli idea of conservatism, of sort of a one nation conservatism; a conservative party that also serves the working class with policies, et cetera, et cetera, and so that’s how Nixon continues in many ways the Great Society, among other ways. Amity Shlaes: Yes, Nixon was a conservative who continued the Great Society. I don’t think that reflected well on him, unfortunately, in the end. What happened with Moynihan, very current, similar to the guaranteed income idea you’re hearing about now, what conservatives and progressives got together and said this idea of providing services to the poor people hasn’t worked out. We’re feeding the horses to feed the sparrows, the horses being the welfare workers; that is, the bureaucratic establishment to serve the poor gets more out of our programs than do the actual poor. So let’s give the poor money; that seems more honest. And that idea has great appeal today, and in Friedman’s concept this was what’s called a negative income tax, where you get money back for working so you don’t lose a lot when you start working. Moynihan had a very brave and bold effort to do something like this also for the working class, not just the poor. So for whites and blacks who are poor, not poor, he was going to do this but he didn’t do the arithmetic very well. Because what happens when you give people money back at the bottom is pretty soon they have an income where they lose benefits; that is, their disincentive. And the marginal cost of working harder is far greater than they expect. All of a sudden they lose their housing, but what’s that worth? They lose four weeks, they lose Medicaid when they have too much money. And the arithmetic of which disincentives, which program costs in the context of also supplying people with money is almost impossible to do. As Friedman said, probably we’d have to get rid of all payments in order for a universal payment, all other programs to quote-unquote, “work.” I think the more profound argument against guaranteed income is it teaches people they’re entitled. That’s a terrible thing to do for young people; that you’re owed something every month. That is just, that’s what gave us the problem we have now; the infantilization of our society through a social democratic effort, through parents, through the healthcare program and so on. People need to think they’re independent and they’ve earned money, so that’s why … That’s what Congress, particularly this Senate, had against Moynihan’s program. They said, “Some of us are Republicans and some of us are Democrats. And some Democrats and many Republicans think that it’s a bad precedent to just pay people money for existing. We’ve done too much of that, not too little, so let’s cut back.” Richard Reinsch: It’s like Social Security. Amity Shlaes: Yeah, it’s like Social Security for all, not just old people or disabled people, or widows and orphans, and so on. And it was very expensive, too; that’s the other thing. But the Senators said this is not particularly American, let’s not do it, and Moynihan lost and he had to go back to … he was this great intellectual this was before he was a Senator and he went back to Cambridge, and the war was part of the story, too. I will say the grandest kind of planning is at the end of the book, and I do want to get to that when you’re ready. Richard Reinsch: And we can do that now, then also I was going to end with Reagan because you have a chapter on the Governor from California, and sort of what do you think he’s learning from this. And I think also your book the questions he learned through governing as Governor of California as well, which as you note in the book, it’s not just a recent thing. California has a long-standing history of being a powerful government and being depended upon or interacting with the federal government, so if can just end with all of that. Amity Shlaes: Right. Let’s say two things. One is, what’s the planning behind the planning? Which says we can micromanage the economy through the Fed and the administration, and maybe with Congress. And there’s the fiction there, the pretense that every twist and turn we can address … I mean, they used to have ideas such as changing Social Security payments to be cyclical, so when the economy needed a boost you’d get more Social Security money, and when the economy didn’t need a boost or you’re afraid of inflation, you get less money. Can you imagine what kind of abuse of trust that would feel like to a pensioner when they get a letter saying this month your Social Security is less because the economy needs it to be less of that money, because otherwise … and of course. Anyway, so they really thought they could manage the economy. This was the era of change, and in the book I tell this story about how even if that did work, it would be impossible because people are people, and they’re humans and they’re political, and no planner runs the U.S. alone like the Wizard of Oz. It’s always a compromise. So the story I tell is of Richard Nixon, who’s supposed to be a free marketeer, imposing a terrible economic program, the Camp David program in the summer of 1971, something worthy of Juan Peron, upon the United States in the name of winning reelection. And the struggle in that case was between him and Arthur Burns, the Fed Chairman, who knew better, sort of kind of recalls the President and Fed Chairman Powell today or also Johnson and William McKinsey Martin, his Fed Chair. Anyway, Nixon wanted to kill Burns that Burns wouldn’t lower interest rates, or lower them faster. He certainly wanted to kill Burns when Burns raised interest rates. The Fed Chairman went to the White House’s church services on Sunday; one of Burns’s weaknesses here was he was ethnically Jewish. I don’t know if he was a religious Jew or not, or what he thought his religion was, but he had a Jewish background. And Burns would go to these church services. Why? Because you need access to the President if you’re Fed Chairman from time to time. And on the Friday night, Saturday night before the church service at the White House, Nixon would get up one of his people, Haldeman or Erlichman, to call Burns and say you’re not invited to church, because he’d been a bad boy. Your monetary policy is too tight, and even also went os far as to plant a smear of Burns in the Wall Street Journal, which I read about. So anyway, the net was Burns went along with a policy that gave us terrible inflation, smaller houses, two fewer bedrooms than we otherwise would have had because of interest rates that were 15 percent in the ’80s. Those were the interest rates. It’s tough to suppress the inflation that Arthur Burns permitted because he wanted to stay friends with Richard Nixon. Just like that. So, human error, human temperament, human weakness is a big part of the failings of the best and the brightest. McNamara was sad because President Johnson didn’t like him, so he cuddled up with the Kennedys. That made Johnson dislike him even more, therefore his policy was very poor, and so on. It’s not just this fiction that there’s one government running policy. It is, indeed, fiction; usually it’s a bunch of personalities with competing theories. Richard Reinsch: And fiefdoms. Amity Shlaes: And we all have to live with the compromise result; the perverse compromise result. Richard Reinsch:  So Reagan at the end here, he seems, he’s a part of your book and he’s learning dramatically from what’s going on. You see him as a I think someone who’s part of this opposition, forming opposition to the Great Society at an intellectual and then a political level. Amity Shlaes: Right. I mean in a book, a book is like a novel except you try to make the facts be facts. And in a period, there’s someone who’s like more like a drama, a theater play. There is someone who’s in the chorus or who’s the clown, who’s noticing what is going on and is a character. It’s halfway between audience and character. You know, he steps out from time to time and comments. You know, who is the commenter at the end of Romeo and Juliet? So there are two characters in the book who are like that. One is Moynihan, who gets … Nixon gets the better of him unfortunately. He was a nice man with a lot of original ideas, and spoke truth to power, and the other is Reagan. So Reagan starts out very low in the book as a kind of has-been, and I do talk about his company, which is one of those companies that did take the country to great, General Electric. And at GE, Reagan learned all about free market because GE had a current little propaganda mill to teach its workers that there was more to the world than Karl Marx, and they could one day own three refrigerators, and even who knows what; a pink radio, a really good car. So they hired Reagan, who was a has-been actor, to learn all about capitalism, and then teach it at their plants over, you know, in the cafeteria practically. You know, not very glamorous, but he went around the country, spoke in hundreds of hundreds of backwood halls and lunchrooms about the merits of capitalism and the young to middle age factor; not really young. And he happened to kind of internalize the GE argument, which he learned from a forgotten figure named Lemuel Boulware, and also from books we know today that are in Liberty Fund’s Library; Hayek, and so on. Amity Shlaes: And what was Reagan going to do with this? He parted ways not too happily with GE for a bunch of reasons, including GE’s own hypocrisy. What’s he going to do with it. Well, he decides he’s going to try out politics and he gives an important speech, Time for Choosing, in 1964 to support Barry Goldwater. It doesn’t get Barry Goldwater elected, but it does show the country what Reagan could do. And then as Governor of California, he confronts the results of the Great Society, including for example gangsters in courtrooms shooting a judge. Or kind of … Or the Great Society’s office, the poverty tsar’s office, the Office of Economic Opportunity sending lawyers to California on its dime to sue Reagan, whose obligation by the way as Governor is to balance the budget, to make it impossible for him to balance the budget with class actions demanding payments for people. So he kind of gets disgusted with the Great Society along with the country, and that shapes his policy program, and that’s the Reagan that we got; someone who learned a bitter set of lessons from the Great Society. Amity Shlaes:                     And I never really knew that. I never knew much about his gubernatorial period. Remember, too, that California’s growing in that time, and it kind of didn’t want to hear from New York. It’s surpassing New York, right? I call it the Creative Society, is what he … He doesn’t want a Great Society; he used the phrase creative. So it’s the Creative Society versus the Great, and he has a great appreciation, Reagan does, in this period of entrepreneurship, even though I have zero evidence he understood the potential of Silicon Valley. Amity Shlaes:                     He did generally appreciate entrepreneurship. So there we are. Richard Reinsch:               Thank you, Amity Shlaes, so much for your time. We’ve been discussing your new book, Great Society and New History. I wish you every success.

Richard Reinsch  (00:19): Welcome to Liberty Law Talk, I’m Richard Reinsch. Today we’re with Benjamin Storey, talking about a new book he has co-authored with Jenna Silber Storey entitled Why We Are Restless: On the Modern Quest for Contentment. His co-author, also his wife, Jenna Silber Storey couldn’t be with us, but Ben will do a great job talking about the book. Ben is the Jane Gage Hipp Professor of Politics and International Affairs and is the director of the Tocqueville Program at Furman. Jenna Silber Storey is Assistant Professor of Politics and International Affairs, and Executive Director of the Tocqueville Program at Furman University. Ben, we’re glad to have you on the program. Benjamin Storey (01:00): It’s an honor to be here and talk with you, Richard. Thanks so much for having me on. Richard Reinsch  (01:04): Excellent. So, I’ll just ask you a straightforward question here: why are we restless? Benjamin Storey (01:10): Well, thanks for the question. It’s obviously prompted by the title of the book. Your question requires a two-pronged answer. In the first place, human beings are naturally restless. Saint Augustine famously remarks at the outset of the confessions, that our hearts are restless until they rest in God. And so in some ways, restlessness is a permanent part of the human condition. But the restlessness that we’re trying to trace in this book is more specifically a modern kind of restlessness that is a restlessness that springs from trying and failing to make one’s self content within the confines of imminence, that is trying to make one’s self content in the here and now. And we think that one of the things that defines modern life, is the widespread attempt to find happiness in an imminent way, an attempt that we keep trying to consummate, but that’s a project in which we continually fail. And so those failures to find happiness in this imminent way, that failure gives rise to the kind of restlessness that we’re describing in this book. Richard Reinsch  (02:32): You mentioned, or you’ve discuss at length I should say, four figures: Montaigne, Pascal, Rousseau and Tocqueville. Maybe we’ll just try Montaigne here. Who was he, and how does he contribute to this sort of predicament? Benjamin Storey (02:47): Yeah. Montaigne is the first figure that we deal with in the book. And Michel de Montaigne is a 16th century French essayist, he’s the father of the literary form known as the essay. That is, nobody ever called a piece of writing an essay until Montaigne did so. He lived in the midst of France’s wars of religion, which lasted for most of his adult life, second half of the 16th century. And he looked around him, at his contemporaries who were ready to kill one another over the meaning of pronouns, different pronouns in their time than the pronouns that we get worked up over in our time. They were worked up over the pronoun “hoc,” that is used in the Catholic mass at the elevation of the host. They were worked up over the question of whether that “hoc” was to be taken literally. The [inaudible 00:03:43] was at the heart of the quarrel over transubstantiation. That is so much a part of the Catholic Protestant divide. So, Montaigne’s contemporaries were ready to kill one another over these kinds of questions about the transcendent. And he looked around and said, we need to lower the temperature a bit. And so, Montaigne made a very powerful case for skepticism, and particularly for skepticism about the question of the summum bonum, of the highest good, of that good which would make a human life worth living. He said philosophers have been arguing about this for centuries, they haven’t come up with any consensus answers, and so we should just stop asking. That is, Montaigne makes the case that it is possible to live a good human life with a kind of indifference to the question of the highest good. And that that way of seeking happiness, is what we call the quest for imminent contentment. And the happiness Montaigne celebrates, is a dabbling kind of happiness. That is, instead of asking is philosophy going to make me happy, or is religion going to make me happy, or is citizenship going to make me happy? Montaigne does a little of everything, but he does it all with a light touch. So for example, he reads, but he tells us that he doesn’t like the heavy stuff, Plato and Aristotle. He prefers lighter authors like Plutarch and Ovid, his version of light might be a little different than ours. He travels, but when he travels he doesn’t go with the ambitions of an explorer, or the aspirations, the piety of a pilgrim, he’s just taking a look around. And Montaigne says this kind of nonchalant existence, in which we enjoy all the pleasures and pursuits available to us, but don’t make too much out of any of them, this is the true way to happiness. Richard Reinsch  (05:41): It’s interesting you mention Plato and Aristotle, he didn’t like reading them. As I read your chapter on Montaigne, it seemed to me it’s not just he’s rejecting Christianity of his period, he seems to be rejecting the bulk of the Western tradition. Insofar as the classical philosophical tradition, and also biblical religion, calls you out of yourself, calls you after a third principle, something that transcends you, that’s before you, that lives on after you. And it’s just real, and you are supposed to understand it, participate in it, perhaps conform to it, and he’s rejecting all of that. So what then, help us understand what does he really think that these motives we have, these desires, quests, thoughts, where are they going to go? Benjamin Storey (06:30): That’s a terrific question. I want to concentrate on the first part of what you’re saying. And I think you’re right to sense in Montaigne a rejection of the whole classical and Christian tradition. At the same time, he of course inherits and transforms elements of those traditions. And one element that he inherits and transforms, is the quest for self-knowledge, which Socrates so famously dedicated his life to. But Montaigne does this fascinating thing. For Socrates, the quest to know one’s self is a quest to understand human nature, and the deepest aspirations of the human soul. And Montaigne says, “I’m not really interested in the question of man. I’m interested in the question of me.” And Montaigne lived in an era in which there was still a taboo weighing on writing in the first person, and writing about one’s self. And in the course of Montaigne essays, he violates that taboo about 8,000 times, which is roughly the number of first person pronouns that he uses in the course of this book. So, he writes as he says, entirely about himself. And so, he thereby transforms the classical quest for self knowledge. It’s no longer knowledge of man, it’s knowledge of me. And Montaigne makes this into an act of a kind of modesty, “I’m no longer to ask the pretentious question, what would make a human life worth living? I’m going to ask, who am I, Michel de Montaigne, in my distinctive individuality?” And so, the modern focus on distinctive individuality is very visible in Montaigne. And so, I think with respect to the second part of your question, the question of where these longings for transcendence, for things that are real and outside of ourselves, where that goes, Montaigne seeks… I think he had that longing in himself, but he seeks to bring it back around to himself. He seeks to attain it, to circumscribe himself is the language that he uses for this. And so instead of imagining that, for example, erotic desire should take us off to contemplate the form of the beautiful, as it does in Plato, Montaigne says why can’t it just be what it is? Why can’t a desire for a beautiful body just be a desire for a beautiful body? And so in this sense, Montaigne is trying to tame, or block every entrance you might say, to the concern with transcendence as it shows up in human life. He says what we need to learn to do is be at home, be at home in this world, and he thinks we can do that. The great literary, literary critic Sainte-Beuve, commented about Montaigne that what this book, his essays is really all about, is a presentation of nature complete without grace. He thinks if we learn to tame these longings, to bring them back to ourselves, we can be content in the natural world without any help from anything above or beyond it. What is common to Montaigne and the bourgeois existence is that this is somebody who makes the self centered life that we associate with contemporary bourgeois existence, he makes that kind of life attractive. So in this sense, I think you’re right that Montaigne is the precursor of the modern bourgeois. Richard Reinsch  (09:38): You guys argue in the book, he seems to have invented the self. And I thought that as I’m listening to you, I’m thinking, he said that he’s not into human nature, he said just me. He would also, I think, assume then that he is just endlessly interesting and fascinating, and should write about himself and we should learn from him. Benjamin Storey (09:55): A couple of points there. One, the self in French is le moi. And Montaigne, he hates abstractions, and so he’s not going to coin an abstraction like that, le moi, the me. It’s a strange thing to say. But by talking so much about me and not moi, he helps legitimate it as a subject. And Blaise Pascal will come along after Montaigne, he doesn’t object to abstractions, and he will stick the le in front of the moi, and he’ll talk about the self. And he seems to be the first person in French to have joined these two terms, le and moi in this way, to create this French version of this notion of the self. And so yes, I think it’s fair to say that that Montaigne by talking about moi, about himself so extensively, helped legitimate that, helped invent the self or at least make it a legitimate object of study. And I think most readers of Montaigne who encounter this guy, do find him endlessly fascinating. He had a rich and varied experience of life, although he doesn’t encourage us to read the classics, he read them all. And he can draw from that stock of learning with an extraordinary facility, to create a book that is endlessly engaging and charming. And so, if you want to see what the appeal of the modern self is all about, Montaigne is a great place to look, and he’s attracted a long train of readers for precisely this reason. That his, Montaigne’s essays are thought to have been one of the most widely read books in Europe, over the course of the 17th and 18th century. Everybody from Shakespeare, Francis Bacon, Rene Descartes, Jean-Jacques Rousseau, Friedrich Nietzsche, Virginia Woolf, all these people are steeped in Montaigne. And a little time spent with him will tell just about any reader why. Richard Reinsch  (11:50): Do you think, so as we move through the book, one way to think about Montaigne is he’s actually, to my mind he’s sort of preparing us… I’m putting a lot into this, but he’s sort of preparing us for a very horizontal, bourgeois, consumer-driven society. That is, maybe the extent of your self reflection is in the mirror in the morning, but then you go off to work and that’s really where all your energy goes. And then you come home, and you kind of sink and rest in leisure of a certain kind. Not necessarily reading or thinking deeply, but just you’re so tired and you just sink into some diversion. Is there a connection there, the way Montaigne’s writing about don’t let your motives go vertical, just keep them horizontal? Benjamin Storey (12:32): Your sense that this is a horizontal portrait of existence is very right, and it’s something that we see also in the later thinker, Jean-Jacques Rousseau. The one thing that I would say is different about the Montaigne-ian of existence from the bourgeois existence that you just described, is that Montaigne was of course an aristocrat. And so he didn’t have to work, and so he spent lots of time reflecting on himself. But what is common to Montaigne and the bourgeois existence that you just described, and you’re right that Montaigne has been described as the first bourgeois, that this is somebody who makes the self centered life that we associate with cotemporary bourgeois existence, he makes that kind of life attractive. So in this sense, I think you’re right that Montaigne is the precursor of the modern bourgeois. And we see that this combination that I think you’re describing shows up in our texts, when we get to Alexis de Tocqueville, who sees what happens to Montaigne-ism when democratic peoples who have to work for a living try to find their happiness in this way. It’s very much like the rhythm that you just described, except that it is haunted by a kind of existential anxiety that Montaigne at least tries to write out of his portrait of himself. Richard Reinsch  (13:49): It seems to me too, you mentioned he’s an aristocrat and also incredibly learned, he’s drawing on a lot of thick traditions that come before him, and that have accumulated over centuries, Christianity, classical philosophy, also just do various aspects of being French, of a civilization that’s pretty rich, that’s going to give him a lot to reflect upon as he thinks about whittling in a way, or whittling it down to some concept of the self. That is to say, he doesn’t find himself in say, at a time like maybe our own, where there really isn’t a lot. There’s a lot of thin traditions around, and maybe there’s a desire to reconstitute things. Benjamin Storey (14:34): I think that’s right, Richard. And Montaigne’s text has been described, and there’s a book about Montaigne that describes it as a cornucopian text. There seems to be an endless amount there, in all of his reading, and all of his travels and all the experiences, that he can relate to us. One of the things that’s interesting about Montaigne’s way of talking about everything that shows up in his book, from people like Epimenides and Alexander the Great, to stories about his peasant neighbors. He tells us that he tells us everything that he tells us, so as to reveal something about himself. That is, he’s less interested in things outside of him, than he is in the reactions they stir up inside of him. And that’s the way in which this book that seems to be about everything, is ultimately all about Montaigne. Richard Reinsch  (15:23): Let’s move on. The next thinker discussed in the book is Pascal. How does he answer Montaigne? Benjamin Storey (15:30): Well, Pascal’s a fascinating figure, I think in the world of political philosophy that you and I both to some extent inhabit, I think the two later thinkers that we deal with, Rousseau and Tocqueville are pretty well-known. Montaigne and Pascal are less so, and Pascal perhaps the least studied of all. And one of the things that we hope this book can help do, is make his genius something that is more commonly recognized and studied. Pascal was a astonishing polymath, who made world historical contributions in geometry with his work on conic sections and another problem called the cycloid, in mathematics by elaborating modern probability theory on the basis of what is this numeric sequence, it’s called Pascal’s triangle, in technology by inventing one of the world’s first working calculators back in the 17th century, which could add, subtract, multiply, and divide numbers of up to eight digits. He was a great physicist, who demonstrated the existence of the phenomenon of atmospheric pressure, to this day units of pressure are called Pascals. Then Pascal jumped into literary and theological controversy with his provincial letters, which are these fantastic satires of the Jesuits who were at the time, the most powerful churchmen in France, and one of the greatest bestsellers of the 17th century. Then he wrote his Pensées, which are on the one hand one of the greatest works of Christian apologetics of the modern era, and perhaps of Christian history as such, and also generally acknowledged as the first work of existential philosophy. And then Pascal created the world’s first system of public transportation, the five cent carriages for Paris. He did all this by the time he was 39, which is how old he was when he died. So the later French writer, Francois-Rene de Chateaubriand, has called him a frightening genius. And frightening is right, this is a terrifyingly powerful mind. So Pascal, he captures in many ways the whole modern spirit, particularly in his physics and his conception of nature. In this sense, he’s very much a modern man, but he looks at Montaigne’s way of seeking happiness and he says, effectively, “You’ve got to be kidding. You can’t make the human soul happy by this kind of dabbling approach to the good life.” The human soul is both greater and more miserable than Montaigne recognizes. Pascal has a three-word phrase that I think in a way, sums up his whole anthropology, which is he says, “L’homme passe l’homme,” man transcends man. And I think that’s a very nice summation of his response to Montaigne. Montaigne wants to be at home in this world, at home in himself. And Pascal says you can’t do that, that’s just not what human nature allows. Richard Reinsch  (18:34): You’ve talked about Pascal saying, “Man is a being of misery and greatness.” And if man is a being of misery and greatness, then necessarily he can’t be at home in the world the way Montaigne wants. But what did he mean by that, misery and greatness? Benjamin Storey (18:50): So, I think maybe one of the most famous lines in Pascal is the best way to talk about this, Pascal describes man as a thinking reed. And what he means by that, is that human beings are as fragile as reeds, as blades of grass, “A drop of water can kill us,” he tells us, something that we in the coronavirus era are all too aware of. He said we’re as fragile as anything in nature, at the same time, we have these uniquely powerful minds which can think thoughts as vast as the word universe. If we think about it, as far as we know the universe never thinks anything at all, but we do. And in this sense, we encompass the universe with our minds. And so, our thought is our greatness, but our thought is also the source of our misery, in the sense that insofar as the human mind can think a thought like eternity, we are aware that we are cut off from that. We are aware that we’re mortal. And we can’t help being miserable in the face of our own mortality, we can’t help hating the fact of our own death. So for Pascal, man is this kind of exception in the universe, in the sense that every living being is mortal, but man is haunted by that fact, and feels like it is somehow an injustice to his nature. He tells us that we all feel like we’re deposed kings, like, “I ought to be king, but there’s some other guy in my place.” That’s the human experience for Pascal. Richard Reinsch  (20:34): It’s interesting listening to you describe that, because as I think about Montaigne and the motives going down, and Pascal says, “No, the only real way to make sense is if they go up, or they go up towards God, and you can find rest in God.” And I’m thinking there’s also a third possibility that Pascal probably understood, Montaigne probably didn’t. Those motives go down, but they go down with the grandiosity of God. And that is to say, one tries to perfect things that really can’t be perfected. One tries to perfect man, one tries to perfect politics, use science in a God-like fashion, things like that. There’s this interesting way in which that will come true in modernity, not too far after Pascal is ushered off the scene. Rousseau maybe helps us to think about that. But these possibilities are all there. Benjamin Storey (21:29): That’s very nicely put, I hadn’t thought of it that way previously, Richard. One of the things that Pascal and Montaigne share in common is their meditation on this character they called the demi-habile, the half educated. And Pascal sees that half educated people are constantly pointing out the insolidity of the foundation of social customs or political arrangements, and so they’ll constantly be noting that, oh, I don’t know, the electoral college doesn’t really do justice to the present constitution of population in America, or our penal laws need to be reformed in this way or that way. There’s a constant poking of the defects in our justice, and those defects in our justice are really real. What’s troubling for somebody like Pascal is I think exactly as you say, that when we limit our horizons to the confines of imminence, we’re deeply dissatisfied with the imperfection of all human institutions. And instead of turning that dissatisfaction towards projects of on the one hand, incremental reform, and on the other, of eternal hopes, we direct that restlessness into an unending project of social amelioration, which because it is unending never satisfies. We want a kind of justice that we can’t give ourselves, and we make ourselves perpetually discontent by seeking it. Richard Reinsch  (23:14): Talk about a bit, Pascal and the Jesuits. In a way there’s a sharp confrontation there, what’s going on? Benjamin Storey (23:22): So, the Jesuits in Pascal’s times, Pascal lived from 1623 to 1662. And in that era, the Jesuits were the most powerful church men in France, I think there had been a long succession of Jesuits who had served as personal confessors to the French kings at this point. And what Pascal saw about the Jesuits, is that they were very influential in the upper reaches of French life, and the way in which they maintained their influence was by being what we call permissive moral authorities. That is, people look to them as moral authorities, as representatives of the church. And those moral authorities respond particularly to the attentions of powerful people, by letting those people do most of what they want to do, that is by giving them permission to get away with a lot. And this is a very powerful formula, this formula of acting the part of the permissive moral authority. This is a very powerful formula for advancement in life, which I think a lot of people have recognized since Pascal’s time. And what Pascal says to the Jesuits, and he’s engaged here in a common effort with some of his so-called Jansenist his friends, it’s worth pointing out here that Jansenism is a title that was given to Pascal’s friends by their enemies. They just thought of themselves as Augustinians. And the Augustinians say to the Jesuits and to the France of their time, that Christianity is not a permission slip to do most of what you want to do in life. Christianity is a heroic enterprise that makes very serious demands on a human being. And Pascal tries to recover this demanding sort of Christianity for the 17th century, when he thought most people were living out a kind of cultural Catholicism, in the sense of a Catholicism that was passed on to them as a kind of birthright of being born in a Catholic country. As opposed to a real commitment of their lives, made in a serious way with the intention of pursuing something like sainthood, which I think was what Pascal wanted. Richard Reinsch  (25:40): You described Pascal’s immense contributions to science, and mathematics and technology. In the chapter you also talked about that this also makes him aware of the inadequacy of science regarding man himself. And we are constantly, I think, facing being defined by science or scientism, that is to say the only thing that’s real are measurements, or what we can learn empirically about nature, and so that would also include human beings. But what isn’t real, what we don’t take seriously, would be the questing of Pascal and trying to understand who man is. Scientific pursuits though, make him aware of that, I think. Benjamin Storey (26:21): I think that’s right. I think Pascal is the guy who demolished the ancient scholastic commonplace, that nature abhors a vacuum. He’s also the guy who is famous for saying, “The eternal silence of these infinite spaces.” That is for the ancients, and in some ways for Montaigne, nature is a home to us. And for Pascal, nature is not a home, nature is a void, nature is space. This is I think a very common way to think about nature now, but it’s a terrifying way to think about nature, if one really faces what it means for human experience. And so for Pascal, when you think about nature in a truly modern way, that doesn’t blunt your need for transcendence, it accentuates that need. That is, the more of a modern you are on scientific questions, the more you ought to be engaged in what Pascal defines as the anguished quest for real meaning in our existence. And Pascal is not at all vague about what kind of meaning he has in mind. He means the man God of the New Testament. He thinks that’s what we really want, and if we seriously seek it, perhaps God will show it to us. Although we can never force God’s hand on that point. Richard Reinsch  (27:54): Okay. So, the man who needs no introduction, Rousseau. What does he do here, how does he respond to both of our previous thinkers? Benjamin Storey (28:04): We read Rousseau as a character who draws something both from Montaigne and from Pascal. He begins with Pascal’s diagnosis of what the inner lives of educated people in his own time are really like, and he agrees with Pascal. He looks around the sophisticated Paris of the 18th century when he lived, and all these people with their salon and their literary enterprises, and their artistic delights. And he says, “Come on, you guys are fooling yourselves. You’re not happy. And moreover, you all hate each other,” just as Pascal had intuited. And so, Rousseau thinks Pascal is right in his diagnosis of the pursuit of happiness lived out. But Rousseau also thinks Montaigne is right about something, which is that it is possible to make one’s self happy on this horizontal plane, as you described it earlier. It is possible to make one’s self happy without grace, within the confines of nature. Just as Montaigne made self-centeredness attractive, one might say that Rousseau makes narcissism attractive. He’s just very good at getting you fascinated by his own very strange life, which proved to have, lots of people have seen a mirror of themselves in that life. And I think that’s one of the things that causes him to be so fascinating. Rousseau lays out a number of different ways that we might achieve that happiness, from his citizen on the one hand, to his solitary walker on the other. These are, one might describe them as the extremes of the horizontal plane that you’re describing. That is, somebody who’s wholeheartedly invested in his community, that is Rousseau’s citizen, or somebody who’s wholeheartedly invested in himself, that is Rousseau himself, particularly as he appears in the later autobiographies. What these very divergent options have in common, is a quest for a kind of wholeness that Rousseau sees in his natural man. And Rousseau thinks that human history has been the process of losing that wholeness, and becoming divided. That’s what Rousseau thinks the problem is, we’re divided against ourselves. So, to overcome that dividedness, he wants us to go all the way to one extreme with a citizen, or all the way to the other with his solitary walker. He wants us to invest wholeheartedly in something, and he thinks that’s a way in which we can find, even contentment, contentment here and now. Although contentment with a very different content than that attributed to it by Montaigne. Richard Reinsch  (30:23): Why do you think Rousseau has been such a mesmerizing figure for so many? Intellectuals, artists in particular, also political thinkers? Benjamin Storey (30:33): Rousseau is, first of all, he’s a wonderful writer. Even people who deeply disagree with Rousseau have to acknowledge that he has extraordinary skills with a pen. Secondly, he does something very clever in the second discourse, which is I think maybe the clearest succinct statement of the heart of his thought. Which is that he takes the Christian story, the story of the fall, and he transforms it and he borrows it. He uses a lot of its pathos, but he makes it into a secular story of a fall. That is for Christianity, we’ve fallen by falling away from God, into the condition of fallenness in which we find ourselves. In Rousseau, we haven’t fallen away from God, we’ve fallen away from nature. And we’ve fallen away from nature by corrupting ourselves through our own historic activity. But insofar as that corruption is self-inflicted, it could also potentially be self-cured. And by suggesting that, Rousseau raises very great hopes for what is possible for human beings. And so, I think those hopes are part of his appeal. And just as Montaigne made self-centeredness attractive, one might say that Rousseau makes narcissism attractive. He’s just very good at getting you fascinated by his own very strange life, which proved to have, lots of people have seen a mirror of themselves in that life. And I think that’s one of the things that causes him to be so fascinating. Richard Reinsch  (32:13): Okay, so we’ll move on just in the interest of time here, because there’s so many fascinating thinkers that we could discuss for hours, Tocqueville. Tocqueville and the American soul, Tocqueville and the democratic soul, he’ll take these three thinkers and apply it, or use it to understand man, most powerfully in democracy in America and the democratic commercial Republic, and what the activities of that Republic reveals to us about ourselves. Benjamin Storey (32:43): Yes. I think one of the great pleasures of working on this book was that it gave Jenn and I the chance to understand the deepest sources of what we take to be following our mutual friend, Peter Augustine Lawler, Tocqueville’s deepest insight, which is this insight that appears in this little chapter called “Why the Americans Are So Restless in the Midst of Their Prosperity.” So Tocqueville came to America, and he looked around, and he deeply admired this country, particularly its political institutions and its institutions of small town self-government. But he also saw some very disquieting things in America, some of them the obvious things with which Americans are traditionally preoccupied. He was very concerned with slavery and with the dispossession of Native Americans. But he was also very attentive to the kind of disquiet that he saw in the American soul. He said, “These people are freer, more enlightened, more prosperous than any people the earth has yet seen, and yet they are grave and almost sad, even in the midst of their pleasures. And they’re always reaching out for the next thing.” And what I didn’t understand until we worked through the authors that we study in this book, is how Tocqueville was able to see this. In part he’s just a genius, but in part it’s because he was steeped in this tradition. And in particular, his friend and traveling companion Gustave De Beaumont said about Tocqueville that he just loved Pascal. Beaumont said the two souls were made for each other. And so, when confronted with this people that is always reaching out for one thing after the next. They build a house and they sell it when the roof is being put on, he tells us, because they’ve got to move on to the next thing. He sees this disquiet underneath the surface of prosperity, and success, and freedom and enlightenment. And I think he’s able to see that because he’s read his Pascal, and he knows that so much of human life is a diversion, and that we love our diversions because they take us away from ourselves. That’s one of the great things that Tocqueville was able to see about Americans. That’s why his book, while it’s a wonderful history of America in the 1830s, and it’s a wonderful analysis of our institutions, but what it brings to the table that so many American books about America lack, is this characteristically French psychological penetration. And I think Tocqueville gets that from his being steeped in this French tradition. Richard Reinsch  (35:29): Now, on the other side, one could say it’s good Americans are immersed in commerce, in work, trying to store away capital, or starting new businesses or worried about their future in that regard. But what they’re not really worried about his ideology, typically. They’re not going to put people in concentration camps, they’re not going to put people on barges in the Sienne and sink them because they’re on the wrong side of the revolution. Things like that. Does Tocqueville think, yes, Americans are restless in their abundance, but they also work hard, so of course they want their money, and they want to do things with it, they’ve earned it? Doesn’t that all sort of balance out in a way? Benjamin Storey (36:14): I think so, in the way that you describe it. I think one of the things that Tocqueville loves about America is its liberal character, in the sense that liberalism is an art of separations. And so, while Americans love their commerce and reasonably want to enjoy the fruits of their labor, that’s not their whole lives. They have Sunday. Tocqueville was astonished that this incredibly commercial nation just came screeching to a halt on Sunday, which was a time in which people opened their Bibles, and as he put it, “Cast a distracted glance at heaven,” just a lovely way of capturing this element of American life. And so, that division, Tocqueville says that while religion never directly touches the public sphere, this is not a theocratic government or anything along those lines, nonetheless he describes religion as the first of America’s institutions. And so, I think one of the things that Tocqueville thinks is healthy about American life, is precisely its division and compartmentalization. And I think what he would be worried about for us, is that as we become a more secular society, we have a stronger and stronger impetus to break down some of our most basic divisions, that is some of our most basic protections. If we think that secular and imminent pursuits are really the only legitimate pursuits, well, why would we accord religion protected status? It wouldn’t make sense anymore. And so, I think you’ve nicely described the way in which the commercial pursuits of American life, that are not the only pursuits of American life, can actually make for a kind of sane people who do one thing six days a week, and then something quite else on the seventh. But what happens when the seventh day is effectively gone? And I think that would be one of the concerns that Tocqueville might have in looking at America in our own moment. Richard Reinsch  (38:22): And also as you know, it’s the falling away of religion, but also the ways in which Americans find ways to interact with one another. Not just in the market, but apart from the market. And that too appears to be in decline from most of the things that I’ve read, not to mention also family life falling away. All of those things working to shape a different kind of a democracy, not the local scale democracy that Tocqueville saw, but sort of a top-down democratic, administrative, bureaucratic welfare state that we increasingly are moving into. Benjamin Storey (39:01): I think your point about the dissolution of human connectedness in the modern world and in the democratic world, is very important. This is something that came out to us in a striking way in thinking through this book. Because we saw beginning in Montaigne, the celebration of a distinctly sincere and humanistic version of social connection, Montaigne celebrates under the name of friendship. And he has this wonderful friend named Étienne de La Boétie. And he writes this line about La Boétie, that their friendship can only be explained by saying, “Because it was he, because it was I.” That is, it’s a friendship that rests on that horizontal human plane that you and I talked about. There’s no third thing, there’s nothing above or outside of ourselves that justifies that friendship. And Montaigne celebrates this as an alternative to the conventional social ties that he as a 16th century Frenchman was necessarily embroiled in, in every aspect of his existence. Montaigne celebrates this, and we can see it also in Shakespeare’s celebration of romantic love. He celebrates the human tie freely formed, the soulmate if you will. I think one of the things that you see in Tocqueville, is that the soulmate has in a way, become the only game in town. By which I mean that the progress of modern life has done so much to attenuate, and to weaken other forms of human connection, like a more conventional notion of family life, that if you don’t find your soulmate, you’re really on your own. Which is really a very difficult condition to put human beings in. And so, Tocqueville was worried already in the 1830s about what he calls individualism, which was not a sort of up by one’s own bootstraps kind of mentality, but a form of social self-isolation. And one can see that that has gone much further in our own time where, we have unprecedented numbers of people literally living alone. Well, when you have all that loneliness, when you have all that disconnectedness, it’s ultimately going to have a profound effect on your politics. Because lonely people, I think, are typically very unhappy people, and that unhappiness is then going to make its mark on our public life. When we see students at the beginning of their collegiate lives, one of the first books I like to read with them is Plato’s Gorgias, which puts very forcefully to them the question, how should I live? And it puts that question in the form, what is the best life for a human being? And most students look at me when confronted with that question and it just doesn’t compute. In the sense of. “The best life? You can’t ask the question the best life, there is no best life, right? Richard Reinsch  (41:39): Yeah, the restless soul you’re describing also could be a way, enormously helpful way of thinking about partisan division, partisan rancor. Not listening to one another, or turning politics into more than it can actually be or provide. Benjamin Storey (41:54): I think that’s right, and I think it’s something that we see on both sides of our political divide right now, in particular in the formlessness, you might say, of our most intense political moments. That is, we have protest movements of both right and left, of both the extreme right and the extreme left, but we don’t really have governing movements, that is people with serious and constructive ideas about how to organize human life. And I think one of the reasons that’s so difficult for us is that we have an instinctive suspicion on both sides, again, of the whole principle of human organization, where we don’t like having our ties to other human beings defined, our roles with respect to other human beings defined. But a social life without roles and defined human ties, is kind of a free-for-all. And I think that free-for-all mentality does a lot of harm in both our public life and also our private lives, in which we just don’t know how to relate to the other human beings we face every day. Should I treat a student as a subordinate, to whom I have a special kind of obligation because I’m in a position of power with respect to that person? Or should I treat that person as an equal, and therefore have a completely different set of relations with them? I think those are the kinds of questions that come up for all of us, all the time. And that makes for a very undefined, and therefore agitated and restless social life. Richard Reinsch  (43:28): Okay. So, we have talked about four incredibly consequential French thinkers you and your co-author argue are key to understanding contemporary restlessness. What then, does liberal education do, or what could it provide? Benjamin Storey (43:45): One of the things that was both an entry point and an exit point to this book for us, was an attempt to connect what we’ve seen in the French thinkers to what we see in the students in front of us. And so, we open the book by describing a student. She’s a composite of many students we’ve worked with over the years. This is a student who has done everything that the college has asked of her. She has succeeded handsomely in a couple of majors. She’s founded one club, she’s the president of another. She’s been on study abroads, and not just different countries, but different continents. She’s done internships, she’s done everything. And she comes toward graduation, and she doesn’t know what to do with herself. She could go to law school, she could go to graduate school, she can go work for a consulting firm, she could go back home, she could become a teacher, she could go abroad again, she could become a farmer. We have frequent conversations with students in which the options are every bit as wide open as that. And when they get to the point of this, one could call the first really adult choice one makes in life, which is the choice of what to do immediately after college, they have no idea what to do with themselves. And why is that? We started to wonder. And we connected this to what we were seeing in the authors that we were studying, in the sense that our students have not been trained in the art of choosing. They haven’t been trained in the art of thinking through what might actually make them happy. And so, they can take the most divergent options about how to live their lives as all equally serious, and all equally suited to them, which is just a profound failure of our educational institutions with respect to these students. And so, what we’ve tried to encourage in particularly the conclusion to this book, is to rethink liberal education as an education not aimed at cultivating the Renaissance man or the Renaissance woman, the human being who is good, a kind of jack of all trades, can do just about anything. But liberal education as an education in the art of choosing, because choosing is so much of what human beings with the freedom and equality that we enjoy in our society, have to do in our age. Our educational institutions ought to be doing more to help students learn that art. Richard Reinsch  (46:25): And learning that art would be, I take it, reading great works in politics, literature, philosophy, law, history, and seeing how other people have made choices, been faced with difficult circumstances, and how they’ve understood themselves and what they’ve done? Benjamin Storey (46:45): I think that’s right. I’ll add to it that, I’ve mentioned at the beginning of our discussion here, Montaigne’s attitude toward the question of the summum bonum, in which he conveys his skepticism about that question to us. And I think contemporary Americans, probably contemporary citizens of most liberal democracies, inhale that skepticism like a gas, that’s TS Eliot’s way of describing Montaignian skepticism, it’s an atmosphere you breathe in. And so when we see students at the beginning of their collegiate lives, one of the first books I like to read with them is Plato’s Gorgias, which puts very forcefully to them the question, how should I live? And it puts that question in the form, what is the best life for a human being? And most students look at me when confronted with that question and it just doesn’t compute. In the sense of. “The best life? You can’t ask the question the best life, there is no best life, right? Everybody knows that,” is I think the instinctive reaction of many of our young citizens. And we want to give them the courage to ask that question again. And I think you’re exactly right, that the great works are a great way to learn to do it. And so, if you walk a mile in the footsteps of Aristotle, if you really try to think through life in that way, it may not be your ultimate, final answer to the question of how you should live, but it’ll help you think very seriously about what it means to live according to the dictum, that happiness is not in fact contentment found though a variety of pursuits and pleasures, but activity of the soul in accordance with virtue. That’s the Aristotelian perspective on this question. Richard Reinsch  (48:20): Your description of your student just there, made me think that they’re thorough disciples of Montaigne. “What do you mean? I’m happy sunk into myself, into these other pursuits, like my phone, whatever’s on my phone. And here you are trying to draw me out of myself. How dare you?” Benjamin Storey (48:39): I think that’s a nice way to capture their reaction. But the thing is, you push through that first day. Richard Reinsch  (48:46): And then they want to come out, right? They’ve never really been invited, most of them, in an honest way. Benjamin Storey (48:52): You’re right, because they couldn’t be, because one can’t actually make one’s self happy in this way. Staring at one’s phone is addictive, but I don’t think it puts one to bed with an easy conscience. And I think most of our students have the experience from the inside, of the restlessness that we think is the sign of abiding modern discontent, with the ways we try to make ourselves happy. Richard Reinsch  (49:19): Ben Storey, thank you so much. We’ve been talking with the author, co-author along with Jenna Silber Storey, of Why We Are Restless: On the Modern Quest for Contentment. Thank you so much. Richard Reinsch  (49:31): 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 Elisabeth Lasch-Quinn about her new book, Ars Vitae: The Fate of Inwardness and the Return of the Ancient Arts of Living. Elisabeth Lasch-Quinn is professor of history at Syracuse University. She’s the author of many books and essays, including the award-winning Black Neighbors, which won the Berkshire Prize. She’s also the author of Race Experts. Elisabeth, we’re glad to have you on the program today to discuss this book. Elisabeth Lasch-Quinn (00:50): Well, thank you so much for having me. It’s a pleasure. Richard Reinsch (00:52): All right. Tell us, what’s going on in the art of living? What do you want us to recover? Elisabeth Lasch-Quinn (00:58): Well, I think that we should pay attention to our intellectual traditions. They’re so rich and they’re so multifarious and intricate that we abandoned them at our peril. And we also abandoned them at our poverty because it impoverishes us not to have this treasure trove of different kinds of approaches for how we can live our lives and think about all of the various problems that faced human beings over time and then specific problems that face human beings in the times that they live in. I go back to ancient Greco-Roman philosophical schools of thought, because I think that even today in our popular culture, we see signs of an interest in those schools of thought even if a lot of times it is inchoate or just suggested or implied or maybe even just hidden and unconscious. Richard Reinsch (02:01): We can talk more about that. Because at one level to think, wow, so ancient philosophy, stoicism, Platonism, Epicureanism, we’re going to bring those into conversation with all of our problems that we have now and they can enlighten us and guide us and give us wisdom and truth and all those things. That’s ambitious. But also as I read your book, a huge part of your book is a critique, a negative moral judgment of how we live now, of how we think now, of how we approach ourselves and living with others. Talk about that because that to me, we can’t get to the classical philosophy until we understand more of what you’re saying there. Elisabeth Lasch-Quinn (02:45): Yeah. I think part of why I think it’s so relevant and important now in particular is because how we are living, not we as in you and me, but our dominant cultural sort of habits and trends and even mores or lack of mores. I do think we’re living in a moral crisis. I think we’re also living in a social, political and intellectual and spiritual crisis. It’s really a tough time. There are a lot of divisions among us. There are questions of principle, even obscurity about the very existence of a truth, not even talking about what the truths might be and debating them, but just is there even such a thing? It’s a pretty major crisis we’re in. I think sort of a perfect storm of different things going on. One of the main cultural movements since really since the late 19th century, but particularly taking up speed in the mid 20th century and then on into our own day, I think it’s still dominant is the therapeutic culture. And I draw very much on Philip Rieff, the classical sociologist who wrote the 1966 classic, The Triumph of the Therapeutic. And in that he was talking about this movement he saw over a long period in culture, particularly with Freud as a kind of pivot into the modern therapeutic, in which shared understandings based on religious or transcendent belief that helped communities cohere and also helped individuals think about why they would give up certain things, certain freedoms or other instincts or urges and wants and needs even. Why would they do that? Well, there was a sort of transcendent purpose or a sense of what was sacred, what the community was aiming at, the telos in a way. Then that shifted particularly in post World War II era United States, but the so-called West more broadly, as individual freedoms sort of began to be enshrined as the ultimate principle. This was part of how many people sort of lost their sense of commitment to communities or families or polities. And instead it sort of gave a legitimacy to the pursuit of individual instincts and even greed and such. The sort of therapeutic where you just let it all out or you pursue everything that you want, regardless of other people. That sort of ethos really imbues a lot of what we have in our culture, even if it sometimes has other things laid over it or coming through it, maybe mitigating it a little bit. But there’s really a strong therapeutic push to social life now. And I think that we need something, we need to figure out really what is at the root of that therapeutic? And then what traditions of thought might be rich enough and deep enough to give us an alternative? Because I think it really leads to an impoverished way of living and there’s so many signs of that, of spiritual crisis. Richard Reinsch (06:24): Yeah, the author novelist, essayist, Walker Percy had this phrase, the consumer therapeutic culture. Elisabeth Lasch-Quinn (06:31): Oh yes, yes. Richard Reinsch (06:33): And I thought of that as I was just reading your critique. And consumer, he didn’t necessarily mean, although he didn’t exclude it, just sort of the materialism of our period, but consumer as in consuming ideologies as meanings of truth and those ideologies, you take your pick. Marxism, feminism, nationalism, whatever. And these sort of become ways in which people understand themselves, but what they’re divorced from would be metaphysics or theology or sort of the traditional things that have guided people throughout the course of say Western civilization broadly understood and being replaced by an ideology or the therapeutic. He was very much alert to the therapeutic. And what do you think is at root of the therapeutic? Is it the dismissal of virtue? The dismissal of sort of a truth that transcends human beings and nature that transcends human beings but sort of I’m making things up as I go and what I’m making up is kind of what makes me feel good. What do you think it means? Elisabeth Lasch-Quinn (07:32): Yeah, I think so. That’s a good summary. And all that you said is so fascinating to me. That reminds me so much of Eric Voegelin, who was critical of those same sort of ideologies when used especially to split the world usually in two camps of those people who are all evil and those people are all good because they ascribe to that particular ideology and it’s really a terrible way to live and it doesn’t work. It just pits people against each other. Using etiology instead of really deep ways of thinking and traditions of thought and living is not helpful and is really part of the 20th century tragedy. But yeah, so what’s at root of the therapeutic. I think it’s got different sort of elements to it. And so in my book, I put my own definition of the therapeutic because there’s a set of scholars and thinkers who have written such insightful things about aspects of the therapeutic culture, such as therapeutic as it comes through education or as we see it in the practice of religion even, which would seem to be the very opposite of it. But there are certain ways that some people practice religion that are very much in line with the consumer therapeutic. At the root of the therapeutic in my view is self interest and also a manipulative view toward other people. Once we are shorn of any transcendent or higher reference outside of the individual that could possibly be a source of connection and meaning and commitment that gives us direction for our striving and a reason to practice virtue, we are sort of left to our own devices and the emphasis on the individual’s quest for what feels good, what is supposedly therapeutic, it makes it seem as though other people exist only as kind of auxiliaries at best and kind of stepping stones at worst. That they are just there to help fulfill the individual’s needs and wants. And so without any sense of shared purpose or the sense that shared purpose is important, people end up in a manipulative mode and not even aware of why that’s wrong or that there would be a possible alternative. It’s just widely accepted that it’s fine to pursue your needs. That would almost sound funny to many people to say, “Wait, hold on. Why did you just talk about it being so great to pursue your needs?” Because it’s such a given now that that is what the main project for each individual self is. I think those things, other things like having a health paradigm is the main kind of worldview, that everything is related to that. As long as it is sort of healthy in any individual’s idea of what healthy means, because that becomes very subjective, then it’s fine. Instead of having this phrase… Richard Reinsch (11:05): Hear this phrase self care a lot now. Elisabeth Lasch-Quinn (11:05): Yeah, self care. Oh my goodness, yes. Richard Reinsch (11:08): Yeah. You’re unfriendly to people who work out and spend time in the gym, but those can be good things too, though. Elisabeth Lasch-Quinn (11:17): Yeah, I’m not unfriendly to those people. I love those people. They’re me and everyone else around us. No, working out and things is fine. I think it’s all about with all of our human activities, don’t you think it’s all about how you do them and why you do them? And where does that activity fit in the larger scheme of your life? And would you run over someone to get to your gym because you’re on your way to be so virtuous in working out that you accidentally ignore that there are pedestrians? That kind of thing that we need a sense of perspective and proportion of what really matters and how to go about living our lives, whether we’re working out or cooking or shopping or caring for children, all the different things that we do. And one of the things that I wish we could do more is think about the ends. What is the point of different things? And then maybe we would be clear on how we should be doing what we do. Richard Reinsch (12:30): That’s another part of our culture too, is the instrumentalization of everything in a way and not seeing things as finally true or good in and of themself. You talk in the book, you go on in separate chapters to talk about stoicism, Epicureanism, cynicism, Platonism and then you sort of have a final summing up chapter of what all this means. Thinking about stoicism, maybe just give us the classical understanding of that and how you see that reviving in contemporary times. Elisabeth Lasch-Quinn (13:04): I basically encourage everyone to read the texts themselves because they’re so rich and fascinating and strangely so easy to understand even all of these years later. It might seem too old, why would we ever want to read such an old, difficult to understand text? Well, these are translated into wonderful modern English versions or if your’re Spanish, Spanish versions, Italian versions. All over the world, Chinese versions. There’s beautiful translations of all of these ancient texts because they’ve been around for a long time. Find an edition. People should find editions because I really feel they’re systematically being deprived of some of the best, most helpful resources for living, just getting by with some of the things we have to face in the human condition. That just kind of leads up to, you can see that I feel rhapsodic about stoics. People like Marcus Aurelius and his meditations and Seneca in his letters and Epictetus and his sort of programmatic list of ways to think. I don’t agree with it all and I don’t think most readers would agree with every single thing they read. And they all differ. All of these stoic authors are very different. They have a different tone, different style, different genres they write in. It’s worth the reading lots of them, if you can or if you’re interested. But they share certain overarching things and one of them is an understanding of the various demands on the individual, on a person. They have the idea that you should really think about what the priorities are, what you should be pursuing. And then that helps you deal with all the rest and let some of the rest fall away. They really want you to be clear about what the point is and what you’re pursuing and then really dig in. And it’s about endurance and overcoming some of the at least initial emotional reactions that can steer you away from the things that you’re pursuing. I do see this coming back now. We see it in a lot of movies like the movie Gladiator. Richard Reinsch (15:21): You see stoicism in Gladiator? Elisabeth Lasch-Quinn (15:23): I actually do. I think we can debate it. And anyone ever wants to talk with me about any of these movies that I write about in a book or any other movies, I think it’s fascinating to see whether there’s a school of thought coming through a particular cultural form and movies are so prominent now. But any, any one you can think of, a painting from the Renaissance, a song from Bruce Springsteen that he just wrote or you can look at these and see what’s the sensibility behind it. And I think you can kind of see that they lean toward one of these schools of thought, not just the ones in my book, but there are more that I didn’t include in one book like the ancient skeptics, et cetera. Yeah, I think I do see stoic elements. And even if you don’t agree that there are stoic elements in the movie itself, the movie refers to those. It’s trying to say that stoicism’s still interesting. But there’s a whole movement of the new stoics. And these are real people today who gravitate toward websites and online schools and classes and also events in the real world like Stoic Week. And there’s a real following for stoicism today. I think a lot of it is unconscious and you can see it in many places where no one’s proclaiming the new stoicism, but there’s also a conscious element of it. When I look at some of the new forms, I do see a difference sometimes with the ancient forms. That’s what I do with each of the schools of thought that I look at in the book. Richard Reinsch (17:04): Do you see the stoicism now, you say in the book is sort of like, well you write about one gentleman who writes a book on stoicism for business. He profiles sort of famous people in history and how they exemplified stoicism. And you think this is kind of a bit rich and it seems to be sort of stoicism is now understood as be tough or have true grit and buckle down. But of course, stoicism in the classical perspective was something else that there was truth, the world was composed of reason, there was natural law and you tried to situate yourself in accordance with it and not be overly worried about fortune or various calamities that might befall. You wanted to live in accordance with the reason of things. Elisabeth Lasch-Quinn (17:45): And I would just add fame, don’t be obsessed with fame and things because time passes and people forget, so don’t be just pursuing immediate sort of self glorification. Richard Reinsch (17:59): Yeah. You wouldn’t be a social media, an Instagram influencer. That might be hard if you were a serious stoic. Elisabeth Lasch-Quinn (18:07): Yeah. Or if you did, you were really practicing a different kind of craft, but maybe using that maybe input. One thing about the stoics that’s fascinating is that they have this view of time and space of the universe. And in modern forms, it’s often reduced to basically pretty much the AA mantra, which is about leaving aside things that you can’t change and only focusing on the things that you can change and far be it from me to criticize. I think that Alcoholics Anonymous has saved many a life and many a family, so all good. But when you go outside of that and see where it’s coming up and it’s really kind of scary because you can use stoicism getting rid of all of the bigger worldview to pretty nefarious ends as you just implied that you can let everything else fall away and just say, “Oh, it’s all about grit.” And oh, the way I interpret it because this is the therapeutic society and the individual reins supreme, I just choose to interpret it as being really mean to people or being aggressive or being violent. That’s not at all a stoic sense. And the stoics had a whole sort of cosmology. They tried to sync. That’s what’s fascinating about these schools of thought is they thought not just sticking, just want a paired of down self help regime where give me five steps for how to live my life. They were really about understanding our life and ourselves, of understanding in light of the fact that we live in this infinite universe and we are just this speck, they would emphasize we’re just this tiny speck. Considering that we are and that our moment in life is so fleeting, then how should we live? And I’m not trying to say they’re all saints or anything. I’m just saying that if we look at their more complete worldview, it can’t be hijacked so easily by the modern therapeutic and the hyper-individualism that I’m worried about and it can present an alternative. One of the things that’s missing about the many modern forms is the focus on virtue and moral goodness, which was really at the heart of these schools of thought. And that’s unfortunately one of the elements that I don’t see as, and some of the new stoicism is fantastic. It’s great writing. It’s really reaching. It could affect your life for sure. There’s really good stuff. And then there’s others where it’s just really been hijacked by the therapeutic self help culture. Richard Reinsch (21:07): Something that occurred to me thinking about stoicism in the Roman Empire, at least what I’ve read, it doesn’t really penetrate beyond the aristocratic class. Have you thought about why that might be? Elisabeth Lasch-Quinn (21:16): But do we ever really know though about that because the sources are so slim and there was Epictetus who was a slave. He’s one of the maybe the most prominent stoic that we still know about now. I’m not sure. Well, maybe you know, you’ve read more about what we can know based on the limited sources to say, but I would never generalize about beyond, because what we have is the sources that we still have tend to be elite sources so it’s probably all we can really know about anyway, but that doesn’t mean other people didn’t have any forms of stoicism. Richard Reinsch (22:03): As I thought about it, I don’t know what that necessarily means, but I’ve wondered about that. Something I was thinking about in your book and the stoicism discussion one, stoicism to my knowledge is sort of the operating philosophy of the United States military. To the extent there’s a philosophical bedrock, given its stoicism. In fact, Donald Trump’s first Secretary of Defense, I think it’s apt to say is a stoic, certainly studied Marcus Aurelius’ Meditations, we know, thoroughly. The way he talked about duty in particular to the country reminded me of a stoic talking and was thinking about those things. Also known for saying in any room he goes into, he has a plan for killing everyone in the room and getting out alive, which I thought was an interesting thing. But there and then there’s also thinking about this aristocratic tradition, at least according to Walker Percy, the leadership class, both of the antebellum South and then the post Civil War South, at least until the early 20th century, was stoic. He said it wasn’t Christian so much. They had really one foot in church, but really they were more Cicero and they thought of their own obligations in life and their actions and things they did in stoic terms. And he talks about the men in his own family in that term and he thinks stoicism is so far so good. He doesn’t think it’s enough because a person he says, “It can’t really help you love.” Or doesn’t really call forth grade love, a great relational love. And he wonders about that. But I was also going to mention that probably one of the most listened to podcast in America today is Jocko Willink’s podcast. And Jocko was the former trainer of Navy SEALs. He was a Navy SEAL for a number of years, served in the Iraq War and everything pulsating through this podcast is stoicism. And how not just to what he does, what podcast he does is he brings sort of lessons of leadership that he learned as a Navy SEAL and he has a consulting practice and he sort of helps other people with leadership through the things that he had learned as a SEAL but the way he’s described himself and the reasons he gives you for acting on your own are very stoic in nature. And it’s an endless push, I should say, but he’s also, I wouldn’t say cheapening stoicism as we were discussing, but is writing about sort of the full realm of how you should act in a range of different responsibilities and how you should treat other people and things like that. I was just going to mention that to you as something you might take a look at. Elisabeth Lasch-Quinn (24:35): Thank you. Richard Reinsch (24:36): One thing you write about Epicureanism, we can say that’s definitely been devalued in our time. But what about Epicureanism is good for thinking about now? Elisabeth Lasch-Quinn (24:45): Well, the early Epicureans were very different from some of the modern or current manifestations, which it’s true. The ancient Epicureans did think that pleasure was the ultimate point of life. That’s true, but in their version, it was very still grounded in a moral framework when they thought, what does pleasure mean? It is something that you get from your relations with other people and your relations with just basic activities in life. Things like eating were definitely sources of pleasure, but they were also in a particular setting among friends, among family members. There was still a sense of kind of moral community, a very strong sense of that. And there was also a sense of holding back on your appetites, which we would probably just automatically say, “Oh, that sounds more stoic.” And maybe there is a little bit of stoicism there, but it is very much an Epicurean value to hold back and to keep your wants more trimmed down so that you can satisfy them and so that you can keep pursuing pleasure throughout your life. They had a very strong sense that you can’t just abandon yourself in every given moment to an unbridled pursuit of momentary titillation or gratification because then what’s going to happen is you’re going to have terrible results and the next day is not going to bring any pleasure whatsoever because you’re going to tear apart all of the good things in your life and pay huge consequences and then your life is not in any way, a pursuit of pleasure. They had a sense of perspective and proportion and the duration of a life. Yes, they were talking about the main thing is pursuing pleasure within one’s own lifetime, but it was not anything that would help with the modern consumerist. Richard Reinsch (27:05): Well, I suppose they would, just thinking about the meal and thinking about purpose. The meal itself, it wasn’t to gorge or if you enjoy the food, but I take it, there’s a range of experiences that that they’re concerned with. Elisabeth Lasch-Quinn (27:20): Yeah. Because if you gorge on things, that’s not going to lead to pleasure. It’s really an interesting way to think of things that I think is very helpful for us because we do live in this consumerist era. And so there are some movements that I think are kind of truer to ancient Epicureanism. When I was living in Rome, I had half a year as a Fulbright fellow and I knew someone who was interested in the slow food movement and she invited us to a several day conference on the slow food movement, which I didn’t really know about. And it was held at, it’s called Bra, Italy where that movement had its origins. And it was all about the gourmet emphasis of our time, where you care about the way you prepare food, but it was so embedded in a sense of again, kind of moral community where the reason why you pay all that attention to how you’re cooking is not just because you’re thinking about yourself and this is another part of my image or my identity or anything like that. It’s more that we should because of morals, we should care about how we’re raising livestock, we should care about how we’re farming and so that there are a lot of movements like that, buy local movements, farm to table movements that emphasize kind of having a moral sense when you go about getting your food and preparing your food. But the slow food movement in Italy also emphasizes the pleasures of actually sitting down and then dining and consuming the food in a positive sense. It could have us reorient ourselves toward consumerism if we thought of consuming in that ancient Epicurean way, that it has has a place in the moral community and helps shore it up and gives us a sense collective purpose and just belonging. And a sense of enjoying each other’s company and such. Richard Reinsch (29:49): The pursuit of pleasure, as I’m thinking about the classical Epicurean pursues pleasure, but they’re not really pursuing pleasure per se. It’s pleasure of what comes out of virtuous actions. Elisabeth Lasch-Quinn (30:00): Yeah. That in itself is the source of pleasure. That’s how morals and pleasure are still united for them. Whereas for us, they tend to be separated because we just talking about the individual’s pursuit of pleasure and then that’s outside of a moral framework. Richard Reinsch (30:19): You talk at length in the chapter on Epicureanism about the novel film Eat, Pray, Love. Does this film exemplify Epicureanism? Or is this something else? Elisabeth Lasch-Quinn (30:32): I think it’s trying to. I think it instead is an instance of what I’m trying to warn of in the modern forms of these schools of thought that I’m really deeply, profoundly worried about where we are, what’s happening in our times. I think we’re in cultural crisis and we have been for some time and if we don’t find ways to renew our sense of sort of why we exist together, not just separately, but individually too, we’re just not going to be able to continue. I’m really worried about the state of things. And so when I see Eat, Pray, Love, I’m pretty excited because there is an unconscious reference to ancient Epicureanism. And even to some other traditions, there’s a lot of sort of spirituality in that film and things like that. But then ultimately it seems like it’s shoring up the ethos of our time. Richard Reinsch (31:38): Consumer therapeutic. Elisabeth Lasch-Quinn (31:40): Yeah, I think so. I don’t want to dismiss it all together. And all of the cultural forms that I analyzed in the book, I have at least some empathy for otherwise I wouldn’t spend so much time on it. I think they’re worth looking at, thinking about. And there’s something just so amazing about the Eat, Pray, Love phenomenon, because many times it’s mothers and daughters who went to see that film or it was sisters or it was friends and they really found a lot of meaning in it. And so I don’t just dismiss things and that people find meaning in. And I think sometimes they were finding meaning that probably came out of their own understanding of their embeddedness in moral communities and their relationships. And if that helped renew that, great. But I think ultimately I found that the message of that was pursue your own pleasure and at any cost. And the saddest part of that movie to me is this wonderful scene with her ex-husband, she’s divorcing him and he’s in the elevator and it’s one of those uncomfortable things where it happens to open and she’s standing there and they had both been to the lawyers about their divorce and he’s just crying. And it’s awful. It’s just chilling to the spine because she didn’t really have a distinct reason for leaving him. She wasn’t leaving him because he was cruel or violent or their life was just impossible to sustain. It was more of that sort of generalized discontent on her part that maybe there’s something more. And then you realize what the cost is when you look at him and he did not want to end the relationship. To me, that speaks volumes about what is wrong with the consumerist therapeutic, where people can just sort of become pawns that you cast aside when they’re not really helping you fulfill what you think is going to be therapeutic for the individual. Richard Reinsch (33:56): Okay. On to Platonism, which seems to be, as I read you, the school of thought you find most hopeful. Elisabeth Lasch-Quinn (34:03): I do. Richard Reinsch (34:05): And I would sum up your chapter on Platonism led by truth, inspired by beauty. That’s what it can give us. Elisabeth Lasch-Quinn (34:11): Nice. Richard Reinsch (34:12): And we desperately need it. Could you talk about this chapter? Elisabeth Lasch-Quinn (34:17): Yes. I think this is the school of thought that is most rare today. And so what I want is to help join those other people who would like to bring the whole conversation back among these schools of thought because that’s partly what I think is interesting and important is not just saying, “Oh yeah, stoicism is the answer. Let’s forget about everything else.” And I think stoicism has a lot to offer, but it can also be, as I said, hijacked for use for just the individual, maybe even to shore up aggressive, violent urges. That’s not good. That’s a terrible combination of the stoic and the modern therapeutic consumerist culture that can be toxic. And there are toxic versions of the other schools of thought as well. But the Platonist one, I think that needs to be brought back into the conversation. Many of the other schools kind of had their origins in the Platonist perspective and they kept some of those elements, even if they went in a certain direction as in Epicureanism with the pursuit of pleasure, but there was still that moral sense. And that was largely, wasn’t originated in Platonism, but Plato was the composer of the symphonies on a whole symphony, philosophical symphony, his whole oeuvre was about moral goodness. And I think we need that part of all of those ancient schools to come back. But I think Platonism, if we could bring it back into the conversation, would help us think about all of our various struggles and difficulties in light of the overarching question of, well, what is good as in morally good in this case? It doesn’t seem like that’s the habit of mind that dominates today. Richard Reinsch (36:15): Well, I think we’re sort of like, what is truth? In a mocking sense, not in the Socratic sense of asking that question. We should bring Plato back into the conversation, what would that look like institutionally? Something that I thought as I was reading your chapter is the rise of these classical schools all across America. What I thought was interesting about that is a lot of these are very religious schools, Catholic schools, Protestant schools and so they actually want to return to the ancients, but through Christianity, did you think about that as you were writing your book? Elisabeth Lasch-Quinn (36:44): Oh, absolutely. And in the end of the book I come to Plotinus and Augustine. St. Augustine was so deeply influenced by Plato and Plotinus. He says that that was really what changed his trajectory was reading them and you can see it in his thought and it’s basically, you can’t, I don’t think completely appreciate Christianity without realizing the profound Platonism in it but also it has the other elements. It has the other schools of thought as well. Stoicism is very much in Christianity. These schools of thought aren’t in any way sort of opposed. And that would be something that would scare me if people, again, it’s that urge that we have probably to commodify and make simple and manageable and usable different philosophies. And so I think there would be some people who might think, oh, you can either recommend a religion or you can recommend a school of thought. And I think that the whole conversation is what we always need, because you could take Christian beliefs and practices and you could say, “Well, which here, do we see any stoic leanings? Do we see any Epicurean leanings?” And Platonist leanings are so important, because a lot of the modern practices of religion are basically one and the same with the consumer therapeutic. And so how would we sort of work against that and retrieve or invent what is best about religion in our lives? I think it’s being attuned to the Platonic elements would help a great deal. Richard Reinsch (38:38): Yeah, as I thought about your book too, just this idea of faith and reason working together, interacting and needing one another. And I think, probably one of the most dramatic papal statements was the Regensburg address in my mind, by a Pope in the 16th often misunderstood. In which he’s basically trying to recover a classical version of reason and saying that this has been debased by a modern positivist and utilitarian understanding of reason. And so we’re not even able to think about who we are anymore. And he tries to show ways in which this has devalued Western liberal democracies. I was reading your book, I just thought about that as well, that this sort of loss, and you’re talking about philosophy as a way of living and I’m maybe talking about how to think, but this overall loss of conception of our full intellectual tradition, something we definitely need to recover. Elisabeth Lasch-Quinn, thank you so much for coming on to discuss your book, Ars Vitae: The Fate of Inwardness and the Return of the Ancient Arts of Living.

Richard Reinsch (00:19): Welcome to Liberty Law Talk. I’m Richard Reinsch. Today, we’re talking with Donald Drakeman about his new book, The Hollow Core of Constitutional Theory: Why We Need the Framers. Donald Drakeman is distinguished research professor in the program in Constitutional Studies at Notre Dame University, where he also teaches in the law school. He’s the author of a number of publications, some of which I’ve read over the years. Why We Need the Humanities, Church, State, and Original Intent, along with many articles and book chapters. Donald, we’re glad to welcome you to Liberty Law Talk for the first time. Donald Drakeman (00:52): It’s a pleasure. Thanks very much. Richard Reinsch (00:54): Thinking about this book, I like the title. So we are awash, it seems to me, in a cacophony of constitutional interpretive methods. Originalism itself boasts… I don’t know. Over a half a dozen different schools. We’ve also got the living progressive Constitution, which can be a very moralistic Constitution. It can also be a very pragmatic Constitution, driven by policy concerns, in terms of reaching outcomes. So what’s the hollow core of most of these approaches? Donald Drakeman (01:26): I think that the basic problem is that we’re arguing about what the words might’ve meant, what the words should mean, what we’d like the words to mean. And what we’re missing is that, from really the beginning of written laws in the Western legal tradition, the law was the written instrument that was made by a lawmaker. Then, it would have been an emperor. Now, ever since we’ve had legislatures, it’s legislatures. They make the law. And throughout all of that history, really for the better part of 20 centuries, the core of interpretation was trying to discern and apply the will of the lawmaker, or what we usually call the lawmaker’s intention. That’s what Coke said. “Every statute ought to be expounded, according to the intent of them that made it.” Joseph Story even said, “The first and fundamental rule of interpreting legal instruments is to construe them according to the sense of their terms and the intention of the parties.” The intention of the lawmaker was what judges were expected to look for and how they were expected to interpret. And when Justice Scalia said, “Well, Blackstone told us that we should look for the words in their ordinary meaning,” he was right. Blackstone said that. But what he said was, “That’s our best evidence, subject to other evidence, of what we’re really looking for,” which was the will of the legislature by, as Blackstone said, “Exploring his intentions at the time the law was made.” So it is by looking at the area where a number of leading originalist scholars have said we ought not go, which is the debates that, our record of the actual bargaining process, and see what those individuals thought they were talking about. So what we’re missing is what we really should have been looking for all these years, which is the intentions of the lawmaker, what the lawmaker was trying to do, why the lawmaker was trying to do that. And we’ve gotten ourselves into two very separate corners of judicial policymaking, say, on one side and a hunt for some sort of dictionary definition on the other. That was not anchored to what real people were trying to do with the words being used. Richard Reinsch (03:34): When I interview most originalists, when I read most legal scholar originalists now, what is described is “Well, there was a time,” say Raoul Berger, Robert Bork, 50 years ago, “of this, ‘Well, we want to know what the intentions of the founders are.'” And we realized that was just impossible, if you really did historical work, that how would you ever know what their intentions were? And they intentions cancel each other and they’re different. And what’s really important is to know what the texts mean at the time and to know how people would have described them and understood them. So the better way of doing originalism is original public meaning. I mean, I know you know all that. But for our listeners. And that’s seen as displacing original intentions. So I mean, is that because primarily, originalism wanted to be academically distinctive? Or is that, in itself, this sort of a methodology of just trying to make it more stable? Donald Drakeman (04:31): Well, I think they’re probably a collection of reasons, one of which is that the old version of original intent was often focused on looking at what a small number of prominent framers might’ve said about an issue outside of the debates in the first Congress or the Constitutional Convention. I mean, take, for example, the famous Everson case in church and state law. They go back to Virginia and they’re looking at what James Madison said in a petition he wrote called the “Memorial and Remonstrance “. Or they’re looking at a letter Thomas Jefferson wrote a bunch of years later. And assuming that you’ve got all these framers that thought one thing, and you have a bunch of framers from New England that thought another thing. And there’s no way to figure out how you can blend all that. And so, we’re going to look just at the meaning of the words. And that seems really sensible if there’s only one meaning of the words. And that’s really how I got started in this research is that I’ve been a church-state scholar for a long time. I decided I would do a very careful analysis of the original public meaning of the words. I mean, there aren’t many words in the Establishment Clause. And what I came out with is that there are at least four equally plausible meanings if we look just at how somebody, somewhere, was using that language at the time. So how do you pick? Which of those public meanings? I’m not arguing. And I think some of the so-called bad old originalism sometimes argue that we ought to pick a meaning that’s different than what the public might have understood. I think, to the contrary, the key here is to look at which of multiple possible public meanings the public actually did understand. And they understood it because they understood that’s what the framers were doing. So the intentionalism that I’m focused on is not the intention of James Madison in particular or any other framer. It is the intent of the body. When they got together to debate the various terms, they had ideas, they had intentions. “I want this for my state. You want that for your state. We disagree.” And then, finally, they vote on something that they all understood did something in particular. And it may not have been what any of them wanted, what they intended to get when they got there. But they knew, at the time when they were voting, what they were voting on and what that meant, what it was supposed to do, what their intention of the whole body as a group. So that’s what we’re looking for here. So we don’t go back and look at James Madison’s or Jefferson’s or James Wilson’s life histories. And try to discern the meaning from their own personal philosophies. It’s, they hammered out a compromise. And they knew what the compromise was. Richard Reinsch (07:21): How do you delineate and understand the contours and nature of that compromise for a legal decision? Donald Drakeman (07:28): Well, that’s where the thing that has been excluded from many of the, perhaps most of the original public meaning discussions is the debates in the convention and debates in the First Congress on the Bill of Rights. And it is there where we have the best sense of what the lawmaker, as a group, thought it was doing as a group. And so, we see that James Madison probably disagreed with a number of people in New England about what the word “establishment” meant. But they all knew what the clause was designed to do, which was to prevent the formation of a national church like the Church of England. So it is by looking at the area where a number of leading originalist scholars have said we ought not go, which is the debates that, our record of the actual bargaining process, and see what those individuals thought they were talking about. Richard Reinsch (08:26): Okay. But in thinking about what they were talking about? I mean, I guess the overall question of just getting, you call it the summing up, or people call it the summing up problem. I’m fishing for something concrete to think about, in terms of applying to a judicial dispute. Donald Drakeman (08:42): So let me pick, instead of the Establishment Clause, the Excise Clause. Because unfortunately, so many of us have notions of what the Establishment Clause meant or ought to have meant, that it’s hard to talk about it without bringing in all those old arguments. So let’s pick the Excise Clause in the tax provision, which is a somewhat more emotionally neutral topic. So it turns out that, in the Excise Tax language is, what is an Excise Tax? Is it a tax on a transaction, like a sales tax? That was one definition. Or basically, any tax that the government might levy on a thing, like something you own. Not something you buy. But just something you happen to have in your house, like your fireplace or your dog or your clock. And there were different regional meanings of the word excise. And we find out actually that people in New England had a completely different view of what excise meant, based on their own statutes and what was collected by the Excise Tax collectors in their own states, from what the people in Virginia thought. And one of the early Supreme Court cases was all about, essentially, whether it would be this New England version, which says it includes taxes on things you own, or whether it was a Virginia version, which is just taxes on things you were buying or selling, a sales tax. And Justice Patterson, in the 1790s, very early case, by a framer. Patterson was one of the framers. Represented New Jersey. He said, “Look. We’ve got a semantic summing problem here. We’ve got two definitions. And they’re both equally good. The question is, ‘How do we resolve that?'” And the answer he gave was looking at the intention of the Constitutional Convention. And the intention here was to allow broad government taxation with specific limitations that would be called direct taxes, which would have to be proportional. And that was really a concern of the slave-holding states because they did not want to have taxes that would allow the North to tax their ownership of slaves. And so, what he said was, “This is not what I, as a framer, wanted. But it’s what we, as the framers, decided that there would be this broad taxing power, subject to these specific limitations, to protect the Southern interest.” And so, he found the, based on the nature of the bargain, the outcome was what he called, obviously, the intention of the framers. So it’s not a mathematical process, as some have been trying to do with corpus linguistics and so on, to just come up with a number. “How many times did we read this word in 1787?” That’s a meaning. But it’s a process that says, “We take all of the possible definitions.” And there was more variation then than we might appreciate now, because the regional differences were so distinct. So many had been immigrants from different parts of Europe or different parts of what we now call the UK. And therefore, there were significant semantic differences that we actually only see if we go looking for them, which is the case here of the Excise Clause. Richard Reinsch (11:58): So it’s something, I was just thinking about your approach. There’s a problem. There’s something that requires a remedy from, say, in the Constitutional Convention or a legislature. A remedy is proposed, debated, discussed, and a compromise is reached. And I guess it’s like you’re really pointing to, “Well, what’s the compromise?” Donald Drakeman (12:21): Absolutely. “What’s the final deal here?” Richard Reinsch (12:24): Okay. Donald Drakeman (12:24): And, “How do we implement the deal in light of what they were trying to accomplish, not just what the words might be able to mean or what we think policy ought to be.” That’s exactly well said, Richard. Richard Reinsch (12:35): Now, many originalists; or maybe just me; from the first time I read Scalia’s Matter of Interpretation, think about legislative history as a grab bag and can tell you all sorts of things. Would legislative history, though, be key to what you’re doing? Or maybe Scalia was just wrong? Donald Drakeman (12:52): I think he was overreacting. I think that legislative history had been used badly. The Everson case is a great example where Justice Rutledge, who really drove the discussion of Jefferson and Madison and all the Virginia church-state battles as being the heart of the First Amendment. He later wrote to a friend, “This was really all about my worries about Catholics getting control over the public schools. And we had to stop it.” And the Virginia history was really convenient for that purpose. So he was able to take his preconceived notion of what the clause ought to mean and he wallpapered around it, this veneer of 18th century history. And it made for a good-sounding story. And I think what Justice Scalia, in those kinds of cases, and in statutory interpretation cases, saw, was that people doing essentially bad legislative history, you know? Sort of cheating the history. We’re reaching outcomes that were inconsistent with actually what the bargain was. And he tried to make a clear rule than… And you’re trying to get me to say a clear rule. And I keep saying, “You’ve got to go look for the deal!” Because it’s hard to have a clear rule when you have a bunch of people coming together to haggle over how to solve an important question of public policy. And I think we ought to go look to see how they wrestled with that and what compromises they made. So I think Justice Scalia was just trying to emphasize. And you actually can see, from time to time, he cites the framer’s debates. He found it tough to stick to the strongly-worded advice he gave. Richard Reinsch (14:30): Do you find any of the current originalists on the court or other justices using your method or parts of your method in their opinions frequently? Donald Drakeman (14:41): Well, one thing we see with the Supreme Court Justices is that they tend to spend less time talking about constitutional theory and more time actually doing it. And I would encourage more theorists to actually interpret and more interpreters to think about theory. This book, to some extent, was trying to bridge that gap. The Supreme Court routinely, from the left and the right? I was going to say in the center. I’m not sure there’s much center left anymore. But from the whole spectrum of the court, in terms of both their judicial politics and their actual political positions, have cited the framers. In fact, the Excise Tax case I talked about was cited again in the Affordable Care Act. Framers get mentioned. That’s been fairly routine. It’s been the realm of theory where a need to try to match a jurisprudential basis for original public meaning has come out. And it’s really drawn a sharp line that says, “We’re only looking for the semantic meaning of the words in context.” And that the most we can look at from the framers is how they used the words as just educated Americans of the time. Not that they were any sort of special… Had any special track towards the meaning here. And I’m trying to reverse the polarity there and say, “We have to look at what the words could mean.” But when we find out the words could mean more than one thing, then the tiebreaker is what they were really trying to do, which is what interpreters and interpretive theory have said for about 2,000 years. How do we take the answer to an old question and apply that same answer to a new set of facts? That’s been part of the tradition for a long time. What was new, and what I think originalism is reacting, or even sometimes overreacting to, is the idea that we’re going to take an old question and give it a new answer because the court believes that a new answer is more appropriate to the modern age than the old answer that the lawmaker gave. Richard Reinsch (16:15): No. Original public meaning, from what I can tell, in the scholar world, is the most dominant originalist school. You claim it’s an overreaction, though. Donald Drakeman (16:27): Yes. I think it doesn’t work in real life. Theory is fine at the level of pure theory. But if you actually are recommending that your theory fit with a real-life application, you need to be able to get a point where your theory and the assumptions in your theory overlap with the way the world really works. And the assumption of original public meaning is that, through looking at word use in dictionaries, we can identify a single best original public meaning. And I think, in practice, that’s not the case in many, but perhaps not all, constitutional provisions. And therefore, we need a way to decide which public meaning is better than which other public meaning. And that’s the role that intention has played for many centuries. Richard Reinsch (17:20): On this original public meaning and the search for the words, you have a chapter on their use of corpus linguistics, which the way I understand is, we can put together now technical databases and analyze words and really get systematic about how we think they were used in the time period. That sounds promising to me. Why do you not think that’s promising? Donald Drakeman (17:43): There are a lot of technical details in that chapter. And I will try not to give you all of them. The bottom line is that corpus linguistics is like a scientific experiment. It says we can collect data about a phenomenon and that we can analyze that data to tell us true things about that phenomenon. And so, you need to subject it to all of the questions that you subject to any other scientific experiment. “How do you know your data represents the phenomenon you’re talking about?” Turns out, for constitutional purposes, the main corpus that everybody’s looking at right now? Which has been a great effort, by the way. I think it’s a wonderful thing to have. The question is, what do you do with it? But it’s been put together with a collection of just a small handful of the papers of specific founders. So like four or five founders. And a certain number of things like newspapers, which weren’t really like the newspapers of today. They reprinted mostly sermons. If you look at the documents that represent the 10 largest documents in the collection, in terms of words? So if you’re searching for words and you say, “Wow. There are 10 documents that provide a large percentage of the words here.” Then, that’s where you’re going to get a lot of your information about word usage. And only one of them was written by an American. All the rest were written by people who lived in England. And some were translations of things written in Latin. So is that a representation of the way the American public understood things? I think the answer is probably not. Then, if you say, “Okay. Now we’ve got…” Let’s say we’re going to, forget that problem for a minute. Assume it works. Now, let’s go to the next stage. How do we do it? We’re trying to figure out what excise means. Does it mean this broader definition or the narrower definition? And the typical way people go about that is they find out, in this database, that it’s been used, let’s call it 500 times. And their research assistants, usually law students, then read a snippet of the text around it and make a decision about what the word means in that context. So now, you’re saying that here, we have a word that’s in the Constitution that we have a big disagreement about what it means. And we’re going to take a bunch of law students, who may not have studied 18th century language or literature or history, give them 10, 15, 20 words around that word use, and have them assign a meaning. So basically, the same thing we’re trying to do with the constitution. “What’s it mean here?” They’re doing 500 times. Richard Reinsch (20:22): Yeah. There’s something unreal about the process itself and thinking about how judges in our tradition… I mean, as you note in the book, across the centuries, have approached their craft. I’ve always thought this about corpus linguistics. It’s a craving after certainty that just isn’t there. Donald Drakeman (20:38): Yeah, absolutely. And I think, what it tells you, even in cases where the words seem to appear more often to mean one thing and not another thing, it shows you that there are multiple uses in play amongst the public at the time. And why picking the one that, in this particular database, occurs most rapidly, perhaps because it’s in more sermons or because Thomas Jefferson really liked to use it, seems like just an artificial imposition of order, and as you say, certainty, on something that was much more fluid than that. And I think it’s a recognition that we need to have a tie-breaking mechanism. And I think it’s a useful thing to look at and to examine whether you feel as certain as you ought to, once you look at your method. But then, really, what are you looking for? You’re looking for what a lawmaking body was trying to do. What they decided, not… I mean, these legislatures and constitutional lawmakers did not just pull words out of a hat and say, “We’ll choose these 10 words now. Let’s go onto the next clause.” They haggled over things that were important and made decisions. And we want to know what those are. And we want to ask judges to apply them to try to achieve the goals that lawmaker was trying to achieve. Richard Reinsch (22:01): A question that I have for you? And the best answer I’ve ever had to this was Michael Greve’s book, The Upside-Down Constitution. So when I started learning about originalism? And I’ve got Scalia and I’ve got Robert Bork and I’ve got Raoul Berger, those were early thinkers important to me. But I started thinking. “Well, what did they do before progressivism?” Which seems to be the launching point of originalism. “What did they do in the 19th century? What did Joseph Story do? What did John Marshall do?” I mean, how did they… I mean, these are men who really shaped a Constitution a lot, to put it mildly. Do you see your approach in how they crafted some of these legendary decisions? Donald Drakeman (22:41): I mean, absolutely. Interestingly, John Marshall, who we tend to hold up as one of the greats, was working pretty hard to make the court a more powerful political body. And so, in his own opinions, you see the word intention somewhat less. But otherwise, as I said earlier, Story said, “We’re looking for the intentions of the framers.” A law professor writing a commentary; in fact, it was a new edition of Blackstone commentary in the turn of the 20th century; “the method of interpretation employed in the Roman Law is the will of the Prince. And in all free countries, the will of the legislative body.” This is just the way people saw this. They also, by the way, understood that word meanings change over time. Because we now have this divided world between those who see the original meaning as correct and those who see some sort of updated or living meaning as correct. We’ve lost the nuance that even Justice Scalia and some of his opinions picked up on, where sometimes, you have to update, you have to take into account that technology changes, that our understanding of the world changes. And so, is there a way to do that consistently with what the lawmaker was trying to do? And I really see updating as the good updating and the bad updating. And they’re opposites. The updating that has been part of the tradition for centuries says, “We have a clause. We applied…” Let’s say this law applies to telegraph companies. Now, we have somebody invented the telephone. Does it apply to them? Well, that’s a brand-new set of facts. How do we take the answer to an old question and apply that same answer to a new set of facts? That’s been part of the tradition for a long time. What was new, and what I think originalism is reacting, or even sometimes overreacting to, is the idea that we’re going to take an old question and give it a new answer because the court believes that a new answer is more appropriate to the modern age than the old answer that the lawmaker gave. And that’s, I think, the line that is crossed when you go from a judge applying the will of the lawmaker to a judge applying the will of the judge. And I have another chapter that talks about the risks inherent in allowing small judicial bodies like Supreme Courts to make policy, which is just, it’s not something they’re good at. They’re good at interpreting laws in light of the intention of the lawmaker. They’ve been doing it for generations. They’re not good at figuring out how to make the world a better place in the future. That’s, for better or worse? Big, bulky cumbersome, sometimes hard to deal with. Legislative bodies are better at that. Richard Reinsch (25:36): Yeah. Well, I like it when they also say… And it’s perhaps good saying Planned Parenthood vs Casey, where they say, to both groups, “You should drop this.” Donald Drakeman (25:46): Right. Richard Reinsch (25:46): That works really well. “We’ve made a decision here.” A question for you. Within originalism, most originalists say the ratifiers matter. You say the framers matter. What’s the significance of that in constitutional interpretation? Donald Drakeman (26:03): So one of the public meaning tricks is to say, “The law wasn’t made into law until the ratifiers ratified it.” And therefore, whatever the framers said or did is irrelevant because it’s what the ratifiers said and did that’s important. And since we don’t really have good records on the ratifiers, and we’ve just decided that the framers aren’t relevant, then all that intention stuff and all the debates and what have you are irrelevant. Which is, I think, a very clever argument. But it misses one of the framer’s great tricks. So the Articles of Confederation were in place when the Constitutional Convention met. And they had a provision on what it took to amend the Articles. And it would require, among other things, the agreement of all the legislatures of all the states. And that looked like it would be cumbersome. And so, the framers came up with this new idea of ratification. One of the framers said, “Who cooked up this idea of ratification? This is new.” And the idea was it could be ratified by conventions, not legislatures, and nine states instead of all the states. And so, it was. And so, it became the Constitution. Now that actually, if it had been part of what the articles had said, then you’d be all right. But it’s not. This was made up by the framers. And the framers, meanwhile, are doing this so that it looks like the ratifiers are really making the constitution. But it’s just a great big Wizard of Oz, “Pay no attention to the framers behind the green curtains.” Because it’s the framers who said it’s going to be law when it’s ratified. Nobody else. And in fact, it was contrary to the law at the time, which was the Articles of Confederation. It’s fascinating. So that’s one answer to that question, which is just, it’s a little too clever to say that it was just the ratifiers that made this into law. And then, secondly? And I think- Richard Reinsch (28:02): Could it be both? Donald Drakeman (28:03): Well, it is. And that’s where this next piece comes in, which is to say, you can’t have secret meaning of just the framers who were at the convention. Only they really knew what this meant. And the ratifiers didn’t know and the public doesn’t know. But we discover it 200 and some years later. And shazam. This had to be understood by the ratifiers and the public. Because otherwise, the ratifiers and the public wouldn’t know how to obey the law. And public meaning had to be used, even if it was sometimes public meaning that differed from state to state. And besides, there was a framer at every ratifying convention. And there were framers, other than James Madison, who later published his notes, of framers who wrote lengthy discussions of what went on at the Convention. So that what was going on, what the framers were trying to do, was information available to the public and to the ratifiers when ratification was happening. So they, for all we can tell, were on board with what the framers had done and why they had done it and had information to that extent. And then, for the Bill of Rights, where we have a lot of our arguments, those provisions were debated in the 1st Congress. And the House of Representative’s debates were carried in the newspapers. And so, our sources are their sources. And the people at the time saw exactly what we see when we look at them. So I think the idea that well, intentions? “Oh, good.” Because only the framers were huddled together and it was all in secret? It’s just not the case. But in the Roman era, it was banishment and forfeiture of all their property if they interpreted other than just reading the words of the law. In England, they had this Star Chamber if people interpreted certain laws incorrectly, judges included. And there’s all sorts of judicial jurisdiction, curbing and legislation, to strip jurisdiction from the courts that has been entertained. And whether that will go somewhere is an interesting question. It’s beyond and above the questions in this book. But that’s historically what has happened is, at some point, the other branches of government have just said, “We’re really not going to put up with this anymore. And you should go back to what judges are supposed to be doing.” Richard Reinsch (29:33): You think about, so Madison’s notes? One scholar in particular has argued that he padded the score. Well, it wasn’t exactly producing sort of an accurate rendition. But I guess you could say we have a lot of different sources of the convention that you can put it together. Donald Drakeman (29:51): And you question the sources. We’ve got Madison, who was very pro-Constitution. And we have a leading anti-federalist, Luther Martin, who wrote a very long discussion of the proceedings of the convention. And he had his own views of what went wrong there. And so, in between all this, you can get the best sense you can at what they were doing. Now sometimes, you’re just not going to know. And if you don’t have evidence from the debates, then you go with the best evidence you have, which is, as Blackstone said, the meaning of the words as they’re ordinarily used. And if you have multiple meetings, then we argue about them. That’s legal history. Back in the day, way back in the early days of the British parliament, judges would get a tough issue of interpretation. They’d go over the legislature and say, “What do you mean?” I can’t do that with the Constitutional Convention. But it shows their view that what they’re trying to do is to accomplish the result that the legislature had in mind, not to take advantage of the language to come up with a good idea. Richard Reinsch (31:01): Yeah. I suppose… Well, one question. My understanding is the Committee on Style, which produces a formal rendering of the Constitution to be voted on. They slip terms in. They do things that weren’t exactly apparent, if you follow the length of the debates with certain scholars. How do you deal with that problem? Donald Drakeman (31:21): You know, it’s like anything in history. There are sometimes conflicting pieces of historical evidence that lead to somewhat different views of something that happened. If, in fact, those conflicts are strong and there is no particular reason to favor one over the other, other than what I think is the standard version in the law, which is the law says history is, which way makes it better for my client? You just say, as a historian, “Geez. This is unresolvable by looking at that particular evidence.” And that’s fine. If we were less certain about a lot of this stuff, we would probably have better decision-making. We need to be as thoughtful as we can about what we can know about the past and how much authority we give that. But that’s not a license to make things up in the future. It’s just to say, there are limits to our knowledge. Richard Reinsch (32:14): I was reading your book. The central problem here is still, whatever originalism you’re in, you’re confronted with various ideologies that just dismiss making intentions or public meaning of the founding a central part of the judicial decision. It might be where we start but it’s not going to be dispositive because of various ideological or policy needs. Overcoming that, it seems to me, ultimately is the major problem, that need to produce the result that certain enlightened members in the judicial class want. Donald Drakeman (32:50): I think that’s absolutely right. And that, for better or worse, law schools, for a long time, have started their students off on the case method and have taken students through the common law approach to judicial lawmaking by building case on top of case. And it’s a rare law school that teaches this history of statutory or constitutional interpretation along the lines that I have described in the book. And I think that’s a shame. We have this built-in feeling, for about the last probably 50, 75 years, that the law and the world is there to be shaped by creative judges. And my sense is that we could do; and this is perhaps my political sense, as well as my historical sense; with more of a dose on all sides of the political spectrum of that judges have had something they’ve been good at doing for a long time and it wasn’t setting policy. And a lot of times, policies aren’t particularly well-made by bodies that have to pick one principal over another, which is the way judges tend to go at it. And we should let judges go back to doing what they did for a long time and allow issues of major public import to be resolved by the people’s representatives. And I think we’ve gotten away from that. We’ve tended to assume that the Constitution is really a bit of an empty vessel for us to fill with good ideas, for judges to fill with good ideas. And that leaves interpretation out in left field. It’s an after-the-fact rationale for setting up good policy. I think a lot of policy questions are not solved by the Constitution and therefore, ought not to be solved by judges. But that gets into a whole bunch of issues of interesting jurisprudence that we probably could talk about on another call. Richard Reinsch (34:50): Yeah. I agree. Do you see a concern, just thinking about what prompted you to write the book, that a bit of a question in my mind is, are we just going to abandon interpretation at some point? And just formally admit what the court’s doing? Donald Drakeman (35:06): There are certainly constitutional theorists these days who say just that. That judges make policy, they should make policy. And the question is just whether they should pretend they’re interpreting or whether they should give just policy reasons for their policies. I think, if they’re going to make policy, they ought to act like policymakers and tell us why they really think this. And not because it’s post-hoc, layered on, constitutional rationalization. And then, from a separation of powers issue. And the rest of us just have to think about whether that’s a good idea or not. Historically, when judges have gotten a bit creative, shall we say, in their interpretations, lawmakers have fought back pretty hard. Richard Reinsch (35:50): Ours don’t. Donald Drakeman (35:52): Well, yeah. I mean, maybe that’s what the Biden Committee is thinking about. But in the Roman era, it was banishment and forfeiture of all their property if they interpreted other than just reading the words of the law. In England, they had this Star Chamber if people interpreted certain laws incorrectly, judges included. And there’s all sorts of judicial jurisdiction, curbing and legislation, to strip jurisdiction from the courts that has been entertained. And whether that will go somewhere is an interesting question. It’s beyond and above the questions in this book. But that’s historically what has happened is, at some point, the other branches of government have just said, “We’re really not going to put up with this anymore. And you should go back to what judges are supposed to be doing.” Richard Reinsch (36:45): Yeah. Donald Drakeman, thank you so much for coming on today to discuss your new book, The Hollow Core of Constitutional Theory. Thank you so much. Donald Drakeman (36:54): Thank you. It was my pleasure. Richard Reinsch (36:57): 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 Scott Yenor about his new book, The Recovery of Family Life. Scott Yenor is a professor of political science at Boise State University, and he is the Washington fellow at the Claremont Institute’s Center for the American Way of Life. He’s the author of several books on the family, and is also a frequent contributor to Law & Liberty. So Scott, we’re glad to have you on the program. Scott Yenor (00:50): Thanks for having me, Richard. It’s my pleasure. Richard Reinsch (00:52): So The Recovery of Family Life, the full title, Exposing the Limits of Modern Ideologies. What’s going on in The Recovery of Family Life? Scott Yenor (01:02): Well, the book is divided into three sections. The first section is really on what those powerful modern ideologies are that are undermining family life. I identify modern feminism, contemporary liberalism, and sexual liberation theories as really powerful ideologies that are shaping the way young people, and even now by the time we are middle-aged people, think about their lives, about themselves, about sex. The attitudes that are cultivated by those ideologies make it very difficult for people to imagine married life, to live responsible family life, to cultivate character in their children, sometimes even to have children. All of these basic things that we took for granted that a civilization needs can no longer be taken for granted. These ideologies are the reason for that, I would say. Richard Reinsch (02:03): We think about the modern liberal state, which under its official ideology, it’s going to leave us alone, largely, to pursue our own different visions or things we want to do or what we think is good. It’s going to leave us alone. Why should the modern liberal state concern itself with the family? Isn’t that just something private? I mean, does the law really care about family? Should it? Scott Yenor (02:29): Yeah. I mean, I think that no matter what happens, the state is in someway concerned about the family. It takes an official stance of neutrality, but it’s always legislating a kind of morality. Let me try to illustrate that with an example. I think the best example of that is obscenity law. It used to be that the state prevented the circulation of obscenity because it was worried about how exposure to obscenity would cultivate kinds of character, or kinds of states of mind in people, point them away from marital life, and that was the justification for limiting the circulation of obscenity. But, now that we’ve gotten rid of all of those limits, the state is officially neutral. You can watch pornography, or you can choose not to watch pornography. But, the circulation, the mass circulation of pornography makes it more desirable, more available. It appeals to something that’s deep within us. Therefore, the removal of restraints and the official stance of neutrality has done a lot to pornify, if you want to say that, the culture and to shape the minds of men and women when it comes to how their relationships will go. So it’s true that you can choose not to watch pornography, but it’s also true that by removing those restraints, the official stance of the culture has become much more open to it. There is ever increasing venues for both making and viewing it. There is more public acceptance of it. You could use other examples in the same way. Richard Reinsch (04:18): But now, with regard to the family, I’m trying to think about things that developed 40, 50, 60 years ago. I mean, I had a conversation with a older lawyer when I was just starting practicing. He had actually had been involved in marriage cases under the old fault-based standard for divorce, and had defended people against becoming divorced and trying to prove that fault had not occurred. But my understanding is that was thrown out, because the courts were flubbing it because they had so many people who wanted divorces. And so, basically, the people largely wanted this in terms of maybe the first wave of how America changed the public law regarding marriage. That this was a response to the democratic demand. I guess, one question to you is, was there just something about the way we did things in the past that people found oppressive? Scott Yenor (05:22): Yeah, I think they found it oppressive. However, their view of what was oppressive was shaped itself by the culture that they were in. I think, what the example that you’re using of divorce is an excellent example of that, because I think it’s a two-way street. If you change the law, you’re doing that partly in response to popular demand in a democracy for changing the law. Then once you change the law, you shape the way people think about those experiences. So no doubt, many more people wanted to get out of marriages by the 1970s. This was, perhaps, a reflection of a change made 50 years earlier in marriage law, and which unsettled marriage. And that change in the law rebounded, and then shaped the way people approached marriage and approached their experience within marriage. We often just focus on that first angle, or that first part of the relationship, the way that our laws reflect popular opinion, and we neglect the ways in which law shapes public opinion. That’s really what I try to emphasize in the book. I think it’s the classical approach to understanding how the laws shape the minds, the culture, our view of advantageous, good and just on family matters. Richard Reinsch (06:54): I was thinking about the descriptions that you have in the book of these different, you say ideologies, and I think about also anthropology as well. Talk about this, you call it the rolling revolution. Does the rolling revolution, does it necessarily aim at the destruction of the family, or what’s going on there? Scott Yenor (07:10): First of all, what is the rolling revolution? What I try to do is show how each of these three ideologies, but especially the ideology of feminism and sexual liberation theory, have posited for themselves a goal. The goal of feminism is to get beyond gender, so that no one’s life is affected by their sex, and no expectations about how you live would be determined by your being a man or a woman. Sexual liberation theory wants to get us beyond repression. Repression is a reflection of our desire to have somethings about our lives, our sexual lives, be private and pointed toward love and community. The changes that have been wrought by these ideologies have been toward those goals. Feminism and sexual liberation theory are trying to erase really important parts of human nature that are very difficult to erase, so that they have to keep doing more and more reforms. It’s an endless, almost infinite aspiration that they have set for themselves. Since it can’t be achieved, it always has more work to do. The family, I would say, is collateral damage on the way toward achieving those goals. Married life and family life really have a lot to do with sexual restraint. And if you’re going to achieve a culture that is beyond repression, you’re going to have to get rid of expectations that men and women will be faithful to one another in marriage, that they will produce children, that sex is related to procreation. You’re going to have to roll over those expectation. So that the family and married life are collateral damage in the achievement of the goals that these ideologies have set for themselves. How do we account for the fact that marriage has really been destroyed in communities among the lower, more than half of the population? Richard Reinsch (09:11): Many people, women who call themselves feminists, would, I think listening to your description would say, “I don’t know if that’s what I’m aiming at. I just want opportunities in the workplace, to be treated according to my work, to not have double standards.” It is the case, they can look back and point to history where women were treated not just differently, but oppressed under quote, “the old regime.” How do you respond to that? Scott Yenor (09:38): I do think that those things are true. Many women just think of feminist as simply in terms of expanding opportunities or ending discrimination. The general ideology of feminism wants to sell their ideology on a level that is acceptable to many people. What I call that in the book is retail feminism. The goal is choice, they say, or opportunity, they say, but the difficulty is when you get down to brass tacks. How do you know when choice has been accomplished? The deeper feminist thinkers deal with these questions. They say that you can only know that women are freely choosing when they choose exactly the same as men, that the world has to be 50-50, so we would consider it to be an injustice if there were not 50% of the women being CEOs. They never say 50% of the plumbers have to be women, but 50% of the engineers need to be women. So these high status jobs need to be divided equally among the sexes. Choice is something that can be justified on liberal grounds. If understanding when choice, so-called, is achieved takes the feminist beyond liberalism towards a social engineering angle that becomes really necessary for feminism. So I think it’s one of the greatest successes of feminism that they sold their ideology in terms that are broader than their actual aims, and they’ve achieved a great political success as a result of that way of framing it. But, when you get underneath it, you realize that it’s a much deeper, more radical agenda that requires the remaking of an entire culture. Richard Reinsch (11:30): Yeah. I mean, as I was listening and thinking about your argument, the Scandinavian countries comes to mind. Sweden comes to mind where, to my knowledge, I think it’s Sweden where parliament, I think, their legislative chamber has to have a certain number of women. I think they mandated representation on boards. It has to have a certain number of women, corporate boards. And that seems to be what the situation you’re describing. When I think about this ideology working in American life, do we see it that way and do we see it impacting, say, the state and the family in an ideological way? I’m thinking about also family dissolution. Is that feminist ideology working in a lot of these cases, or is it something else, a lot of other things going on? What do you say? Scott Yenor (12:20): I think feminism works itself out more in the failure of families to form than it does in compromising families that do form. So I think it does have effects there. So I think the way I would respond to that is that feminism teaches women that a career oriented life is the most fulfilling life. It recognizes, or I’d say it stigmatizes those who would be, quote, “near mothers,” or “only mothers,” or “just a mother.” Therefore, it judges itself based on the extent to which women are career oriented. I should say, therefore, again, it valuates institutions based on whether or not they have achieved a balance between men and women. We see that the more career oriented women are, the less likely they are to enter into marriage early and to enter into marriage at all. The younger generations we see, the predictions are, that about 40% of the people who are now under 40 will never married. I think feminism considers that a great achievement, because people are prioritizing other aspects of their identity over being mothers or wives or fathers and husbands. And that is precisely where the rolling revolution, as feminists articulate it, want to take human beings. So I think the Swedish example was a good example, because there you have fewer families forming and a great career orientation among the women. Richard Reinsch (14:02): Within the modern liberal state, because I don’t see an America… You can correct and I know you know public policy better than I do. I don’t see the government so much directing outcomes according to this particular ideology. And if, in fact, it is the case that women are making these choices, I mean, isn’t that just something we live with? Scott Yenor (14:21): I do think the government is really involved in that. The way we treat education is a governmental matter. The emphasis in all of our education toward career orientation as opposed to what it looked like probably 60, 70 years ago, where there were some assumed sex differences in education, because there was assumed sex differences in future life roles. After you do that for a few generations, there is actually no one left who will sit there and talk about how there is an expectation that men and women will do different things in their lives in order to live complimentary lives with one another. There is also anti-discrimination laws. One of the rages right now on universities is trying to increase the number of women in STEM fields, because they’re thought to be underrepresented. There is a lot of, I think, violations of anti-discrimination laws in those scholarships and recruitment programs, because there is an aim toward getting 30% women in engineering. Then after 30%, it will be 35% to try to ratchet it up. So I think there are a lot of ways in which government promotes careerism, but the broader point that you’re making that I think I agree with is that there is a reflection of culture in all of this. The feminist way of thinking, the way of imaging what a woman and a man should be has been very successful in cultivating the attitudes and the state-of-mind of young people, and as I say, now middle-aged people, at this point. And because of that, whenever there is a disparity between men and women in a particular institution, people are embarrassed by it. Whenever there is not a woman on the faculty, it’s thought to be a problem just in itself. So there is no doubt, it’s a powerful culture, but I want to always emphasize that I think the culture has been built, at least in part, through laws, intensions in order to reshape it. Richard Reinsch (16:25): One of the interesting things about Charles Murray’s book, Coming Apart, and has been a source of a lot of interesting commentary, is how put together upper middle class families are. I would just mentioned, many of those are going to be two-earner households. Then Murray points out, but family life gets less stable, less married the more you go down the income distribution scale, so middle class and then working class, things really start to drop off. But, I would just take my experience in higher education working with a lot of academics, to the extent you’re going to have women who really think of themselves in this capacity. They actually maybe have, maybe are working and having strong families, stable families. Have you thought about that, that interesting disconnect? Scott Yenor (17:17): Yeah. I mean, there is two Americas when it comes to marriage. And so, the upper class marriage that Murray describes in the Belmont of America, it’s what Robert Putnam calls the neo-traditional marriage. The neo-traditional marriage, there is probably a lot of sex before marriage, which happens later. It happens after careers have been established for men and women. But after they are married to one another, they stay married, they raise children. The children are responsible. It’s almost the exact same stats when you look at the extent to which marriages stay together now as it was in 1980 among the upper 20%. And then when you look at the lower 80% in America, and I imagine this as the problem of rural America and the problem of urban America, where you see the marriage rates are a third of what they were in 1980. About 25% of people will get and stay married in the rural whites and urban blacks in America, and this is the failure to form problem. So how do we account for that? How do we account for the fact that marriage has really been destroyed in communities among the lower, more than half of the population? My answer to that is that the upper class doesn’t enforce any kind of morality or sex roles for the lower classes. No one is prepared to be a wife or a husband in their education, in the expectations that people have for them and therefore, we shouldn’t be surprised that no one is actually fit for it. The examples have been erased. The education that one would expect to point people toward family life no longer does. There is no official teaching of what the proper role of a man is, and what a proper role of a woman is. Without those proper roles being taught, men and women are lost at sea, especially in the lower classes. So these people are not genuinely feminist. The women of the lower classes are not feminists. They don’t study Susan Moller Okin and Betty Friedan. But, they live downstream from feminism. Living downstream from feminism means that they live in a culture without expectations for what men and women should be. As religious practice declines among the lower classes, as the idea of sex roles decline among the lower classes, what we’re getting is two different kinds of men, either hyper masculine gang members or men who retreat into themselves and spend a lot of time playing video games and watching pornography. We’re getting women who want to be independent, but therefore don’t know how to attract and keep men around. And so, it’s a huge problem in the lower class, but I would say it’s caused by our official ideology. Richard Reinsch (20:22): The men is interesting. The data that I’ve read, 25% of prime working age men in this country do not work, which is a depression, Great Depression type statistic. There is not a lot of thought about that. I mean, there are people who write about it. But, that is a striking number. What do you make of that? Scott Yenor (20:41): Yeah. What I make of it is that when you don’t expect men to be providers, if you don’t give men a purpose for their ambition, for their work, if you don’t give them something to sacrifice toward, they are purposeless people. One of the things that over the course of human life that people have always aspired to do is marry, have children, be responsible for them. If you destroy that particular ambition, well, what are the men supposed to provide for? What are they supposed to channel their ambition for? How are they supposed to understand the sacrifices that they’re willing to make for something outside of themselves? So I think one of the great crimes of feminism is to stigmatize the idea that the most loving expression of male life, the desire to provide, is actually an expression of tyranny. And that has just effects downstream of feminism. That’s the problem we see in both rural and urban America. The investigation that Tocqueville undertook is, well, why did America not fall for the idea that individuals are better off alone? His answer to that was I think had several aspects to it, but one was that Americans were almost all raised in families in an environment where that was expected and honored and there were strong roles for men and women. Another aspect of it was that Americans would get together for civil activity, but they were prepared for that because they already learned the sacrificed and lived beyond themselves in families. Richard Reinsch (21:46): One of the reasons why I’ve wanted to interview you is, looking at virtually every country in the West, it’s striking to me, I know it’s striking to you, that I don’t think there is one that actually has a replacement level birthrate. There might be one or two. Scott Yenor (21:59): Israel is the only one. Richard Reinsch (22:01): Israel has above, right? I mean, they’re like three. Scott Yenor (22:03): Yeah. Richard Reinsch (22:04): Yeah, three children per family. Jonathan Last, formerly of the Weekly Standard, now editor of The Bulwark, wrote a book about this maybe six or seven years ago, and describing it not just as a Western, but a worldwide phenomenon of flagging birthrates. When we think about the flagging birthrates, to me, that’s just a big signal that there’s problems in the moral ecology, social, cultural ecology of Western countries. But to the extent there is reflection and thinking about it, well, government should give people more money and more resources. He wrote a piece on this recently for Law & Liberty, in which he didn’t think that was necessarily going to do much. What do we know about those policies, just in terms of trying to deal with this problem, which to me indicates you’re onto something in thinking about the lack of family formation? Scott Yenor (22:54): Yeah. I mean, many countries have these policies now. They seem to have a marginal, short term benefit. Hungary has adopted, I think, the most generous policy on these matters, and its birthrate skyrocketed from something like 1.2 to 1.35. Conservatives all across America took this as evidence that we need a family policy and rallied behind Mitt Romney’s child assistance program. I’m not opposed to the child assistance program, but I just think we have to have genuine expectations for what any of these programs can do. The decision to have children is not an economic decision. It’s a decision that is shaped by what is honored in a political community and how much hope the human beings have for the health of their political community and their own lives. If people have no faith in the future, if people do not trust any of the institutions of government, if they don’t trust churches or schools, if they think the country is headed in the wrong direction, all of these things are just indicators that they don’t have hope for the future of their country and therefore, they are less likely to have children. Another point is, if a political community doesn’t honor having children, it doesn’t consider it part of a good life, the genuine narrative of what contributes to a good life, there is going to be fewer people marrying and staying married. These factors are much more crucial than the marginal economic benefits that you can get from child assistance programs. When I wrote that piece for you, I got a picture from someone sent to me by email, which was of a very impoverished Nebraska family living in a dirt hut with cornstalks as their roof. They were standing outside of this and there were 13 children and a mother and a father. I don’t think they were asking for the child assistance program. They weren’t, because the family life was honored and there was a lot of hope in the country, and this was probably something like 1880, that the best days of the country were in front of it. So I think the birthrates are genuinely a crisis of confidence in civilization and an indication that marriage and family life are not honored in that civilization. Richard Reinsch (25:24): Something that I think about is just prosperity itself and how that changes community, because community is hard. I mean, I’m an advocate. I mean, Robert Nisbet is a significant thinker in my life, but I recognize how hard they are, how hard family life can be, how the people closest to us can be hard to deal with. People have those experiences. Another way of thinking about this, and get your reaction, prosperity, a welfare state that it underwrites, makes individualism fun. We can have community on the cheap when we want it. Scott Yenor (26:02): So let’s think about that for a little bit. I mean, so the great thinker of individualism that I turn to when I think about this stuff is Alexis de Tocqueville. He saw America as one of the… There is no inherited ranks in America. The idea that the individual heart is a standard of justice and where the good life will be lived, “self-interest rightly understood,” he called it, but it’s a moral center, though he recognized the individualism of America. The investigation that he undertook is, well, why did America not fall for the idea that individuals are better off alone? His answer to that was I think had several aspects to it, but one was that Americans were almost all raised in families in an environment where that was expected and honored and there were strong roles for men and women. Another aspect of it was that Americans would get together for civil activity, but they were prepared for that because they already learned the sacrificed and lived beyond themselves in families. But they would get together in civil associations to accomplish great things. It was more powerful when people banded together and therefore, government didn’t have to become very powerful. And so, I think, really at the root of the whole way of teaching individualism or enhancing the purview of the individual for Tocqueville was family life. I think Americans understood that for the longest time. Really, only until the powerful ideologies that we’re talking about here became prominent in the American landscape gives a Tocquevillian synthesis, or the way of improving individualism fall apart. The argument was that community is hard. Family can be oppressive. Family can be the source of great disappointment. There is something true about that. So let’s throw out the bathwater and the baby went with it. Oh, and the babies went with it. I’m going to have to use that somehow in the future as a tagline. Richard Reinsch (28:11): And what I think too. I mean, I think about that a lot. Family can be oppressive. It can be a source of disappointment as you say. But then the question is, what are you going to replace it with? Because as we look to, say, countries in Europe, which I think socially are a generation typically ahead of America, the answer is not much. I mean, a large welfare state. Individualism, creature comforts, and things like that, it seems to me that’s not the most satisfying way to live and yet, there it is. A question for you too, you mentioned Tocqueville, I mean, that was something I was going to bring up, is this… You’ve got these ideologies in your book that you describe. Is it that or is it just something, maybe this isn’t opposed to it, but is it just democracy itself leads us towards egalitarianism, leads us away from these sorts of arrangements where people are marked out to do particular things and it just, democracy over time, just flattens us? You’re right, Tocqueville pointed to things he thought that would make America stand out. But it’s just this slow process that we’re going through and I don’t know how it ends. Scott Yenor (29:23): Yeah, I mean, that’s something I think deeply about too, Richard, because the whole decline of family life and marriage do seem in some way to be the working out of the liberal principles of liberty and equality, which are right there at the beginning, and is there no stopping point for these particular principles? We can understand equal protection of the laws or equal treatment of the laws, but feminism takes that same principle and says that there needs to be equal outcomes between men and women if there is going to be a just society, but it’s still the principle of equality. How can we find a limit on equality, stop it from becoming equal protection and becoming equality of resolve? Do those qualifications on equality have to come from outside of liberalism? I think the answer to that is yes. They have to come from outside of liberalism. So liberalism is friendly to those things that come from outside of it. It’s friendly to the idea that some limits on equality will make human beings happy, will make them better, will make for a self governing community better, will make people more civilized. So liberalism is open to those qualifications. So what I try to spend a lot of time doing is showing ways in which we can leverage the resources within human nature, within public opinion still, so that we can ratchet back some of the aspects of the rolling revolution. But whether or not I’m hopeful that those things will be accomplished is another matter. Richard Reinsch (31:01): When we think about immigration policy in Western countries, I mean, we roll off this statement that, well, we need it. We need more immigration because of demographics, aging demographics, not enough children and so, we’ll have to have immigration. Well, one, I understand that argument, I guess. I always tend to think in the back of mind, well, what does that mean about us thought, that we need people, in many cases? In Europe’s case, you’ve got people from a different civilization coming in, which is going to inherently bring problems. But I think that’s a question I have. Isn’t there something wrong with us profoundly? Scott Yenor (31:37): I think about that question a lot too. One of the things I went and wrote for Law & Liberty about a year ago was an analysis of an old book, Christianity and Classical Culture. I looked at what was happening in the Roman Empire, because people recognized it was falling apart. The things that characterized that falling apart were steadily declining birthrates, the desire to integrate whole classes of people from outside of the empire within in the empire, that is to become Roman citizens, the Barbarians, in this particular cases. I think all of these thing go together, declining birthrates, failure to marry and live for beyond the short term, decadence, political decadence. We call it progress, because it’s progress in the rolling revolution. But, I think all of these things are ultimately signs that civilization is teetering on the edge of collapse, and that the society has become decadent. It’s really hard to image. I mean, people send me a lot of articles, because I write a lot in public these days. Just in the last two days, I’ve gotten articles like, “Father Wants to Marry Daughter, Adult Daughter,” from The New York Post. There was an expose about a new kind of pornography. I can’t remember its name, but you can own your own pornography and become your own agent instead of having to use something like PornHub as a middle man. These things are all really celebrated. It’s really hard to imagine that any healthy political community would celebrate what we celebrate. We can only really understand what’s going on there in terms of this next roll in this revolution that’s been going on. But, as a civilizational principle, something that you can imagine lasting 100 years or 50 years, it’s difficult to see these ideologies as very fruitful. I think, one of the leading edges in our understanding of political decadence is this collapse of family life. Another indication of it is the fact that we’re willing to make up for it by importing new people into the political community. Historically, that’s never led to health. Luckily, no one knows anything about history anymore, so they can’t talk about Rome. Richard Reinsch (34:03): The point has been made too, America was… Up until I think 2008, from things that I’ve read, we had a positive birthrate, largely I think because of new immigrants, and now we don’t. Part of that, the pandemic is working and then the financial crisis in 2008. I don’t think they’ve ever really recovered though in the last decade. Something people will say is, “Well, people who are newly arrived to this country aren’t having children the way that we expected.” I tend to think to myself, “I guess, we have a faster acculturation process maybe than we thought.” The modern liberal state as you think of it… I mean, there are a lot people, conservatives turning against liberalism broadly. Do you see the modern liberal state being the problem necessarily, or is it not necessarily that, it’s… I mean, and I guess maybe this question answers itself with your idea of the rolling revolution. So if we did have a classic liberal state, could we just put these things to the side and say, well, the state is not really going to be concerned either way. It’s just going to focus on basic tasks. Would that be a better way to go and just try and get out of all of these cultural war scenarios and let private institutions work? Scott Yenor (35:15): Yeah. I mean, there is good solutions and there is less bad solutions. And so, the way I would rank them is that a state that’s actively trying to break up the family is worse than one that actually takes a night watchman’s approach and doesn’t do that much damage. I still think there is a real limit on what can be accomplished under such a state, but the situation to be in is one where the state favors a kind of indirect support for an enduring marital form between a man and a woman. So perhaps, we’d want to work toward limits on divorce. There would also be a culture that would be shaped through regulations that would limit things that are hostile to married life. So once again, we’d talk about limits on pornography, but also things like limits on maybe adultery can be a crime instead of just a civil matter. This was the old way of approaching these matters. I think there is wisdom in these old ways. I don’t think they can be accomplished in the same way, but the general tenets of the liberal state are that the state should favor a particular kind of marital form and the state should be interested in cultivating an environment where people are more likely to marry and stay married. Those are things that can’t be really thought of in terms of just retreating. But retreating is obviously better than active hostility. Richard Reinsch (36:53): If we think about states and localities had through most of American history a very strong moral police power. And so, things like adultery were, in many cases, illegal. I mean, many things are proscribed that if people knew about it, or if they’re told about it, they can’t believe it. The idea being that it would undermine the family and that would undermine community and social, political order. I guess, that’s not something people now are going to agree with. A libertarian idea is well, let’s just get the state completely out of all of this stuff. Easier said than done. I asked that question too as a, do I see… I mean, we have people to point to. We have a government that just recently passed policies that the Biden administration for the next year, I think, is going to pay every family with a combined income under $150,000 a year a monthly payment per child. Can you confidently say that a federal government and state governments undermine family life, or is it more of just a cultural and social choices people are making? Scott Yenor (38:01): Yeah. I mean, I think I can confidently say both. Richard Reinsch (38:03): Okay. Scott Yenor (38:04): So I mean, when you look at things like sex ed, which is now a pre-K thing in some states. Certainly, there is pretty radical agendas in all states. We’re just actually having some of that come up here in Idaho where there is a pretty radical sex ed curriculum in the public schools for first through third grades where… It’s a family show, so I won’t discuss exactly what’s going on in that curriculum. But, I will say that one of the representatives was going to read from the state’s House floor what was in the curriculum and she was ruled out of order because it was indecent. Richard Reinsch (38:40): Interesting. Scott Yenor (38:41): Which is a great irony. Basically, that’s just the next roll in the revolution is the sexualization of children. Now, that is happening in the culture. There is no doubt about it. You can see that in commercials and television shows and probably teen magazines and things like that. But, it’s also an intentional government ambition. It’s happening all over the country. They’re moving in tandem, so they’re probably even coordinating their actions. And so, I don’t think that either of them exist in the absence of the other. But, the important thing that you’re talking about there is that just limiting what government does, it’s probably not going to save as much as you’d help. But, it does give parents more space to operate if government isn’t actively undermining things. So as I say, the first thing is, do no harm. And then see if you can do good. And so, just removing government from sex ed would be a kind of neutrality. It’s interesting that no matter how much we confess that we’re a liberally neutral political community, we haven’t gotten government out of the sex ed business. It’s gotten more and more into it, trying to do a sex ed in a neutral way. But obviously, peddling a morality to the youngsters who are in there, and parents have to do a lot of counteracting. So I think the framework you’re setting up is a good one and we should recognize that both of these, of the elements of the law and culture, are working in tandem in the same direction. Richard Reinsch (40:13): It’s interesting to think about there. Indiana proscribes any sexual education in the government schools here. I mean, think about the homeschooling rising. There is an interesting article I was reading on these hybrid home schools too that have spontaneously formed, classical schools that have formed. I mean, is it the case too, I think people have already just… Many people are trying to exit and have exited and are just trying to build again. I mean, that seems to me also a solution. I guess, in my mind, the political battles have really gone nowhere. Maybe, it’s just the best you can build new institutions might be a much more, or a part of a more effective response. Scott Yenor (41:00): Yeah, no, I agree with that with one qualification, that is even these carve outs that people are seeking to build are a part of America. Therefore, they’re infected with the same aspects of the rolling revolution that the rest of America is. I mean, what I’m hoping to do is, through the book, describe the various ways in which these powerful ideologies are shaping our lives unwittingly, even the enemies, to some extent, of these ideology accept some of their premises. And so, that building new communities or trying to find ways out, first, it’s never going to be enough. It’s a short term strategy, but it’s also difficult because of the hegemonic nature of American culture to find a way out. So it’s necessary, I think in the long term, to gain back ground to try to win back institutions, try to identify institutions that are teetering and try to make them more solid. A retreat is obviously a losing strategy, so there needs to be selective offensiveness in order to win one’s own space to live a life. Richard Reinsch (42:11): Scott, I think that’s a good way to conclude. We’ve been talking with Scott Yenor, the author of The Recovery of Family Life. Thank you so much for joining us. Scott Yenor (42:20): Thanks for having me, Richard.

Mark Mitchell discusses Robert Nisbet's insights on the decline of traditional community, the rise of state substitutes, and the impact of social media on human interaction. The podcast also explores power dynamics in government, the Green New Deal, and the importance of building local communities for social well-being.

Richard Reinsch (00:04): Today we’re talking with David Goldman about prospects for inflation in the American economy. We’re glad to welcome David Goldman back to Liberty Law Talk. He’s a senior writer for Law & Liberty. He’s the president of Macrostrategy, and he writes the Spengler column for Asia Times Online. He’s the author of a number of books, including You Will Be Assimilated: China’s Plan to Sino-Form the World. David, glad to have you on the program today. David Goldman (00:50): Richard, it’s a great pleasure to be back. Thank you so much for inviting me. Richard Reinsch (00:53): We’re glad to have you on this topic, in particular. The smart people tell us that inflation fears have subsided. There are a group of economists who strangely call themselves modern monetary theorists, who argue that we can take on an unceasing amount of debt and spend it however we want on various social programs, environmental programs, and none of this will have untoward results or result in things like inflation. We’ve spent, rounding up, $5 trillion in pandemic stimulus recently, almost 3 trillion, 2.9 trillion in expenses. And I’m told the Biden administration wants to spend another $3 trillion on infrastructure and climate change policies. What do you make of all of this? And what would it mean for the value of the dollar, this incredible spending? David Goldman (01:46): Well, I think in the short-term perversely, the dollar is likely to go up, but then I think it’s going to go way, way down as a result. And ultimately this largess will threaten the dollars global standing as a reserve currency and America’s capacity to finance itself on the scale we have in the future. The numbers you cited are truly astonishing, by historical standards. We’re presently looking at a deficit, including this $1.9 trillion of stimulus just passed, at roughly a fifth of our gross domestic product. We haven’t done that in the past, except during war time. The last time we had a deficit that big was in fact in 1945 and the Federal Reserve is financing virtually all of that because there simply isn’t anyone else in the world with the wherewithal or the desire to own that many treasury securities. David Goldman (02:47): Just to give an example, after the 2009 crisis, we ran a big deficit, not nearly this big, foreigners financed about half of the Obama debts. Foreigners so far have financed zero of the net treasury issuance over the past year, which is ominous. So there’s really nobody in there, but the Federal Reserve and US financial institutions doing that. Now, does this turn into realized inflation? A great part of the problem we have is the measurement of inflation. Every American family has two really big ticket items on their budget. One is the house and the other is the car. Now, the price of houses in the United States has gone up 10% in the past year, more than 10%. So we’re back to the level of housing price inflation, if that’s the right word, that we had at the peak of the housing bubble in the mid 2000’s. We haven’t seen that kind of housing price increase since 2005, except briefly when we hadn’t recovered from the crash. And the price of used cars and trucks is up 10% over the past year. So when you say we can tame inflation, how do you do that? You can take money away from people so they can’t spend money, that would tame inflation. You could send the police round to take money out of everybody’s bank account, hypothetically, that would tame inflation, but is that a solution which would help us or be politically acceptable? I don’t think so. I think the Federal Reserve has a tiger by the tail. They don’t fear it, let it go. So, from the standpoint of affordability of life for an American family, the situation’s quite dire. But if you look at the consumer price index published by the American Bureau of Labor Statistics, it’s only up 1.7% year on year and fed chairman Jerome Powell has said, “Well, we think inflation of 2% is kind of a desirable thing.” That’s a whole other question. We’re well below that. So I’m not worried about inflation. Now, the way the Federal Reserve measures such things is, for example, they don’t look at the price of a house. That’s a capital investment. They look at the cost of rent. Now rents are actually moving very modestly, but in a situation where the federal government has an eviction moratorium and vast numbers of Americans can’t pay their rent, that number is completely meaningless. So, I submit that the 1.7% year on year at consumer price index number, doesn’t really reflect what American families have to pay. That the explosion of housing prices, and explosion of used car prices is a much better indication. So inflation’s already hurting people badly. And if we keep pumping stimulus in, but we don’t have the productive capacity to meet the spending power, one of three things could happen. One is prices go up. So the amount of money spread over a smaller amount of goods becomes less valuable, the value of money goes down. The second thing is that people stop buying things because prices are going up, so the economy either slows or goes into recession. And the third thing is we import a lot more from China. And all those are happening, at the same time. Richard Reinsch (05:59): So you’re saying we already have inflation in asset prices. David Goldman (06:04): That’s correct. And they’re assets which every family has to accumulate. There are very few families in the United States that can do without a house and a car. Richard Reinsch (06:14): And that would include, when we say asset prices, we also mean equities in that as well. David Goldman (06:18): Yeah. So equity prices have gone up, there’s a nearly one for one correspondence between the so-called real interest rates, so the rates on medium term inflation index treasury bonds, and the price, say, of tech stocks. So there’s absolutely no question if looking at the numbers that the Federal Reserve monetary stimulus, which has included zero interest rates for deposits and negative yields, real yields your terms are your securities, no question that this has put a lot of error into the stock market. Richard Reinsch (06:52): So inflation is here. Because I guess that doesn’t seem to be widely discussed or widely known in, say, popular accounts or press accounts of what we’re dealing with. But what we do seem to hear a lot about is this notion that we have very low inflation and to the extent, as Chairman Powell has said, Secretary Janet Yellen, that if we see inflation start to creep up they can tame it relatively quickly with conventional tools. And you’re arguing, that’s not true. David Goldman (07:23): Well, inflation could be a demand side or a supply fund phenomenon. One of the things that’s most distressing about the state of the US economy is chronic underinvestment in capital equipment and infrastructure in the means of producing things. In real terms, orders for capital equipment are back where they were in the 1990s. So US manufacturers have done very little investment in the past 10 to 15 years. Our production capacity, our supply chains are now constrained. So we have a large number of press accounts and studies coming out saying that as all this demand pours into the economy, manufacturers simply don’t have the supply chain capacity, the production capacity to meet the demand. And many reasons for that, part of it’s blamed on the Texas weather. Part of it is blamed on a global semiconductor shortage, but I think all of the blame is we haven’t been investing in manufacturing capacity and in infrastructure, and that’s had some really perverse effects. So when you say we can tame inflation, how do you do that? You can take money away from people so they can’t spend money, that would tame inflation. You could send the police round to take money out of everybody’s bank account, hypothetically, that would tame inflation, but is that a solution which would help us or be politically acceptable? I don’t think so. I think the Federal Reserve has a tiger by the tail. They don’t fear it, let it go. Richard Reinsch (09:08): About the Fed policy, and you’ve mentioned the Federal Reserve buying the debt. So you’re saying of the 5 trillion, roughly 5 trillion we’ve spent in pandemic stimulus, most of that has been issued by treasury and purchased by the Federal Reserve and other US banks. And I want to try to lead into a question on the policy of interest on excess reserves by the fed and what role that’s playing in all of this. How do you see that? David Goldman (09:34): I think the excess reserves issue is relatively minor. The management of excess reserves affects the extent to which commercial banks are able to buy treasury securities and make loans. Banks have been a significant contributor, net purchases are in the range of about $400 billion in the past year, which is roughly a tenth or so, of the total amount of financing required, but I don’t believe that’s a decisive issue. I think the critical issue is interest rates, the deficit, and the fact that the giant sucking sound here is all the capital in the United States going into financing the deficit. Richard Reinsch (10:18): I guess the reason why I asked that question is some say that the policy of interest on excess reserves allows the fed to both monetize the debt and curtail inflation because the money is then parked. And these banks fed reserve accounts does not immediately go out into the economy or competes with other rates. David Goldman (10:38): Yes. I mean, technically that’s true. If you look at M2 money supply, it now stands at about $20 trillion. And if memory serves me, roughly a quarter of all the money ever created at American history has been created in the past two and a half, three years. That’s a staggering rate of monetary expansion. But as the textbook says, it’s not the amount of money that determines the price, it’s the amount of money, times the velocity of money, how fast it turns over. And it’s true that the excess reserves policy keeps money parked and reduces the velocity of money. But that is a relatively minor thing because as the commercial bank, if you have customers who are willing to take on debt and they’re credit worthy, you want to make commercial and industrial loans for them. Whatever the excess reserves policy, that’s going to affect your incentive to do so in a relatively minor way. David Goldman (11:42): The main thing happening right now in the banking system is that people are not taking on debt, commercial and industrial loan growth is shrinking. In fact, the volume of commercial industrial loans has shrunk over the past 12 months of pandemic. Instead the banks are buying treasury securities and that’s because the kind of customers who typically are the big borrowers at the banks, the small and medium sized enterprises, have been flat on their back and aren’t taking on debt, or aren’t able to take on debt because they’re not credit worthy. Large corporations tend not to borrow from banks, they tend to borrow rather on the bonds. There’s been an enormous amount of corporate borrowing, but the medium-sized smaller companies who tend to use bank loans, don’t have access to the bond market, happen off the market. So I think it’s really the… Velocity of money issue is really a matter of the demand for bank loans and not the management of reserves. Another way things could happen is that inflation really takes off. And that creates so many distortions that eventually the Federal Reserve is forced to raise interest rates, call a halt to this, and then we have a real bind because if we have US debt equal to our gross domestic product, and it’s increasing at 20% of GDP a year, for every percentage point that our debt increases, we pay another $250 billion in interest. Let’s say we go up three or 4%. Suddenly our interest builds us up by another trillion dollars and exactly at the point where we are forced to reduce borrowing, we also have to increase spending to pay the interest. In other words, we look like Italy during its economic crisis of several years ago. We look like a third world country, look like Turkey and at that point, we’re in a world of pain. Richard Reinsch (12:40): Thinking about the Federal Reserve’s policy. We have this piece we published by Alex Pollack a few weeks ago, inflation comes for the profligate, and he says the Federal Reserve has purchased including unamortized mortgage premiums, a sum of 2.3 trillion. Which is, Alex says, 2.6 times its total assets in 2007, I guess, meaning the Federal Reserve’s balance sheet. That’s got to be part of the earlier comments you made about entering into a new housing bubble. David Goldman (13:13): Absolutely. Well, when you push mortgage rates down to one and a half percent, then the number of people who can buy houses is enormous. People have long memories. Back in the 1970s, there was only one major asset class that showed positive real returns, and that was houses. Stocks lost money, bonds lost money, well gold made money. But for most people, the American middle class didn’t do all that badly in the seventies because if you bought a house, you had the positive real returns. Now that was in a situation where family formation was much higher, we were at the peak of the baby boom. People born in the late forties and early fifties were then just forming families and buying houses. So the inherent demand for houses was higher, but still, from the standpoint of the ordinary American family, if you have the ability… Housing prices are running at 10% a year, and you can take a mortgage at 20% down, then you’re making 50% a year on your down payment, in fact your invested capital. That’s a very good rate of return. Richard Reinsch (14:27): Yeah, as you would say, what can’t go on forever won’t go on forever. That seems to be true- David Goldman (14:34): The famous Herb Stein law. Richard Reinsch (14:35): Yeah. Just in thinking about all of this. So the Federal Reserve continuing to buy the securities, continuing to monetize the debt and grow its balance sheet. What’s the end game for that? David Goldman (14:47): Well, there are several possible end games, but all of them are ones that we don’t want to see. One is that, as real returns to US financial assets are effectively suppressed, the rest of the world effectively stops holding dollars. Now to give an idea of the size of that, I estimate the low interest loans, which we’re getting for the rest of the world, at around $25 trillion. That’s about eight to 9 trillion of foreign holdings of treasury securities and 16 trillion of dollar deposits in overseas banks, which are held as working capital for international trade or international capital flows. That’s what’s called seignorage or the premium that a country gets for effectively having reserve currency, it’s used for the difference between what the King got for minting coins, the difference in the value of the coins and the bullion they were minted off, but the term persists. And if the Federal Reserve keeps real returns negative forever, eventually people will stop using the dollar and then we will lose loans to the rest of the world, which now amount to more than a year’s gross domestic product, we can’t sustain that. And modern monetary theorists say, well, look, the Federal Reserve can print money and the US government can borrow all it wants at effectively a negative real interest rate. The interest rate on five-year, carefree, inflation protected securities is -1.7 percentage or so. So, at a privilege, if I buy effective security for five years, for the privilege of letting the US government use my money, I’m losing 1.7% a year in real terms. Or I would expect to be, just based on expected inflation. And that’s a great deal for the US government, but it’s not a great deal for the creditors of the US government. So eventually we’d lose the dollars. And if you read publications close to the state council of the Chinese government, the Chinese Communist Party, I’ve read article after article saying the US, because it has a global reserve currency, can get away with it for a certain period of time but eventually that’s going to wipe out the dollar’s role as a reserve currency, and that’s the end of American power. That’s one way things could happen. Another way things could happen is that inflation really takes off. And that creates so many distortions that eventually the Federal Reserve is forced to raise interest rates, call a halt to this, and then we have a real bind because if we have US debt equal to our gross domestic product, and it’s increasing at 20% of GDP a year, for every percentage point that our debt increases, we pay another $250 billion in interest. Let’s say we go up three or 4%. Suddenly our interest builds us up by another trillion dollars and exactly at the point where we are forced to reduce borrowing, we also have to increase spending to pay the interest. In other words, we look like Italy during its economic crisis of several years ago. We look like a third world country, look like Turkey and at that point, we’re in a world of pain. David Goldman (18:33): So those are the two principle outcomes. And I don’t think any of this will happen at a one-year horizon, but at a five-year horizon it’s very possible. And if you can imagine the United States will wipe something like a quarter of personal income over the past year is coming from government cheques of one kind or another, and you’re forced to cut that back. The hardship on Americans and the shock to American politics would be horrendous, very difficult for any of us to conceive. Richard Reinsch (19:06): So that inflation episode, the way you try to get control of it is dramatic cuts in spending and dramatic increases in taxes, with hardship all around. David Goldman (19:16): Yeah. Well, look at Italy. Look at Greece. Look at third world countries that have been through this. Or even so look at Britain during the Sterling crisis of the 1960s and 1970s. I was a graduate student in London in 1974 and 1975. And I remember the lights out in Piccadilly circus. This was a poor country in deep crisis. Richard Reinsch (19:42): Talk about that. How did that affect Great Britain, when that moment happened? David Goldman (19:46): Well, people were pretty miserable. Britain went from being a global power to being a second rate power, to being much less important. Margaret Thatcher fortunately came in and set things right, but the North of England has never really recovered. So the United States could end up being a second rate economic power, while China becomes a dominant power in the world as a result of this. I’m not against spending money from the federal government, Richard. If Biden had said, let’s spend 1.9 trillion on infrastructure, research development and STEM education, I wouldn’t be unhappy about that. But simply to put money into people’s pockets in the hopes that they spend more means, namely, that they buy more smartphones and computers from China, and China’s exports to the United States are soaring. Richard Reinsch (20:38): As I was doing research for this interview, I came across a number of articles where people would take on your argument that you’ve made and say, yeah, but people were saying this in 2009, people were saying this in 2008, that America would become like Greece or America would become like Italy and it didn’t materialize. And it didn’t materialize for a number of reasons, many of which we’ve discussed or touched on. And this global reserve currency thing is noted, this need to hold dollar denominated deposits, trade situation. And America is the best deal on the block sort of thing. We can do more. And what do you make of that? Here we are, 10 years later, we’ve dramatically increased the money supply, dramatically increased public spending. We seem to be in this late great society, 1960s mentality regarding government program thinking. And what of it? How do you respond to that? David Goldman (21:34): Well, I think from the standpoint of American families, the outcome wasn’t particularly desirable. We had, under the Obama administration, effectively eight lost years, where we never got back to the trajectory of growth that we have in the past, we had chronically low growth. The economy in 2016 was about 10% smaller than it would have been if we had had a normal economic recovery, if we’d caught up and compensated for the lost growth of the great financial crisis. So I think the dissatisfaction in large parts of the American population, which gave rise to Donald Trump’s populism, is a pretty good gauge of how unsatisfied most of us were with the outcome after the standpoint of investors in Facebook and Google and Microsoft, things were great. The other thing in terms of the dollar US international role is we really didn’t have any competition. The Europeans were in some ways in worse shape than we were, Europe went through a severe financial crisis in the early 2010’s, parts of it are still in very dodgy condition. So although the international use of the Euro has grown at the expense of the dollar, the Euro simply isn’t likely to substitute for the dollar as a world reserve currency because Europe has its own weaknesses. The difference now is we’ve got shot. China has its own problems, but China is 15% of world exports and only 5% of world stock market capitalization. The Chinese are very cautious about opening their capital markets in such a way that would allow their currency, the RMB, to become a global reserve currency, at least for the present, but on the five or 10 year horizon the Chinese have ambitions to make the RMB a global reserve currency. And if China’s economy continues to grow faster than ours and the Chinese manage to realize their extremely ambitious national program for the fourth industrial revolution, and they manage to assert themselves as the leading technology power in artificial intelligence and the 5G telecommunications manufacturing and so forth. Then at a five to 10 year horizon, we will have a challenge that can push us out of first place. And this is not a nice competition we’re involved in, this is Glengarry Glen Ross, first prize is a Cadillac, second prize is a set of steak knives. If you lose your ability to borrow in your own currency globally, that is reserve status, and you lose the dominant position in the world market for high tech. It’s not just Huawei that’s the dominant telecom producer, but if Chinese companies are the dominant AI providers in a number of fields, then the United States would go through a decline similar to what Britain went through in the 60’s and 70’s, it doesn’t mean we disappear as a country, but it means we have lower living standards. We have even more deeply fractured body of politics. We have less military power and generally we hate life. Richard Reinsch (24:57): Those are the stakes. Related question, is just thinking about China. What did China learn, do you think, from our financial systems near collapse in 2008 and the way we managed that crisis? David Goldman (25:12): Well, China was terrified by that, in 2008. Richard Reinsch (25:15): And I suppose the related question is how did they change their approach to us, also? David Goldman (25:21): Well, the most important thing that the 2008 crash did was to persuade the Chinese that they shouldn’t emulate the American model. We now say with 2020 hindsight that the Chinese would never change, they’d never reform, they’d never be like us, that letting them into the World Trade Organization was a terrible mistake, that believing in Chinese reform was a terrible idea. But in fact, before 2008, there was a substantial body of opinion in China who said look at this wonderful American model with its technological marvels and its incredible living standards. We should be a lot more alike. After 2008, the Chinese said, this thing was a scam. The Americans are running a bubble, they’re hollow inside. We’re going to do things our own way. Now that’s a very long-term proposition because, from the Chinese standpoint, remember in 2007, something like 35% of China’s GDP went to exports. They were completely dependent on the American market and they very narrowly avoided a severe recession when we went into recession. Now the export dependency has fallen by roughly half. China’s exports to the world are 17% of GDP and much smaller amount is exported to US. And they’re determined to be less dependent on exports over time and build up the domestic market because they don’t see the United States as a viable prop for their growth. So to the extent that the 2008 crisis put us flat on our back, it persuaded the Chinese to challenge us, to become more aggressive and pursue a policy quite different from ours, not to reform and to challenge us eventually. Richard Reinsch (27:21): I think I know your answer to this, but I think a lot of our listeners would gain from hearing it. Modern monetary theorists would point to, and this surprises me, but countries like Japan that have taken on a lot of debt, I mean much more than we have. I think Japan has 240% of GDP, more than twice the American ratio, but why couldn’t we be just like Japan and just continue to take on debt and support a lot of social spending that a lot of Americans apparently now want. David Goldman (27:50): If you’re a net lender to the rest of the world, as Japan is, Japan has a net foreign asset position of about plus $4 trillion, if I’m correct. Several trillion dollars. The United States by contrast has a net foreign asset position of negative $13 trillion. If you can fund your deficit with domestic savings, then effectively, what you’ve got is the Japanese owing money to each other and they can keep doing that as long as they feel like. It certainly hasn’t been optimal for Japan, Japan has had very low growth, but part of the very low growth is a rapidly aging population and a declining workforce. Part of the reason for so much saving in Japan is because people approaching retirement save a great deal more. So, for a whole bunch of reasons, Japan doesn’t look like us at all. My point, Richard, is that if you’re running a current account deficit of 60, $80 billion a month, and you have a net foreign asset position at negative 13 trillion, then your ability to finance a deficit of 20% of GDP becomes very dodgy and particularly, and it’s not just the net foreign asset position. If you look at, as I’ve said, the total holdings of dollars globally, and how much credit the global reserve position of the dollar allocates the US, we’re talking 25 to $30 trillion, by my estimate. And if that starts to erode, if foreigners say, “Well, we just don’t need the dollar anymore. Why should we hold these balances? Why should we hold those treasury securities at a negative yield?” And at that point, we’re in a world of pain. Richard Reinsch (29:38): When you say America has a net international investment position of negative 13 trillion, what does that mean exactly? David Goldman (29:47): It means we’ve imported net $13 trillion of capital more than we’ve exported. We either owe foreigners or have foreign investments in our stock market of $13 trillion. Our monetary system, our economy has been dependent on capital flows coming in, and that roughly corresponds to our trade deficit over the past 40 years. If we keep importing more than we export, we’ve got to give people our paper, our IOU’s for that difference. We sell them assets, we sell them bonds, stocks or whatever. That’s how you get a negative net foreign asset position. Richard Reinsch (30:27): And right now we’re balancing that with being the world reserve currency or buffering that somewhat? David Goldman (30:33): That’s correct. I mean, it’s also true that this capitalization to the US stock market has helped, that’s a fact that some of our tech companies have been so successful has attracted a lot of foreign capital. So what worries me is not simply the monetary situation, it’s that if the Chinese become the dominant players in artificial intelligence and the next generation of great tech companies with mega market capitalization, the next Googles and Microsofts and Apples and so forth are Chinese companies instead of American companies, then we could be in double trouble. Richard Reinsch (31:11): And you and I talked a lot about that in our previous podcast, when we discussed your book, You Will Be Assimilated, on China’s policies there. And I assume you still hold most of those views that China’s tech prowess is going to outpace us soon. David Goldman (31:26): That’s a view which has been widely expressed by people who know a great deal about it. There was a report about three weeks ago by an entity called the National Security Council on Artificial Intelligence, a report shared by Eric Schmidt, former chairman of Google and Robert Work, who was deputy secretary of defense in the Obama administration. Now Work is extremely bright. And that report said that there is a very significant danger that China will dominate the trademark industry, trademark technology, which is artificial intelligence with of course, applications to many industries. And they propose some very dramatic measures to avoid that. Now China is spending $600 billion a year in US dollars on technology subsidies, support, R and D and so forth. The United States is spending a fraction of that and that $600 billion, by the way, in China buys a great deal more skilled manpower than it does in the United States because qualified engineer salary is about a third of that in the United States. So the Chinese are outspending us massively on the cutting edge technologies which very well may define the economy of the 21st century. And we’re in danger of falling behind, the Biden administration has said some reasonable things about the need to catch up, but they haven’t done anything or proposed anything serious so far. Richard Reinsch (33:01): You and I have been talking and I know you’ve had a lifetime in capital markets and finance and economics. And we’ve been talking a lot about those concepts and consequences of abusing certain notions in finance and capital markets and fiscal policy. But to what extent also, and I suppose it’s not either, or, it’s related, is America’s position, and a relatively declining position it seems, do also it’s not that we don’t understand these things. It’s we lack the virtue, the seriousness, the desire to discipline our appetites and have a medium and long-term perspective on what’s best for this country. And that includes also our leadership class. How do you see that? David Goldman (33:43): A Chinese acquaintance told me you’re having your cultural revolution now with your struggle sessions and your policy of sending people to go out and work with peasants. What’s happening at our universities where engineering departments are run by diversity deans is quite concerning, but apropos of your point, it’s not simply the work lacks, I think that the national sense of virtue is, to put it mildly, challenged. By way of contrast, in China, 10 million high school kids take the university entrance exam, the gaokao, every year and admission to universities, which is a sure determination of a future career, is entirely determined by your exam score. Your grades, your club membership and so forth, your sports don’t count at all. So only that single grade, people have studied for years, the average Chinese family spends a year’s income on tutoring. The average. 50% of the kids to take the gaokao in China will fail. Won’t get a university position. They’ll go to a trade school to get some technical education, but they won’t get to university. David Goldman (35:01): The Chinese set the bar so that half of the contenders will fail and the Chinese people are willing to accept 50, 50 odds. And the fact that the Chinese have such a ruthless, and in many ways heartless meritocracy, which demands so much effort and so much competitiveness from their kids, gives them an advantage. That’s the kind of thing you used to hear in top law schools, where the Dean would tell the incoming class, look to your left, look to your right. One of you isn’t going to be there in three years. That kind of competitiveness and willingness to work is something we’ve lost. Chinese schools, they’ve got to make kids do calisthenics because otherwise they study all the time and waste away. Richard Reinsch (35:50): I think that’s a fitting way for us to end as we think about what America has to do to get its house in order. Part of that is just the recovery of discipline and the willingness and the desire to succeed. Thank you so much, David Goldman, we’ve been talking about the prospects for inflation. David Goldman (36:06): Thank you Richard, it’s been a pleasure talking.

Richard Reinsch (00:18): I’m glad to welcome to the program today Michael McConnell to discuss his new book just out from Princeton University Press, The President Who Would Not Be King: Executive Power Under the Constitution. Michael McConnell is one of our most profound constitutional thinkers. He’s the Richard and Frances Mallery Professor of Law, and the Director of the Constitutional Law Center at Stanford University Law School. He’s also a Senior Fellow at the Hoover Institution. He was formerly on the 10th Circuit Court of Appeals from 2002 to 2009. He has appeared before the Supreme Court 15 times. He also has another book coming out very soon from Cambridge Press, Establishment of Religion: Neutrality, Accommodation, and Separation. Michael McConnell, we’re glad to have you on the program today. Michael McConnell (01:12): It’s a real pleasure. Thanks for having me. Richard Reinsch (01:14): Michael, I thought I’d start maybe with a more popular question, and it’s a question on a lot of people’s minds. I think it’s a bipartisan question, depending on who’s in the White House. The view out there is, in large measure, presidential power in the United States is increasingly exercised not under the Constitution, but on top of the Constitution or in an extra-legal fashion. Do you think that is the case in the course of your studies? So has the Presidency in America increasingly become extra-constitutional or unconstitutional? Or do you find it to be a much more nuanced approach? Michael McConnell (01:54): I think the answer to that is sort of or almost. Richard Reinsch (01:59): Almost under the Constitution? Michael McConnell (02:00): Yeah. Richard Reinsch (02:00): Okay. Michael McConnell (02:01): That it’s become extra-constitutional, but a lot of that is because Congress has invited it. So it’s very difficult to say that many of these things are unconstitutional when Congress has passed vast delegations of power to the executive branch in sloppy language, and then, of course, the presidents have run with it. Take just a current example, which is folks urging President Biden to cancel student debt. Well, what has Congress done here? Congress has given the executive power to negotiate and compromise individual claims. Now, this is just like any other debtor thing. If you’re dealing with Best Buy or whomever, and you owe them money and you’re not going to be able to pay, they’ll negotiate that down. That’s what that’s exactly for. But Biden’s advisors are telling him, “Well, you can just compromise them all, and you can compromise them down to zero. You can thereby eliminate all of the student debt that is owed to the United States.” Now, I think that is just an outrageous misunderstanding of the statute. Right? But the problem with it is that the state itself is ambiguous. So when Biden’s advisors say … Biden himself is resisting this, according to the newspapers. But what his advisors are saying is, “Take advantage of every little ambiguity to do this.” It’s very similar to what Donald Trump did with the building the wall on the border with Mexico when Congress refused to appropriate money for it. Instead, he takes a highly dubious interpretation of the Emergency Powers Act and just runs with it. Richard Reinsch (03:52): And there’s also this issue of how do you fund things. With the wall and the Trump administration, there was debate over was it constitutional, was it lawful for him to move money around? I guess the view of the administration was, “Statutorily, we have that authority.” Michael McConnell (04:05): Yes. But again, the typical problem today is not that the executive branch does things that are absolutely out of its wheelhouse, but rather that they stretch ambiguous statutory authority and use it in ways that Congress never intended. This is, I think, the first comprehensive account of how the presidency was put together by the delegates of the Philadelphia Convention in 1787. I think the last real attempt to do this was in the 1920s. I think it’s a fascinating story. It’s a story that isn’t often told. It’s a story that makes current politics look not so good, either Republican or Democratic. Richard Reinsch (04:24): And then Congress seems unwilling or unlikely or too partisan, depending on who’s in the White House, to stand up for its own institutional power. Michael McConnell (04:34): Yeah, Congress is basically no longer interested in institutional questions. They are only interested in partisan questions. And given that the Congress is pretty divided, Senate’s 50/50, democrats are just barely in control of that. The democrats in Congress are not going to rein President Biden in, just as the republicans when they controlled both houses of Congress under Trump were unwilling to rein Trump in. There was a time not that long ago when Congress cared about its institutional prerogatives, and they would join together on a bipartisan basis to object when presidents did things that they believed cut into a congressional authority. And there is no authority that is intended by our Constitution to be so exclusively congressional as the power over the purse. There are actually two provisions of the Constitution that protects Congress’s exclusive power here. We’ve now had three presidents in a row that rather blatantly have been spending large sums of money on pet projects that Congress disapproved of, and have gotten away with it. Actually, Obama didn’t quite get away with it, because the court stepped in when he spent $7 billion on healthcare subsidies to insurance companies that Congress had refused to appropriate. The court actually stepped in and said that that was illegal. Richard Reinsch (06:08): That was interesting, too. Because Congress, if I remember correctly, deferred to the court in that case, and they wanted to bring in the court rather than press their own power. Michael McConnell (06:16): That’s right. In a way, it’s a confession of weakness when they have to go to court. Richard Reinsch (06:20): Yeah. Michael McConnell (06:21): But most of the book, as you know, is not about current events. I use the events to illustrate some of the principles, but most of the book actually takes place back in the end of the 18th century. Richard Reinsch (06:35): Turning to the book and helping us to shed light on a lot of these controversies, talk about what you’re doing in The President Who Would Not Be King and what your research revealed to you. Michael McConnell (06:45): This is, I think, the first comprehensive account of how the presidency was put together by the delegates of the Philadelphia Convention in 1787. I think the last real attempt to do this was in the 1920s. I think it’s a fascinating story. It’s a story that isn’t often told. It’s a story that makes current politics look not so good, either Republican or Democratic. So the very first part of the book is how it happened at the convention, but then with reference to each of the powers that they debate and allocate had a history. So we look back at the history, mostly in British constitutional practice, but it’s sometimes in a colonial or early state practice, or under the Articles of Confederation before the Constitution, and then looking forward, ahead to the first controversies over many of these powers, mostly during the Washington administration, but occasionally up through Adams and Jefferson. The idea here is that the convention was very careful about allocating powers that are of an executive nature. Now, when I say of an executive nature, their sort of rule of thumb for this is they looked at the powers of the king. And they understood those to be, most of them, prerogative powers, which means powers that are actually vested in the king as king, as opposed to through parliamentary delegation. William Blackstone in his commentaries on the laws of England, the book known to our framers intimately, he lists, depending on how you count, perhaps 41 different important powers of the king. Our framers allocated all but one of those either explicitly or implicitly, giving many of them to Congress, giving some of them to the president, which in most cases they actually trim the scope of the power when they’re giving to the president, and then in some cases denying that power to the Federal Government all together. A conspicuous example of that being the kings power over the Church of England. Well, we don’t have an established church in America. So they allocated these powers very carefully. Their basic strategy was to give many of them to Congress, and then to carefully limit the scope of the powers that they give to the president. Richard Reinsch (09:32): As the framers go into the Philadelphia Convention, substantively, what’s on their minds regarding executive power? What’s going to guide them in thinking about this allocational division of power? Michael McConnell (09:44): Actually, we can tell in what I think is the most dramatic moment at the convention, which is the very third day of substantive debate. The Virginia Plan was sort of their first draft of a constitution prepared by the Virginia delegation, mostly written we think by James Madison. It had an executive power section in which all of the executive powers that had been vested in the Congress under the Articles of Confederation will now be moved to the chief magistrate. They hadn’t yet decided that the name would be president, though I’ll call it president because it really doesn’t matter. But those powers were extensive, so they included, among other things, the power to take the nation into war, and then to get it out of war. These are called the powers of war and peace. And under the British system, the king could do this unilaterally. He did not have to go to Parliament. So they see this, and the very first person to comment is a 20-something from South Carolina named Charles Pinckney. You can almost hear him gasp in the records. I mean, it’s not. He says, “Why? This will make the president a king because the powers are so extensive.” And then they scramble. And in those first few days, they create an executive power which is extraordinarily weak. They basically strip the office of all powers except the power to carry into a effect laws passed by Congress, plus some powers of appointment, plus the power to veto a legislation. That would be a mere shadow. That would be basically parliamentary government with a little executive branch attached largely for law enforcement purposes, and then they don’t touch that again until late July. The convention begins in May and ends in September. Late July, there’s this committee rather amusingly named the Committee of Detail. I say it’s amusing because this committee did not confine itself to detail. They rewrote major portions of the Constitution. The truth is that more important constitutional decisions about the structure of government were made behind the closed doors of the Committee of Detail than were made on the floor of the Constitutional Convention. And that committee, which was made up of five people, completely rewrote the executive branch. We don’t have any records of what they said, but we have several drafts of their internal drafts as they worked through it. I think it is pretty clear. I mean, this was an inference on my part, but I’m quite convinced that what they were doing was they were using a mental list of executive powers, royal powers from Blackstone, and then parceling them out. For example, 13 of the 29 explicit powers of Congress had actually been royal powers in Blackstone under the British system. So important powers like powers of war and peace. Remember, that’s what set off Charles Pinckney on the first day. The power to make war is given exclusively to Congress, and then they divide the power to make peace, giving the president the power to negotiate the treaty, but the Senate, by two-thirds vote, the power to decide whether to put it into effect. So actually what’s left is a very powerful presidency compared to the shadow that they had created in response to the original idea. A very powerful presidency, but seriously limited compared to the king. I think that a lot of times the way originalists talk as if on every constitutional question, all we need to do is find out, what was the original public meaning at the time. And there’s an assumption that there was one and that we can find it out. But in history, you can’t wring any more out of history than is there, right? I think we originalists need to be modest about identifying, what do we know and what do we not know? Richard Reinsch (13:36): You make a point that the Committee on Detail also, with regard to congressional power, moved from what seemed to be a general grant of power to Congress in the convention to a more detailed, to what we now called the enumerated powers of Congress. I thought that was interesting. The thing about this allocation of power, you also make the point we frequently think about that in terms of federalism, powers not held by Congress or powers held by states. You make the point, and you’ve been talking about this, this is also about what’s between Congress and the president, and things are taken from the presidency. So in a way, the baseline of power is executive power, and that’s what’s they’re carving and giving out to Congress. But there’s this assumption of executive power that’s there, that’s in reserve maybe, and it’s just being whittled down. So in that regard, what do they think should be left? Michael McConnell (14:32): The decision to enumerate the powers of Congress is a really interesting one, because the chair of Committee of Detail actually made a motion to enumerate. The day before the committee was set up, he makes this motion. It’s voted down in favor of simply a very broad description of power given to Congress, and basically to be able to enact laws that are genuinely national in character as to which individual states are incompetent. That would essentially give Congress very nearly a total legislative authority. And that’s what the delegates voted for, but John Rutledge had the made. His motion lost. He then becomes chair of the Committee of Detail. And what does he do, along with the other four members? They disregard the vote, and they enumerate the powers of Congress. It’s a lot of what they spent their time doing, and that accomplishes two things. Everyone has always understood that that’s where federalism come from, because the national government is given certain powers and everything else is left to the states. That’s the substance of our federalism system. But in addition to that, and I think this has not been appreciated very much in the past. The other thing that it was by giving a number of royal executive powers to Congress, this is the way that the committee dealt with the boundary line between the authority of the executive branch and the authority of the legislative branch. It’s primarily, not exclusively, but primarily done in Article I by defining what powers Congress has rather than an Article II, which is a kind of slightly disorganized description of presidential power. Richard Reinsch (16:24): In the book you proceed, I think, in your research and your writing as an originalist. You talk about original public meaning and original intention, originalism. What did you take though from your study here? The Committee on Detail does so much work seemingly, I won’t say under the table, but on their own without a lot of public or historical discussion. You talked about the drafts we have of their work. You also mentioned the state ratifying conventions don’t really seem to take up executive power the most, which was interesting to me. I’m recalling James Madison’s statement, that a crucial way to understand the terms of the Constitution is by looking to the state ratifying conventions. So do you find these to be holes in the record for originalist research and writing, or do you think the silences and the inferences you can draw are compelling here? Michael McConnell (17:15): That’s a great question. I think that a lot of times the way originalists talk, let’s say, at Supreme Court confirmation hearings and that sort of thing. They talk as if on every constitutional question, all we need to do is find out, what was the original public meaning at the time. And there’s an assumption that there was one and that we can find it out. But in history, you can’t wring any more out of history than is there, right? I think we originalists need to be modest about identifying, what do we know and what do we not know? I think that the obligation of a 21st century interpreter is to stick within the lines of what we do know about the original public meaning, right? But we shouldn’t expect to find all the answers to everything. What we’ll find is some kind of boundary, some sort of approach that often times we have to fill in the detail. It’s my personal view, and here I’m maybe not as strict an originalist as some people, I think what we do is we look not just … First of all, we do identify what is the range of possible meaning, and stick with that. But then we look at the course of historical development over time, and the 230-some-odd years since the adoption of the Constitution. That precedent, not just in court but also in the political branches, that precedent is also a major guide. What I think courts should not do is just make it up. What they need to do is they need to comply with the constraints. And then in the end, if the statute where they’re evaluating the constitutionality is not contrary to the text, not contrary to what we know about original meaning, not contrary to long-standing practice or precedent, what they should just say is, “That means it’s constitutional.” The judges may not like it. They might not vote for it. They may disapprove of it. But if it doesn’t contradict any of those sources of constitutional law, they should leave it in place and let the representatives of the people make their mistakes. Richard Reinsch (19:35): Well said. If we’re in the Philadelphia Convention, one could say, “All right. Well, if the Committee of Detail makes all of these changes and no one really seems to kick up a fuss or say, ‘No, that’s not what we agreed to. That’s not what we came out at.'” You could draw a number of conclusions from that. You raise the example, though, in the convention that perhaps this gentleman, Gouverneur Morris was influential in thinking about a philosophy of executive power that they could live with. You cite him in several instances saying things that sort of look like the president that we have or that we got out of, or that emerged in the Constitution. And this is something I came to your book thinking, having heard that they looked at the New York State Constitution, which had the strongest executive of the state constitutions, and that was one they tried to fashion. You dismissed that or say it’s not as important as people make it out to be. So I’ll just throw all that at you. Michael McConnell (20:29): The Committee of Detail comes back. And as you say, nobody makes a big fuss. I think there are two logical explanations for why not, and we should not overlook this. We do not have good records of what was said at the convention after about this period of time. There’s a very important book by Mary Sarah Bilder called Madison’s Hand, which is a close examination of the records that we have. And Madison begins the convention taking copious notes, but there’s a period of time roughly corresponding to when the Committee of Detail’s report comes back. There’s a period of time in which he ceases taking notes. So all we have is sources from elsewhere, including the journal which reports the motions and the votes on things, but doesn’t report the debate. So it’s not impossible that when the Committee of Detail came back with these audacious innovations, maybe people did raise a fuss and we just don’t know about it because the records weren’t kept. The other logical possibility is that they did such a good job, both with respect to the federalism dimension and the executive verus legislative dimension, that the other delegates were satisfied. The Committee of Detail was itself a very representative group. They may have been able to predict what the full convention was willing to accept. This was a committee with one member from the Deep South, one member from the upper South, one member from the middle states, and two members from New England. That’s a very representative group. I think our Constitution actually has an only incompletely unitary executive. I do believe that ultimately the president has authority. I think he can fire officers. I think the idea of an independent regulatory agency is completely contrary to the original constitution. I think that that’s wrong. But I do think that the structure that the framers set up creates at least a little bit of friction, and it may be a good thing. Richard Reinsch (22:18): Including James Wilson, right? Michael McConnell (22:20): Including James Wilson, who was probably the very best lawyer at the convention and one of the best lawyers in the United States. But as you say, so it did come back. It isn’t as if the draft then is just completely accepted. They go through several weeks of debate. They go through it in the full convention. They go through the Committee of Detail draft provision by provision. There are numerous motions for amendments. Some of them are accepted, some of them are voted down. The basic structure survives, but it’s not 100%. And as you say, Gouverneur Morris in particular has a quite sophisticated and more modern-seeming conception of the executive branch, and makes several proposals which are subtly worked into the draft. What Morris seems to have understood that very few people of that day did was, you shouldn’t think about it as a single person like the king or the president. You have to understand the executive branch as an institution, which is going to have multiple offices, and that the power, although the president will have ultimate power over the executive branch, he’s not going to be making all the day-to-day decisions. And because there are going to be officers who are only somewhat under his control, power is going to be diffused within the executive branch, so there are going to intra-executive branch checks and balances. The most conspicuous example of this is that the Senate has the power to give advice and consent to presidential appointees to the principal officers. That means the president does not have full discretion to run the executive branch just with the people whom he most trusts. We just saw this with President Biden yesterday with his nominee for the Office of Management and Budget being turned down. Every president, no matter how popular or republican or democrat, they’ve all had some of their cabinet choices rejected by the Senate. That means that the executive branch is being run by people who are not just the toadies or lackeys of the president. And then the president does have the power to fire them if he doesn’t like what they’re doing. Certainly, President Trump did more of that than most presidents do. But the president can’t actually force them to issue the regulation or do the enforcement that he wants. He can give them instructions, but then his only enforcement mechanism for those instructions is to fire the officer. And that creates a certain distance between what the president wants to have happen and what actually happens in the executive branch. Effective presidents think about this, know about this, and figure out ways to make the executive branch work for them. Ronald Reagan was a genius at doing this. Others are not so good. Donald Trump didn’t have a clue, and so he was constantly fighting with his own people and did not have control over the executive branch. The result of that was a much less effective president than he might have been. Richard Reinsch (25:43): Would you shed light on this term, the unitary theory of the executive? Is the plan that comes out of Philadelphia a unitary executive? Michael McConnell (25:53): Unitary executive means that the ultimate power is all in one person. Now, at the convention, the delegates considered and rejected the idea of having a multi-headed executive. For example, remember Ancient Rome had two consuls. The first republic in France first had a committee and a directory of five, and then three consuls and so forth. They voted that down. We’re going to have a single-headed presidency, but the idea of a unitary executive is that that’s not just in form. That’s in reality that ultimately all executive power is vested in the president of the United States. So when he’s elected, he basically controls all executive power. I used to believe more in that theory than I do now having done this study. I now describe the system as ultimately unitary, but not immediately unitary. That is, the president cannot just by snapping his fingers make the executive branch do exactly what he wants it to do. Sometimes there’s going to be resistance. Trump encountered huge resistance within the executive branch. Even the people he named to office very frequently stood up to him. I think that that’s a feature of our Constitution, not a bug. So I think our Constitution actually has an only incompletely unitary executive. I do believe that ultimately the president has authority. I think he can fire officers. I think the idea of an independent regulatory agency is completely contrary to the original constitution. I think that that’s wrong. But I do think that the structure that the framers set up creates at least a little bit of friction, and it may be a good thing. Because when you have a president who does things that are ill thought through or maybe even illegal, and there have been many presidents over our history that have done that, the cabinet officer who is in charge of actually putting that into effect can say no, or at least say, “Well, maybe.” I mean, in some instances with Trump, I think what the officer would say is, “Yeah. Well, we’ll get around to that, Mr. President.” And then, just quietly let the idea, the bad idea drop. That’s not orthodox, what you learn in political science about the Constitution, but that’s the way I think it works, and I think that’s the way the framers set it up. Richard Reinsch (28:36): There’s also just the sheer size now of the executive branch. Maybe we can talk some in a moment about the administrative state, what people refer to as the administrative state. We’ve talked about this some already. As an originalist, part of your book is a textual study of Article II, itself. What’s the logic of this article? There seems to be three major provisions or powers: A Take Care Clause, the Vesting Clause, and the Commander in Chief Clause. All of which, the arrangement of Article II is very different from Article I. Michael McConnell (29:12): Yes. Actually, I think Article II is the most difficult to understand. If you just pick up the Constitution as a casual person, not knowing much about it and just read it, I think the powers of Congress are fairly clear. I think the powers of the courts are fairly clear. But I think you would be hard pressed to understand the powers of the president just from reading Article II. But I think once you see the logical way in which the Committee of Detail created the structure, then it makes a whole lot more sense. The way I see it is this, that there are three different types of power given to the president. One type is prerogative power. This is power that is vested in the president by virtue of his office and cannot be touched by Congress. Examples of this would be, say, the pardon power or the veto power. The president can exercise those powers however he wishes. They can be and often are in service of things many of us would disapprove of, but Congress can’t do anything about it. Commander in chief power is like that, although it’s seriously limited in certain ways. Appointments powers and treaty powers are like that, but with the Senate having effectively a veto power through its power to advise and consent. So that’s one kind of power, his prerogative power. It’s obvious that the framers were a little worried about prerogative power, so most of them are trimmed down from the extent of a king. Maybe we should talk about that in just a second. But the second kind of power is delegated power. This is where I think powers that are really of an executive nature are given to Congress. Take for example the power to spend money. It takes an act of Congress first. So for all of the delegated powers, the president cannot do anything … At least this is the formal theory and as it should work. They can’t do anything without Congress first authorizing them to do that. So that includes spending money. That includes borrowing money. That includes taxing. It includes going to war. It includes imposing criminal penalties, prosecuting people criminally for things, and a number of other things as well. So the president does not have any inherent constitutional authority over those things. But when Congress exercises its authority, then the president in effect gets delegated the power. The fact that the laws are passed and that the president then carries them into effect, gives the president a great deal of enforcement power. So that’s the second category. And then the third category is what I call residual powers, and this comes through the Vesting Clause. Your listeners should be aware that a lot of people disagree with me on this point, so this is my view. But the residual powers through the Vesting Clause are ones that are of an executive nature, and the president can go out and do them without advance authority from Congress, but Congress has the power to come in after the fact and limit or abrogate those powers. So this is where the president has the power to be the first mover, but the power to be a unilateral, final decision maker. Richard Reinsch (32:49): On those residual powers, would that include the power to initiate hostilities? Michael McConnell (32:54): No. I think it’s quite clear that Congress, only Congress can start wars, but it does give the president power to respond to attacks, to take defensive measures. In this modern world of ours where communications are instantaneous and things happen all over the world, it has become increasingly difficult to tell the difference sometimes between defensive and offensive measures. That was essentially the line that they had in mind. Richard Reinsch (33:27): Crucial question now of powers delegated by Congress to the executive branch and delegated to the executive branch to actually make rules, implement rules, judge or adjudicate violations of those rules. With this originalist research you’ve done, did it shape or change any of your thinking about executive power in the administrative state now? Michael McConnell (33:54): Yes, in some ways. I think there are insufficient safeguards for congressional power. I think that the Constitution assumed that Congress would be vigilant about protecting its own authority. And that probably was true for most of our history, but it is no longer true. So I think that the president now can get away with things that he probably shouldn’t. An example. For most of the convention, up until I think three days I think it was before the end in the middle of September, Congress was going to appoint the treasurer. It was going to be the only domestic officer of the United States that was named by Congress rather than being named by the president with senatorial advice and consent. Now, the treasurer would have authority to decide about spending. So the treasurer would look at the appropriations bill and see whether a proposed expenditure fits with it or not, and that person would be answerable to Congress. Today, that isn’t true. We do have a Congressional Budget Office, but it doesn’t have the authority. It can declare presidential spending illegal, but it doesn’t have any real enforcement authority. I think maybe that was a good idea. If we really want Congress to be in control of appropriations, then Congress needs to have some more control over how appropriations are interpreted. Because what we’ve learned from the last three presidents is that they can play fast and loose, and when they can play fast and loose, they do play fast and loose. I also think that the administrative state needs to have some sort of way for Congress to check regulations pursuant to delegated power. The Supreme Court held in a case called the INS, Immigration and Naturalization Service versus Chadha that the legislative veto is unconstitutional. The legislative veto was the idea that when the executive branch issues regulations, that Congress can veto those regulations without the president being able to veto the veto. I think Chadha is a correct interpretation of our Constitution, but I think it’s a weakness in our Constitution. If I were to propose one or two amendments, one of them would be to allow for a one-house legislative veto of regulations initiated by the executive branch. Because after all, these are powers that were delegated to Congress. There’s something wrong if the executive branch can issue regulations which might be a rather wild misconstruction, intentionally wild misconstruction of a congressional intent, and then keep them in place. All that’s required today to keep them in place is for one-third plus one of either the House or the Senate to side with the president, because that’s all that it takes to sustain a veto, and the president gets away with it. I think that is not the way delegated power was expected to work out. Richard Reinsch (37:13): So when you think about the allocation of power between the Congress and the president, say a view that Philip Hamburger would take, lawmaking powers are delegated to Congress and that’s it. As a textual matter, they can’t then do another delegation to the executive branch. You wouldn’t take that position. Michael McConnell (37:30): No, actually I think that’s wrong. I mean, my good friend Philip, he’s a great historian. I think his position is only true with respect to regulations that affect the life, liberty, and property of individuals within the country. A motion was made by James Madison very early in the convention, on about the fifth day of debate in the convention when they were trying to figure out what to do about Charles Pinckney’s reaction to the original executive power plank. Madison proposes that Congress be given most of this power, but be permitted to delegate it back to the executive. His motion read, and I’m quoting from it from memory, “That power that is not legislative or judicial in its character.” So you have to figure out, what did they mean by that? I think the absolute core of the legislative and judicial powers were the power to pass laws that affect people’s life, liberty, and property, and to issue final adjudication. Now, a lot of today’s executive power does exactly that, and I think that is unconstitutional. But a lot of it doesn’t. There are many. The most important powers of the president involve administering governmental properties, spending money, exercising foreign affairs powers. Doing all kinds of things that do not actually affect individual people’s personal liberty and property. Madison’s motion would have explicitly allowed that. So what happened to the motion? It was voted down, but the leading speech against it simply said it’s unnecessary. That will be implied. But that’s implied, not in the terms that are already there. So if that was unnecessary rather than objectionable, unnecessary, then I think it’s fair to say that reflected the delegates understanding of the way delegated power would work. We shouldn’t think of all delegations of power as being in the same boat. Some are of an inherently legislative or judicial nature, and that should not be allowed. But a lot of the delegated power is simply re-delegating to the executive powers that were considered to be executive under the British constitution, and that there’s nothing wrong with the president being given delegated power over that. Again, nothing wrong in the sense that Congress can do it if it wishes. But everything, it’s Congress that gets to decide. As a policy matter, I should say, I think Congress should be more parsimonious and careful in its delegation. But in terms of constitutional authority, I think they can do that. I mean, an example of this is over immigration. Remember Trump’s so-called Muslim ban. That statute allows the president of the United States to restrict any group of people from entering the United States that he thinks would be contrary to the public interest, which is why Trump was able to issue such a sweeping order. He doesn’t have to answer to anybody for that. And in spite of that particular order being so controversial, it was eventually upheld by the US Supreme Court. Congress used a shovel to give the president power rather than a teaspoon. Richard Reinsch (41:11): Sounds like we need a master framework or set of legislation along the lines of Madison’s order to help us think better about delegation. Michael McConnell (41:21): I think so, because a lot of the modern delegation is based on just really on … To call it a lie is too extreme. The Supreme Court has said over and over that simply delegation of legislative power is unconstitutional, and yet they never actually strike it down. It’s such a bizarre area of constitutional law because the Supreme Court says one thing, and then just does exactly the opposite. It would be so much better if we went to, say, Madison’s proposal, or there presumably are alternatives as well that are more careful in setting forth what the metes and bounds of delegated power can be, and then stick to them rather than saying that delegations are sort of unconstitutional in principle and then never doing anything about them. Richard Reinsch (42:19): Michael, I think that’s a perfect place to end. We’ve been talking with Michael McConnell, author of the new book, The President Who Would Not Be King: Executive Power Under the Constitution. Thank you so much for joining us today. Michael McConnell (42:30): Thank you, Richard. Richard Reinsch (42:32): This is Richard Reinsch. You have been listening to another episode of Liberty Law Talk, available at lawliberty.org.