Liberty Law Talk

Richard Reinsch (00:18): Hello, and welcome to Liberty Law Talk. I’m Richard Reinsch. Today we’re talking with Professor Todd Zywicki, welcoming him back to Liberty Law Talk, a frequent guest, to discuss recent calls for reforms to the Senate in particular and to the Congress and what might restore that body to more vigor and greater political-institutional health. Todd Zywicki, a frequent guest on Liberty Law Talk, when last he was on we discussed the cartel of higher education in conjunction with a book Todd had just written with Neal McCluskey. Todd is an expert in bankruptcy law and consumer credit, among other specialties. He’s also an economist, he teaches, I mentioned at the Scalia Law School. And he’s also a Senior Fellow at the Cato Institute. Todd, you are also a star, I noted, at the Social Science Research Network. You are in the top 10% of most downloaded scholars on the Social Science Research Network, so congratulations. Todd Zywicki (01:17): Thank you. Richard Reinsch (01:18): Nice to have your work sought after. I was thinking about, Ben Sasse had this op-ed “Make The Senate Great Again,” that was in The Wall Street Journal earlier in September. And he listed a number of reforms to make the Senate work better. Sasse himself a scholar, PhD in history, I think from Yale. His first speech in the Senate was about the sort of underwhelming nature of Congress in its current operations. And he listed a number of reforms, some of which I thought were ho-hum, some seemed interesting. One, take cameras out of the Senate, out of committee hearings, abolish standing committees, I would actually argue the committee should be strengthened if you want to restore the vigor of the body. Pack the floor, meaning require attendance at debates so there’s a full house. Live together in dorms, and also sunset all agencies and departments. Give them a year left to operate and force the Senate to begin making laws again. So he understands the administrative branch dynamic there. Then also, and you’ve written on this, several law review pieces and debates and shorter pieces, “repeal the 17th Amendment” would be key. And he makes the point that it would allow the states to reenter national debate as states again. And that would sort of diffuse maybe the ongoing just ideology that percolates through the Senate. So what do you make of any of those proposals and then we’ll also focus on the 17th Amendment? Todd Zywicki (02:47): Well, more generally, all of them raise the same question, Richard, which is one of the things that Sasse is basically [inaudible 00:02:54] at with a lot of these things is that the process of electioneering has come to dominate the process of governing with respect to the Senate. And the great irony of that is that the original Senate was elected by state legislatures, and that was changed in 1913 with the 17th Amendment that moved to direct election of Senators. And I know we’re going to talk about this in detail, but in many ways what Sasse in coming back to rests on that foundation which is that the framers clearly had a design in mind for the Senate, which it would be fundamentally different from the House. They hoped, and thought, it would be a body that would not be driven by electioneering. It would be driven by basically governing. Which is that the House was seen as the place where politicians would posture and do the things that politicians do in order to get votes and scramble for votes. But that the Senate, due to its longer term and the manner in which is was elected, would be different. And a lot of these things he talks about, like cameras in the room, the way in which the committee system is used to basically deliver benefits to special interests, all those sorts of things, in many ways are by-product of that same fundamental dynamic which is the adoption of direct election of Senators by the people in partisan elections is fundamentally incompatible, fundamentally contradicts, the idea that the framers had in mind for the Senate. And I think, in many ways, that’s what all these things are is a manifestation of that problem. And it’s not clear… We’ll talk about sort of what went awry and that sort of thing, but I think he’s right with a lot of that. And in many ways he’s trying to treat the symptoms of that and not just the causes. Richard Reinsch (04:51): Yeah. He also calls for extending the term to twelve years from six years, and prohibiting any political fund raising while the Senate is in session. So I think that fits your analysis, more treating symptoms. The thinking here, too, it seems to me that a fundamental problem as well, and James Buckley has a book on this, that he wants to amend the Constitution to prohibit the Congress from being able to just make sort of general grants to states. That it would have to be constitutionally tied. Appropriations would have to be a part of the delegated powers. And so it seems like he’s trying to limit, effectively, what they could do, another way of going at this. Thinking about the 17th Amendment, so you mentioned 1913. It was ratified, it provided for direct election of Senators. What’s the significance of that. I mean many people I think would say… Obviously there’s a democratic point there, but why would you argue that that remade the senatorial body? Todd Zywicki (05:58): Well, 1913 is, in many ways, the pivotal moment in American Constitutional history, in sort of the dawning of the Progressive Era and everything we’ve seen since. Which is, two things happened in 1913, which was not just the ratification of the 17th Amendment, but also the ratification of the 16th Amendment, providing for the income tax. So in many ways what we saw with those two back to back was that the 16th Amendment unleashed the taxing power of the government. And the 17th Amendment unleashed the spending power of the government and, in particular, the ability of the national government to easily provide to take those new funds and redistribute them to special interest groups in particular. And so if you look at it from that lens, essentially at that point the New Deal, which comes along obviously 25 or so years later, as kind of a mop-up operation, once you’ve basically set that structure in place for a more robust national government in terms of taxing and spending power. one thing that’s often forgotten when we talk about the original Senate, was the idea of bicameralism. And the idea of having two bodies composed by different groups of constituents was designed to limit the power of interest groups. We can go, and I think we will go into detail about the specific impact of the 17th Amendment, but what I think is significant and relates to Buckley’s comments that you noted, was that when it comes to Federalism specifically, the framers saw the election of senators by state legislature to essentially both be necessary and sufficient condition for preserving constitutional federalism. And the magic expression here is Federalist 51, which is where everything comes back to Federalist 51. Which is Madison’s view that in order to preserve the Constitution, the interests of the man must be aligned with the Constitutional rights of the place. The interests of the man must be aligned with the Constitutional rights of the place. Which is to say that if you want federalism to be preserved as a Constitutional value, the view of the framers was you have to make the self interest, the political self interest of the representative be aligned with promoting that Constitutional value. What Senators care about is being Senators. And being a politician is a competitive business. And so, what you have to do is basically make sure that if you’re a Senator that you’re responding to your constituents. And if your constituents are state legislatures and state legislators, that’s a very different constituency from the general public. And that’s what the framers understood and that’s what the framers were trying to do. Which, to some extent, was done imperfectly, because, as we all know, some kind of mechanisms of direct election arose during the nineteenth century. But I still think it had an impact, even with some of the mechanisms of direct election that arose. I think, when I look at the historical record, it looked like a lot of these things we talk about, unfunded mandates and a lot of the real incursions of the federal government on the states, just don’t seem to be there. And I don’t think they would be there to the same extent even if the prior 17th Amendment Senate was an imperfect vessel for preserving federalism. Richard Reinsch (09:17): Auxiliary precautions in Federalist 51. That’s a phrase that I think sticks with me as I think about problems in our current federal government. So the House, obviously, two years directly tied to the people. The Senate would have been tied, was tied, to state legislatures appointing the two senators to represent their state. And the auxiliary precaution meaning two different bodies elect those two branches. And that being crucial because it’s not just a majoritarian, two bodies representing majoritarian interests. Could you talk more about that, what was the significance there? Todd Zywicki (10:00): Yeah. And the framers, obviously it was kind of a genius structure, right? Which is, two houses elected by different constituencies for different terms. We also have a president who’s going to be indirectly elected. That didn’t last very long. We still have the vestige of the electoral college, but we do not actually have electors. And we had judges who would basically be appointed for life, right? And the idea was, was this machine in which these different hubs selecting the members of the federal government by different mechanisms would bring certain incentives to what they were doing in that the system as a whole would be more than just the individual pieces. If you look at the Senate specifically, there were two basic goals here. Which the first was kind of recreate a House of Lords. Which is, as I mentioned, the idea was the House would be the place in which people did politics, retail politics. The qualifications were younger, the terms were shorter, and they expected that there would be direct accountability on the House. The Senate was obviously modeled, to some extent, after the House of Lords in Britain. And the idea was that the Senate would be the place for people who are accomplished in life. Qualifications were that they had to be older, 30 rather than 25. And the idea would be that very distinguished people would be selected to serve in the Senate. Not only career politicians, is what’s ended up happening, but accomplished lawyers, business people, military heroes, people of stature, who were turned off by the idea of House and all the electioneering in the House. And they would be chosen for character, judgment, and prudence, and that sort of thing. Which is I think also one of the reasons why they gave to the Senate special responsibilities like with respect to treaties and the like that they didn’t give to the House. That idea of the Senate as a House of Lords was, to some extent, true. Because it did allow people like Daniel Webster to move in and out of the government. A lot of those people we know during the 19th century would kind of rotate in and out of the government, kind of returning when they were needed. Whereas one of the big things that’s happened is now the Senate is basically just full of career politicians. Which has changed the dynamics, I think, of the Senate itself. The second important thing about the Senate that you allude to is the structural piece. Which is, it’s supposed to be two things. One, preserve federalism, as we talked about a little bit. But the second one is to bring this notion of bicameralism that you mentioned. And bicameralism is the idea of having two houses that are designed to pass laws in different way. So as to, as the framers clearly understood, mitigate the power of faction, what we would call special interests today. And the idea is that through bicameralism interest groups would have more difficulty influencing the government, and the public interest would prevail by having two bodies selected by different groups. And that’s one thing that’s often forgotten when we talk about the original Senate, was the idea of bicameralism. And the idea of having two bodies composed by different groups of constituents was designed to limit the power of interest groups. And now, when you make the two bodies more or less identical, it eliminates some of those brakes and some of those checks on interest group factionalism as Madison called it. Richard Reinsch (13:22): Now I know, just thinking through all this right now, it’s been a part of center right conservative thinking in this country. And it’s now at a fever pitch with anger at elites or distrust of elites. Thinking about this system where state legislatures would appoint people to represent their state in the original design, couldn’t that also lead, though, to a system of elites bargaining with elites and distributing spoils? As opposed to say a more popular check that we currently have? I mean, I guess, I’m sort of thinking how would it work now that the ideology is really switched? Of course, progressive thinking has switched where states now very much want to be a part of receiving rents from the federal government. I think what, I would say most states, 20% of their… What they receive from the federal government probably equals 20% of their annual budget, if not more. What do you think about that? Todd Zywicki (14:16): That’s exactly the criticism that’s been expressed. And it’s not just from conservatives now. That was exactly the argument that was made beginning in the late 19th century when people started beating the drums for direct election, the muckraking newspapers, the populist newspapers, deeming the Senate of the late 19th century and early 20th century, the millionaire’s club. And, of course, if you go back and read the Federalist Papers the Senate was one of the things that the anti-Federalist’s found most obnoxious for precisely this reason. Was that what the framers saw as a feature, this sort of House of Lords, the anti-Federalists saw as a bug, right? And they genuinely were concerned about this notion that the long terms and lack of political accountability would make the Senate into this elite group. But again, if we go back to Federalist 51, what does Madison say is the challenge? If angels were to govern men, no government would be necessary. But if we’ve got men running the government we have this trade off. In the first place the government must be powerful enough to control the governed. And in second place it must be obliged to control itself. Which is, there’s this tension inherent in our Constitution between limiting the power of faction and limiting the power of democracy. Which is the point about the government being able to control the governed, which is why they thought in terms of an indirect elected president, an indirect elected Senate for long terms, and, of course, an independent judiciary that would be protected from the accountability of the democratic process and all that. But at the same time, the concern about elitism, which is to say that if you create independence to resist factionalism you run the risk that the governors become the faction unto themselves and basically end up running the government for themselves. And, of course, the exact same criticism you hear about the Senate is what conservatives say about the judiciary. Which is that the unaccountable, unelected judiciary basically imposes their own views on society without any direct accountability. The framers answer was that we want to have all of that, right? That’s why they thought of all of those four groups, four different bodies, interacting in some way that would bring different perspectives and that sort of thing. But you raise exactly the right point, which is a concern, it’s a concern that was present… And I have to say one funny story was a few years ago after I wrote my article in the National Review on the 17th Amendment. A blogger for the American Constitution Society said, “Well, Zywicki just hates democracy, and he wants to get rid of democracy.” And so I wrote back, and I said, “Oh, so you’re in favor of direct election of judges?” And that was the end of the debate, he never responded, right? Which is the last…, But it’s the same logic. Either you’re for direct, you’re for election of judges or you’re against it, right? But basically that’s the argument the framers were putting on the table. Richard Reinsch (17:30): When I asked that question, too, and I was thinking of Michael Greve’s The Upside-Down Constitution, which is an interesting book for a number of reasons. One of which is the way he talks about competitive federalism as opposed, to say, the sharing of power. But the ways in which Federalism is supposed to create this baseline and the states have to compete against it. and that’s been endlessly corrupted in the 20th century where states now use the federal government as a way to prevent competition amongst themselves. But they haven’t totally, they haven’t been completely successful yet. Greve describes other systems, Argentina, talks about the German system, whereby elites are able to use federalism to just endlessly divide spoils. And he says in our systems that hasn’t happened in that way yet because of this, the representational principle of the federal government can actually touch individuals and represent individuals. I guess that’s why I thought about that. And it seems what’s ultimately being preserved by the U.S. Senate, and this is why Progressives hate it as a body. And many times we hear this common refrain, why should Wyoming cancel California? There’s 200,000 people in Wyoming or something, and California has millions. And also California is just way more culturally important so far than Wyoming. But the point being though, the Senate, each state is still equal in the Senate. And to me I would argue that’s ultimately what matters. What do you say to that? Todd Zywicki (19:00): It does seem to matter, but whether it’s what ultimately matters I’m not sure. I mean, obviously, that has some effect, and in many ways that tradition lives on in terms of that decentralization effect. Let me say first, I think that Greve’s book is pretty much the most brilliant book I’ve ever read on the Constitution. urban machines in the cities wanted direct election because they knew that they could influence elections more, as opposed to having to go through state legislators, which were tilted before redistricting in favor of rural interests, before Baker v. Carr and those cases. Richard Reinsch (19:18): It really is. Todd Zywicki (19:19): Most of us, by the time we reach 40 or so we rarely fundamentally change our minds about things. Greve’s book fundamentally changed the way I think about the Constitution, from sort of a more pure state’s rights view to a more inter-state view, and sort of understanding the balance between the federal and state governments. So I think it’s really important. And what I will say is I think that the way in which the Senate originally operated, or operates throughout the 19th century, was in many ways more consistent with Greve’s view, right? Which is to say that when you look at the history of the 19th century what you see is, by and large, the federal government did what the federal government was supposed to do, and the state government did what the state government was supposed to do. Which is, the states provided most of the services as was expected. And the federal government did the things that they’re basically expected to do. Which is they did interstate improvements, they made it possible to create networks, preserving the interstate common market. And in times of crisis, the government would expand to pass a bankruptcy law when they needed bankruptcy law, to wage war when they needed war. But what also happened is during the 19th century we don’t really see this ratchet effect that Robert Higgs points out, where the federal government expands to meet a crisis, it would then to retrench to back where it was. The first time we really see a ratchet effect in American history is after World War I. And maybe it was an ideological view, maybe it was inevitable. But I find it hard to believe that it was purely a coincidence that the ratchet effect first appears during World War I. And then during that exact same period, in the teens and into the twenties, which where we first start to see the first real expansion of the national government in terms of delivering rent seeking type legislation and redistributing wealth to discreet groups. Which in the government, and, of course, that time, blows the lid off as you move into the New Deal. And a lot of what the growth of the federal government has been since that period is primarily in wealth redistribution systems. For entitlements, subsidies, and rent seeking type things, using the tax code as a vehicle for redistributing wealth. Which, now may have just been inevitable, because of technology and ideological change. But I think that changing the manner in which the Senate was composed created more of the conditions for this cartel federalism that Greve talks about than was otherwise the case. Maybe it hasn’t gone all the way for the reasons you talk about, about each state having equal representation, but I think it did increase the propensity for that to happen. The growth of the federal government, in particular the growth of the federal government in terms of providing rent seeking or special interest type legislation. Richard Reinsch (22:20): When you look, and you know the history very well leading up to the ratification, so you know the debates and everything that were going on, a question that I have, why would the states give up that power? That, to me, is an interesting question. Todd Zywicki (22:33): Yeah, that’s always the interesting question. And there’s some fascinating history here that my former colleague David Schleicher has gone into, that has really made me rethink a lot of this. Which is to say that I think that the way in which the structure of the Congress, Article I, was originally designed, with an indirectly elected Senate, still has a lot of virtues and had a lot of virtues. But my enthusiasm for that particular mechanism has been tempered a bit over time by reading David’s work. Which is, what David says, is that during the 19th century, especially under the influence of Jackson, that earlier in American history than might be appreciate, parties basically overwhelmed the Madisonian structure. And we see that now, right? We see that in things like the farcical impeachment processes we’ve seen both for Trump and Clinton, which turned out to be partisan in their voting. I won’t say they were equally partisan in their initiation. But that process, and a lot of these processes, are received during the Noel Canning case where the Democrats in the Senate actually endorse the power of the President to call that, to basically declare them as being in recess, right? Which you’ve kind of reached the Madisonian nightmare of being overwhelmed in many ways by partisan political influences. And what Schleicher says is that happened during the 19th century more than I, at least, necessarily appreciated. Which is that parties overwhelmed the structural influences, and that over time, the Senate elections placed a pretty strong influence over state legislative elections. That state legislative elections more and more became a proxy for Senate elections. So his argument is that, to some extent, state legislatures may have been frustrated by the fact that the national elections, rather than being indirect they basically became vehicles, right, electors for their senator. And so I think that probably explains some of it, which is that this separation didn’t necessarily work that well. I think some of it also deals with the fact that interest groups, national interest groups, a lot of interest groups wanted the 17th Amendment. They wanted direct election. National interest groups who wanted more regulation of interstate commerce in order to cartelize their industries, like the railroads. Labor unions wanted it. Urban machines were strong components, ironically, right? Because people claimed that the Progressives were against urban machines. But urban machines in the cities wanted direct election because they knew that they could influence elections more, as opposed to having to go through state legislators, which were tilted before redistricting in favor of rural interests, before Baker v. Carr and those cases. So I think it was probably a combination of interest group influences pushing for direct election to be able to influence the power of the federal government to give them rents. And perhaps some of this frustration that Schleicher points out among the state politicians at having their futures tied, to some extent, to senators who they didn’t control. Or they couldn’t control their election very well. Richard Reinsch (25:55): It’s funny, I was thinking, you mentioned Baker v. Carr. I was thinking even state legislatures, in a sense, kind of had a feature like the Senate, in the sense of rural interests were able to counterbalance large cities. If you think about Illinois, if you walk into the Illinois legislature the Chicago delegation must surely overwhelm everything that goes on there. Todd Zywicki (26:16): Yeah. Richard Reinsch (26:17): Maybe to the detriment of the state. I certainly noticed that when I worked in the state legislature before going to law school. Todd Zywicki (26:23): Sure. Richard Reinsch (26:24): There’s also a call now, even to abolish the Senate. Not a call, but you see people, they’ll make these, or to change it’s composition in some form. Or to add states. And, of course, that gets back into partisan politics as well. That point of the parties overwhelming the process is well taken. And it does make it seem as if separation of powers can’t do its full work. Thinking about this question, the original role of the Senate and it being lost, how many states were actually holding popular, or at least allowing sort of a popular canvas to exist, and then the legislature would actually have to choose from that, or would commit to choose from that? Todd Zywicki (27:14): Yeah, by the time of the 17th amendment, I think a majority of states had some degree of popular election. Which is that they would either have candidate chosen, been party primaries, and then the state legislature would choose their senators. Or, what they have is something called the Oregon plan, which was a system in which people running for state legislatures could have a statement appear on the ballot where they’d be required for a statement to appear on a ballot. Where they would say, yes, I will endorse the people’s vote, or, no, I will not endorse the people’s vote. And essentially what they then would havewhat would be legally a straw poll of voters. Where they would not create a binding vote for one candidate or the other, but that they would create basically a non-binding vote that state legislators would agree to endorse. And I think some states may have just required the state legislatures to do that. One bogus criticism of the Senate prior to the 17th Amendment was the argument, which the facts are true but the causal relationship is false, which prior to the 17th Amendment there were periods in which states had vacancies in the Senate, that they failed to select a Senator. And this would often be the case in which the two legislatures of the state were controlled by different parties or by different factions, right? So think about, during that period, the Western states in which you had essentially a three party system. Where you had Populist Republicans as well as traditional Republicans and Democrats. So it was the case that some states sometimes would fail to select a senator. I think that’s a largely a sideshow for two reasons. Which is the first reason in that most states did that once, or maybe twice, and didn’t do it anymore. So most states learned their lesson and they fixed the process. The more important reason I think was that there was a federal law passed, I think it was in the 1860’s, that required state legislators to select senators by a majority vote. They were not allowed to select by a plurality vote. And, as we know now, a lot of Senate elections, the person who’s chosen is selected by a plurality vote. Pretty much any time you have a robust third party you have somebody selected who gets less than 50% of the vote. So that deadlocks problem could have been eliminated simply by eliminating that federal law. And so that’s something that’s often criticized about the 17th Amendment, which is beside the point. Richard Reinsch (29:57): The corruption point is made as well. That seems interesting, and you point that out in one of your pieces. Or you make that point several times, that corruption was the allegation, wide spread in state legislatures, over who would they pick potentially. But, of course, you increase dramatically money in politics, political partisanship, when you go to the direct elections. And I guess, in a way, the corruption point blends into a progressive point. Which was this idea of getting a clean politics in a sense of there is, politics is politics, and wherever you try to eliminate it, it just goes somewhere else. Todd Zywicki (30:34): Yeah, that’s right. This is one, I laughed when you were saying it. Because I was just having a little kind of back and forth on Facebook the other day with a very prominent conservative person who was talking about, oh, the corrupt Senate prior to the 17th Amendment, criticizing Sasse’s view. And the great irony here is well, first, corruption wasn’t that common. There were certainly cases of corruption then, there are cases of corruption now. But you put your finger exactly on the point, Richard, which is it’s kind of comical for somebody to say that they passed the 17th Amendment to get rid of special interests influence over the Senate. As if we don’t have any special interests influences over the Senate nowadays when they have to raise tens of millions of dollars in order to run an election. Maybe it doesn’t involve just repealing the 17th Amendment. Maybe it’s trying to bring back a lot of the virtues that the original Senate was trying to bring. Which is to create a more deliberative, more insulated body, that’s more responsive to structural concerns of states, strengthen the process of bicameralism and the like. So I think that’s kind of a sideshow or sort of a unicorns and fairies approach to politics to say that we’ve gotten rid of special interest influence in this fashion. We’ve probably changed the types of interest groups. As I said, for example, the current system has probably made urban machines more powerful but also changes the composition of the interest groups that tend to be able to have economies of scale to lobby directly to the federal government. It’s probably increased the influence of urban oriented interest groups relative to rural groups, or even, we talked about earlier. But it’s kind of silly I think to say the 17th Amendment eliminated special interest influence in government. Richard Reinsch (32:06): Yeah. Thinking here, also, just the notion, the Progressive notion, this is a Progressive amendment, is another point made about this as well, the Progressive ideology being… But of course other Progressive ideas didn’t make it into the Constitution through Amendment, like having referendums or a recall or things like that. And part of a lot of state constitutions now feature those devices. So we get the direct election of senators being a Progressive advance, direct election I guess being the point over all they wanted to make there. Has that resulted, though, in better state representation? Or it seems as we’ve been discussing, what it’s resulted in is something like more ideology or party polarization in many ways. Todd Zywicki (32:52): That’s why I take an interest in this Richard. I think we’re kidding ourselves, or I’m kidding myself, if thinking that somehow or another we’re going to actually repeal the 17th Amendment. Democracy seems to be democracy, which is to say that once you give people the power it’s unlikely that they’re going to give it back. Why I think that it’s so useful to talk about and think about the 17th Amendment in the original Senate for this reason of… And this is where I put my professor hat on. Which is what I want people to think about and talk about is what is the Constitution, what should it look like, and what were they trying to accomplish? The framers, as Franklin famously said, created a Republic if you can keep it. They did not create a democracy. They created a system where the purpose of government was preserve individual liberty and to restrict the power of factions. Meaning the power of organized interest groups to commandeer the power of the government to enrich themselves at the expense of the general public. Those were the goals. It wasn’t to create a democracy. Which I think the lesson we can learn from the history of the Senate and the history of the 17th Amendment is why does structure matter? Why does it matter, the incentives we create for various political actors in this trade off between independence and accountability to do their job? How does different aspects of the government get together? And I think this kind of, in many ways, bring us back full circle to where we started with Ben Sasse’s proposition. And your point a moment ago, where we talk about people wanting to abolish the Senate. And I think what Sasse is really asking us to think about is what is the Senate’s value proposition? If all the Senate is, is a smaller number of people than the House of Representatives, but has the same degree of partisan conflict and sort of goofiness that we see in the House, why have a Senate? And I think what Sasse is basically saying to his fellow senators as much as anybody is, look guys, our days are numbered. If we’re going to basically just be like the House then our days are numbered. We’re not proving our value here to the people, we’re just a more elite version of the House. And I think what he’s trying to push at with all these other reforms, of making the body more deliberative, making the body less partisan, making the body less responsive to special interests, is I think what he’s basically trying to say. Let’s think about what, and maybe also then trying to increase the influence of the states. And I think what his real point is, is let’s think about, if we’re going to have a Senate, what should its functions be? And maybe it doesn’t involve just repealing the 17th Amendment. Maybe it’s trying to bring back a lot of the virtues that the original Senate was trying to bring. Which is to create a more deliberative, more insulated body, that’s more responsive to structural concerns of states, strengthen the process of bicameralism and the like. And I think that’s maybe the bigger picture here is what studying this and thinking about this history can tell us about Constitutional structure and what is necessary to preserve individual liberty and restrict the power of interest groups and factions. Richard Reinsch (36:16): Just think about being a Senator. And you know that your origination point is your state legislature and could also be your ending point. And how would you act if that were true, versus, how do you act now? Are you this sort of hyper political animal who wants to not be shaped by the institution but to take Yuval Levin’s arguments here. You’re not going to be shaped by the institution, you’re going to stand on top of the institution, and use it to promote your interests or your ideology or whatever your agenda might be. You’re probably more likely to work within the system. I mean I would think, because you’re appealing back to people who themselves have a certain stature in their states and are watching you. Todd Zywicki (36:59): It’s a great point. And Vikram Amar wrote an article many years ago that’s related to your point, Richard. And I alluded to this earlier, which is one of the big changes since the 17th Amendment is that the Senate has, in fact, become a body for career politicians. Which is that, prior to the 17th Amendment, where states, they couldn’t recall senators, but it was quite common that there would be more rotation in office. Senators might rotate through the Executive Branch, or rotate in and out of the private sector over time. And that perspective has been lost, right? The Senate now is a body of career politicians, and he documents this fact that there is less rotation in office. And there’s something important in that. Maybe it’s good, maybe it’s bad. But it definitely changes what you do, I think, if, as you said, maybe you go back to being a state politician after two terms. Maybe you go back to being a private citizen after two terms. Or maybe you rotate through the Executive Branch and then you go back to the Senate. That gives you another perspective, right? Where nowadays, as for example, we just learned in Alabama from Senator and Attorney General Sessions. Nowadays basically if you leave the Senate there’s a good chance you’re done, right? If you join the Executive Branch you’re pretty much done at that point and you’re not likely to go back into elected politics basically because some other incumbent will have taken your seat. And maybe that’s good, maybe that’s bad, but it’s definitely a change from what the normal is during a period of indirect election. Richard Reinsch (38:32): And maybe we can end on this. It’s where we started, in thinking about the composition of the government. If you think about, say, you had said the House of Lords. Or maybe thinking France, the old, the three estates before the revolution. They all had represented, distinct groups, within their countries. And, of course, the problem in America is there is no elite, landed elite. There’s no established interest in that capacity. There’s no established church. So what are you, in fact, representing? That’s sort of, I think, a question. And so when you’re putting together the government you’ve got to think about who it’s representing, how it’s representing them, what it’s going to be? In addition to what it’s going to be doing, how it’s going to be limited? And answering that questions I think is the House, the people, Senate, the states. The President is not going to be elected by a majority vote, but is supposed, the original idea being a deliberation in the Electoral College. And those are the key points, it seems to me, that we’ve occluded, or attempted to bury, in the current arrangement. Todd Zywicki (39:36): I think that’s right. And this is the suggested, that the framers had the right idea in my view, when they originally structured the Senate. Which is, what they understood that they were trying to do is create a body that would provide a bicameral check that would be slower moving, that would be less accountable to the people, and would be a vehicle for representing the states as states. And I think what we ended up learning during the 19th century was even though that was the ends that they had in mind, the means that they chose were imperfect. And in particular, a general question that we all remember from our high school civics class, which is the framers did not count on the rise of parties, and the way in which parties would change this whole dynamic. And, in many ways, change the dynamic involving the Senate. And so I think one of the lessons we can learn from this is, and when you look at the debates on the 17th Amendment, it’s pretty clear at the time, in my view, they did not believe that they were essentially killing Federalism. They essentially thought that Federalism was so woven into the fabric of American life that they could tinker with this one system of accountability in the way in which Senators were selected and Senators would keep on going the same way. And I think what they found out was that they forgot the lesson of the framers. So I think one of the things I take away from this is I think the way the Senate was originally chosen turned out to be an imperfect vehicle for what the framers were trying to accomplish. But what that leads me to think is well, if Federalism is still a value, if bicameralism is still a value, what other changes should we have? For example, should the courts be more aggressive in enforcing Federalism? And this is a point that Scalia, among others, basically said. Was that the framers did not build in a lot of other ways enforcing Federalism because they assumed the Senate would protect Federalism. But if we rip that means out, that notion of the Senate as a vehicle for protecting Federalism, for reasons unrelated to wanting to change the fundamental division of power between the federal and state governments. Maybe this idea the courts have largely deferred to the political process with respect to Federalism, maybe we need to reconsider that as well, right? Maybe we need to consider other types of proposals that people have talked about. Like easier ways for states to be able to propose things to Congress, for example. Or ways for states to over-rule, as a group, incursions by the federal government, a lot of these sorts of things that were automatically done when states could elect their state legislatures, but now are not really vehicles for them to protect themselves within the overall structure. Richard Reinsch (42:20): Well, Todd, thank you so much for discussing your scholarship and thinking on the original intent of the Senate, and now the 17th Amendment. Appreciate it so much. Todd Zywicki (42:31): Well, thank you Richard, and thanks for this stimulating discussion.

Richard Reinsch (00:04): Welcome to Liberty Law Talk I’m Richard Reinsch, today we’re talking with John McGinnis, about the addition of Amy Coney Barrett to the United States Supreme Court, and also the recently commenced Supreme Court term. We’ll discuss some of those cases and what else that we think Justice Barrett might contribute there. John McGinnis, many of you will know, is a long-time contributor to Law & Liberty. So we’re glad to have him on the program. He’s the George C. Dix Professor in Constitutional Law at Northwestern University. He’s the author of numerous books and essays and law review papers, including his most recent book was a co-authored one with Mike Rappaport, Originalism and the Good Constitution. He’s also the author of Accelerating Democracy, that was published by Princeton University Press. He is one of our most significant legal thinkers in America, and one of our leading constitutional originalists, John McGinnis, we’re glad to have you on the program today. John McGinnis (01:19): I’m delighted to be here at an interesting time for the court. Richard Reinsch (01:22): Interesting time, so last night October 26, Amy Coney Barrett, nomination received 52 votes. She was sworn in by Justice Clarence Thomas, which I thought was just a wonderful sight. Amy Coney Barrett, talk about her constitutional philosophy much has been said by her and by others that she is an originalist. What kind of an originalist is she, John? John McGinnis (01:48): First of all, I think it’s quite clear. She says her philosophy is the philosophy of Justice Scalia. So I think that she’s going to be an original public meaning originalist rather than original intent originalist. Beyond that I think it’s a little hard to say because while she’s been a prolific scholar, she’s not been a constitutional theorist. And the one thing we do know about her is I think she is unlikely to be a strong, what I would call libertarian originalist. Someone who sees that there is a presumption of liberty like Randy Barnett in the constitution, and that should inform her take on perhaps the original meaning. And what’s called the construction zone would be claimed by some originalists, that some parts of the constitution are determined and for people like Randy Barnett, that’s filled in to some extent with respect to a presumption of liberty. And there I think we do know she gave a somewhat unfavorable review to Randy Barnett’s book, on trashing what I’ll call libertarian take on originalism. So I think that’s pretty clear that she’s not of that kind. I wouldn’t necessarily think she’s way on the other side, someone who thinks like early originalists, that democracy is the key aspect of the constitution. And therefore we should engage in a lot of deference to the legislative branches, even when there are rights set out in the constitution. I don’t think she’s ever suggested quite that. And so I tend to think she’s going to read the constitution without a presumption and favor of liberty or without a presumption and favor of legislative actions. Somewhere like straight down the middle originalist in that respect. But there are many questions I don’t think are entirely clear. And it’s not suprising that they’re not entirely clear, when she is not an originalist theorist and she’s going to get on the bench, and have to grapple with cases and their intersection with theory. So one area, I think we’re going to see a lot of discussion of her and others on the court, it’s already begun is in relation to originalism and stare decisis and where she’s going to come out exactly there, I’m not sure. She has written an article about originalism and stare decisis, in which she sort of has endorsed the Scalia as opposed to the Thomas approach. But while endorsing it in sort of broad terms, she suggested the kind of tightening of it. And so I tend to think it will be somewhere between Scalia and Thomas. Thomas is recalled as someone who really largely rejects stare decisis in Constitutional Law, except when he can’t say the decision is wrong. Scalia, seems to accept a lot of decisions that he thought were wrong because there was just too much water under the bridge to overrule them. Where she’s going to come down between those two polarities as it were within the originalist camp, I’m just not entirely sure. I don’t think I’m quite sure she’s not entirely sure it’s going to be forged in discussions with her colleagues, that she correctly stated being a judge is different from being a professor, more to be informed by academic theories. She’s obviously going to take account of what her colleagues say and with the context of the cases that come before her. Richard Reinsch (05:22): That law review article, if I recall she listed Brown v. Board of Education as a super precedent, not an earth shattering move there. A lot of people would say that, I think everyone would say that. She did not include Roe v. Wade or Planned Parenthood v. Casey in that piece as a super precedent itself. John McGinnis (05:39): Super precedent as she was at pain to explain in the hearing, she was really using as a kind of academic term of art, but one of the best actually parts of the hearing is where Amy Klobuchar, quizzed her why isn’t Roe a super precedent, but she said, well, of course you have to really ask whether it’s a super precedent or not, really isn’t. And that’s sort of the definition, that one thing that really no one wants to overturn. And of course that’s not true of Roe that’s not true of Citizens United, it’s not true of a whole range of cases that are important precedents of the court, but that serious scholars and serious legislators thinks should be overturned. Richard Reinsch (06:27): Now, you mentioned she’s not and she’s indicated this in her writings she’s not inclined towards the judicial engagement camp of originalism. So with that being noted, do we have clues in her writings of how she will engage the questions of the administrative state that have really come to the fore? John McGinnis (06:47): I don’t think we have many clues in the writing. First of all, unlike some academics she’s really not an administrative law academic. I do think the best clue that we have that she’s not going to be a judicial deference is from her action on the Seventh Circuit, where in a Second Amendment case, she says that, even the non-violent felons should be able to have access to guns where she could have deferred to the legislature. And there’s some nuanced language in Heller itself that sort of gives the blanket categorical blessing to permitting States, to exclude felons from the right to have guns. Where she pointed out that didn’t make a lot of sense when a narrow kind of compelling interest path, or even intermediate path when the felon went violent, because of someone committed some sort of felony under the securities law that gives no reason really to believe that they’re likely to be violent with or misuse a gun. So I think that’s some indication that she’s not of the judicial deference school. I think with respect to the administrative state, we have very little to go on, except the general idea, which is that most originalists think that at least at its outer bounds, the administrative state seems to bump up against the core idea of the separation of power. It’s the legislature who should be making the rules, not the executive. So I’d be surprised if she were to not take that view. And that’s important because as you may know, there are even five votes, including Chief Justice Roberts on the court, express concern about the breadth of the court’s previous permissions for Congress to delegate authority to the administrative state. And therefore in some sense, aggregate their own responsibility to make clear, at least the broad outlines of the laws. Richard Reinsch (08:55): There was a case she wrote on recently in the Seventh Circuit, that involved a police officer and qualified immunity, where a police officer, I think had falsified something about the defendant, some official document. Maybe it had been the warrant itself, and she did not give this police officer qualified immunity, she ruled against it. So no deference there. Now, the facts there, which I can’t exactly recall were quite shocking. So there’s that, also it seems though one question comes to mind. If she said Scalia is sort of her mentor, she clerked for Scalia, and this is just one way of thinking. Did he shape her thinking about the administrative state? He was notably open to its powers until later in his career, towards the end of his career, where he seemed to have realized maybe this had gone too far. John McGinnis (09:49): Yes, that’s interesting because let’s understand that Scalia, came up I think when there was still a lot of sense among conservative legal scholars, that originalism really was a kind of way of reigning in the excesses of the Warren Court. Which seemed to even in administrative law seem to reach out, to restrict the political branches. And so I think that’s the view from which Scalia comes. That’s really not the thinking now. And so Scalia, I think as you correctly point out with himself changing. So I would not think that Amy Coney Barrett is likely to be the early Scalia in this respect, more likely to be the later Scalia moreover. That’s one area where I think there’s some substantial unity, I would say, including with between Chief Justice Roberts, who in some cases was if one talks about being more skeptical of the administrative state as the right to being ideologically on the right, he was ideologically right of Scalia. For instance, there’s a case in which Scalia upholds under Chevron deference, the ability of a agency to interpret ambiguities in their own jurisdiction in their own favor. And Roberts says, well, that actually putting the fox in charge of the hen house. That’s too far for Chevron deference. So this is an area I think of substantial unity. I would be very surprised if Amy Coney Barrett were not to fall in with the rest, this is not an area I think she’s likely to be a leader on. She’s not someone who is an administrative law scholar, she’s not unlike many of the other justices, like three of the other justices on the conservative side, a DC Circuit alumnus, where of course their largest diet is administrative law. But I would think she’ll at least go along with where I see the center of gravity is now on the court. Richard Reinsch (11:52): You’ve mention his name several times, what does this appointment mean for Chief Justice John Roberts, and in particular, the strategy he seems to have been employing recently he doesn’t want the court to be seen as totally aligned with the Trump administration or with conservatism. He’s made some interesting moves. What does she pose to that strategy? John McGinnis (12:15): Yes. Well, it’s always hard to understand the motivations of justices, but one plausible take is that Roberts is a Chief Justice and the Chief Justices have argued before, really I think has different motivations from other justices. It’s his court, everyone calls it the Roberts Court. And so he’s very concerned about… Chief Justices I think are always concerned about the standing of the court. One actual natural experiment we have in that respect is Rehnquist was much more conservative before he became Chief Justice. So and obviously I don’t think his views changed. It was the seat that changed. And so I think one way of understanding Chief Justice Roberts, is he’s very concerned with what political scientists call the diffuse support for the court. And that may in close cases at least make him interested in distributing victories, particularly in a court that now is partisanly aligned and with all the liberals are Democrats and all the conservatives are Republicans. And so I think that has been an element of his strategy as it were a kind of distribution of victories. Moreover, he is an incrementalist, and so some of his decisions while giving victories to the liberal side, I think the example of the abortion case last term, might not in the long run do that. So he gives a sort of little Easter eggs and even in his opinions as it were for the liberal side. And so that’s just kind of incrementalist approach to the law. So how will it change? Well, I think he an issue that he’s, I think he’s been the most powerful Chief Justice for decades. Because not only was he, the chief after Kavanaugh was confirmed, he was the median justice. That meant that he genuinely, I think, was in most cases in the middle and therefore the way he swung he could swing the court, and that gave him enormous power. And in addition, he has the power when he is in the majority of assigning the opinions. And so that allows him to choose the writer, including himself, which he took in many of the important cases, to write the opinion which sets the trajectory for the law. So suddenly he’s in a different position. He’s no longer the median justice. When you talk about who exactly the median is, I don’t think it’s entirely clear, but it’s certainly not him anymore. And that puts him in a dilemma, because he could still vote with the liberals, but that doesn’t give a victory, we still have a conservative victory. Worse still when he’s not in the majority, Thomas who’s the senior associate justice assigned the opinion including to himself. And that means we might get, since I think opinion writers have some political scientists say, some ability to write the opinion. If some discretion as it were, can move the trajectory of the law in a rightward direction. So he may oddly enough move to the right, would be my prediction because, by moving to the right, he at least retains the opinion and assignment function, and can assign the opinion to himself or to the least conservative member of the majority. So oddly enough, Barrett’s confirmation, I think is going to make Robert’s vote more to the right. And when he doesn’t vote to the right, it will make the opinions more to the right because Thomas will assign them. So that’s a hidden benefit for conservatives and for originalists. Because Thomas, of course is out of a subset, I’m always fighting against calling a justice as liberal or conservative. There are methodological differences and Justice Thomas is the most consistent originalists on the court. So that’s going to create a more originalist court because of Justice Thomas, his greater power to assign opinions. Richard Reinsch (16:16): So, Amy Coney Barrett’s position on the court will act in many ways to constrain Justice Robert’s past behavior as he navigates the terrain in the future. John McGinnis (16:28): Yes. It will constrain him, but I mean, as a rational actor, he’ll act in different ways, the constraints will be different. He’s differently constrained in the sense that he felt more constrained by the politics of the country, now he’s constrained as it were sort of by the jurisprudential positions of his colleagues. And so we have to take that into account. Richard Reinsch (16:51): You’ve written pieces on Law & Liberty, and you’ve just mentioned the idea of the median justice on the court, with Barrett’s addition, who do you think is the median justice? John McGinnis (17:01): I don’t think it’s clear yet. I think there are three candidates, I think the most and I’ll talk about them in the descending order of likelihood. I know the most likely is Kavanaugh, because I think he’s less committed as an originalist than Gorsuch. Now, of course, that doesn’t mean that even if that’s the case, that in every case there’ll be the median justice, we saw of course, Gorsuch in the Title VII Case, write the opinion for and regard as the liberal side of the court and Kavanaugh, was in dissent. I think we’re likely to see a situation more like the world where we saw when Kennedy and O’Connor were on the court. Where Kennedy tended to be the median justice, while on some issues it was O’Connor. For instance, on First Amendment issues Kennedy was much more strongly First Amendment oriented. And I think O’Connor was the center of the court. So I think that on some kinds of issues, Gorsuch may be the center of the court, more kind of libertarian criminal justice type issues. He could be the median, we’ll have a kind of a twin star as it were as opposed to a single star. And I don’t want to rule out the possibility that Barrett could become a median justice. I think people are too quick to suggest that Barrett, is going to be somewhere close to Thomas. I mean, I think that’s what you would probably predict somewhere where between Thomas and Alito, based on our votes on the Circuit Court. But there’s a lot of learning and I think it’s absolutely right that as hard justices change, even if they don’t change dramatically. After around five years on the court, they really don’t understand exactly the Supreme Court and how it’s working until five years. They don’t come comfortable with exactly their positions. Now, I don’t think we’re going to see Justice Barrett grow on the court, as it were like Justice Black when they moved to the ideological left of the court. But I think it’s hard to rule her out, becoming the median and that’s least likely of these possibilities, but I want to at least put it on the table. Richard Reinsch (19:21): I thought it was instructive last night, the content of her acceptance speech or her post confirmation speech, where she clearly contrasted the role of the legislator and the role of the judge. And she was very clear, she is not coming to be a legislator, and to enact any of her policy preferences. When you put that together and obviously her scholarship is significant here. And also the talk she gave in the now famous Rose Garden event, infamous Rose Garden event because of the spread of the coronavirus. She also was very clear there about the role of the judge and where she takes her bearings. It seems to me, this is just someone who very much takes seriously the judicial branch in our separation of powers, and the duties that a judge holds. John McGinnis (20:08): I think that’s right. Well, I think she has served the originalist views, I think she may have a more moderate temperament, than someone like Justice Thomas. Really, of course, his temperament is forged in all sorts of personal struggle with racism early on in his life, With the confirmation hearing, he faced the vicious personal attacks. That I think were you in a somewhat very hard edged character, I don’t really see that in Amy Coney Barrett. So I think he has a temperament that is likely to lead to more for want of a better word moderation, even while I don’t think we’re going to see some great balancing conversion to becoming a living constitutionalist or anything of that sort. But, so I do think those comments, both at the White House are indicative of that kind of temperament. Richard Reinsch (21:07): Yeah. Now, that Barrett is on the court and this has been in the air as you know, this idea of court packing, Biden seems to have reluctantly backed away from it. But I think it’s in the air. How do you see that working out? And what do you make of that as an originalist, the idea of adding four or five more justices? John McGinnis (21:30): I think as originalists, I think it’s legal. I mean, the only argument possibly against it, is the kind of necessary and proper argument while this is improper when Congress is trying to change the makeup of the court to change the decision. I think the difficulty with that argument is that it has been changed in the past. Although historians say it’s never really been successfully changed with the overt intention of changing the makeup of the decisions of the court was really mostly changed because of need for circuit riding, which of course we no longer have. Judges actually had to ride and go and decide cases way out in the Hinterlands if they needed more justices at times. But I think in general, I think an originalists has to accept that, that’s one of the safety valves as it were, or that the legislature has on the judiciary. Nevertheless, I don’t think court packing is very likely for a few reasons. I mean, you would think it was very likely to just listen to law professors, but of course law professors are not a real good indication even of Democratic politicians. I think there are three reasons that suggest that it’s unlikely. One it’s just very unpopular. The polling on it is extremely unpopular. I think it’s not likely to become more popular as people talk about it. So no happy face associated with it, there’s just a kind of risk. So that’s the first reason it’s unpopular. The second reason I think is Biden, whatever else, one thing, he’s been around a long time and he understands that you got to make priorities for your agenda. And for most Americans, even those who isn’t miserably unpopular, it’s sort of remote. I mean, not the law professors of course, but it’s not really delivering any benefits and could hijack his agenda that some huge fight about this. And the final reason I think is oddly enough, the Democratic strategy in the confirmation hearings. So you will recall that strategy, which I think was much more sensible than their strategy with respect to Amy Coney Barrett at the Appellate Court level, was not to attack her, or just talk about the dogma that speaks proudly within her. But to say, well, she’s a danger, and the court is a danger to the Affordable Care Act. Which is delivering all these benefits so much that I don’t really recall that at the vote on the Judiciary Committee, which they boycotted, they put up all these pictures of people, I guess they claimed the children who, but for the Affordable Care Act, whether to be dead or a terrible disease. So they put all their chips, and that maybe be a sensible electoral strategy because people with that at least is something people may care about, in a way that the abstractions on judicial philosophy for most people may leave them cold or uninterested. But the difficulty is that I think most liberals and most conservatives think that there’s no chance that the Roberts Court is going to invalidate the Affordable Care Act, in the Texas versus California and California versus Texas cases. Having put all their chips there, once the case comes down, as I predict it comes down eight-one or seven to two, not to disturb the Affordable Care Act. Well, this is what they say is going to happen. And the worst thing that’s going to happen people are going to uphold the Affordable Care Act eight to one, seven to two. This court really, I think, takes the wind out of the sail of court packing, which after all, even with respect to FDR, came after a series of decisions that struck down key programs of the New Deal. So that’s another problem I think for court packing. Richard Reinsch (25:25): It seems to me with Barrett’s nomination, which went much better. I mean, I remember the day it was announced that Justice Ginsburg had died and I thought, wow, here we go. This is not what we need. And her confirmation went through, I think reasonably well. I think that’s obvious, but my sense there is we got the first instance sort of, of this wokeism actually in retrospect. Well, what happened to Justice Kavanaugh, was sort of applied wokeism, to leave any woman who makes a claim without evidence destroy someone’s life over it, destroy someone’s career over it, ostensibly. And it was ugly and vicious and we came away from that. I think most people came away from that thinking let’s not do that again. So I think in many ways, Kavanaugh paved the way for this rather smooth confirmation and also Senator Feinstein and Senator Durbin openly questioning Barrett during her Seventh Circuit nomination, bringing up her religious faith. And it was rather shocking, but it also had the effect of boosting Barrett to the top of the pile. I think in the White House for the next Supreme Court justice position, I’ve heard that there were coffee mugs given out “the dogma lives loudly within me,” things like that, kind of as a joke. So that all seemed to work in her favor. And I think the last thing that those opposing her really wanted to do was go after her in any sort of intense, vicious ways that they’ve done in the past to Republican nominees. So I take that as maybe a good indication of maybe these fights won’t be as vicious in the future or probably barely, just special in that regard. John McGinnis (27:01): Yeah. So one thing I think that made it less vicious was that it was right before an election, and the polling suggests that what the Democrats did with respect to Kavanaugh really hurt them at least with some Senate seats. And then really think about swing Senate seats. I think one has to understand it very much as in the connection of this selection, I’m less confident perhaps that we won’t see continual some other vicious confirmation hearing in the past. I think this was very situational as it were. Richard Reinsch (27:31): Thinking as an originalist, what is the Senate’s role regarding a nominee from the president? And in that regard too, was there something unseemly not just unseemly, but unconstitutional about what Senator McConnell and Republicans did to Obama’s nominee Merrick Garland? Many claim that taints all of the Trump nominees because of what happened to Garland. What do you say? John McGinnis (27:58): I don’t think there’s anything unconstitutional about it. The Senate’s advice and consent role, I think is quite clear that they got a majority vote and there’s no sense that there’s an obligation to give a vote anymore than there’s an obligation to vote on the president’s legislation. And that I think is clear as well, from the practice there are many nominees not to the court, although some to the court that haven’t gotten votes, but there are many, many nominees that never get votes or indeed get hearings. So that really isn’t a surprise and there’s nothing I think about the advice and consent clause that suggests there is some requirement to vote. The advice and consent clause, is what it suggests, which is a term of art actually, I once wrote about this, it’s not separate advice and consent. It’s really acting like a Privy Council to give us consent. And I see no indication there was anything unconstitutional about it. Now, is there some violation of Senate norms by not giving a Supreme Court nominee a vote? That’s I think a more complicated question. I think there’s certainly a good argument that McConnell has that the real issue here is just the question of majority. When majority party is of the same party as the president, nominees go through easily, when it’s not, they don’t. And that strikes me as really in some sense, the only enforceable rule, no other rule is going to be enforceable. My impression, I don’t have the numbers quite here is that in general, in the last president term, when the Senate and the president agree, there’ve been a lot of confirmations. There’s always a nomination and pretty much they’re confirmed. When the Senate and the president are of different parties. It’s rarely confirmed and that’s just what you would expect with politics. It’s necessarily a political element, and the framers contemplated of course, politics being part of government in the advice and consent practice. So I don’t see anything untoward. You might have a criticism, some criticism of the framers design, is that they didn’t understand how important the Supreme Court would become or maybe they did, but didn’t take account of the fact that the composition may become then therefore, so dependent on the accidents and deaths and retirement. And that I think is a serious criticism of the design and why I think there are plausible arguments that we should go to a 18 year term through constitutional amendment, in the future to make sure that we don’t have a structure in which by accident Trump gets three appointees, even if he’s a one term president and Jimmy Carter got zero. Richard Reinsch (30:59): On the new term or the term that we’re in, what cases come to mind, has significance potentially, and do you see Justice Barrett playing a pivotal role in any of those cases? John McGinnis (31:13): Well, I think the most important case is the one that Justice Barrett may play the most little role at. And I think that in my view, the most important case although it’s not the most important programmatic case for the Trump administration is the case I think called Fulton v. Philadelphia, a case at which a Catholic Service Agency is being excluded from placing foster children, because it doesn’t want to place foster children with same sex couples. And here it’s making some very large argument that, that’s a problem. And it wants to overrule a case called Employment Division v. Smith, which says that in general at least for religious based conduct so long as the law is neutral, you can’t get a religious exemption from it even if it does intrude deeply into your religious beliefs. As of course, Catholic Service Agency really could not have good conscience think of same sex couples in exactly the same way as it does married heterosexual couples. So you might say, well, that’s quite an important case. And the important case was it really goes, I think, on the front lines of our society. There’s a real question I think, given some of the other decisions. The same sex marriage decision and other social facts in our society, of whether religions with traditional views of sexuality will continue to play a role in charities that are connected as many charities are to the government. So I think it’s a hugely important case on the front lines of our society, as well as this case about overruling of Justice Scalia. So how do I think Barrett, may play into this? Well, Barrett in a very interesting article on stare decisis, that I’ve already mentioned suggest that what I would call their passive virtues, let’s not overrule cases unless we really have to, I think is one of her sub-tasks of this idea. Can we find other way of addressing this matter? And I think in the Fulton case, there may be a solution for the court, which is the focus on well, what does it mean for a law to be neutral? Because it turns out that in Philadelphia has a lot of ability to give exemptions on all sorts of bases, to agencies that don’t comply with various rules. And it hasn’t given an exemption here to Fulton, it’s given exemptions to others on another basis not about same sex couples. And one might think that’s a bit of a problem that because of the danger. Richard Reinsch (34:04): What are those exemptions there? What do they allow other agencies to do? John McGinnis (34:09): Well, as I understand it and I’m not an expert on the exact statute here, is they allowed the sort of general waiver for agencies because of course it’s not a surprise because the agencies may want to waive things because they may think, well, this charity isn’t quite on our rules. But still it would be useful for us to make use of them because foster children and many other social problems really can’t be addressed without the full weight of civil society. And to be too persnickety about rules may undermine that, that’s not a surprise. I think that they have this broad authority, but you might worry that well, that allows them to pick and choose and really not be a neutral arbiter. And therefore this really doesn’t apply in those circumstances. So that will be a way of not overruling Smith. Richard Reinsch (35:12): I read that the city of Philadelphia contracts with adoption agencies that only place children at the same race and same race home, isn’t that itself a form of discrimination that they permit? And why would that be any different from say, a Catholic Social Services, we are only going to place children in heterosexual homes? John McGinnis (35:33): If I were arguing for the Philadelphia, I would say, well, that’s just not this case. You know, maybe that’s illegal and someone could bring a suit against us on that basis. But that doesn’t mean we can’t also- Richard Reinsch (35:46): I’ve read that, that’s like a general policy that they allow because within the world of adoption, this is actually a thing, particularly minority race children should go only- John McGinnis (35:55): I’m not aware of that, I mean- Richard Reinsch (35:57): That’s what I’ve read about this case. So that sort of opens up the door I think for your analysis is why I’m suggesting it. John McGinnis (36:03): I think, yes. I mean, I guess maybe that, another stronger argument to me is that they give discretion rather than they have other bad policies. Policy does seem to be very doubtful, but we heard oddly enough of course we heard about that in some contacts with respect to the adoption contact back there, Amy Coney Barrett, we’re one of the leading anti-racism professors tweeted- Richard Reinsch (36:28): Yeah, Ibram Kendi. John McGinnis (36:30): That her adopting black children was sort of a white savior colonialist mentality. So I agree that’s itself a very problematic, and we may actually see some litigation about that coming soon to the court. Richard Reinsch (36:45): So Fulton v. the City of Philadelphia and one could see her playing a role there. The two other cases which may go away if Trump loses, I assume Trump v. New York and Trump v. Sierra Club, but what’s happening there? John McGinnis (36:58): Well, in Trump v. Sierra Club is the wall case, right? So the wall case is a case about delegation of authority. There are statutes, and this is not that unusual kind of statute, which allows essentially the executive branch to reprogram funds for higher priorities. And these are military funds and Trump has reprogrammed them to build the wall. The argument is that he’s acting ultra vires, he doesn’t have authority under this statute. Now, in some sense, of course it’s an interesting case because it pits maybe some policy objectives, at least some conservatives against the view of the conservatives that there’s too excessive delegation. Then in other words, that we should tighten up on delegation. So this is an interesting case in that sense that it pits one sort of juris prudential or ideas about government versus at least some people’s views about policy wisdom. So I think that’s sort of interesting in that respect and I think may somewhat scramble and make Trump less likely to win. My own sense is that there is a way of, even if Trump were to win for the court to get rid of the suit without even reaching the delegation question, because it’s not clear, the Sierra Club has standing to bring the suit. There’s a technical doctrine saying that, you only have a cause of action if you’re within the zone of interest of the statute. In other words, if a statute is focused on protecting your concern, of course, the Sierra Club’s concerns are aesthetic or environmental, and these reprogramming stats really are trying to protect Congress’s power of the purse. I think that may be a way of avoiding the larger questions, this case the lower court Trump appointed judge named Dan Collins went off very strongly on that. Because there really was no cause of action for the Sierra Club, because they were outside of the zone of interest. But I think you’re also correct that if Trump loses this case is likely just to go away. Richard Reinsch (39:12): Another case, big for administrative law, potentially a Mnuchin v. Collins. And in particular the Federal Housing Finance Agency, its director is immune from removal except on for cause basis. What do you make of this case? John McGinnis (39:29): I did the case, I think it’s easy to predict the outcome of the case. Maybe easier than any of the others we’ve discussed, because the previous in last term, there was a case of the Consumer Financial Protection Bureau or the CFPB. In which there was similarly a director who was insulated from removal and a court in a five, four decision held that, that violated the separation of powers. Because there was at least a strong presumption that the president got to fire people at will within the executive branch, at least in these high positions, in the executive branch, this is similarly a director. And so it’s distinguished from the cases where the court is upheld insulation of removal, which are boards, bipartisan boards like the FTC, the FCC, this seems to give up more concentrated power to someone who’s insulated from presidential control. So it’s very similar, the only difference actually is that the CFPB gets its funds from the Fed and the Housing Finance administration gets its funds from assessment on banks. I don’t see that as making much difference ultimately, what I think is interesting about this case is it will be yet another precedent for the presidential power over the executive. And it may start to isolate getting a lot more precedent, isolate these old precedents like Humphrey’s Executor, which allow the installation for removal. So I would not be amazed to see in the next five years arguments that those cases should be overruled as now being sort of outside the warp and woof of the law as being sort of left as isolated cases that really don’t match with the rest of the law. So I think that’s its big significance going forward. Richard Reinsch (41:22): Although and it occurs to me, that there is now I think a plurality of justices on the court that would call themselves originalists you’re a student, you’re a scholar of originalism. Do you see originalism continuing to grow and really begin to direct constitutional interpretive discourse in this country? John McGinnis (41:48): Well, assuming there’s no court packing, I do see it as having now huge influence and where it’s going to go is a little unclear. But I think one interesting aspect mostly it’s been driven now by scholars thinking about originalism, but now we’re going to see a lot more being driven by the court. And of course, as I’ve suggested, one of the big issues for the court is how to combine originalism and stare decisis. How to understand it in that respect and as well as looking at the original meaning of various clauses of the constitution. Now, scholars are going to also play a role because their brief and the briefs of people were informed by scholarship are going to make a bigger difference than they ever have before. So we’re going to get a kind of originalist culture surrounding the court. I think we have three strong originalists, maybe Kavanaugh is also an originalist I don’t think that’s yet clear. And we have people like Alito and Roberts who’re at least sympathetic to originalism if not full-fledged originalist. So should get an originalist culture on the court. There are two caveats. So one, is that for the first time it is very clear the Democratic Party has come out against originalism. I know we saw on the Senate floor, Senator Markey, he said, originalism is about racism, homophobia. This is quite a striking development after all Elena Kagan, who is the last Democratic nominee said, “We’re all originalists,” at a hearing. I don’t think we’re going to hear many Democratic nominees saying that. And so unfortunately, a kind of a political polarization is coming even to constitutional theory. So that’s one caveat. And so we’re going to see a lot of pushback on originalism. The other caveat is the autonomy. I wish I could say that now with more originalist on the court that the legal academy would take originalism more seriously. I think the opposite is likely to happen because of developments in the university world. The legal academy is moving very far to the left and I think very much harder to get an originalist hired at a school. I would say for instance, 10 years ago, it will be plausible to have an originalist hired at my school. I do not think it is plausible at my school now. And my school is somewhat more conservative than most national law school. So that’s a caveat, we might not see the same kind of development by academics of originalist theory. There are of course now very vigorous originalists, but I think the pipeline for younger scholars is going to be cut off for some period of time. Richard Reinsch (44:43): It’s certainly interesting now, to think about and ways of working around that will have to be done. John McGinnis, thank you so much for joining us to discuss Justice Coney Barrett’s philosophy and the impact she might have on the court. We appreciate it greatly. John McGinnis (44:58): Well, I very much enjoyed it. Thanks so much, Richard. Richard Reinsch (45:02): This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk available at lawliberty.org.

Richard Reinsch: (00:04)Today we’re talking with Stanley Kurtz, about a new book he has authored called The Lost History of Western Civilization. Stanley Kurtz is senior fellow at the Ethics and Public Policy Center. He’s a well known commentator on education, higher education, urban suburban policies. He’s also a student of the American left. He’s authored two books on Barack Obama, Radical-in-Chief, and Spreading the Wealth: How Obama Is Robbing the Suburbs to Pay for the Cities. We’re glad to have him on the program today to discuss something that seems evident to us now, particularly over the past couple of months, this lost history of Western civilization. Stanley, welcome, and what’s going on in this book? Stanley Kurtz: (01:09)Well, Richard, thanks so much for having me. And yes, I put out a book called The Lost History of Western Civilization. It came out in January. It’s a little bit unconventional, it’s actually available as a free downloadable PDF from the National Association of Scholars. It’s sort of a book-length report for the National Association of Scholars, so readers can actually get it just by clicking on the free PDF. And I put it out in January, and the book has a couple of themes, but one turns out to be surprisingly relevant to the turmoil the country is going through now. The first half of the book largely focuses on the destruction of the academic tradition of teaching Western civilization. And some of the intellectual critiques that were used to justify pushing Western civilization required courses aside in our colleges and universities. For a long time, if you went to college, you likely took a course on Western civilization, and of course on American history, by the way. Those were very often required. And that was all pushed aside amidst great national controversy around 1987 and 1988. And the controversy was focused on Stanford University, there was a famous or infamous demonstration chant by the student protesters, “Hey, hey, ho, ho. Western culture’s got to go.” And once that chant was publicized, it really galvanized the national controversy. And one thing I do in the book is to dive into the argument which was probably most important for America’s scholars regarding this conflict. It wasn’t nearly as well known to the general public, but scholars, what are called deconstructionist historians and academics who were receptive to this skeptical form of postmodernism that we call deconstruction of history. Those sorts of historians argued that the very idea of Western civilization was a kind of bogus, late invention, rather than Western civilization being a great long-standing, continuous cultural tradition coming down to us, from the Athens or Pericles, and from the biblical period, running through Ancient Greece and Rome and then the medieval era, and on into the enlightenment and modernity. These deconstructionist historians suggested that instead, the very idea of Western civilization was a kind of propaganda device, an invention created during the First World War to essentially hoodwink young American soldiers into thinking that they shared enough with Europe to make it worth their while to put their lives on the line in the trenches of the First World War. So this is a great example of what we mean by deconstruction of skeptical history. And then in the second half of the book, I somehow segue from all that into a reflection on the ways in which this dispute over Western civ, and which gave rise to what came to be called political correctness and multiculturalism actually set the template for our politics today and to the constant accusations of racism and bigotry that we see today. Somehow these things are in fact linked. So that’s broadly speaking what the book tries to do. Richard Reinsch: (05:06)A question just apart from the ideas. Why Stanford University? Why was it ground zero for this attempt to remove Western civilization courses from higher education in America? Stanley Kurtz: (05:17)Well, that’s a great question, and the likely reason is that the demographics of Stanford in 1987 and 1988 were somewhat different from the demographics of colleges in most of the rest of the country. Stanford being in California had a relatively large percentage of minorities of various sorts, there were South Asian, East Asians, there were blacks, there were Hispanics in fairly large percentages. And these groups allied with strongly left leaning white students to form what they called a rainbow coalition. And they were taking their lead from Jesse Jackson presidential campaigns at the time. They were somewhat quixotic presidential campaigns, but they were a foreshadowing of what came later in the Obama years. They were a foreshadowing of we what we think of as campus intersectionality. And this was the coalition that chanted, “Hey, hey, ho, ho Western culture has got to go”, on a day when Jesse Jackson was actually visiting the school to help rally students in support of what would become his second presidential campaign in 1988. So Stanford in a way prefigured the rising diverse population that we see in our colleges and universities, and the ideology carried by that group. Richard Reinsch: (06:54)Thinking about Stanford at that time as well, specifically, it seems to my mind, what objections would you raise to learning about Western civilization? And you talk a lot about a certain scholar making this argument that it was put together during World War I to give the soldiers a fighting faith, to give the citizens a fighting faith, etcetera, something like that. But even then I thought, “Okay, maybe that’s the case.” You prove conclusively that it was not the case. But even if we assume that this person is right, one should still learn about aspects of your civilization, the fundamental ideas and history behind your civilization. Why would you not want to, and what were the arguments that they made? Stanley Kurtz: (07:43)Well, that is a really very interesting issue. And one of the things that I argue in the book is that the opponents gave an argument to the effect that Western civilization and the great books that belong to it are racist, that the study of it is racist. It’s racist in the sense that the West was a colonial power that oppressed people of color across the world. It’s racist in the sense that by focusing on so many authors who are “famously dead white males,” it’s racist. But what I argued in the book was that that wasn’t entirely the full truth of the objection. I think the real reason for the objection to Western Civ was that it was powerful that it did teach us about ourselves, that it was a popular course, that students loved the great books. Because whether they agree with a given great book, author or not, the great books as a whole brought students into confrontation with the fundamental questions they would be facing in life, philosophical questions, questions about what they wanted to devote their lives to. And these courses were extremely popular. They were in fact the most popular courses in the school. Now, if you have a very, very popular course that is all about Western civilization, and if students there feel as though that is not really their heritage, they’re coming from outside, from Asia, or as far as I’m concerned, a black American is part of Western civilization and has every legitimate reason to be proud of that. But many black students in Stanford at the time felt as though they were identifying with Africa and their African heritage. So if you don’t feel as though you’re part of the Western tradition in the first place, and the Western tradition turns out to be tremendously popular and appealing, you actually experience that as an affront. Richard Reinsch: (09:53)This is at some level, and by the way, and we were talking about this before the call. I took a great books seminar on Western civilization. I have a very distinct memory of the last day of class of the students in unison, applauding. The last day, the professor, I think, in recognition of how excellent the course had been, and how much we had all learned. Things that we had no clue of before. But that was my freshman year, it was the first time I had read T.S. Eliot. So I think that’s exactly right on and what those courses were able to do and are able to do, where they’re still taught, which makes what happens in my mind, just insidious and dastardly. Question though, this is also our university’s rejection of the educational enterprise of the liberal arts. Hearing that, and you say that in the book that, “Well, this isn’t me.” Or, “These courses don’t reflect my heritage or my background.” But that’s the very idea of education, that it takes you out of that. One could also take courses in African history or something like that, but this in itself is to misunderstand what education is, it’s to turn it into an ideological enterprise. Stanley Kurtz: (11:06)Well, I think that’s true. And I think you can also put it another way, going back to the point I made about American blacks actually very much being a part of Western civilization. And in the book, I say that the same thing applies, say, to Hispanic students, and to almost any student who gets into, say, an elite college has already very likely, in almost every case, become deeply a part of Western civilization. And in the last part of the book, I look into some of the controversies playing out on our campuses. And I argue that in fact, they are very Western controversies, controversies about say whether you should use the word Latinx, instead of Latino. In other words, controversies over whether we should think of ourselves as part of a larger family, and part of a tradition about the family, or whether we should be such free individuals that we can almost create our own language, a language that completely respects and preserves the rights and independence of every individual with respect to their sexuality. That is a very Western sort of controversy. And the students who attack the West don’t fully realize that the cultural politics that they carry is a descendant of the individualism and the great tradition of liberty of the West. Now, it may be, and I personally think it is the case that they’re taking this tradition to a dangerously radical extreme, and in that sense misusing it. But whether you think they’re going in precisely the right direction or not, I don’t think you can understand campus politics today in a deep way, without actually reading the great books of the West. And these students, even students who are of different races and ethnicities, are profoundly Western and could gain self knowledge by truly reading and learning to understand the great books of the West. Richard Reinsch: (13:23)Thinking about, and you make a nice point towards the end of the book, that those making these claims about gender identity would have to confront more… Okay, well, what about the claims now of community, or the accumulation of knowledge and tradition within a community and how one balances that out with individualism? All sorts of examples of intellectual challenges that would be good for them to have but which they aren’t having. Thinking about, so Stanford, you argue, and you’ve alluded to that sort of the epicenter of the higher education battles over the last 40 years. I mean, they sort of crystallize there. And there’s also, you talk about intersectionality. The term used before intersectionality, I hadn’t thought of this, was multiculturalism, and you argue intersectionality actually is a far better term, given what they’re arguing. Could you talk more about that? Stanley Kurtz: (14:15)Absolutely. One of the themes of the book is that the current standpoint of the left, although it is sometimes called multiculturalism, actually has very little to do with culture. I argue in the book that you probably could better call it anticulturalism than multiculturalism. If you actually look at the multicultural, or better the intersectional coalition as it operates on campus, a coalition that generally unites gay students with Latino students and black students and Muslim students. If you actually look at the traditional culture of some of those groups and contrast them, what you actually would have there was a group of people who would probably have a lot of clashing views and clashing perspectives. And so in order to hold a coalition, what you actually have to do is downplay the content of your culture, because that’s what differentiates you. And instead, you have to play up race. That is why the phrase people of color has become so predominant nowadays. The idea of people of color creates a unification between these groups. And the other thing that unifies them, is the sense that they’re all being oppressed, oppressed by some kind of traditionalist Western, and from their point of view, white majority. And so the idea of finding oppression, finds the intersexual coalition together, and plays down their cultural differences. So we saw, for example, that recently at Stanford, you had a leftist coalition, an intersectional coalition. And they started to demand that the courses which would count towards the distribution requirements, as far as diversity goes, that those courses should only include courses that teach about oppression. And they should not necessarily include courses that teach about, say, the history of Chinese culture, or something like that. So culture is really not at the forefront of what’s going on here. Culture is actually being hollowed out. And many of the students who come to school to begin with, as I’ve already noted, are actually fairly assimilated, and are not deeply steeped in their heritage cultures. And so what we’re seeing here are people who don’t actually have much of a culture, and their only sense of collective belonging comes from claiming to be oppressed. And that creates a tendency to want to balloon any tiny incident or issue that could be interpreted as oppressive into a massive, massive problem. Let’s say there’s a statue there you don’t like, that’s not nearly as much of a problem as the entire system of segregation was in the south in the 1940s and ’50s. But a statue becomes a kind of signal that, “Yes, I am oppressed, and we can all unite around that.” It’s pretty thin gruel, but it’s all we’ve got left to form a basis for identities in the current environment. Richard Reinsch: (17:40)A couple of questions come to mind. So you say courses on oppression as opposed to say positive courses on aspects of other cultures? Going back to 1987, what did those chanting, “Hey, hey, ho, ho, Western culture has got to go.” What did they want to replace Western civilization with in terms of courses? Stanley Kurtz: (17:59)Well, that in a way is the heart of the matter, they didn’t really have a very good sense of what they wanted to replace it with. And of course, we know that the problem of the left in general from the ’60s on, is that they have a much more enthusiastic sense of what it is they want to get rid of than what they want to replace it with. And we saw this playing out at Stanford, because when the traditional Western Civ requirement was swept away, first of all, very few of the junior faculty members who had pushed for that change actually proposed to teach a course in the new mode. It was supposed to be called culture ideas and values. It was supposed to essentially be a course about multiculturalism. And few teachers even made a proposal to do it. And the few courses that were actually taught along those lines, turned out to be confusing, incoherent, and ultimately very unpopular with the students. So the requirements collapsed. And Stanford has been lurching ever since they got rid of their very popular Western Civ and Western culture requirements. They have been lurching from one set of required humanities courses to another, and none of them really had any kind of defining center, and they didn’t inspire the students in the way that the old courses did. And one of the things I argue in the book is that this stands for something larger, the people who are critiquing America today and the American tradition in the name of something, multiculturalism, intersectionality, whatever you call it, don’t really have a significant alternative. It’s not as though there is a society in waiting that has its own coherence and its own ability to unite us as a people that they are waiting to put in place of what we have now. It’s much more the case that what they have is chaos. We saw this in a miniature level on the campuses, and I’m afraid we’re facing this on the macro level today. Richard Reinsch: (20:13)You argue this incident at Stanford really illustrates the first use or very expanded use of the charge of racism. Obviously, a very powerful term. But you go back and you look at arguments that were being made against the western civilization course, by arguing that it itself was racist, even though there was no intention, nothing in the course that was meant to be racist. But because of the way it made someone feel potentially or challenged them, that that was racist. And of course, we see that now writ large all the time in the sense of well just American constitutionalism is racist, or capitalism is racist. And the Jews argue that that’s where it started, in that instance. Stanley Kurtz: (20:58)Exactly Richard. Right now, we actually see that in some ways the presidential race is turning around this idea of systemic racism. We see that Vice President Biden and Kamala Harris, both fairly straightforward and enthusiastic, and they’re used to the term systemic racism. And we saw this with most of the Democratic presidential candidates, and then President Trump has opposed this, and he’s ordered the federal government to stop teaching critical race theory. So we can almost at this point, if you’re young enough, take for granted the fact that an accusation of racism is something very broad, that it can be brought into almost any ordinary political policy difference. But in fact, this is not the usual, and it’s not what racism originally meant. Originally, of course, it had more to do with people who believed in the genetic inferiority of a race and the fact that that was in their view, their bigoted view, have necessitated a kind of systematic segregation of the races. And so how did we get from the one point to the other? And I do think Stanford was a turning point. When the accusation is made that just teaching Plato and Aristotle is racist, and creates racist, then you’re beginning to get the first glimmers of a major public national argument, where the claim is made that something that doesn’t have anything to do with a direct intention of racism is in fact racist. And what we saw at the time, if you actually go back to this period of the Stanford dispute in 1987, in 1988, we see that traditionalists who supported Western civilization courses were completely shocked by these accusations of racism applying to the great books, and Plato and Aristotle. And they called it McCarthyism. They called it a kind of McCarthyism. And they said, “This is an academic setting. We’re supposed to have a debate on the merits of how we construct a course here. And you’re using these high powered accusations when we’ve already said that we’re very happy to add books, by say, Simone de Beauvoir and Frederick Douglass, we’re very open to that. And yet, somehow you’re calling this course racist, and you’re calling us racist. And this is a smear on the order of a McCarthyite smear, and not something that has a place in the academic setting.” And I think the irony is that now, that is probably the main thing that happens in an academic setting. That there are a whole academic disciplines now or sub disciplines dedicated to finding subtle forms of systemic or institutional racism in almost everything and everywhere. This has actually become the central stuff of academia, and it’s become perhaps the central dividing line in our politics. And so that is a very problematic thing. But again, as I argue in the book, it is ultimately a way of giving us a kind of substitute for the communal and religious meanings that we seem to have lost. It’s a way to give us a kind of collective cause to cling to, but it results in a lot of inaccurate global unfair accusation. Richard Reinsch: (24:26)Yeah, the systemic racism, it’s funny just before we got on, I was reading a story, the student life director at Berry College in Georgia was dismissed yesterday for denying that systemic racism exist. So it’s a very powerful term. And I wonder though, when people are saying this, is it to say that the very structures of America are racist. So therefore, at one level, obviously, there’s been a lot of racism in America. On another level, we’ve done a lot to eliminate any institutional ability to oppress people, particularly through government. But it’s almost as if when I say systemic racism, it’s because of this past racism therefore everything is systemic, or something like that. Stanley Kurtz: (25:13)Right. I think one problem with the whole charge of systemic racism is that it’s difficult to define. And one of the things I say in the book is that this was true as well of the term multiculturalism. In fact, I find some multiculturalists actually acknowledging that the term doesn’t have a fixed meaning, that it is in fact, in effect, a term that can be deployed by interest groups on behalf of whatever they want for contradictory goals depending on their political interest at a given moment. So at one moment you might get accused of being a racist for not acknowledging a cultural, racial or ethnic difference. And that the next moment someone might turn around and say the fact that you have highlighted a difference by race or ethnicity or culture means that you are a bigot. And you never know what’s going to hit you. I think some people who are saying systemic racism, what they really mean is, “We’re socialists, and we don’t like the system.” And by slapping the word racism on it, they find a convenient way to scare people into not talking back to them. And if anyone dares talk back, that just the fact that they’re rejecting the racism accusation is a way of saying, “Well, then you must be racist.” So that’s one way it works, I think. And in another sense, people often look at any disproportion at all in economic situation, or any other kinds of benefits that can be observed statistically between different races, ethnicities, people of different national origins, it can be attributed to systemic racism. It may on the contrary be that because of complex historical forces, and because of current cultural views, let’s say the collapse of the family which has particularly been strong in the black community, that might explain some of the differences in educational achievement, rather than racism per se. But if you say it’s all because any disproportion in statistics is because of systemic racism, you have a way of deflecting attention from the strengths and weaknesses of the cultures of different communities. And so it’s sometimes a way of just dismissing the claim that there is a cultural component to why some communities do better educationally than others. Richard Reinsch: (27:42)But in listening to you say that, and thinking about your discussion of the regimes of truth, it brings up some interesting questions too. So one way of dismissing say the teaching of Western civilization was to employ the post modernism, the deconstructionism, there is no such thing as culture. What could possibly be a civilization? you’re just sort of inventing things on the fly to justify what you want in this sort of business. And of course, in a way and now people argue, well, the problem is relativism on the left. They actually have a lot of moral certainty and objectivity about what they believe in. But it is the case it seems that though, and you make this point and thinking about it, there is sort of like a relativism always there that enables them to sort of justify as you try and puzzle through systemic racism. I was thinking, and just like the arguments we get for gender identity, it’s either hardwired or now we’re increasingly told it’s a choice. But in any event, it’s all good. And maybe you could tease that out a bit. Stanley Kurtz: (28:49)Absolutely, that is indeed another theme of the book that there is a kind of incoherence built into the postmodern critique, which simultaneously exhibits radical skepticism and at the same time, utter moral certainty. So for example, the work of Michel Foucault, the French postmodernist who is tremendously influential on our college campuses today, suffers from this incoherence. On the one hand, Foucault wants to argue that there is actually no such thing as truth, that what you call truth… Let’s say that your truth is that there is something called Western civilization, and that that is a great tradition and needs to be studied and understood. And he’s saying actually, no, that is not… He’s not saying it’s false, so much as that he’s saying, “That is your truth and your way of speaking, and that way is actually a technique to give you power and control.” So what you’re really looking to do by speaking of Western civilization, is to get control and power over people who you call uncivilized. So I’m not even going to bother, I Foucault, about proving you right or wrong as to whether there is a Western civilization and what it consists of. Instead I’m going to analyze all of the subtle ways in which your talk of civilization is really a way of dismissing and demeaning others and giving you power over them.” But then you turn around and see that Foucault who has thrown out the whole enterprise of trying to find what is true, is himself making a truth claim. He’s making a claim that people’s arguments about truth are really a way of grabbing for power. And that is a kind of moral certainty at the base of his way of thinking. And if you tease it out, as I tried to do in the book, you’ll find that that is actually coming from the great intellectual tradition of Western civilization. The Foucault in an implicit way, depends for his effect on our outrage at the idea that someone would be trying to grab for power over a weaker and oppressed group. And that touches on our basic, classically liberal belief in liberty and equality- Richard Reinsch: (31:29)Justice. Stanley Kurtz: (31:29)… and all of the ideas that Americans hold dear, but that Foucault says are a bunch of nonsense. So he simultaneously is exhibiting a very Western way of looking at things at the very moment that he is trying to say that it’s all nonsense. Richard Reinsch: (31:44)Yeah, I was thinking as well the relativism you’ve already cleared the ground, and okay, so there’s nothing left. And yet man needs meaning, man needs purpose, some sort of direction. And that racism sort of was still there. Still one thing that a lot of people agree on as wrong. And that sort of fills a power void, an existential power void in people’s lives, particularly on campus, and becomes sort of this guiding ethos for how to organize campus. And I was thinking recently, Glenn Loury has been very strong in the past few months in speaking out against a lot of these claims. And he opposed his own Brown University where he teaches, which issued a letter basically signing the university off on a social justice mission. And he argued that this is completely at odds with the ethos at the university. But then you kind of argue with this, there’s all sort of flows from it’s the relativism dialectic turning into certainty around this one thing of race. Stanley Kurtz: (32:47)Absolutely. One of the things I argue is that morality in general, used to turn around the idea of personal sacrifice on behalf of a community that was larger than yourself. So you will sacrifice on behalf of the family, of the neighborhood, of your religious community, of your nation, or of your civilization. And in the current mode, many of those communities have broken down, and we’ve become much more atomized as individuals. And that stands behind this comprehensive sense of skepticism about larger narratives of history and community. It really is the energy that feeds all of the skepticism. But as an atomized individual, one of the few things that you have left to believe in, is your individual freedom. You may no longer connect that freedom to this great Western tradition and this great American tradition flowing from the declaration and the Constitution. You now find those unbelievable and unpersuasive, and yet somehow, as an individual, you simultaneously and in a contradictory way, feel outrage about anyone trying to step on your rights or to oppress you and take away your freedom. And so the one thing that can bring you into unity with others, into some kind of at least temporary community is a crusade to fight against oppression. And that means that the only way to find larger meaning in your life is to find oppression everywhere. If there is no crisis of oppression, then you are an isolated atomized individual who no longer even believes in your own country or civilization. But if you can find oppression somewhere, even if it’s only coming from an inert statue, then all of a sudden you can galvanize a protest group and have meaning and excitement in your life. Richard Reinsch: (35:04)As I read your diagnosis there, which I largely agree with, I read your book, I finished it yesterday. And it filled me with great sadness, and almost pessimism because that those underlying problems are only getting worse. And sort of the people separated from community, from family, from their history. I mean, obviously, we haven’t really taught our young people much history. And so if that’s true, then those underlying factors get worse than the turn towards the anti racism continues to grow and metastasize. Stanley Kurtz: (35:35)Well, that’s right. And I’ll give you a pessimistic and an optimistic take. Richard Reinsch: (35:40)Okay. Stanley Kurtz: (35:40)The pessimistic take is, and we touched on it already in this conversation, that what divides us is not belief in two coherent alternatives, which could somehow be compromised, or even with the triumph of the new way could somehow build a new and coherent society. Really, we’re dealing with a contrast between the traditional American sense of citizenship on the one hand, and a critical perspective that has no real coherent social or cultural alternative to provide. And without that, one has to be very pessimistic about the future. At the same time, on a more optimistic view, I have argued that although it’s contradictory and incoherent, there is still something profoundly Western about the critics of our traditional American system, about the people who have fallen away from it. And that it’s possible that they might be able to recognize this and understand their kinship to the various traditions that they have rejected. And if that begins to dawn on people, I think it creates a basis for some kind of reconciliation. Because the truth is we are all still very Western and American. And it wouldn’t be that difficult, if we wanted to recognize that our founding principles, and the great tradition of liberty developed in the West is actually something that unites us. That we’re fighting over conflicting interpretations of concepts that we still hold in common. And that I think, is the possibility that just might save us. Richard Reinsch: (37:29)In this regard too, it’s been interesting talking to another of academics teaching Frederick Douglass, or Martin Luther King, and being told by students that this is sort of ridiculous. That in a way they were playing right into the white power structure with their arguments, and why would we even need to learn this? And I guess that also fills me with pessimism, because if there are bridges to bring these two perspectives into conversation with one another, surely it’s someone like Frederick Douglas and his background and experiences and then appealing back to the Declaration of Independence and the Constitution to try and show the goodness of America. And that course just being rejected outright, that also a bad sign, to put it mildly. Stanley Kurtz: (38:18)Well, that’s true, but I will say this is not an entirely optimistic reply, but it is a reply of sorts. Remember that the ’60s at their height had a kind of collapse. There was a collapse there. Eventually, the hippie communes broke up, and the druggies sort of overdosed and snapped out of it. There was no real place to go from the ’60s. Yes, it seeped into our culture since then. But the ’60s was never able to build a coherent alternative. Similarly, the French Revolution collapsed. Now, there was a lot of struggle and strife in France for a long time after that, before they came back to a stable resolution, but I don’t think the current situation is going to lead to a stable alternative. It’s going to collapse of its own extremism. We’ve already actually seen perhaps a glimmer of that. When you see the unprovoked murder of these police officers, and then demonstrators trying to block the hospital saying, “I hope you die.” This is the sort of thing that is already I think, probably beginning to snap people out of it. Where you look at Minneapolis, where now they’re beginning to worry. They started to say they were going to disband their police, and now people are complaining- Richard Reinsch: (39:36)Where are the police? Stanley Kurtz: (39:36)… there are no police. There’s nowhere to go from this perspective, and they’re going to hit the wall, and then people are going to rethink. Richard Reinsch: (39:45)Yeah. That was sort of my next question, is what sort of community can one build within an ideology like intersectionality. Some of it is made of these dynamics that we saw say in the French Revolution, the Russian Revolution, where the most radical group wins. But what was actually won, and what could they actually build? Stanley Kurtz: (40:08)I think that’s true. Although now to switch on to the pessimistic side, I think that’s true but when you look over Russia, you see that they were able to sustain this unsustainable for 70 years, and they haven’t done very well for themselves since then, either. So I do think America has deeper resources culturally than that. We have a larger bank of cultural capital, so to speak. So I don’t think we’re necessarily quite as badly off as Russia was. But you never know when will you have one of these unsustainably radical perspectives knocking down what has been built with such care, you could have a situation as say in the ’60s where things turned around, and we actually got in response to the ’60s, a period of relative conservatism, at least on the political level if not the cultural. You could have a relatively quick turnaround, because America has good cultural resources, but sometimes you can have a long period of an essentially untenable situation, which only collapses of its own weight after a long time. And it’s tough to say what the future holds. As Yogi Berra said, “Predicting is hard, especially the future.” Richard Reinsch: (41:20)The future takes a long time. Stanley Kurtz: (41:22)Yeah. Richard Reinsch: (41:23)Final question for you is just higher education, the future of it? And I think, particularly in the light of the last few years, is there a future for humanities in higher education in an authentic sense? To my mind, if there is it would require pretty extensive federal government action to bring it to bear and actually return it to what it was or what it could be. Stanley Kurtz: (41:51)I think there’s a place for federal action, particularly cutting money, and maybe some other things as well such as campus free speech legislation. But I make an argument in an essay that came out a couple months ago. In the American mind, I kind of lay out a broad strategy for how to take back the academy. And I actually think the largest task falls back on ourselves. There is actually, I would argue, a majority of Americans at this moment who are unhappy with the academy. This includes not only Republicans, but many independents, and many moderate Democrats. The problem is that they aren’t organized. This is a classic case where a particular interest group, the people within the academy itself, and they have a very large and powerful lobbying arm, exercise disproportionate power, because the general public is not activated and organized. What if there was a lobby group, like the NRA on the right, or NEA on the left? What if there was a lobby group in favor of reforming the academy? If there was such a group, and millions of people signed up and gave in their membership fees, and then the leaders of that lobby could walk into state legislators and Congress with those legislators knowing that whether they go the way that this person favors or doesn’t favor, means letters going back to a very large national membership, saying that this person is in favor of shutting down free debate on college campuses, or this person is trying to help us, then I think that the dial could move. And we haven’t even tried to do that, haven’t even realized that we need to do that. So I lay out a number of ideas like that in this article. I think it’s possible to win, but we’ve got to get a better strategy and I try to lay one out. Richard Reinsch: (43:46)Well it’s interesting. I look forward to reading that. Stanley Kurtz, thank you so much for joining us. We’ve been talking with the author of The Lost History of Western Civilization. Thank you. Stanley Kurtz: (43:56)Richard. Thanks so much. Richard Reinsch: (43:58)This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk, available at lawliberty.org.

Richard Reinsch (00:04): Today, we’re talking with Dan Mahoney, one of the principal founders of Liberty and Justice for All, a new statement and declaration of the right kind of unity about American citizenship and education and constitutionalism. We’re going to let Dan tell us more about that. Dan is a frequent guest of Liberty Law Talk, and we’re glad to have him on. He’s the Augustine Chair of Distinguished Scholarship at Assumption College. He’s the author of a number of books, including The Idol of Our Age: How the Religion of Humanity Subverts Christianity. He’s also the author of The Conservative Foundations of the Liberal Order and The Other Solzhenitsyn. Dan, glad to have you on. Dan Mahoney (01:05): Delighted to be back, Richard. Richard Reinsch (01:07): So last time we were talking about CHAZ which then became CHOP, Capitol Hill Organized Protest in Seattle. We were discussing how the city government of Seattle could allow, in effect, 10 blocks or so of its city to be taken over by Antifa, various thugs, left-wing protestors, who we now know worked a great deal of damage. And so we know this was a microcosm effort of a lot of problems and unrest and unsettlement in our country. And we talked a lot about that. You’ve now become a part of an effort which I’m also a part of called “Liberty and Justice for All.” Maybe tell us about that. Dan Mahoney (01:51): Yes. We published an open letter with 173 signatories. The founders of the effort were myself, Mark Mitchell at Patrick Henry College, Jeremy Beer publisher of The American Conservative, and Joshua Mitchell the Tocqueville scholar at Georgetown, who has a book coming out from Encounter this fall called American Awakening which is actually about the tyranny of despotism. We all consulted after I had published my essay on “The Culture of Hate” at RealClearPolitics around the 4th of July. My colleagues contacted me and said, “We need a concerted effort to speak up in defense of American principles and institutions and against this nihilistic violence and mayhem.” We were all I think, stunned by the fact that this open assault on our history, on our institutions, on the symbols of the American Republic, on our Western inheritance was being met by so little resistance. The Republican Party was acting as if this was just business as usual, this too shall pass. Trump was really the only one speaking up most notably in his very powerful Mount Rushmore address, which was uniformly attacked by mass media. So we put our efforts together and we decided our best approach was to write an open letter to our fellow Americans laying out in bold, but spirited, but nonetheless thoughtful arguments, to weigh exactly what is at stake if those who are committed to the destruction of the American heritage win. And that’s what we did. We laid down the fact that this movement is destructive and not constructive. That it’s not dedicated to reformation which depends on conservation, but is instead dedicated to a full scale assault on America. We also, I think were particularly concerned by the way in which admirable aspirations and principles were being used, especially facile and ideological appeals to justice and inequality. And I should add we were deeply concerned by the iconoclasm the tearing down of statues, the efforts to cancel Lincoln, Frederick Douglass, Junipero Serra, the great saint in California, the ignorance of the mob as they tore down abolitionists and anti slavery people. And we were, I think, deeply concerned about la trahison des clercs, the betrayal of the intellectuals, either at worst endorsing and vigorously endorsing this madness and nihilism and at best simply excusing it, so that was the genesis of our effort. As I said, we had 173 signatories, many very distinguished people, including yourself from a wide range of backgrounds, many conservative, some liberals, many among what I call the unclassifiable people who are not easily ideologically classified. And since the publication of the letter, in RealClearPolitics about 10 or 11 days ago, we’ve had 1,000 people sign on and about another 1,000 who can’t sign for one reason or another, given the power and intimidation of the cancel culture, but who want to be on our mailing list and implicitly, I think endorse our aim. We want this to be an ongoing effort. We’ve followed up with a series of op-eds by Dr. Mitchell, myself, Mark Mitchell, Roger Kimball, and you’ll have a piece on the nature of despotism. Roger Kimball has a piece on the subversion of American education. So we want this to be an ongoing effort as you said, in defense of constitutionalism, the rule of law, and of the fundamental nobility of the principles that underlie the American proposition. Richard Reinsch (06:25): Where can people listening right now, where can they find this, the statement and sign up and make their- Dan Mahoney (06:31): Yeah, you can sign up and don’t be concerned if your signature doesn’t show up right away. We have to verify to make sure there’s not spam and that kind of thing. You know, people can write anything down. So it’s not an automatic process, but if you sign it and you’re committed to it, your name will appear once everything is verified, you can go to the Real Clear Foundation, do a Google search, Liberty and Justice, open letter Liberty and Justice For All. Richard Reinsch (07:29): Realclearfoundation.org, I think is the website. That’s certainly where I found it. So thinking about future goals, building something of a movement, what are future plans, things you want to do? Dan Mahoney (07:41): Well, right now, we’re concentrating on the series of op-eds that develop and clarify and move forward the ideas and inspiration of the letter. I think that will continue for a while. We also envision putting together a series of conversations, perhaps where the signatories of other letters that take a different tack opposing the cancel culture and the new liberalism but I think I know of one such effort that concentrates in higher education. Of course there’s the corporate letter, I’m not sure if their signatories will want to talk to us but we want to talk to them. We have one common signatory, the admirable, independent, black linguist, and intellectual, John McWhorter. I should add, we’ve also partnered, this was this letter was co-sponsored by 1776 Unites. One of our organizers and initiators, Joshua Mitchell is on the board of 1776 Unites. He’s very close to Robert Woodson. 1776 Unites is a group of mainly African-American intellectuals. Robert is a bit of a community organizer in the best sense of the term, but who are committed to American principles to the constructive, and salutary, and truthful role of religion and to the hope inherent in the black experience, and then the American Republic, the American proposition. A wonderful group of people, John McWhorter, Wilfred Reilly, Carol Swain, John Ward, people around Robert who really challenged this narrative that American principles offer nothing for black men and women, or that Lincoln is a dreaded racist who needs to be canceled, or that there is no hope and that blacks are simply victims without agency, and that the majority population in this country are simply white supremacists and oppressors who are beyond redemption. So I think that a prominent crew of both very gifted and serious African-American intellectuals are working to unite the American people to see how the principles of ’76, should bring all of us together to be a source of constructive engagement, moving toward a more dignified future while building on what’s noble in our principles and in our past, while being fully cognizant of the injustices that mar the American experience. So that collaboration with 1776 Unites is very important to us. I believe our letter is also available on the 1776 Unites website. Richard Reinsch (10:36): You mentioned in the letter the signatories’ concerns about free speech being eliminated largely through cancel culture. It occurs to me the First Amendment could be nullified without it being repealed if cancel culture continues because of just the self-censorship that will occur. Representative government, you mentioned that, being sort of undermined as debate becomes difficult, and as these very drastic measures are constantly asserted to be the only way certain institutions like city councils can deal with difficult issues like police reform as in defund the police. And then also you mentioned federalism, market commerce, education, family, and religion. I want to talk briefly on market commerce, just because of the centrality that that’s played as you know, in conservative thought throughout or since the post World War II period. And then the incredible weight that it had after the Cold War. You mentioned two problems in this which will be well-known to our listeners. The threat of crony capitalism, where those who are entrenched in power can use that power to make more money for themselves but foreclose opportunities to others. But you also mentioned woke capitalism, and I thought that was apt and correct, but we’ve got these two problems here, woke capitalism and crony capitalism. What does that mean? Or how should conservatives think about the market in light of the challenge whereby corporations whom we’ve always largely been friendly towards now seem to be actively working against not only conservatism and the causes that they support, but even perhaps the country itself, eating away at their own foundations, it seems to me. Dan Mahoney (12:29): Yeah, I’m a great admirer and I think you are of the writings of Irving Kristol and to a lesser extent, Wilhelm Roepke. And there’s this conservative, liberal defense of the market that both men articulated in the ’40 and ’50s for Roepke for ’60, ’70s, and ’80s with Kristol. It made the point that the market economy is not self subsisting. It depends upon the bourgeois virtues. It needs to be instantiated in a political order which is a commercial republic, it depends on virtues that it sometimes undermine. So this is why Kristol famously in his 1978 book called for Two Cheers For Capitalism. Not because he thought the market mechanism was inefficacious or should be replaced, but because market efficiency when liberated from the larger republican order that grounds it and forms it can be self-destructive, and I think we see that with both crony capitalism, which is really something in a different language and somewhat different form, something that Adam Smith warned against in the Wealth of Nations. Richard Reinsch (13:46): Yes. Dan Mahoney (13:47): That he was never more nervous than when merchants were conspiring against the public good. And woke capitalism, I think is a phenomenon that is tied to corporate capitalism as Irving Kristol pointed out has always been a problem, it’s not that it doesn’t serve productivity and economic efficiency. And I think you’re right that classical liberals and conservatives in America have defended the corporation against demagogues and criticisms, and we were right to do so. But on the other hand, when corporate capitalism simply ignores all the other goods that inform patriotism, the family, tradition, that inform what’s serious to liberal republican order, when corporate capitalists try to buy off socialist demagogues, or also promoting the moral dissolution of civil society, I think these people have to be actively opposed . This is an old phenomenon, many an anti-totalitarian has quoted Lenin’s famous line about the capitalists giving us the rope to hang them with. There’s a long line of history of how Wall Street and corporate capitalists appeased or tried to do business with the Soviet Union, Nazi Germany and this kind of thing. I think we see it today with the People’s Republic of China, we see it with the NBA in China. So our manifesto, our open letter is unequivocally in favor of the principles of the commercial republic, of the viable right of private property, of the indispensability of the market to both liberty and the prosperity of the American people. But yes, we do see the capitalist class complicit in the moral and economics divergence of the American Republic through both woke capitalism, but also crony capitalism. A desire in a way to do an end runaround the market, through the politicization of economic life. So I think when we wrote this letter, we were very careful to add those two because we’re putting together a coalition of independent minded people, none of whom are committed to, or naive about socialism or Marxism, and many of whom see these problems with not so much, I would say the economic order, as the culture that has come to replace the old bourgeois values and virtues. So it was important for us to say that, I think. I think a defense simply in private property in the market against socialism would not have satisfied the majority of our signers because our moral situation today is quite complex. And I think a fulsome defense of the market and the commercial Republic has to take into account these real problems. Richard Reinsch (16:59): I wanted to ask you just briefly before we got on today, I was reading and my friend Phil Magness pointed out and he’s been following the 1619 Project that The New York Times, and he’s caught them red-handed with screenshots, evidence that they’ve surreptitiously been editing the 1619 Project. To take away some of the more strident claims, false claims that they made at the beginning of trying to move away from saying that 1619 was the beginning of our country, which was their first claim. And also moving away from this idea that America separated itself from great Britain in order to bolster the institution of slavery. Dan Mahoney (17:46): Not only an absurd claim… Richard Reinsch (17:47): Not only an absurd claim but they… So we’ve got The New York Times, the paper of record, editing its own website without telling anyone, which is to the extent that there are ethics around online journalism, if you make any substantive edits, you’re supposed to draw attention to it, they did not. And then we’ve got the Black Lives Matter movement on their website, basically taking down their claims that they want to abolish the nuclear family, as well as Marxist-inspired language about business, etc. removing those from its website. And I thought to myself, is that an indication already of some good news for us, for those of us who are trying to repel this movement that they’re editing themselves, surreptitiously taking off these factual errors and ideological claims that most people think are bogus already, an indication that they’ve overshot the mark? Dan Mahoney (18:40): Well, they did overshoot because they engaged in what the political theorist, Gerhart Niemeyer once called a total critique of the West and a total critique of America. And total critiques are always tied to totalitarianism because total critiques, demand negation and destruction. So they did overshoot and people have begun to notice. Now, I don’t for a second believe Nikole Hannah-Jones and the ideologues as the participants in the grievance industry around her have changed their minds at all. It’s just that they are worried that their project will be less the source of a new orthodoxy if the more egregious ideological claims remain. But look, when Charles Kesler early on during this revolution published a piece in the New York Post called “The 1619 Riots,” Nikole Hannah-Jones, tweeted that she was proud of that. In other words, this is the same woman who said when we destroy property we’re not committing violence. We know the amount of property damage and the violence that accompanies that, it is a form of violence but other even more incendiary forms of violence accompany it. They are stepping back a bit I mean again, the trained Marxists, the ideologues who inspired and lead BLM are still trained Marxists, are still committed to the deconstruction of the family, still hate capitalism, still believe in an ideological Manichaenism where blacks and LGBTQ people are all innocent by definition and forever, and where whites and others I suppose Jews are forever guilty. So nothing has changed. But I think after four months of audacity, violence, mayhem, and the utter silence of the political class and of the Democratic party, a good part of the country is waking up. You could see it in the declining support down from 66 to 44%, I think for BLM, people are now making distinctions we made four months ago between an affirmation that all black lives matter and all lives matter, and the claims of the BLM movement. So I think we’re in a better place now, even than when I wrote my “Culture of Hate” piece in July or late July I felt very alone and I really was stunned by the whole silence of the conservative political class, even more so the Republican party. And I think people are beginning to see, and they’re beginning to see in part, because the idealogues push so hard so quickly, so boldly, so nihilistically that it’s almost impossible not to see despite the censorship by the mainstream media. You know, if you just watch MSNBC and CNN, you would not know that our city was on fire. You simply wouldn’t know. Richard Reinsch (21:54): Though the mendacity there, they’re lying and they’re covering up as many people have noted, you’ll have news anchors with fires raging in the background, where they are reporting insisting that this is a peaceful protest or a largely peaceful protest. Dan Mahoney (22:08): By the way, I think that term mostly peaceful protest has become- Richard Reinsch (22:12): It’s ridiculous. Dan Mahoney (22:13): I think people know that mostly peaceful protests include a lot of willful destruction and people have died. Many people have died and many black people have died as a result of this. That’s the dirty little secret about BLM and of course Antifa, they don’t care about black lives. They care about useful black lives who they can appropriate, whose deaths they can appropriate to promote revolution, a revolutionary situation, but for the people who are killed by black on black crime or by ideological thugs, or this man who was just driven to suicide after being charged for defending himself against the mob. They don’t care about any of these lives. I think people are catching on that we’re dealing with the term and radical revolutionary nihilistic movements and not movement for justice. And that took a long time for much of the country to discover. Richard Reinsch (23:20): I wanted to ask you, you know a lot of people listening to us are younger academics, certainly we have journalists, people working in Washington. Some of our biggest cohorts of listeners are in larger cities, New York, LA, Chicago… people concerned about this, but at the same time feeling in the environment that they’re in pretty alone and afraid of voicing it. What would be your counsel to them to at some level to push against this identity politics, and its attempt to remake institutions, including institutions they may be in. Whereas we see though there are not a lot of concrete demands right now coming out of identity politics, other than the sort of these things like defund the police. But there’s this claim I think as you know, within these institutions, that institutions themselves are corrupt, even though no one is actively racist inside of them. Dan Mahoney (24:23): Yes. I mean, look, I don’t want to go so far to say as I’ve given up all hope for our university, but I think the situation in the vast majority of our universities and colleges with a few notable exceptions is beyond lamentable. I think the culture of political correctness is dominant. I think that administrators are foolishly taking new initiatives that whose practical effect is to ratify and instantiate something like critical race theory as a powerful ingredient to the self-understanding of these colleges and universities. I know at my college, the president after George Floyd died decided to have a conversation with recent graduates and present students and a group of radicals highlighted my department, the department of political science, which I think is the only department at the college that teaches and reflects on the civic grounds of human dignity. And yet, because we taught Lincoln and Frederick Douglass and etc. and defended the American founding against calumnious charges that it was a racist or that it was a Republic only for white people that we were singled out for teaching the wrong thing for not being on board with racial and social justice, sort of vague accusation of fascism. I had a student in my class I taught last semester on politics and literature. I did the Russians Solzhenitsyn and Dostoevsky and I was accused of not being balanced in my treatment of revolutionary terrorism and totalitarianism. They can’t make this stuff up. So I have deep sympathy for younger faculty, their internal world, where even the freedoms, and civility, and bright prerogatives that I could appeal to are in the process of either being abolished or disregarded. So I think the project of the future has to be to do an add on to existing institutions. I’m not sure mainstream journalism is reformable, I’m not sure the university is reformable. I think we have to think seriously about a new model of the university that plays by different rules that is committed to liberal education and not ideology, which is not accredited by the existing accreditation agencies. It’s going to be a long-term effort, but it’s got to begin now because otherwise, I mean, look in 15 or 20 years, people might like myself and in three years won’t have a place in the university. We’d never be hired and we’d never be tolerated. I mean, this situation is just that grave. So with the younger people look, I think we have reached an existential moment where one has to decide whether or not you will live by lies in the famous words of Solzhenitsyn, something Rod Dreher writes about in his new book doesn’t mean you have to scream the truth out at every meeting, or you have to make yourself a martyr, but just like in the Soviet Union, even under Brezhnev. Do not sign statements you don’t agree with, do not endorse critical race theory. Do not lie about the American founding for the sake of survival. Do not pretend to be enthusiastic about thuggish, ideological moves. Show some backbone. Richard Reinsch (27:54): I think that’s really a crucial distinction. You know, listening to someone blather on is one thing and thinking about how one opposes them. But I think that’s the crucial move is, do you sign things or admit to things you know are a lie in order to survive? And I think those listening have to make that decision because once you admit to that lie, you lose your witness. Dan Mahoney (28:16): You lose yourself. Richard Reinsch (28:17): Yeah exactly. Dan Mahoney (28:18): And you lose your self respect which is a part of losing yourself. I mean Solzhenitsyn in his great manifesto “Live Not By Lies” 1974, he says, “Let the lie come into the world, but not through me.” At the end of it he quotes Pushkin. He says, “Look, if we’re not capable of this elemental step of not being a vehicle for a lie…” Then he says, “We’re no better than sheep. We’re no better than cattle who are made for servitude.” So we’re not facing full-fledged totalitarianism, although this is more than Tocqueville’s soft despotism. It’s harder than that, but it’s going to demand civic courage. It’s going to demand people who hallow the arch of prudence, do what you have to do so you can remain a presence in the Academy, but do not become a vehicle for the perpetuation of organized mendacity. Richard Reinsch (29:24): Exactly. Well, Dan, thank you so much for coming on to talk to us today about Liberty and Justice For All available at realclearfoundation.org, where people can read the statement of principles that you’ve put forward and decide if they want to sign or indeed send contact information to become part of, of what you guys are doing. Dan Mahoney (29:46): Can I just add if any listener, intellectual, professor, writer, politician is interested, feels committed to these ideas but has some ideas about how we can move forward in constructive intellectual ways, do not hesitate to contact me at Assumption College or the other organizers because we welcome ideas and ideas for new initiatives, ideas for carrying this forward. Richard Reinsch (30:16): Thank you, Dan. All right. Dan Mahoney (30:16): Thanks so much, Richard. Richard Reinsch (30:18): 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 Richard Brookhiser about George Washington and our present troubles. Richard Brookhiser, we’re glad to welcome him back to Liberty Law Talk. The last time he was on, we discussed the book he wrote on John Marshall, and he’s the author of numerous books on central figures in American history, on Marshall, Abraham Lincoln, James Madison, George Washington, among many others. Many of you will know him as a senior editor and writer for National Review, where I learned he’s been writing since 1977 when he graduated from Yale. He authors the column City Desk and Country Life. He’s the recipient of a Guggenheim Fellowship and of a National Medal of the Humanities. Richard Brookhiser, thank you so much for joining us. Richard Brookhiser (01:06): Thank you, Richard, for having me again. Always a pleasure to talk about George Washington. Richard Reinsch (01:11): Great. Thank you. I was thinking about our podcast and it’s not just George Washington. Many figures, Ulysses S. Grant, one that comes to mind. Also figures who are abolitionists. Richard Brookhiser (01:24): Yeah. Richard Reinsch (01:24): Who you would not think their statues would be torn down or desecrated in various ways. The famous commemoration of the 54th Massachusetts Regiment, the first Black regiment, was also; their memorial was desecrated in Boston recently. So a lot of this is happening and we can talk more about that. But it occurred to me, as we as conservatives, as unabashed patriots of America, have no problem defending these figures and we’re sort of puzzled as to why this is happening. Or I think we know why it’s happening, but it still puzzles us. Of course, this also presents trying to have a conversation with people who don’t want to have a conversation, obviously. But it occurs to me, maybe the emphasis is on the wrong foot, and we keep thinking about Washington and all of his contributions. But maybe from the standpoint of who we are in our present condition as Americans, are we worthy of a man like George Washington? Richard Brookhiser (02:23): Well, that depends on us, right? Richard Reinsch (02:26): Yes. Richard Brookhiser (02:26): And that always has to be figured out in every generation. I think Washington did an awful lot, and we can go over the record. But he died in 1799, and he can’t live our lives for us. He could help make structures and precedents that will be helpful to us, and I believe he did that, but we have to make use of them or not. It’s up to us. History never gives guarantees. Richard Reinsch (03:03): When you hear the senator from Illinois, Tammy Duckworth, say now she’s open to a conversation of removing statues of George Washington from federal properties whenever other statues have been toppled, what comes to your mind there? Is there anything beyond just rage at America, or is there something specific about what George Washington represents regarding the founding? Richard Brookhiser (03:30): Well, Tammy Duckworth was injured in service to America, so rage against America is clearly not her only motive if it is one of her motives. The short, tart answer to her would be George Washington is the reason you have your job. It’s the reason that the senator from Illinois is you or some other elected person and not the illegitimate son of the Earl of whatever or the Oxford chum of the First Lord of Treasury. He’s also impressive militarily. He’s not a flashy commander. He’s not like Napoleon, who will be a younger contemporary. But he figures out through trial and error what his strategy for coping with the British has to be. The reason we have representative government and elections and self-rule is because of this Revolutionary generation. The most prominent figure in that generation was George Washington. So in a sense, he’s Tammy Duckworth’s employer, or at least he opened the door for Senator Duckworth and all the other 99 senators and every other elected person in America. Now, we the voters can put whoever we like in those slots and sometimes we put bad people, sometimes we put stupid people, sometimes we put people who don’t know as much as they should know about history. But the reason that we have that option, that we have that choice, is because of this Revolutionary generation. And it was a revolution not just for this country; it was a revolution for the world. You can look at the history of the world for the last almost 250 years and see it as a struggle for self-rule. This encompasses a lot. This encompasses political revolution. This includes de-colonization, the end of the imperial empire rule from Europe. It includes the fall of Communism. It includes the successful resistance to Nazism and fascism. You could even see it as the resistance to racism, because racism is a rebellion against stereotypes that are imposed and then structured, that are imposed on people because of their race. And it’s an assertion of the right to self-rule. That you have as much right to self-rule as someone with a different skin color or a different ethnic background or a different religion and so on. The gunpowder charge that set off all of these struggles for the last 200-plus years was lit in the 13 colonies at the end of the 18th century by our Revolutionary generation. Richard Reinsch (06:28): Thinking about, you say self-rule, self-government, and that, of course, is bound up inherently with moral rule and character and one’s ability to govern oneself. Can we talk about maybe Washington’s character some? How should we think about it? And did the character, was it something that forged an American character? Richard Brookhiser (06:54): Well, I should say that self-rule had better be bound up with character or it gets in a lot of trouble very soon. Many of these revolutions in this era that I talked about ended very badly. The first two that followed our revolution, it was the French Revolution, which began in 1789, and that was really a convulsion that lasted for a quarter of a century. One direct consequence of the French Revolution was the revolution in Haiti, called Santo Domingo before the revolution happened. But then Haiti became the second independent country in the Western Hemisphere and the first Black-ruled country in the world. Those two Revolutions had a lot of problems. There was a lot of chaos, a lot of extravagant shedding of blood, a lot of tyranny, new tyranny that was generated in place of the old forms of tyranny. So yeah, a revolution is not a simple thing to pull off, and one of the things you have to have is good character, meaning you have to have control over your own passions and your own ambition. I think this was the quality of George Washington that maybe most impressed his contemporaries. I mean, there were lots of things about him that were impressive and start with his physical stature. He’s over six feet tall; he carries himself very well. He’s described by Thomas Jefferson, who was a very good horseman himself, as the greatest horseman of his age. Soldiers in the Continental Army always knew when there was a party of officers riding at a distance. They could pick out which one was the commander in chief. It was just obvious, so physically he stands out. Politically, he is very shrewd. This is something that’s kind of hard to pick up in biographies because a lot of it he does behind the scenes. He takes very little open part in the struggle to ratify the Constitution, for instance, but it is clear that this is a document that he has endorsed. He’s working for it behind the scenes, and his presence hovers over the whole debate whether or not we should have a new Constitution being debated in 1787 and 1788. He’s also impressive militarily. He’s not a flashy commander. He’s not like Napoleon, who will be a younger contemporary. But he figures out through trial and error what his strategy for coping with the British has to be. He finds the right strategy. He sticks to it. He works well with our French allies. And he achieves the victory, so that’s impressive. But I think the most impressive thing and the thing that most impressed the people around him observing him, working with him, was a sense of his control over his own passions and his own ambition. I mean, this is a man who becomes the most famous man in America, the most famous American in the world, and he goes home twice in his career. He goes home at the end of the war, and he goes home after two terms as president. How many other Revolutionary leaders, how many political leaders, do that so willingly? Now, the list is rather short. But he does it and he does it not just once. He does it twice. I have to tell this story because it’s just so great who says it. When he announces in his farewell address, which was not a delivered speech. It was a published speech that was published in the newspapers. He never spoke it out loud. But he announces at the end of his second term that he’s not going to stand for office a third time. When the news of this comes to England, George III has a conversation with his favorite painter, a man named Benjamin West who was born in America but moved to England early in his life to perfect his art, and he eventually becomes the favorite painter of the king. So George III and West are talking about this, and George III says that Washington’s retirement from the presidency, he says, “This completes the whole. This makes him the most impressive man, the greatest man now living.” So that’s the tribute to George Washington from the other George, George III. I think it’s to George III’s credit that he could say that, but it’s also a very important observation to make, that Washington completes his career not only by doing what he does, but by not doing what he doesn’t do. Richard Reinsch (12:13): On that, this control of character and humility, there’s this Rules of Civility that Washington copies out by hand I think as a teenager, and it was over 100 rules of social etiquette, manners, mores, grace. Interesting, I mean, a interesting thing for a teenage boy to do now. I’m not sure then. But talk about that because that seems to me something that indicates he aspires to something more. He wants to learn some of these hard rules of how to interact with people who are better than him or higher-born or advanced. He wants to impress them. One of the things he thinks is, “Well, I’ve got to learn the rules of how to interact, and I need to commit them to memory.” Richard Brookhiser (13:04): Right. Absolutely. We have to remember that when he starts off in his life, I mean, he’s certainly fortunate in the sense that his father belongs to the gentry in colonial Virginia. This was not a poor background or even a middle-class background, but this was in the gentry class, the class of the people who would participate in ruling the colonies. But Washington’s father, Augustine Washington, was at the lower level of that class. He was coming up in the world, and then he died. He dies suddenly, which was common in Virginia. There was a lot of disease, a lot of early death. So Washington is left fatherless when he is a boy. His father had two marriages. The first wife dies and he married again. Washington was the eldest son of the second marriage. His older half-brothers were both sent to England for some education, not college but pre-college schooling, and probably George would also have been sent there if his father had lived. His father didn’t live, so he doesn’t get to go. As far as we know, he might’ve had some one-room schooling in Virginia. He might also have had a teacher, a tutor, rather. There’s passing references to this and correspondence, but so far as we know, his formal education was very slight. Maybe only Andrew Johnson and Abraham Lincoln have less, of all our presidents. So here he is. He’s got one foot in the door, so to speak. Maybe a couple of toes, but he’s not all the way inside. So how do you get inside? How do you get up in the world? His older half-brother has married into a very wealthy and fancy family, the Fairfaxes. The head of the family, who’s an English lord, he owns a chunk of Virginia which is the size of the colony of New Jersey. This is the state of New Jersey. That’s the Fairfax grant. One job that young George gets through his family connection is to help survey this huge tract of land, which stretches over into the Shenandoah Valley and the mountains beyond. This takes him away from the Tidewater when he’s a young man. It’s one of his first experiences of the West. Unlike a lot of other American leaders, he’s always looking west. He’s not a merchant dealing with England looking east. He’s looking west into the back country. But anyway, here he is and what’s he going to do with his life? So this little book, the Rules of Civility, that we’ve been talking about, someone at some point gave him this. Maybe it was penmanship: “Here, George. Copy these out. Now, there’s a hundred ton of these things. You rewrite them yourself.” We can tell from his copy that this is at least in part a penmanship exercise because the capital letters are very elaborate and it’s like a kid saying, “Oh, look. I can really do a nice capital P. Look at this.” But these rules, you have to say he’s paying attention to what the rules say. They’re called the Rules of Civility and Decent Behavior in Company and Conversation. So this is how do you behave with other people. The first rule explains all the other ones; it sets the tone for all the others to follow. It says, “Every action done in company or conversation should be done with some sign of respect to those who are present.” In other words, here you are in the world, all these other people. You’re going to know some of them. Some of them are complete strangers; you’ll only meet them once. Some of them are your superiors; some of them are inferiors. But everything you do or say in their presence, you have to be aware of them, and you have to give them their proper respect. What’s interesting, this even includes condemned criminals. Because one of the rules says, “If you see a man punished for a crime, though you may be glad, always show pity to the suffering offender.” So that’s even a counsel of a little hypocrisy. You may think, “Ah, he got his just desserts. Good. Keep him in the stock.” But no, you don’t show him that. You give him a nod: “Sorry. Sorry to see this,” something. Always show pity to the suffering offender. So even a condemned criminal is worth a little bit of your attention and a mite of your respect. So these rules are a lesson in awareness, in awareness of other people and also awareness of yourself, how you’re behaving among other people. Obviously, there’s a practical point to this. This helps you in society. It helps you in social gatherings. It tells you how to behave to Lord So-and-so, who may be or maybe not giving you some sort of position that you want. But it is also at the same time shaping your character. Because if you’re thinking about this, if you think about this consistently, you’re going to alter your own behavior. It’s like working from the outside in. You control the way you walk, control the way you talk, control the way you dress, how you interact with people. This is like acting. This is like you are preparing the role of yourself as a person in society. You’re training yourself to act a certain way in society. That’s what the rules are supposed to do and that’s what they did for Washington. Richard Reinsch (19:11): Now, this just sounds horribly wrong to us, I think. Aren’t you supposed to be yourself? Richard Brookhiser (19:19): Right. No, that’s right. That’s right. Just some decades later, we’re going to get authenticity. That’s going to come in. That comes in kind of end of the 18th century and then early 19th century big-time: what is yourself. One of the things John Adams says is Washington had the gift of silence. Adams says, “I esteem that as one of the greatest talents, the gift of silence.” Washington could just keep his feelings to himself. He was not putting them all out there. He would not be on Twitter. Richard Reinsch (19:33): Transcendentalists, yeah. Richard Brookhiser (19:35): Well, Transcendentalists, Romanticists, it takes many forms. But it’s a whole wave of that. And Washington is a little bit before that. We also have to say, Washington needs these rules because there’s some skills he doesn’t have. I mean, he’s not a storyteller. He’s not a joke teller. He’s not like Abraham Lincoln or Ben Franklin, somebody who has a million stories and can just entertain and distract with company. Though Washington apparently liked good stores. He liked to hear other people’s jokes, but he was not a teller of jokes himself. So there’s some deficiencies he has, some things he has to compensate for. This training begun with the Rules of Civility helps him overcome that. Richard Reinsch (20:25): He struggles with anger for most of his life, I’ve always read. Richard Brookhiser (20:29): Well, yes, he had a temper. He had a temper. We forget this because you look at Mount Rushmore and you look at the quarter in your pocket and you look at the dollar bill in your wallet and these are not angry faces. These are kind of marble visages. But he did have a temper. People who worked closely with him knew that. And the interesting story about that is how rarely he let it loose. I mean, there was one occasion in the Revolution at the Battle of Monmouth. This was in summer of 1778. It was after the Valley Forge winter, which had been this terrible winter. The American Army was cooped up outside of Philadelphia, which the British had conquered. Lousy supply, poor food, terrible deficiencies and uniform clothing and all the rest of it. But during this winter, they’d drill and they trained. This is when Baron von Steuben shows up, and he institutes a drill for these American soldiers so that they can maneuver in the field and respond to commands and fight more effectively. The Army learns this. They become proud of themselves for their new knowledge. Then when the British leave Philadelphia because France has entered the war and they have to reconstitute their forces, reconcentrate them. So they’re marching from Philadelphia back to New York. We’re following. We catch up with them at a place called Monmouth Court House in central New Jersey and there’s a battle. Well, the man in charge of the attack, it was supposed to be an attack on the British rearguard, was a general named Charles Lee. He and Washington had hit it off at the beginning of the War. Lee was very charming, very amusing, very eccentric. He was an English officer who’d moved to America and sided with us. He had a lot of professional experience. He knew a lot. He impressed Washington early on, but he was just a loose cannon. As time passed, it became clear that that’s who he was. When you got beneath the surface, what you had was a loose cannon. At the beginning of this encounter, he comes upon the British rearguard, but then it turns out, “Oh, it’s not the rearguard. It’s the whole Army.” So he’s disconcerted. And Washington brings up the bulk of the American Army, and he sees the battle is just not going well. It’s all confused. And he loses it. He chews Lee out. One American general said, “He swore till the leaves shook on the trees. He swore like an angel from heaven. I have never in my life heard such wonderful swearing.” Well, now, this general who claims to have heard this was a mile away at the time, so he didn’t hear any swearing. But what he’s reflecting is what everybody who was there heard, their impression of this encounter. That Washington just, he uncorked it for once and just let Lee have it. Then he took over the battle himself and got a pretty good resolution from it. But so that was an occasion where his temper exploded. But what’s noteworthy about that is that’s it. For in public, that is the only time that anyone can remember for eight and a half years of the Revolution and eight years of being president. Now, also when he’s president in his cabinet meetings, occasionally he loses his temper there. Cabinet meetings then, remember, are very small. There’s only the secretary of state, treasury secretary, secretary of war and there’s an attorney general. So there are only four guys plus you, the president. It’s a little group. And Thomas Jefferson, who kept notes, he has some notes of occasion when Washington did lose his temper in these small meetings. But again, he would cork himself back up, get back to the business at hand, not let his decision be distracted by whatever it was that had irritated him, and that this was all happening in private. I mean, this is not happening in public. I think the most interesting comment on this, and it was made years after Washington had died by his vice president, John Adams, who becomes the second president after he steps down. But John Adams is an old man, old, old man. He’s writing another old patriot, Benjamin Rush, and they have a long exchange of letters. A couple of letters they’re writing about Washington. Who was he? What made him tick? Why was he so great? There’s one letter where Adams says, “Okay. I’m going to give you the reasons why Washington was great,” and he has, like, 10 of them. They’re kind of cranky. John Adams was a feisty guy and some of these are a little envious. He says, “Well, Washington was rich. I mean, he married a rich woman. He had a big fortune. Everybody likes rich people.” Another reason, he says, “Well, he’s a Virginian and in Virginia, all geese are swans.” So that’s the New England Yankee getting that little dig in. But one of the things he says is Washington had the gift of silence. Adams says, “I esteem that as one of the greatest talents, the gift of silence.” Washington could just keep his feelings to himself. He was not putting them all out there. He would not be on Twitter. Richard Reinsch (26:19): That’s wise. Yeah. Richard Brookhiser (26:21): No way would he be on Twitter. Or if he would be tweeting, “Had a nice meeting this morning.” “Very good presentation in Philadelphia. Excellent relations with friends.” That would be his Twitter feed. He had the gift of silence. Richard Reinsch (26:41): He knew his limits. Richard Brookhiser (26:44): Well, he knew his limits, and also, look, he’s the first president and he’s the most famous man in America. Anything he says people are going to run with it. Richard Reinsch (26:53): Yeah. Richard Brookhiser (26:54): And so unless he wants to say something, he has to not say anything. If it’s not necessary for him to speak, it’s necessary for him not to speak because that will just cause chatter and back and forth and “What does he mean?” and “Let’s do this,” and “Let’s react this way.” So he possesses the gift of silence. Richard Reinsch (27:17): I want to get more into Washington as general and Washington as statesman. Before we do that, I want to … because I think this also feeds directly into the troubles that we’re in and the framing of Washington. You mentioned at Mount Vernon and I’ve read about his devotion to agriculture and to being the most modern practitioner he could be of that. But it also brings to mind the slaves that he owned and those of Martha Washington and just a sense of this, the way it’s presented. I was recently in Barnes & Noble with my eight-year-old daughter. We were in the children’s section and there’s two racks of books in the history part of that. And there’s a book on Ona Judge, a slave of Martha’s, I think. Who ran away and was pursued by Martha. She had people pursue her. The way the book was presenting it is there was something very wrong with this or she was running away for freedom. But, of course, what I’ve read is Martha Washington actually thought she had been abducted or seduced by someone, an older slave, and was trying to track her down for her own protection. But I … That and just Washington as a whole with regard to the slaves that he owned. I thought maybe we would talk about that some and also his Last Will and Testament, which I think has an interesting first sentence. But on the Ona Judge situation, your thoughts. Richard Brookhiser (28:56): Well, Ona Judge was one of Martha’s slaves and she escaped. She went to New Hampshire with a Frenchman. Richard Reinsch (29:04): Okay. Richard Brookhiser (29:05): And Martha wanted her back, and Washington inquired with the customs official in whatever town it was. I think it might’ve been Portsmouth. “Is there any way to get her back?” And the customs collector said, “Not without an uproar,” because I think by this time, New Hampshire had either ended slavery or- Richard Reinsch (29:29): I think that’s right. Richard Brookhiser (29:30): … it had certainly begun the process of ending slavery. Richard Reinsch (29:32): Yeah. Richard Brookhiser (29:34): So Washington dropped it because he didn’t … An uproar was something he didn’t want. Now, did he pursued her in the first place? Well, it was his wife’s slave. People who are married can think over that. We don’t know all of the dynamics of what went on, but one can imagine. But another thing we know is what Washington finally does with his own slaves, which is only a few years after this. Ona Judge goes to New Hampshire when Washington is president. So Washington steps down March of 1797, and then he dies in December of 1799. So two years after he leaves the White House, some time during 1799, in the fall of ’99, he writes his Final Will and Testament. In that he spends a lot of time saying that all the slaves that he owns shall be free after the death of his wife. He specifies that none of his slaves may be taken out of the state on any pretext whatever. In other words, you can’t take them to Kentucky beforehand. They all have to be free. He says that slaves that are too old to support themselves or too young should continue to be maintained by the estate, and he’s made provision for this. Slaves that are young should be trained for some useful occupation and be freed by the time they’re 25. And he gives immediate freedom to his personal servant slave, William Lee, and he says “for his services to me during the Revolution.” So it’s interesting. William Lee is the third person who is named in the will. Washington is the first: “I, George Washington … ” That’s how it begins. Martha’s the second one named. William Lee is the third, and he links him with the Revolution. I mean, William Lee was his slave servant for a long time. He could’ve linked him with all kinds of things or not linked him to anything at all. But he said, “for his services to me in the Revolution.” Washington’s life was dedicated to liberation, liberty in America, to American self-rule, and how can that life be complete if he dies an owner of slaves? It can’t be. He has to fix this. This is the last thing he has to do. So he’s noting in his will, “This man was involved in the Revolution. I was the commander in chief, but he was there. He was there at my side this whole time.” So he gets his immediate freedom if that’s what he wants. If he wants to stay enslaved, he can have that too if he likes because he’s old and crippled by this point. And he gives him an annuity. He should have $20 a year. Doesn’t sound like a lot. I mean, it wasn’t a huge amount. It was more than $20 then. There were also at Mount Vernon, and this is over 150 people we’re talking about, this is a large manumission. There’d been a bigger one in Virginia. There was a man named Robert Carter III who owned like 500 slaves who he was freeing. He was a religious convert; he became a Baptist, and then he became a follower of Emanuel Swedenborg and he freed 500 slaves. But Washington’s 150-plus is a lot of people. Now, there’s an equal number at Mount Vernon who are not freed because they belong to the Custis family estate. We call them Martha’s slaves, but she only has a life interest in them because they were the property of her late first husband, the man she married before she married George. They will become the property of her children, who have all predeceased her, so therefore of her grandchildren. They end up being the property of George Washington Parke Custis, who is her grandson, and Washington has no power to free those slaves. They belong to the Custis family estate. So they stay in bondage and actually they’re not freed until just before the Emancipation Proclamation because the grandson frees them in his will, and it goes through the Virginia courts and then finally they’re freed at the end of 1863 by the Confederacy. Richard Reinsch (34:24): Wow. Richard Brookhiser (34:25): Because that’s the terms of this man’s will. But so Washington’s slaves are freed, and I’ve actually, I’ve met some descendants of them. Some of the descendants still live in Alexandria, Virginia where Mount Vernon is. Some live in Maryland. Some live in the Philadelphia area, and I’m sure they’re scattered across country. But these are the main concentrations, and they have a reunion every year. They’ve been doing this for, oh, gee, it must be close to 85 years now. It’s called the Quander Family Reunion because their ancestress was one of the slaves named Nancy Quander. Because Washington, in his will he attached a list of all of these people who were to be freed, a list of all their names. So Nancy Quander is the one whose descendants are still around. So why did Washington do that? He does that, I think, because he knows he has to do that. His life has been dedicated to liberation, liberty in America, to American self-rule, and how can that life be complete if he dies an owner of slaves? It can’t be. He has to fix this. This is the last thing he has to do. Now, I noticed there’s a columnist for the New York Times, Charles Blow, who’s written about this said, “Yeah, well, Washington only freed his slaves when he had no more use for them. It’s in his will. He had no more use for them.” I thought, “Well, gee. When people die, we can’t just go in their houses and take everything because they have no more use for it.” Right? Richard Reinsch (36:18): Right. Richard Brookhiser (36:19): I mean, people leave wills. They do have use for things after they die. I mean, we can say it’s vanity and all the rest of it, and of course they’re dead; they’re not actually here. But people make provisions for it all the time. I mean, bequests to charities, to colleges. They do inheritances. I mean, they direct the disposition of their possessions after their death. So it’s not like, “Oh, yeah. Washington had no more use for them. So if he died, they could all have just walked away? Right?” Well, no, they couldn’t. They would’ve been the property of somebody, some of his heirs. But they weren’t because he said they should be freed. That would be my answer to Mr. Blow. Washington is the last American to command integrated units until the Korean War. Richard Reinsch (37:11): What do you make in the Last Will and Testament? He refers to himself as both citizen and president in this private act of the disposition of his property. Richard Brookhiser (37:21): Well, yeah, but he knows it’s going to be public. I mean, this is not going to be a secret will. This is also going to be a public statement, and that’s how it’s taken. There was a sermon given in the first Black-owned, Black-run church in Philadelphia shortly after Washington died. The minister said that “He has removed the last possible blot on his reputation because the bread of oppression was hateful to him.” This is the Black leader of this congregation. Richard Reinsch (37:53): Yeah. Well, I was contrasting that with, in my mind too, Thomas Jefferson’s Last Will and Testament, which I don’t think makes any reference or recognition to his public status. Richard Brookhiser (38:05): Well, he couldn’t. He was broke. Richard Reinsch (38:10): Yeah, he was indebted. Richard Brookhiser (38:10): The only reason Washington is able to do this is because he’s an acquisitive man. I mean, he’s wanted to earn money all his life, and he has. He’s succeeded in it, and he’s managed it wisely and he hasn’t overspent it. He’s managed this even though the soil at Mount Vernon has run out. I mean, it’s been leached away by years of tobacco growing, which is very punishing to the soil. That’s why he switches from tobacco to wheat, and then he has all these properties and he buys land in Pennsylvania and what becomes Ohio and what becomes West Virginia. I mean, he’s a great big landowner. That’s his fortune. Mount Vernon is a white elephant. I mean, it’s beautiful; the house is lovely. But the property, if that’s all he had, he would’ve been in debt too. But so Jefferson, who knows what Jefferson would’ve wanted to do if he had a free hand. But he didn’t have a free hand; he was in hock up to his eyeballs. And after he dies, everything gets sold off: the house, his slaves, the whole thing. That’s true of a lot of the great Virginians. I mean, it happened to Madison’s estate after he died. And Monroe had to leave Virginia while he was still alive. He had to move to New York and live with his daughter in New York. Washington plays his hand better and then therefore is able to do what he does. I mean, who does Jefferson free in his will? He frees the Hemings, very likely his own children. Madison freed nobody. Monroe freed his coachman, Peter Mark. And Washington frees over 150 people; that’s the record. Also one other thing before we leave this. Washington is the last America to command integrated units until the Korean War. Richard Reinsch (40:04): Oh, wow. Richard Brookhiser (40:05): In the Revolution. Now, this is not what he was thinking when he first becomes commander in chief. When he’s first picked by Congress and sent up to manage the siege of Boston and he discovers that some of the Massachusetts units there have Black soldiers, he doesn’t like it. He’s surprised by this and he says, “Eh, can we get rid of these guys?” But the officers tell him, “Well, no, we can’t. We need the men and they’re good men and is what we do up here.” Then Washington accepts that. I mean, this is an interesting comment on his style of leadership. He’s willing to learn, he’s willing to listen, he’s willing to grow. By the time of, we mentioned the Battle of Monmouth, which is 1778, at that battle he’s commanding, he had 12,000 men at that battle. 800 of them are Black or Native American. I’ve seen a list of their names. Some New Jersey historical society published all the names of the men of color on the American side at the Battle of Monmouth. I remember one was Oliver Cromwell. One was Artillo Freeman. One was Cash Africa. I mean, these are names that the people themselves picked or perhaps had been picked for them when they were enslaved and then they retained them. No, I don’t know. We don’t have biographies of these men. We just have a list of their names. I’m sure everybody has seen the picture of Washington crossing the Delaware that was done in the 1850s. I mean, we’ve all seen it a million times. One of the oarsmen in that boat looks Black. I mean, he looks like a person of color. And that’s historically accurate because the unit that ferried those boats back and forth across the Delaware River before the Battle of Trenton was the 14th Massachusetts. They were sailors from Marblehead and there were Black and Native Americans who were sailors who lived in Marblehead and they were in this unit. That was the historically accurate detail that the artist, who was a 19th century German, put in the painting. Then the militia and the army become all white during Washington’s presidency, actually. There’s a Militia bill which defines the Militia as white men over 21. But during the Revolution, that was not the case. Richard Reinsch (42:51): I never knew that before. Thank you for sharing that. Washington as statesman, as the first president, what was most essential in his view to accomplish? Richard Brookhiser (43:01): Probably three things. One was to keep America afloat during a world that was sliding into a world war. Washington is inaugurated in April, 1789. That’s when he takes the oath in New York City for the first time, and the Bastille falls in July. So he’s got like three months of peace and then boom; French Revolution begins. It becomes a world war. It’s going to last long after he dies. It won’t end until the Battle of Waterloo. And we’re a little country on the edge of all this, and the contending powers surround us, by the way. Because the British are still in Canada. Spain still owns Florida and the whole Gulf Coast. They own the Louisiana Territory. They control New Orleans and the Mississippi River. France is still in the Caribbean. We are surrounded by colonial empires in a world that’s entering a world war, which is both a world war and it’s an ideological conflict. We have to just stay afloat during all this, so that’s problem number one. Problem number two, we’re broke. Our debt is trading on the European money market at a quarter to a third of its value. It’s practically junk. American paper is just like junk. And why is that? It’s because we have been unable to pay off the debts that we ran up fighting the American Revolution. These are debts to American creditors, also to European creditors who loaned us money. We also have not been able to pay the soldiers who we thanked them for their service and sent them home and said, “Well, you’ll get half pay one of these days. Hold on to your certificate. We’ll pay it off one day.” So there’s that. That’s problem number two. And Washington assigns that problem to his treasury secretary, Alexander Hamilton, who has been on his staff during the War. Washington could be his own secretary of war or his own secretary of state. He could’ve done both of those jobs himself. He couldn’t have been his own treasury secretary. But he knew who could be his treasury secretary, and he lets him take the lead and backs him up. That’s a very important quality of leadership: You know what you can do and you know what you can’t do, and when you know what you can’t do, you have to find someone who can do it. And then you have to trust them and back them up and that’s what Washington does. Problem number three, which he is unable to solve, is how to deal with Native Americans. And here he’s working with his secretary of war, Henry Knox, and they hope that they can sign treaties with Native American tribe nations that still are living in the old southwest, what’s now Alabama and Mississippi and parts of western Georgia. There are tribes there that have sided with the British during the Revolutionary War. They can send a lot of warriors into the field. We don’t want them to be your permanent enemy. We want to find some way of living alongside them. Knox and Washington, their hope is that they can make treaties with these nations and have them have a kind of semi-independent existence within the boundaries of America. And this doesn’t work. This fails because there are just too many white people too eager to move west. The federal government can’t keep them out. Impossible to hold the tide back. So this is something he wants to do that fails; it doesn’t work. But I would say that those are the three problems that he had to focus on. Richard Reinsch (47:14): You referenced earlier, I think, Washington’s lack of formal education. Certainly, his education compared to his contemporary statesmen would’ve been much deficient to theirs. Can we sketch out, though, from correspondence, from speeches, actions, a coherent political philosophical approach on Washington’s part? Richard Brookhiser (47:38): Yes, I think we can. There are times when he does that. He issues a circular to the states in 1783 as he’s getting ready to leave the job of commander in chief. In his mind, this is his farewell address. Now, he didn’t know that he’d come back and have to be president of the United States and then give another farewell address, which we call by that name. But there was a first one in 1783 and then there’s the famous one in December, 1796. In there he lays out some policy goals. He says that America should pay its debts. He says that America should have an independent standing in the world. It should not have permanent alliances or permanent antipathies with any nation. He says anyone who has either of those is a slave; they are a slave to their affections or to their dislikes. That’s a very loaded word to use in a country with a lot of slave owners, including you yourself. Also unity, national union. I mean, he tells in the second farewell address when he’s leaving the presidency, he says, “The name of American has become precious to you.” He tries to explain that every part of the country benefits from this union. The North makes manufactured goods that the South needs to use. The South produces agricultural products that the North needs. Similarly with the East and the West. It is not at all clear to Washington’s generation that this country will hang together. Now, we think of the North/South split as the one that finally does split. But also East/West, I mean, that looked like a potential dividing line because the Appalachians were hard to cross in those days. If you’re a farmer and you live in Kentucky or the Ohio Valley, the easiest way for you to export a crop is to stick it on the Ohio River and send it down the Mississippi and hope the Spaniards let it go out in New Orleans. I mean, are you going to send it over the mountains to Philadelphia? That’s hugely slow and expensive. No, you don’t do it. You use the river route. So does that mean that the whole thing is going to split apart across that mountain chain? This is a real worry and Washington worries about it. One thing he does is he tries to imagine: Maybe we an dig canals across the mountains. Maybe we can connect the Potomac to the Ohio. This is a kind of a fantasy that he and other Virginians have. It never really works, but the canal that works will be the Erie Canal across New York State, which is much flatter. But Washington, it’s the same problem. Washington is trying to think of it: How do we keep this country together East and West? So union is another thing that is on his mind and very important to him. Richard Reinsch (50:47): That was excellent. Richard Brookhiser, thank you so much for discussing George Washington’s life, biography, example for us. We really appreciate it. Richard Brookhiser (50:58): Okay. Thank you, Richard. Richard Reinsch (51:00): This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk available at lawliberty.org.

The new Managing Editor of Law and Liberty, Brian Smith, joins us to discuss his recently published book, Walker Percy and the Politics of the Wayfarer. Related link: Walker Percy and the Politics of Deranged Times

Richard Reinsch: Welcome to Liberty Law Talk. I’m Richard Reinsch. Today, we’re talking with John Yoo about his new book, Defender in Chief: Donald Trump’s Fight for Presidential Power, that’s just been released. John Yoo is the Emanuel S. Heller Professor of Law at the University of California, Berkeley. He’s a visiting fellow at the Hoover Institution and at the American Enterprise Institute. He worked in the Department of Justice under President George W. Bush and was General Counsel to the US Senate Judiciary Committee and has written and published numerous other books. He’s been on Liberty Law Talk to discuss them a few times, and he’s widely cited and published in a number of other forums. So, John, we’re glad to have you to discuss your slightly controversial book today. John Yoo: Richard, thanks a lot. Thanks so much for having me on, and like people always say, long-time listener, rare guest. So I’m really- Richard Reinsch: Well, we’d have you on more often, but you’re always on Ricochet with Richard Epstein. I don’t want to tax your podcast abilities there, too many appearances. John Yoo: Well, Richard and I should come on and be guests with you, which you and I would both talk 5% of the time. Richard Reinsch: Yeah, I know. That would be great. No, I’ve interviewed him before, and I got maybe 5% of the comments in to his 95%. I haven’t forgotten that. So, John, thinking about this book, Defender in Chief, now, something of a change for you. I don’t recall you being a supporter of Trump first time around and I’m not necessarily saying that you are now, but you do argue in this book, in myriad ways, Donald Trump’s presidency has been in defense of the Constitution. So maybe tell us why you wrote this book. John Yoo: Thanks a lot for having me on, and I really care what the listeners of this podcast think about the book because, as I said, I regularly listen to all the episodes and this is the podcast that, to me, is the most originalist in a way, the most deeply engaged with political theory, constitutional law, history, all the stuff I care about. Sometimes I say this book is a trick. It’s an effort to get people interested in Trump to actually learn stuff about the presidency. And as you know, my analysis is primarily originalist but with a lot of Constitutional history. So the reason I wrote the book. Look, four years ago, I was not a supporter of President Trump. I wasn’t the Never Trumper, I suppose, because I didn’t sign any of the many letters circulating, but I wrote op-eds very critical of him. And four years later, I find myself in the position of agreeing more with his defenders than his critics, and for this reason. If you care most about the Constitution, four years ago, you might’ve thought and I worried that Trump would be a populist. And populists, we’ve seen over the years, are the ones who most strain against Constitutional understandings and traditional limits on their powers. They’re the ones who think they have a broad popular mandate to achieve something, and old things like the Constitution or tradition get in the way. So that’s why I was worried four years ago. But now, take a look in 2020 after Trump’s first time, what do we see? We see his critics are the ones who are proposing radical Constitutional change, it seems to me. His critics are the ones who are proposing to abolish the Electoral College, to start manipulating the size of the Supreme Court just because you don’t like the outcomes and add six justices to the Court, to make independent counsels permanent and criminalize our politics again, and nationalize the energy and transport sectors, and you go on and on. So what I found looking back on the last four years is I’ve found Trump was the one who was relying, in my view, on very traditional understandings of presidential power, who was obeying the courts, who was citing congressional delegations’ authority. Now, I think politically he’s been a disruptor, and you’ve had a lot of guests on who’ve talked about the way the presidency has operated the last four years as a political matter. But when it came to the Constitution, I thought Trump actually was mostly defending himself and the constitutional traditions we have from a left that really wants to overturn the way we’ve run for the last 220 years. Richard Reinsch: On this point, you say in the book … I didn’t know what to expect as I was going to read it. It’s not so much affirmative steps Donald Trump is taking as a president. It’s more of things he’s reacting to. He has policies, they are vehemently opposed by his opponents, and then as they’re coming at him in various ways, we can go through those. It’s more of what he has to do to defend the constitutionality of the policies that you speak about in the book. It’s could he fire James Comey? Was that a violation of the Constitution, or was that corruption? Or on impeachment, you have a discussion of that. You also have a really interesting discussion of the Electoral College and is that a legitimate institution or is it tainted by slavery, which many have argued, and you take that discussion head-on. You also talk about Trump and the wall and the appropriation of funds. So maybe we can go through those things. But I took that to be instructive. It’s this intense opposition, the willingness to defeat Trump, by hook or by crook, and the thing that he has to fall back on is really just the Constitution itself, and then he ends up defending it that way. John Yoo: It’s a great point, Richard, because I didn’t think of it that way before, the way you put it. But if you look at many people who are originalist or conservative, their criticism of the modern presidency has been, “Oh, the presidency has become this unconstitutional innovator, someone who’s always trying to change things, he’s radical.” This was actually what the liberal theorists of the presidency in the ’60s and ’70s wanted out of their president. They wanted them to break through and change things. You’re quite right, Richard. If you think about it in the way I look at issue by issue, Trump is actually using presidential power in a more minimalist, I guess you could call it, fashion. He’s trying to defend the core powers of the presidency. He’s not really using those powers to innovate. He’s almost using it to defend. It’s a negative use of the … And if you think about some of these issues, he’s using presidential power actually to try to make the reach of the federal government smaller, not larger. So take foreign policy, for example. We’ll talk about it, too, I assume. He’s withdrawing troops from abroad. He’s terminating agreements. Most of the criticisms of presidents have been, “Oh, you’re sending troops without congressional approval. Oh, you’re entering into international agreements without sending it to the Senate.” Trump’s doing the reverse with presidential power. So he’s using the constitutional powers of the office not to aggressively expand, but he’s using it just to defend this core. So the two examples you mentioned, I think, are good illustrations. Mueller and impeachment before firing Jim Comey. I think of the first as an effort by Trump to restore elected political control over law enforcement, which is his constitutional authority under Article II. I think of impeachment as a fight over the president’s ability to manage foreign policy, both in the face of these progressive era bureaucracies, in a way, that want to be independent and technical and have judgment and expertise and not be under the thumb of politicians. His critics said, “We not only have the right to review the legality of what the president did, the executive order on banning entry into the country, we have the right to guess what was in the president’s mind when he issues or she issued that order. And, in doing so, we’re allowed to guess at what the president was thinking before he was even president.” Richard Reinsch: Yeah. No, it really is. It occurred to me as I was reading your book an interesting experience last fall at the Georgia Political Science Association on a very nice panel to discuss my book, A Constitution in Full. Then I got invited to be on a Trump panel, and you’d be the only conservative on the panel. Of course, I said, “Well, I’m not really a Trump guy. I’m sort of in-between. I call balls and strikes on the administration to the extent that I write about it.” Soon, I am on the panel, and it’s eight to one, and I’m a point four or something. The level of opposition to everything Trump does or had done on the panel … And I found myself several times responding to questions and just going back over basic points of executive power and the Constitution and then how that had been augmented not by Trump but by progressives in the early twentieth century and enlarged to its present state and how we do have a federal statutory presidency that’s been greatly expanded through delegation of authority discretionary powers as well. It was sort of like, “Has this not dawned on you?” The level of opposition there, it made me think, “Well, this is a micro-experience of what’s going on writ large, I think, in Washington.” John Yoo: Come out and spend some time out here in Berkeley. It’s a little different than in Georgia. Richard Reinsch: No, I am convinced hell hath no fury like academics in a red state. But, in any event, as I read your book, I thought, “Yeah, these points John are making, this is all just bedrock stuff here,” but it gets buried by the level of opposition to Trump and of course by his tweeting and his personality. But you open with this, the Electoral College, he loses by, what was it, three million votes, the popular vote, to Hillary Clinton. And if he wins in 2020, it may very well be by something like that. So the Electoral College is now under assault. An argument that’s made … I remember hearing it in law school from Michael Gerhardt, who was my professor, that slavery built the Electoral College to protect the interests of the slave states. That’s now common in progressive circles, and then you also quote the scholar Finkelman, and I’ve read his book, where he makes this point. Even Michael Paulsen on this podcast said this, and he says it in that book he wrote with his son on the Federalist Papers. I challenged him on that and he produced a Madison quote, that was it. Let’s talk about that for a minute. Trump’s not really out to defend the Electoral College, although the way he won in 2016 and may win in 2020 brings that up. Was the Electoral College built on the desire to, what, protect Virginia or something like that? John Yoo: Trump, he might thank his family, he might thank his friends, his supporters, but his biggest supporter has actually been the framers because he has really benefited from the Electoral College design, the way impeachment’s designed. He’s benefited from the structure of the Constitution maybe more so than a lot of recent presidents. But to answer your question directly on the Electoral College, yeah, a lot of people don’t like the Electoral College. It seems ramshackle. But when you go back and look at the history of it, I think it makes more and more sense, and I think this allegation that it’s somehow racist in intention or was done to protect the slave states is wrong, or if it’s right, then the whole Constitution suffers from the same problem. Because, really, what the Electoral College is is not an effort to protect slavery, and I went through in the book, very carefully through- Richard Reinsch: Yeah, you do a great job. John Yoo: … the Constitutional Convention evidence, and it’s just dependent on basically one sentence said by Madison in the debate that was not public when the Constitution was ratified. This was in the Philadelphia Drafting Convention, and it’s not clear it represents anybody’s view. It’s not even clear it’s representing Madison’s view. But the idea, more importantly, was that the founders were trying to strike a balance because they rejected the idea of direct democracy, and that’s not just the Electoral College. In fact, the Electoral College is one of the weakest restraints on direct democracy. Think about the Senate, for example, or judicial review. Those are much more anti-democratic than the Electoral College. But they didn’t want to go for a direct vote. They also, on the other hand, rejected the idea that Congress should pick the president. They didn’t want us to become like what would be the modern European parliamentary democracies where there was no separation of powers and the executive just worked for Congress or was an agent of Congress. So they used the Electoral College to try to have independence from the legislature but also to mediate democracy through institutions, and that’s very typical of the Constitution throughout, and the Electoral College was just one effort to do that. It only matters, though, in close votes. If you think about it, the Electoral College doesn’t matter when the people are overwhelmingly or clearly of one mind on who they want to elect. The second part about this racism point was that when they were designing the Electoral College, people observed that if we go to the system we have now, where the votes are allocated by the states but those votes are counted up or allocated by voting population, using the members of the House plus those in the Senate to come up with the number of votes. Then one delegate said, from North Carolina, a guy named Williamson, he said something along the lines of, “Well, the three-fifths rule will benefit Southern states.” So from that one sentence, people think, “Oh, the electoral college was this huge effort by Southern states to give themselves an advantage because of this three-fifths rule.” But when you look at it closely, it doesn’t come out that way. The slave states and the free states did not vote together on the Electoral College. In fact, if you think of it, Southern states would’ve maybe even disfavored that and wanted to have the Senate pick the president or something or just have the states pick the president, which were also mechanisms that were being thrown around at the time. In fact, this method was much more responsive to democracy than a lot of the other choices make. Nonetheless, I’ll just make this … Whatever was going on then in Philadelphia, again, which was not made known to the states during the ratification process, that effect was removed by Reconstruction. You could say the House of Representatives was equally racist and the Senate, too, but when the three-fifth rule was eliminated, slavery was ended, then the Electoral College, if it ever had that kind of taint to it, the Electoral College loses it after the Civil War. Richard Reinsch: Yeah. It seems to me, and you pointed this out, South Carolina and North Carolina vote against the Electoral College? John Yoo: Yeah, yeah. Richard Reinsch: I didn’t- John Yoo: They did. Richard Reinsch: And if you think about it, South Carolina is one of the key states that probably does not join the Union if they could not bring their slaves. John Yoo: This is my small, small contribution to the history. It’s a very small contribution because I saw no one went back and checked how the states had voted. Richard Reinsch: No one ever goes back to the three-fifths rule and looks at the Constitutional Convention to see who introduced it. It wasn’t Southerners, it was Northerners who were doing it. You could argue it’s a compromise. You could also argue they’re trying to preserve some element of popular sovereignty as well. John Yoo: Exactly. Richard Reinsch: But who cares about history? We’ve got the narrative. Thinking about this, though, and it’s also the case with the Electoral College, this is never really considered, it does mean that parts of the country matter outside of large population centers. It means that one has to put together different parts of the country to win that might be disparate and different, and that also seems to get glossed over. Immediately, when Trump comes into office, let’s talk about the travel ban. You spend a lot of time in the book talking about that and how that’s used against Trump. He said that he’s acting on constitutional … You argue the first one was discrimination against Muslims, but then it gets revised two more times, and yet district courts continue to throw it out on the basis of inferring back to things Trump said on the campaign and that becomes a way for them to throw out the travel ban. But talk about that and what’s going on there. John Yoo: I think the travel ban is a good example of this dynamic that we’re talking about, and it happened right away, so we should’ve been able to see pretty early on what this dynamic was going to be for the rest of his presidency. Okay, so Trump does put out this travel ban. He doesn’t claim that he has a constitutional power to do it. He doesn’t actually say … He could’ve. There’s some authority for the idea that the president has some power over the borders. But instead part of the immigration law says if the president finds there’s a national security threat posed by immigration from certain countries, then the president can stop it. In fact, no one’s complaining about Trump using that power now with China and the COVID epidemic, right? In fact, people are criticizing him for not doing it earlier. But that’s not a power the president has in his constitutional arsenal. He just claimed he had it … So, okay, so Trump says, “I’m going to do it with these countries,” and then he says, “I’m going to give an exception for Christians coming from these countries.” I think that was the constitutional error, and a district judge, I think, also went over the top and tried to enjoin the whole thing even though he’s just one district judge, I think in Seattle. Now, if Trump were the dictator that people make him out to be, then what he did next doesn’t make sense, which is he said, “Okay, I was wrong. I’ll change the order.” Then he changed the order and went through the whole process of litigation all the way to the Supreme Court. He didn’t defy any judges, he obeyed every judicial decision, and won at the Supreme Court. And even there, people who were attacking him wanted to introduce, I think, something which would amount to a Constitutional revolution in the treatment of the presidency, which was his critics … And I’m afraid the Supreme Court nodded towards this, although it didn’t weigh on it. His critics said, “We not only have the right to review the legality of what the president did, the executive order on banning entry into the country, we have the right to guess what was in the president’s mind when he issues or she issued that order. And, in doing so, we’re allowed to guess at what the president was thinking before he was even president.” But the sense in this case and the lower court decisions that tried to stop Trump went through all of the things he had said as a candidate before he was even employed by the United States government as evidence that Trump was a closet racist and was trying to achieve racist objectives with an order which was otherwise, now at this point, facially constitutional, I think, well-rooted in delegated power from Congress. Think about what would happen to the running of the executive branch if someone could sue and just say, “Well, I don’t care what the president’s order says or what this delegation does. I question the motives behind it.” You could tie up every single decision in the government with that kind of rule. People didn’t care, though, because they were out to stop Trump. I never thought that my former colleagues, and some of them are still friends, who work in those agencies would turn the vast power of government, again, back inwards and surveil the candidate of the other opposition party for president. I’m still stunned by that. Richard Reinsch: I remember thinking about that. I don’t understand the nature of or the law around injunctions, of the ability of one judge to basically stop it nationwide. Maybe you can talk more about that. But this notion, too, it’s sort of like just arguing or having an argument with someone. You can easily shortcut having an argument by guessing their motives or throwing their motives, what you think their motives are, back at them. Motives are very easy to use in that way. But what’s hard are principles and ideas and law. That just always seemed to me a poison seeping into the most formal part of the federal government, being the federal courts, where it really can’t be. Then, also, law professors, but you see this constantly even today, referring to this as the Muslim ban by very well-regarded law professors. It just adds, I guess, to what we’re talking about, this inability to think coherently. John Yoo: I was going to say, Richard, it’s bigger than that, and actually I wish I had made your point in my book’s discussion of this because I hadn’t thought of that. But what you’re saying, which I think now that I look back is completely true and we’re seeing it amplified right now in the streets and these protests and everything, is this is the way the culture is … A great example, this is the way the political culture has seeped into the law, which is right on campus now. Yeah, I just never thought of it that way, but you’re completely right. On campus, you see people shouted down, you see people canceled, not for what they’re going to say in any speech or article but what they think their racist motives are behind it or just based on their skin color or what they’ve said dozens of years ago or even what they didn’t say at some point. Right? And if you do that, you short-circuit traditional argumentation, rational analysis. And you’re quite right actually, Richard. If you think about what happened in that case and the cases since with Trump, that style of argument is now starting to pop up in Supreme Court opinions, and that’s sad. But I think you’re right. I think you’re exactly right. I just never thought of it that way. And Trump, in a way, is fighting against that, although he may not even realize it. But that’s why- Richard Reinsch: He probably doesn’t. John Yoo: … probably people say he’s quite popular. Richard Reinsch: Yeah. John Yoo: People say he’s popular because he’s anti-PC, and maybe in these reactions, that’s how he shows he’s fighting against that cancel culture dynamic. Richard Reinsch: What is another defensive maneuver here is the Obama administration during the 2016 campaign, we all now know, opened Operation Crossfire and proceeded to investigate Hillary Clinton’s opponent, their opponent, on, I think Andrew McCarthy argues in Ball of Collusion, a pretty thin pretext, probably violated Justice Department protocol in investigating political campaigns. Their justification was basically two low-level guys they thought had indicated information about possession of Hillary Clinton’s emails and that justified an investigation. It’s not so much that, but it’s the use of the FISA Court, and maybe we can talk about that. The FISA Court itself is an attempt to limit executive power with regard to domestic or counterintelligence and forces the government to come to a court and show some sort of evidence for wiretapping or engaging in counterintelligence. And, of course, the other party doesn’t get to make an appearance. They don’t even know. But what we now know is the memos that the government put forward there were corrupt in some cases and were not fully revealing, shall we say, of where they were getting their evidence. That in itself, I think, has brought to light a discussion about the FISA Court. How do you see it? John Yoo: Richard, yeah, you’re too good a interviewer. I’m not coming on your podcast anymore. This was, I think personally, for me, the most difficult part of the book to write, actually. It was because, you and I have discussed this before and I’ve had the pleasure of going to Liberty Fund conferences where I am often one of the sole defenders of the intelligence bureaucracy, but I was involved with this back in my government days. After 9/11, we amended FISA to expand its scope, and I was one of the people who worked on making it easier to get FISA warrants. One of my views was that, look, FISA came out of this worry that Nixon had used the CIA and the FBI to spy on his political enemies. And I always thought, “Well, FISA was overdone because that’s never going to happen again.” I was like, “Everybody knows that’s a red line. You don’t investigate your political enemies using our current espionage and terrorism powers.” I worked to loosen FISA so that it could be turned more directly and easily at Al-Qaeda, ISIS, our foreign enemies, China and Russia, because it was really hamstringing our ability to do that. What I never thought … And the guys I argued with at the Liberty Fund conference turned out to be right. I never thought that my former colleagues, and some of them are still friends, who work in those agencies would turn the vast power of government, again, back inwards and surveil the candidate of the other opposition party for president. I’m still stunned by that. In part, that’s why … I don’t know if you remember. Throughout the Mueller investigation, I was always saying, “Trump should not fight it. Let Mueller investigate it because from everything I’ve seen, there’s nothing to it, and Mueller clears him, that’ll be the gold standard and everyone will have to believe it.” Because after I saw the early discussions of how FISA was used, I was shocked, and I’m still shocked that they would use it internally that way. Maybe FISA needs to be strengthened when it’s used in this way. I think Attorney General Barr is doing that. I’m still shocked about it. What was really happening is the 18th century Constitution says the president has this responsibility and the power to take care the laws are faithfully executed. That means everybody who works on law enforcement works to assist the president and should be removable by him. Comey or even Mueller, they think that law enforcement is a professional function or scientific or technical function and, as Woodrow Wilson wanted, they should be insulated and kept as far away from the control of the politicians. Richard Reinsch: Andrew McCarthy said the same thing. He also had a significant career as a federal prosecutor, we know. John Yoo: Oh yeah, much more than me. Richard Reinsch: Yeah, the 1993 World Trade Center bombers, he put those guys away. But he was blown away also by this blatant abuse of power. We know now one of the lawyers has been referred for prosecution or will be prosecuted. He’s been indicted, who just reversed a brief to say that Carter Page was not a CIA asset, which of course made it look like, “Well, why are you investigating him if he’s already cooperating with the government,” and he just lied about it. It’s incredible. John Yoo: I think he’ll be the first guy ever prosecuted for lying to the FISA Court. Ever. It’s still quite amazing. Richard Reinsch: I guess my feeling on the FISA Court is do away with it because I think it loosens the accountability of the federal government. I think it gives everyone the wrong incentives. What the executive branch should be is just liable in full for what it does on these things instead of this insurance check of a FISA Court. If it wants to surveil, it should have to own up to it in some capacity. But this also assumes, and we’ll get to this, that Congress itself is willing to really monitor the executive branch and use its constitutional powers to discipline it, which it really doesn’t seem willing to do anymore. John Yoo: Yeah. Actually, I think there’s a neat and easy solution to this, although people will think I’m doing it just to expand presidential power. I’m not. I’ve actually got just civil liberties in mind, which was the way it was before FISA, which is the president authorizes surveillance for national security concerns. This is because someone’s a real threat to national security, and then the evidence can never be used against you in court. And if it does, if the government tries to introduce it, I would have a blanket rule just saying the surveillance was never started under the Fourth Amendment, never got a warrant or whatever, so you can’t use it in court. But if it is used in court, then the president is on the hook. He’s individually responsible for its use, and he can be punished for it. That’s essentially what happened with Nixon, and I think that sometimes we don’t need a court solution, and all we need is enough for the political actors to tout a remedy, which is what happened then. I thought that was actually a good outcome in terms of the abuse of those powers, and I think that’s superior … As you say, this current system blurs responsibility and … But that’s the species of the whole thing. It’s a very typical, seems to me, progressive idea about government. That’s also, I thought, the bigger picture of what’s going on with the FBI. You take out the day-to-day fighting with Comey, with Mueller, what was really happening? What was really happening is the 18th century Constitution says the president has this responsibility and the power to take care the laws are faithfully executed. That means everybody who works on law enforcement works to assist the president and should be removable by him. Comey or even Mueller, they think that law enforcement is a professional function or scientific or technical function and, as Woodrow Wilson wanted, they should be insulated and kept as far away from the control of the politicians. So that’s why Comey thinks or Mueller thinks they have the right to decide who’s fit to be the president, not the voters. I tried to figure out the themes that explained at a broader constitutional level these day-to-day fights because in the Trump era, we’re so consumed by the 24-hour news cycle and the latest thing that the House was saying about Trump or vice versa. But the larger constitutional picture, I think, is this is a fight between the 18th century Constitution and this Woodrow Wilson-inspired progressive theory of government that does not map onto our original constitutional structures. Richard Reinsch: I agree with you completely. It’s interesting, too. Watergate, the 18th century Constitution actually worked rather well, and yet we still got a series of progressive reforms out of it, which have made things worse in accountability- John Yoo: Yeah, it makes things much worse. Richard Reinsch: … and competition between the branches. It’s interesting thinking about Comey. Yeah, in a way it was, “Oh, well, the FBI is actually an independent agency,” or something like that. John Yoo: They think they are. Richard Reinsch: And the way the media covered it, how dare Donald Trump even think of firing Comey? John Yoo: Exactly. Richard Reinsch: It must be because you’re corrupt. Oh, and by the way, it’s unconstitutional anyway. What Comey had done frequently was lost, but Trump completely had the power to dismiss Comey. That was never in doubt. He had the power to dismiss Mueller as more of a prudential decision. It always is with Mueller. And it is interesting, as you point out, in letting it play out, he did remove that problem once and for all, and yet he lost essentially two years of his presidency, three years of his presidency. John Yoo: I actually think that this is a very interesting case study. I can’t think of another presidency that’s been like this, where essentially … Maybe John Quincy Adams maybe is the last time it’s happened, under attack from Andrew Jackson after the corrupt bargain. This president has spent maybe his first term just playing defense of his own legitimacy, and so that’s why people might complain this is more or less the constitutional now, the certain political science aspect of it. People complain what is the Trump agenda? What is the second term? Nobody knows because he never really had a chance to implement a first-term agenda. He never had the benefit of momentum from an election. Even though his party had control of Congress and the presidency, they got very little done because the presidency was consumed with him defending his own legitimacy. The things that he did do, it’s interesting, I think that they were efforts to narrow the federal government. One of the big things I think he’s done that people don’t pay attention to, I put a whole chapter in my book about those, the deregulation, shrinking the size of government, pulling the federal government back out of interference in state matters. These are not things presidents usually do, and they’re very hard to track and it’s not very sexy for the media, but the extent Trump’s been doing anything, he’s been using his constitutional powers to reduce the federal government’s agenda and activism than he’s been expanding it, which is what we usually elect presidents on after their first terms. Richard Reinsch: On this, too, I think this is also the progressive Constitution itself predictably has produced its own interests, hard interests in preserving and in using its powers, and I think that’s what has been working, in another area was during the impeachment matter. If you’ll recall, the whistleblower was Vindman, was his last name. John Yoo: Career civil servant. Richard Reinsch: Career civil servant Vindman. In testimony, and you quote this, he said that Trump’s views on Ukraine were at odds with what we agreed on in the interagency. I’ve heard that term several times, interagency, and the way it was used there is like, “Well, yeah, we’re the interagency.” So the interagency being, I guess, the nexus of defense intelligence groups and the way they formulate foreign policy and try and implement foreign policy. But his position essentially was, even apart from what you thought of what Trump said on the call, that somehow Trump’s views don’t amount or equal their own, and formulating foreign policy in that sense, the executive is not in control of the executive branch, really. It’s some sort of balance or competition between the president and those who serve permanently in the bureaucracy. John Yoo: It’s stunning because if you look at what the founders saw, you look at the great thinkers thought, back to Locke and Hobbes, Machiavelli, they would’ve thought foreign affairs and national defense were the most unpredictable, the most political areas of human life where you do need an executive right there to act swiftly and decisively, Hamilton’s phrases, with energy. And yet you have this permanent bureaucracy thinking, “Oh, no, foreign affairs is something that’s subject to scientific, to technical judgment. How can a president disagree with this?” It sounds like the Ten Commandments brought down from the mount. It’s, “Oh, the interagency process.” You couldn’t find a better example of how extreme this progressive theory of technical government has gone when you would’ve thought if anything was going to be the most political, it would’ve been … Not political in the sense of partisan, but political in the sense of we vote for someone and that person wields our power and we hold them responsible and accountable and they make their own decision. You would’ve thought foreign affairs, diplomacy, national security would be the most political because that arena is so unpredictable. I think that’s an area where, really, you have little claim to some kind of scientific judgment. It’s not like figuring out how much of a certain substance in the water might cause cancer. It’s quite the opposite extreme because it’s really just human nature that you’re dealing with here, not chemical and mathematical properties. Richard Reinsch: I had Steven Teles on a couple of weeks ago to talk about his book, which is an assessment of where the Never Trump movement has gone. He walks you through their thinking, and he breaks them out into different groups. It’s the foreign policy group that’s been, not surprisingly I think, the most assertive and determined from the beginning, and Teles makes the point that this is a bipartisan group, and it’s probably the one area left in Washington where people serve in other parties’ administrations if given the opportunity. There’s a consensus that’s been working in foreign policy, as you know, for 30 years, and Trump was the first significant challenge to that other than other more minor figures. So I think they’re using the power of the government to defend their interests. It just so happens that this seems to run up against the Constitution itself. John Yoo: Yeah, that’s a nice point. When Trump uses these shorthands, these inflammatory words, there is some truth behind it. I don’t think there’s a deep state in the sense that I think the phrase first came out in the study of Turkey, but there is a permanent bureaucracy that has interests. And I don’t think there’s a swamp, but there are interest groups in Washington which clearly interfere with the workings of the government to get their client’s way, and I think you were probably right. Trump barges into foreign policy and he claims it’s been controlled by these elites who have suffered failures. I think the American track record’s been better than Trump might say, but at the same time, Trump is certainly right to say that he was elected in part to blow up that consensus and introduce a new voice. And then foreign policy’s very interesting, and we’ve had these constitutional fights about foreign policy and the bureaucracy. As supported somewhat by Congress, the traditional view is to maintain or even expand American deployment and involvement in the world, and Trump is on his own reducing them, withdrawing from the agreements. I actually like to think it proves I was right all along about the war powers debate, right? Because if you thought the declare war clause idea, right, that you have to declare war first in Congress and then the president carries out just like the way Congress passes a law and then the president carries out, then how can the president withdraw troops from Afghanistan, Syria, and Iraq, how can the president terminate all those agreements when Congress is opposed? To me, it shows, look, I was right all along. The president does have a fair amount of unilateral authority on foreign policy because he should be able to reverse all those things on his own, but yet everyone acknowledges that he can’t. But interesting thing, again, it shows that the president is advancing his agenda not by … It’s almost like, to use a fancy word, it’s like a presidency of abnegation, right? It’s a presidency of reducing power, not claiming and expanding power like Obama had. Richard Reinsch: Thinking about the wall, you write about Trump and the wall and the construction of the wall. There’s also this element where he’s playing with things that have been established long before, and so in that case, that he was violating the law, in a sense of because he took money that was appropriated for the military and put it towards the wall. How should we think about emergency declarations by the president, and what statutory authority did Trump have in that regard? John Yoo: I actually think most people who are opposed to it are opposed to just the idea that the president could do it on his own without a specific new congressional pot of money. But when you actually look at the statutes that are there on the books now, several of them actually passed by Democratic congresses, this is not an extraordinary or even, I would say, unusual exercise of authority. There’s something called the National Emergencies Act. It actually doesn’t grant or take away any powers. It just says if the president declares a national emergency, please tell Congress about it, please make it public. Doesn’t even define what a national emergency is. And then there’s other statutes on the book. There are hundreds of them which talk about what you can and can’t do in a national emergency, and there’s one that says if there’s a national emergency, the president can move money from one military construction budget to another military construction budget. It’s actually not even that controversial a statute. I bet it’s never been talked about before because it’s so much a matter of just our internal bookkeeping. So if the president says, “I think” … Gosh, I got to think that one thing that you could say was a national defense interest was control of the border. If you think about the history of our country, control of the border was the primary national defense interest for most of our history. It’s not till World War I we start really caring about what happens in Europe or Asia as part of our national defense. Most of our history, our military was a border control military to defend the homeland, defend our borders. Seems to me it’s not difficult to say the president can declare a national emergency to create a wall along the border. Now, there are people who say, “Oh, well, what happens if progressives get in power and they’re to declare a national emergency over the climate?” Well, I think there’s a big difference between saying some kind of social problem or general environmental problem like poverty, crime, the climate is quote-unquote a national emergency versus specific events like disorder or inability to control a border. The thing I always say is if you think that you show restraint or not on the border is going to deter progressives from using all these powers anyway to get their way on climate change stuff, I think that’s a whole other fight to have in the future. I think it’s a very distinguishable, different case. But let’s be frank, the real problem is that … It’s not that the president has claimed constitutional powers. The Congress decided to give huge amounts of authority away, and unless we’re going to figure out a way to curb all that through a non-delegation doctrine that really works, then I don’t see why there should be one kind of constitutional rule that restricts Trump when he’s president but empowers all other presidents because they’re not Trump. I think what’s unbelievable is that the Supreme Court then comes in and says, one, “You’re not allowed, President Trump, to stop something because you think it’s unconstitutional. You have to keep doing it until we, the Supreme Court, decide it’s unconstitutional.” And then the second thing they said is, “If you want to undo President Obama’s order, you have to follow this Administrative Procedure Act.” Richard Reinsch: Well, what people ignore is there are a lot of things Congress can do if it doesn’t like an emergency declaration. John Yoo: Oh yeah. Just don’t refill that account with money. Richard Reinsch: Yeah. If Biden were to say, “There’s a global warming emergency, and I’ve got to do this, this, and this to fight it,” there are all sorts of ways. Not to mention that there’s also public opinion, but the quickest would be defund it, not appoint anyone. There’s all sorts of things they could do to hobble the government. The Congress holds the most power. We forget that. Question, we can end with discussion of Obama, particularly in the last two years of his presidency, resorted to a strategy of government by executive and engaging in actions that exceeded statutory authority, including the DACA program, the so-called DACA where those who were brought here as children received legal rights and privileges without authorization from Congress. And he did that in a number of areas, but that’s the one that’s come up in the Trump administration. Trump administration reversed it by an order from the attorney general, and then the Supreme Court recently ruled that that reversal of DACA was itself a violation of the APA, the Administrative Procedure Act. I guess my question to you is what exactly … Because I’ve received conflicting accounts of how to think about it. But what do you make of that decision by the Court and help us maybe to understand that? John Yoo: I think the Court is terribly mistaken on DACA. Richard Reinsch: Let’s ask this. Did the Obama administration follow the Administrative Procedure Act when it implemented DACA? John Yoo: No, no. But I think it’s good to look at it through the lens of the Court because it’s part of these disturbing trends in the nature of constitutional law in the Supreme Court that you’ve talked about in previous podcasts, which is this claim of judicial supremacy. Because it’s easy, actually, to break it down, what’s happened. So President Obama uses his prosecutorial discretion to say, “I’m not going to enforce immigration law against this category, the DREAMers,” about an estimatory two or three million cases. Then he issues DACA two years later, which is another six. So it could be eight or nine million people, could be more than a majority, a significant part of the illegal alien population. Okay. So I happen to think that’s unconstitutional. I don’t think the president’s prosecutorial discretion says, “I’m just not going to enforce the law because I disagree with it.” There’s an interesting debate about whether the president can refuse to enforce unconstitutional laws, but no one thinks the immigration laws here are unconstitutional. So I don’t see why President Trump can’t come into office and say, “I am changing the level of prosecution of these cases as president,” and the primary reason is I think what President Obama was doing was unconstitutional, in my view. I think that happens all the time in the administrative … In fact, one of the chapters in my book, I think one of the president’s powers that we don’t think of as a power is what I call the power of reversal, which is the power to undo things that past presidents or past governments have gone. I think that’s pretty standard. I think what’s unbelievable is that the Supreme Court then comes in and says, one, “You’re not allowed, President Trump, to stop something because you think it’s unconstitutional. You have to keep doing it until we, the Supreme Court, decide it’s unconstitutional.” And then the second thing they said is, “If you want to undo President Obama’s order, you have to follow this Administrative Procedure Act.” Some of the listeners are quite expert on this, but it’s a long, detailed process for issuing decisions of the administrative state. But it makes no sense here because President Obama didn’t use it when he made the DACA decision in the first place. He just said, “It’s a matter of my discretion.” So the Court says, “We’re going to make you use a long, burdensome process to undo a decision the previous president made in his executive authority under the Take Care Clause that didn’t follow that process.” That makes absolutely no sense. You can say when branches of the government undo their own actions, they usually use the same form, right? The Supreme Court overrules a precedent, they issue a new decision. Congress wants to repeal a law, they pass a new law. Presidents want to undo executive orders, they just issue a new executive order. I wrote a kind of tongue-in-cheek piece about this saying, well, if this is true, then President Trump could basically do anything he wants now and say, “I’m not going to enforce this law, I’m not going to enforce that law,” just like Obama did, just search/replace immigration out of the DACA opinion and instead put in taxes, and it’ll take … President Biden will have to use the APA to undo it under the Supreme Court. That makes no sense at all, it seems to me. But what was behind it was this bigger trend, disturbing trend, I think, of the Supreme Court saying, “Only we get to decide what’s constitutional and unconstitutional. None of the other branches get to. President Trump doesn’t get to decide whether DACA was unconstitutional for himself. And we’re going to force the presidency to act in certain ways that we think,” right? I think that’s a stunning declaration of judicial supremacy that I think got missed because it’s about DACA. Richard Reinsch: That, and I also think there are just special rules right now against Trump. I’ve thought that with the Supreme Court and the way they treat the Trump administration. This is also troubling, we saw this in the Obama administration, in the sense of rules are issued by agencies outside of the APA on a regular basis. If this is the case, it would seem to incentivize that even more, which is- John Yoo: Yeah, so I think that’s right. Richard Reinsch: So you could deal with basically a lawless executive government now receiving a blessing from the Supreme Court, which has a ratchet effect on what it can do, one way ratchet effect, it seems to me. Yeah, no, troubling. John, I guess as you think about executive power, what is this that may sum this up for us as you look at your book? John Yoo: I don’t think President Trump has really innovated or impacted the constitutional presidency as much as he’s certainly disrupted the political norms of the office. There are other people who … I like to think I study those, too, but there are people who are much more expert at how presidents relate to the public, how they use the media, their relationship with political parties, and congressional/executive relations. As you started, you asked me why I wrote the book. I wrote the book in part because I wanted to show how Trump was operating actually fairly within the established practices, stemming all the way back to Washington and all the way back to the decisions at the Philadelphia Convention and the state ratifying conventions about the presidency. He hasn’t been disrupting the constitutional presidency. In fact, if anything, it’s been his critics, as you just mentioned, the people who think there’s a special constitutional law that should apply to Trump. What worries me, though, is that people in their efforts to bring down Trump, to try to constrain the presidency, are harming the office for the future, no matter which party holds it, in the office’s ability to protect the country, to administer the laws, and the purpose of the executive, to respond quickly and decisively unforeseen events. Richard Reinsch: All right. Well, with that, John, we appreciate it. We’ve been discussing with John Yoo his book, Defender in Chief: Donald Trump’s Fight for Presidential Power. Thank you so much for your time. John Yoo: Ah, thanks a lot, Richard. And I promise I’m bringing Richard Epstein with me back on if you have me back.

Richard Reinsch: Today we’re talking with Steven Hayward about travails in American higher education made possible through cancel culture and Steven Hayward’s particular experiences at the University of California Berkeley. With this unsettling development, Steven Hayward, we’re glad to welcome you back to Liberty Law Talk. When you were last on, we discussed your book, Patriotism is Not Enough: Harry Jaffa, Walter Berns, and the Arguments That Redefined American Conservatism. You’re also the author of a multi-volume history, The Age of Reagan, and numerous other essays and reviews and studies. You’re currently resident scholar at the Institute of Governmental Studies at UC Berkeley. Of course, many will know you from your almost daily blogging at www.powerlineblog.com. We’re glad to have you. Steven Hayward: Well, thank you, Richard. It’s great to be back. Richard Reinsch: I want to talk about your particular experiences at UC Berkeley with some rather unhinged attempts to remove you from campus there by students and less than heroic deans responding to those students. But in general, I’d be interested to get your opinion on this, I think what we’re in now in regard to American higher education is sort of the mop up phase of the Marxist Gramsci’s famous call for a long march through the institutions by the left. I think they’ve marched through and they’ve captured all of them basically. Now they’re in a position of such dominance that there’s really very little pretense that they need to talk to anyone other than themselves or deal fairly and equitably with anyone other than themselves with regard to education and other cultural journalistic enterprises in America. Steven Hayward: I think that’s right. I mean for a long time I thought, like a lot of people did, that maybe I was too accepting of it. That the worst of the radicalism on campus was confined to women’s studies and English departments and language departments. Oddly enough, geography as a discipline went way left quite a long time ago. But that the other disciplines, the main social sciences, political science, sociology, history, although liberal for the most part and they have been for decades, they hadn’t completely succumbed to craziness. Well, that’s mostly wrong. Some of the older disciplines are still okay in a relative sense, but you’re seeing that the administrations have certainly thrown in with what you might say the new woke culture that we live in and still be on the college campuses as we saw with what happened with James Damore at Google out in Silicon Valley. You may remember and listeners may remember when Sam Abrams at Sarah Lawrence, I think is where he is, published that article in The New York Times two years ago saying the problem now in universities is the administration has gone in on this. Of course, he had ferocious blow back over that. One of the controversies at Berkeley right now and at several other places is essentially the demand that all faculty sign a diversity loyalty oath and that diversity will now be used as a criteria for hiring. Well, this is simply back to the McCarthy era. There is some blow back against this even at Berkeley and other UC campuses, but it’s all been put on the back burner because we’ve shut down for the virus. Richard Reinsch: I graduated from my undergraduate institution in 2001 and from law school in 2004. I remember in both institutions, one of which was a very progressive institution, we got a lot of mileage out of just pointing out the lack of representation of conservative, classical liberal voices on the campus. We seemed to find our voice that way. There was an implied tolerance and willingness to hear us out, an acknowledgement that, “Well, we basically own most of the campus, so we need to do this.” It seems to me that doesn’t even really exist anymore. What really does exist is the use of the university itself as Glenn Loury pointed out recently with Brown University’s statement, its anti-racism statement that the university itself becomes a social justice vehicle or becomes essentially an ideological enterprise. Of course, it’s been going on now for many years at UCLA where the professors have to write a statement, I think it’s every year, of how they’re furthering diversity with their teaching. You think of the McCarthy era, but this is something of a religious oath or test that is being required. Steven Hayward: That’s exactly right. I don’t know. I see no sign of anybody in administrations at universities recognize that this is a problem for them. I will say this about Berkeley, it’s sort of odd that I got there in the first place, and long further back, we can go into it a little bit if you want. A lot of people I’ve talked to in the political science department where I’ve spent some time and taught some classes and also some people in the administration say, “We know we have a problem with not enough conservatives on the faculty.” I have to give credit to the Berkeley administration. They have tried to be accommodating to the College Republicans who are not always as prudent as they might be. They invited Milo, right? Richard Reinsch: I remember that. Steven Hayward: Often referred to as the Milo riot. However, they don’t know what to do about it. They simply rubber stamp any of the most radical ideas that come along. This goes back at least 50 years to the ’60s when you had the SDS and other student radicals at the time saying universities should become a node of political activism. It’s not a place for learning anymore. Yeah, I think you’re right. You mentioned graduating, what, 30 years… wait, 20 years ago now. Sorry, you’re a young guy. I had a friend of mine who had a daughter, actually it’s my writing partner at Power Line, John Hinderaker. He has two daughters, 10 years apart. They both went to St. Olaf. One graduated 10 years ago, and one graduated just this last year. The two daughters got together and compared notes. The second daughter just graduated said… or the first daughter reflecting on her experience, a little bit like yours, just in the last 10 years things have gotten so much worse at that same little bucolic campus there in Minnesota. Richard Reinsch: Yeah, St. Olaf. You mentioned the administrators, and I think that’s something people don’t understand. You and I understand that this incredible explosion of these people with these jobs on campus has always happened roughly in that same time span, in the last 10 to 20 years, outpacing faculty hiring and part of… I mean a public choice analysis would be they’ve got to find something to do, something to make themselves worthwhile. But there’s also an ideological component here, too, and these are equity, diversity, inclusion and administrators have really found their measure in appealing to students for greater fairness or greater representational fairness on the basis of gender or race or various status. That becomes a way in which a campus is constantly in upheaval, but also this totalitarian mentality where you really do get into forcing people to think in certain ways, speak in certain ways in the name of fairness and equity. I think that’s sort of also what’s been happening or it has been happening on campus. Have you seen that? You also taught at the University of Colorado Boulder, itself no shrinking progressive violet. Steven Hayward: Right. Well, thinking about administrators, every institution now has a dean of diversity and inclusion and usually a large staff. It’s amazing how large the staff can be at the larger universities like a Berkeley or Michigan. Richard Reinsch: Six figure positions, right? Steven Hayward: Yes, exactly. Again, one of the more significant moments in the whole story with the Oberlin College libel suit brought by the bakery that was judged by a jury, what, a year ago, whatever it was, was a $25 million judgment. What they found was the dean of Diversity and Inclusion had been participating with the students and organizing protests against the bakery. Well, I looked up the dean. I forget her name now. Where’d she come from? Well, she came from women’s studies. You look at her publications and it’s all the deeply left-wing politicized radical woke stuff. You’re now going to make that person an administrator? I think you’ll find that kind of profile at a lot of these administrative positions at colleges around the country. Not as true at Berkeley. I don’t think Berkeley, for instance, has a bias incident response team like Michigan had or may still have, and I’m not sure whether it’s the dean or provost, but the person who does diversity and inclusion at Berkeley right now is from the sciences. I think he’s a biologist. I’ve met him. I’m sure he’s a liberal, but he doesn’t seem to be quite as far gone into the fever swamp as you find in so many places. Richard Reinsch: What’s a bias response team? Steven Hayward: Well, bias incident response team is where students or faculty, but it’s usually students, can report instances of racism or sexism or transphobia. Whether it’s something you said or written or said in class even and they’ll come and investigate this. Of course, we know how these investigations go. It’s leading to increasing amounts of self-censorship by students and faculty. Richard Reinsch: It was a sign also things were going wrong, Trump wins in 2016, and various universities providing safe spaces on campus for the students to talk about this. One of the activities was to color or to express your feelings with color. I thought it was hilarious. In general, it seems to me something in the background here, though, is really it’s a Supreme Court opinion, Bakke v. Regents of University of California system 1978, where there’s this mention by Justice Powell that diversity could be a rationale on the basis that they bring their perspective. That becomes in itself a good. But of course, that doesn’t really gel with affirmative action which was about remediation. Diversity becomes an ever-springing justification for this sort of thinking that you’re going to tie an ideology to a gender or to a race. It seems this has just… whatever Powell intended, and it’s not just higher education, it’s now corporations, it’s now journalism, this has gone beyond this. It’s become, I guess, in a way just fundamentally liberal in its consequences. Steven Hayward: It’s probably worth reminding listeners a little bit about both affirmative action, how it began, and then the Bakke case. If you go back to the original executive orders from first actually John F. Kennedy and then Lyndon Johnson and then the initial programs that were adopted in the private sector and universities, the idea was outreach. Let’s find minorities who, for whatever reason, bad schools or whatever, have the ability and who should be recruited into the employment pool and then hired on merit equally with anybody else. Well, that didn’t last very long. It became de facto quotas pretty fast. In the Bakke case in the ’70s, you have the University of California Medical School at Davis reserved, I think, 21 spots out of 100 for the medical school for minorities no matter what your MCAT scores were and grades and so forth. Allan Bakke sued. He had very high scores but had been turned down twice. Meanwhile all 21 of the students admitted on the quota had test scores and grades not even a little bit below his but way below his. So the courts said, “NO, you can’t do that. You can’t have a numerical quota.” But the whole opinion of the court was a mess because you had all these different concurrences and dissents. So Justice Powell, as you said, was the swing vote saying, “Bakke wins. You can’t have a quota, but diversity should be a factor.” Now, I’ve come to the heretical views just recently that maybe that case was wrongly decided. Maybe we would have been better off, I think, on principle according to a rightful understanding of equality and individual rights, but maybe politically, socially, we would have been better off if the court had said, Fine. You can have quotas. Go ahead. Make my day.” I think it would have been like busing was in the ’60s and ’70s, hugely unpopular including even with minorities. I think it would have all collapsed from its own weight. Instead, everybody said, “Ah, diversity. There’s a perfect thing to dodge behind.” Now it’s become this huge ideology. I know you follow this closely. It reminds me a little bit of the unintended consequences or perverse results of the Chevron case. We talk a lot about the Chevron doctrine. That was a case the Reagan administration won in court. It’s become a nightmare for the bureaucracy, and now it’s the thing we most want to get rid of. Well, I think the Bakke case is similar. Richard Reinsch: It seems to me also a part of this diversity unfolding or unintended consequences, perhaps, the University of California system recently voting to eliminate use of SAT and ACT in admissions requirements, I think, after this year. Of course, more institutions will follow suit. You’ve got the University of California Los Angeles, UC Berkeley. These are high-performing institutions that will not use this basic meritocratic criteria. I think it gives the administrators free rein to shape this campus in the way they want. Steven Hayward: Yes. By the way, I should be very specific about this. The faculty at Berkeley, and I think maybe UCLA but I know at Berkeley, faculty Senate actually voted against the idea. Richard Reinsch: That’s right. I read that. Steven Hayward: I think that’s quite significant. So your liberal faculty said, “No, wait a minute. We want to keep the SAT.” Why is that? Well, I can tell you. Berkeley students, for the most part, are really good. It’s a hard school to get into, and I think the faculty respect this. They want the smart students and they understand… What’s really going on here is, and I picked this up four years when I first showed up there, that the idea of meritocracy is under attack from the left. It has to be because in California the real reason is the Asian kids, a large Asian population. They get super high test scores. So the first thing that the universities diversicrats want to do is they want to get rid of our Prop 209 that banned affirmative action admissions for our public universities. Then they want to be able to shape the demographic of the student body explicitly according to race, and you have to overthrow the idea of meritocracy to do that. So the SAT is just step one, and grades don’t mean much anymore because of grade inflation. So at that point we are going to get back to essentially having quotas, and no one will admit that that’s what they’re doing. Richard Reinsch: It’s absolutely amazing. It’s absolutely amazing that it happens as America increasingly becomes this multiracial society. Steven Hayward: Yeah, yeah. Richard Reinsch: I mean it’s amazing to me. Let’s talk about, you go to Berkeley as a visiting professor. You’re a conservative. You teach, if I remember… You talk about this, by the way, in a really nice, entertaining, well-written essay in the current edition of Commentary. Your piece there is “How I Ran Afoul of Campus Cancel Culture.” You go to Berkeley to teach, what, a couple of classes in the undergrad department. You have a good experience for the first couple of years, so much so that you wonder if you’re not doing it right. Steven Hayward: Yeah, right. I kept thinking, why are there not protests? The student newspaper wrote a nasty article about me when I arrived, but that’s par for the course. Nobody paid any attention to it in the administration or in any of the departments. Richard Reinsch: Well, you said they wrote a mean piece about you in the student newspaper, but it actually helped your student enrollment. Steven Hayward: Well, this is the funny thing is that I suddenly… I was teaching a large lecture class on the Constitution actually in political science that no one had been teaching for a while. I had a long waiting list to get in even with a room that held 150 people. I had a couple of students, one kid actually… I really liked this kid. He was very progressive, a big Bernie Sanders supporter. He spotted me one day walking across Sproul Plaza. I hadn’t met him yet. This was before class. He walked up to me because he looked me up, I guess, and says, “You’re Professor Hayward.” I said, “Yes, I am.” He goes, “I’m taking your class. I want to argue with you.” I said, “Great!” By the way, he was great in class. He was very smart, very left but sat right in the front row and bring things up and made the class a lot better. That’s the thing I think a lot of left-leaning people on campuses don’t understand is they’re impoverishing their own campuses. He wasn’t the only one. I had another kid take three classes from me. It wasn’t till the third class, I was like, “Gosh, Mr. Howard, you’re a real glutton for punishment.” I get talking to him one day. I find out he’s a big liberal Democrat and close personal friends with Nancy Pelosi. But he said, “You’re the only conservative I’ve ever been exposed to.” It’s interesting. It’s challenging for me. The style of the class is different. I think that’s maybe a longer subject another day. Many conservatives teach differently than leftists do. Students understand this now. Then what happened is that some students looked me up and had a freak out and started a Twitter storm and wrote long memos, heavily footnoted to all the woke literature about what a threat I was to them because of my racism and sexism and homophobia. The dean, unfortunately, folded on the spot which I think was unfortunate. I think he actually regrets it in hindsight. To make a long story short, the fuss didn’t end with me. There were a bunch of students considering demanding that the dean resign. Richard Reinsch: Talk about that for a minute. That’s an interesting thread. Steven Hayward: Well, I think most conservatives whether their libertarians or your traditionalists or Straussians or whoever, they tend to take the text more seriously. They tend to teach from original texts rather than textbooks. Above all, I think I’ll say this as a collective statement, we tend to be anti-historicists. We take ideas seriously. We read Edmund Burke not out of antiquarian fascination but because we think he might be right about things. He might be right today. You average liberal doesn’t think that way. They think ideas change with the times. They’re all basically Hegelians. If you tell a student that actually what Burke or Tocqueville or somebody thought doesn’t really matter, it’s not relevant today, then why would you take it seriously? Why would you work very hard reading it? Richard Reinsch: What year did you start teaching at Berkeley? Steven Hayward: Well, back in 2017 I was a fellow and the fall of 2016, so I was there for the election. And you’re right. They had a collective freak out on the campus when Trump won. Richard Reinsch: Yeah, I remember reading it. You start teaching in 2017, and things go pretty well. How did you engage with…? How did cancel culture land on you? Steven Hayward: Well, I should go back up a step. It happened that the Goldman School of Public Policy at Berkeley, which is, by the U.S. News ranking, the number one public policy program in the country. Actually ironically, it was the dean of the school there, Henry Brady, a very distinguished political scientist, who had initially contacted me, I don’t know, five, six years ago when I was teaching at Pepperdine saying, “We’d like to get some visiting conservatives come to the Goldman School. Would you be interested?” I said, “Maybe.” I went up and met him and met a bunch of faculty, and they really wanted me to come. Then what happened is competition. It’s a good thing. Some people who know me, I didn’t know them, but who know me in the political science department got wind of it and then John Yoo at the law school also. They said, “Yeah, the Goldman School’s great, but why don’t you come and spend time with us at public policy and the law school. By the way, we’ll keep you for two or three years if you wanted.” I thought, “Well, that sounds like fun. I go in for that.” So that’s what happened. But Dean Brady kept after me. So this year I said, “Okay, I’ll come teach for the Goldman School this year.” Then what happened is that some students looked me up and had a freak out and started a Twitter storm and wrote long memos, heavily footnoted to all the woke literature about what a threat I was to them because of my racism and sexism and homophobia. The dean, unfortunately, folded on the spot which I think was unfortunate. I think he actually regrets it in hindsight. To make a long story short, the fuss didn’t end with me. There were a bunch of students considering demanding that the dean resign. One of their memos was about all of his years of macro and microaggressions and harming minorities at the Goldman School that would last for years, which not many things deans do last for years but there you go. Richard Reinsch: I want to get to that in a minute. One thing you note in the article is, which I thought that was pretty funny, you had two course descriptions that they objected to and that caused them upset. One you had “History of Conservative Thought from Burke to Bannon”, as in Trump’s Bannon, which at first thought, I said to myself if I was teaching that I probably wouldn’t have called it that. But it’s actually kind of a smart thing to do particularly in that environment in terms of getting students. In any event, Bannon is something of a thinker. I’m not saying he’s right, but he does have some ideas and arguments. He’s read some texts closely. So it’s not exactly beyond the pale that you would read him particularly now. And they couldn’t handle that. I mean one reason why this was such a shocking episode is that it’s in a public policy program, which is otherwise very quantitatively oriented even if liberal. It’s not critical theory and some of these really insane disciplines that exist out on the… well, not on the fringes anymore. That’s what made it so startling. Steven Hayward: Yeah, that was funny. That was the course title I used in the political science department. Yeah, you’re right. If you talk to faculty these days especially at big universities and they say, “Course titles are very important. It’s a marketing tool like anything else.” I taught the course, one political science and had a pretty big class, again, with a full spectrum of ideological views and a lively discussion. So I said, “Oh, why don’t I teach that class at the Goldman School?” They said, “The class sounds fine, but the title is way too outrageous for our very liberal students.” So they suggested this very anodyne title. I forget what it was now, but it was very bland and background… Anyway, I taught the course. It was a much smaller class at the Goldman School and very little discussion. I had to argue with myself half the time because I couldn’t get students to… By the way, I tell students right off the bat nowadays that I’m conservative but you’re more likely to be rewarded in class if you argue with me than simply nod your head or stay silent. I want argument. I don’t ever tell the students they’re wrong. I believe a dialectical, almost like a seminar process, that went, I think, way off crazy, I’ll say, “Well, blah, blah this, blah, blah that.” Then if we go on for a while and say, “Okay, we’ll just leave it there.” Then we move on to other people and other things. Anyway, I’m pretty easy going in the classroom. But still, the class was a huge contrast to the political science classes I’ve had. Richard Reinsch: In class, and you quote an administrator at another school, at American University, saying that students seem reluctant to engage in difficult questions and debates. None of that surprises me. Did you find that to be the case in this course and/or something else that students themselves don’t trust their own reasoning? They don’t actually think words and arguments can really touch anything in a true way. Steven Hayward: I don’t know how many of them really thought it through to even one or two levels of philosophical tail as you suggest, at least not in the departments I’ve been in. I mean one reason why this was such a shocking episode is that it’s in a public policy program, which is otherwise very quantitatively oriented even if liberal. It’s not critical theory and some of these really insane disciplines that exist out on the… well, not on the fringes anymore. That’s what made it so startling. Richard Reinsch: It’s interesting you’re saying about the public policy school, too, I supposed their thinking is, “We’re not going to interact in our own careers. We have to put up with the politics of, but we’re not going to really interact with conservatives or libertarians or classical liberals” at the level of wherever they’re going to end up: high bureaucratic positions in the federal government, foundation positions, whatever they’re going to go on and do. They have the answers before them so, “Why are you trying to have us read primary texts even? I wonder if that was the public policy attitude. Steven Hayward: Well, it could be. Here’s where having criticized Dean Brady I should give him some praise. He’s a liberal. He’s not a leftist, but he’s an old liberal. He said, “Look, I think it is important for students to know about Edmund Burke’s argument and Hayek. He says, “There’s a great value in reading Hayek. Students should know about Hayek.” Dean Brady says, “I think Hayek’s critique of central planning is correct, and students need to know that.” By the way, he was a big fan of James Q. Wilson. Didn’t agree with him about everything. What he really wanted from someone like me at the Goldman School was to be something like James Q. Wilson. Well, what was James Q. Wilson interested in his last decade of his life? Moral questions, questions of character. I don’t think that would fly right now. Richard Reinsch: Marriage. He wrote a book on marriage, right? Steven Hayward: Marriage, exactly, right. But think about it for a minute, I think there’s always been uncertainty… just to get off a little bit into the short weeds anyway. There’s political science that tries to understand political life, and public policy is sort of the practical offshoot of it, I think. A lot of people there, they’re going to become, I guess, I don’t necessarily want to say technocrats the way that word’s usually meant, but they’re there… Maybe actually I’ll borrow from Marx. Political science students want to understand the world. Public policy students want to change it. Even though a lot of political science graduate students are pretty left, some very left, although there’s also some conservatives among the political science graduate students at Berkeley… Public policy, I don’t think there are any conservative graduate students. I think the number is zero. They’re there to want to change the world. I think you’re right. I think when you’re in the big bubble of the university, you don’t think… Well, I mean you know the general public narrative is that Republicans have only won elections by cheating, by deceiving people, etc., etc. They don’t take the argument seriously. Richard Reinsch: This is not an original observation, but you said number one public policy school in America, which aspires to be, I assume, not merely a national school but an international school and the positions its graduate students aspire to. Yet, you’re the only conservative faculty member. Maybe there’s some moderate progressives, but you’re the only one, and the students almost uniformly left. To me, that’s indicative of just an intellectual failure going on. When that’s the case, it’s not merely what texts are you reading. It’s what questions do you not even know to ask. Which leads to, this is in the article, you’re denounced by student groups called Equity in Public Policy who form a consortium to attack you, Students of Color in Public Policy and Black Students in Public Policy. They said that Steven Hayward was, quote, “a climate denier who actively promotes ideas that harm communities of color and other marginalized groups and for your, quote, ‘repeated racist, misogynist and transphobic statements.'” Steven Hayward, how do you plead to this? Steven Hayward: Well, I got a whole bunch of new readers from my post on the Power Line blog which can be pretty polemical. Of course, what am I usually doing? I’m usually citing Thomas Sowell, John McWhorter, Coleman Hughes. I think maybe I’ve written only two things ever about same sex marriage, and usually it was analytical things. I remember writing an article once about my conversations with Jonathan Rauch about same sex marriage. I’ve written a couple of things about what, I guess, we’d call… Is transgenderism actually a formal ideology? Richard Reinsch: I think so. Steven Hayward: But I’ve written a couple things about the identity question and as a very skeptical thing but not hostile because I talked about transgender people I know and what they say and say, “Here are things to think about.” But the point is if you’re not… It’s a very narrow orthodoxy I think this is what we all know. It was a shock to read it. The climate thing is completely wrong. Of course, that is true for a long time that you’re either a true believer or you’re the moral equivalent of a Holocaust denier. You’re not allowed to be a lukewarmer, which there’s a lot of people who fit in that category like Matt Ridley, for example, and lots of others and including, by the way, some Berkeley faculty in the physics department. But that’s where we are. All these talks of tolerance turn out to be pretty particular and narrow. Just the fact that I had dissented from the party line in the past and that I was wholly unacceptable. I think just using the phrase “free market environmentalism” was like raising a red flag for a bull. Everybody freaked out. Richard Reinsch: I talk a little bit about this. You also had this very negative response from a course you taught. I think this actually ties into what you just said about public policy students. You were going to teach a course on approaches to environmentalism outside of the mainstream. I think a part of the course description is free market environmentalism, and you were going to teach the book, which I’ve read and actually used in conferences, called Free Market Environmentalism by Terry Anderson and, was it, Donald Leal, which is largely seen as the book that launched free market environmentalism. I think it came out in the early 1980s. This was triggering and hateful and unsettling. I thought, “Oh my gosh, we can’t even have a conversation about that in a public policy school.” Steven Hayward: That was always amazing. I should fill in a little bit. Unless somebody knows this field, they won’t necessarily get it from the description that I printed in full in Commentary. It was going to be Free-Market Environmentalism, Ecomodernism, Degrowth, and, I forget, Other Heterodox. So I was going to do… Degrowth is sort of a revival of Malthusianism. We’ve got a couple of prominent faculty at Berkeley who were behind this. Plus I have a couple of people I know who are sort of on the fringes of that. I was going to invite them to class as guest speakers to represent the point of view and disagree with me. Then one of the other key books I was going to use was Elinor Ostrom’s Managing the Commons. Elinor Ostrom was, until last fall, one of the only women to have won the Nobel Prize in economics, and near as I can tell she is totally unknown by anybody at the Goldman School. Her work is in a nether world in between old control and command regulation and pure markets and property rights. As such you get a whole… ecomodernism or the aggressive environmentalists who have broken with the old Malthusian and want to talk about the importance of economic growth and technology as solutions to environmental problems. So it was going to be a whole spectrum of things. I know some of the ecomodernists in the Bay Area and was going to have them in to talk. I wasn’t even going to talk about climate because I think climate change is wrecking the environmental movement. It’s just swallowing the whole thing up alive. I thought this would be something different. But it didn’t matter. Just the fact that I had dissented from the party line in the past and that I was wholly unacceptable. I think just using the phrase “free market environmentalism” was like raising a red flag for a bull. Everybody freaked out. Because my course in the fall totally went off without a hitch. There was no fuss. It was, as I say, a bit of a disappointment in the classroom dynamic. It wasn’t until my spring graduate seminar was announced and was listed, within 72 hours all hell broke loose. Richard Reinsch: It’s interesting. Going back to something you said, free market environmentalism requires a bit of policy work. It requires a pretty deep understanding of economic concepts and then applying that to problems in environmental policy use and how various companies engage with the environment and getting them to engage with it in a pro environmental way but using market ideas to do so, not regulation. Now maybe they weren’t even at that level in their objection to you. But it’s sort of like a recognition that this doesn’t involve us as much. This would not be for the public policy students to engage in really. It’s pro business or something like that. I wondered if maybe that was their thinking, but that may have been too deep. Steven Hayward: I think you’re probably right about that. I know Larry Alexander at the University of San Diego Law School used to teach a course on the environment from a contrarian point of view. He said it was known among the law students as the polluters’ perspective. Of course, if you know the free market and the environmental literature especially the thread of it that talks about common law remedy, and it often comes as a surprise to environmentalists when I explain to them the fact that the regulatory state they like so much actually has foreclosed a bunch of common law remedies that ordinary people can use against corporations, against the government. Interestingly, the people understand this clearly are the whole market historians, like I’m thinking of the guy who wrote The Transformation of American Law at Harvard years ago, I’m blanking on his name right now or Gabriel Kolko whose famous for The Triumph of Conservatism. For public policy students who otherwise are pretty quantitative, I mean the Goldman School and most other elite programs require a lot of quantitative analysis classes and statistics, you would think that it would fit in well, how would they structure markets, incentives and tradable permits, and so on and so forth, work out as a superior remedy or let’s add another rule making from the EPA. But there’s no imagination for that at all right now. Obviously, as we see, not much open to even to considering the question. Richard Reinsch: That would be my understanding. The thing about the public policy school dean who had invited you to come teach and wanted your perspective, so when he gets attacked, he folds like a cheap suit. He says, I’ll just read it to you, it’s in the article, “I owe an apology to all of you. I take full responsibility as it was my sole decision to invite Steven Hayward to the Goldman School of Public Policy to teach two courses, one in the fall and spring. I took the fact that he was already affiliated with IGS, Institute for Governmental Studies, and teaching at Berkeley Law as indicators that he would be a thoughtful person, but that is not the case. I was not aware of his statements that belittle others and undermine our shared goals of ensuring a just and inclusive society. It’s one thing to disagree with someone. It’s another to demean them.” In a way he realized he was on the wrong side of the mob and sought to join them, not unlike, say, Mayor Ted Wheeler. Steven Hayward: By the way, I met Ted Wheeler once a few years ago before he was mayor. Richard Reinsch: He seems like a perfectly nice man. Steven Hayward: He has an MBA from Stanford or Yale, I forget where, and was treasurer of the state of Oregon. Yeah, I thought in the ordinary sense he seemed quite able. Anyway, now he’s just awful. If he hadn’t been mayor, he would have become a dean, it seems. Anyway, that’s getting us off track. I don’t know if the dean actually read any of the statements that the students were talking about or if he read… Look, I’d known him for a while. He had come to some events that I had done. I did a conference a couple years ago I organized through IGS on intellectual diversity. I had Harvey Mansfield out from Harvard as the keynote speaker and Josh Dunn from Colorado and Steven Teles from John Hopkins. Dean Brady came to several of the sessions. The guy knows me. It wasn’t like he plucked me out of the phone book and was suddenly surprised. When we talked first five years ago he was totally aware of my climate work in places like the Weekly Standard and The Public Interest. Richard Reinsch: Wow. Steven Hayward: So I think it’s one thing he’s embarrassed about. As I say, the students were after him. By the way, the students backed off demanding his resignation. Instead saying, “You need to start planning your succession right away.” I think the idea is they want a much more radical dean than him. I think there’s some chance that will happen. Dean Brady’s been very successful in the useful role of raising money and raising the profile of the school. He’s very good that way, so we’ll see about that. As I just mentioned, that’s why I wrote the second half of the article about Aaron Wildavsky, the great political scientist at Berkeley. He founded the Goldman School back in the early ’70s. I just quoted a few things he said. I could have gone on a long time about Aaron who I knew a little bit before he died. They couldn’t hire him today because my views are about the same as his views on identity politics, on environment and so forth. Richard Reinsch: One thing I did want to say, it seems to me… We were talking about the administrators earlier in the interview and how the administrators goad the students on. Well, it’s like the feedback loop. The students have now realized the way to get change on campus or to get their way is to hurl these accusations. It’s not that Brady is an evil guy, but he’s been open to evil things. He’s allowed them to happen. He hasn’t been nearly as aggressive as he needs to be. This now means we need a change or something like that. This inability to have any sort of conversation or debate on campus, and the fact that that is damning, that he would turn you out before even talking to you as an equal, as an academic equal, that’s shocking. It undermined the entire idea of an academic enterprise. Steven Hayward: Yeah, and it’s spreading rapidly. As we’re talking, I just read a story yesterday or the day before about Tulane University where- Richard Reinsch: Yeah, I saw that. Steven Hayward: … some group was… Right, you should know the story, . I forget whether it was a class or a student group or whatever. They were going to host an author who’d written a self-critical book about the legacy of his grandparents or great-grandparents in the Klan. In other words, it’s a anti-racist book very much in the vein of not revisionist history but highlighting really ugly aspects of American history. Students complained that this was hurtful. So they canceled the event. Where are the adults in the room to say, “You people are complaining about this. You need to grow up”? That’s what needs to happen, and there’s nobody doing that any place. Richard Reinsch: It is. It’s the complete evacuation of any moral authority it seems to me, or confidence in what we are actually here to do in the academy, which isn’t to carry on just political conversations, and if we do have them, we have them in a different way. What I took from your Aaron Wildavsky discussion, which I thought was really well stated, Wildavsky was a traditional liberal, a New Deal liberal, confidence in government, confidence in the administrative state to achieve good outcomes but he becomes skeptical over time about some of those aims and some of the loftier objectives being voiced, and also within academia would have been a conservative because he did believe in the idea, debate, dialectic process itself. So he wouldn’t have understood this, and also, as you quote him, incredibly skeptical of climate change, global warming in the early ’90s. Steven Hayward: Yeah, that’s right. I don’t think he would have changed his mind if he had lived on. He died in 1993, I think, of lung cancer unfortunately. He had been a lifelong smoker. But I don’t think he would have changed his mind at all because he wrote a lot about environment issues, not just climate but risk assessment of all kinds is one of his greatest strengths. I will say just in passing the political science department at Berkeley, it’s very large. It’s also very highly ranked. But it actually has a few conservatives lurking around but not outspoken like Mansfield or somebody. We have a lot of old sensible liberals teaching there, so there’s actually more diversity, in the right sense of the word, of thought there than we now see at the Goldman School, which I think is a pretty stark thing. Richard Reinsch: Very stark. Overall, you’re still going to teach in the law school, I think you told me. Steven Hayward: Here, that’s another… I’ve taught a class and I’m going to teach again this spring with Judge Janice Rogers Brown who’s also- Richard Reinsch: Oh, wow. Steven Hayward: … a fellow at the law school. We teach a class on natural law jurisprudence . It’s just a small seminar, but we get some liberal students in there. Again, it’s the same experience. We actually read some Cicero. We read some Aristotle. Most of the students really have never read any of these old texts at all and are completely unfamiliar with them, and they like it. It’s the most highly ranked course I’ve taught at Berkeley in the student evaluation. Richard Reinsch: Oh wow. John Yoo who also teaches at Berkeley, he told me in his course, “Constitutional Law,” when he gets to the 14th Amendment, they read about Reconstruction and the period of Reconstruction. None of the students, he told me, have very little knowledge of what that is. At the same time they’re very sure what the 14th Amendment means. It’s interesting to me right way about what students actually know, don’t know, and what they’re claiming is absolutely true. Steven Hayward: Right. I remember Robert Bork who I knew quite a bit when we overlapped at AEI years ago, he used to talk about, and it turns out to be literally true, most constitutional law curriculum at law schools, and maybe it was where you went, begins with the Equal Protection Clause of the 14th Amendment. That’s kind of the whole Constitution now. The historical context of it is not taught at all. You go straight to the case law. I found to my surprise, I guess I shouldn’t be surprised, but a couple times in various classes I bring up the question of social justice and I’ve included Hayek’s famous essay on the mirage of social justice a couple of times, but then I’ll talk about… how does this compare to some of the old classical categories of social justice like you find in Aristotle, commutative justice, distributive justice? What I realized with the look on students’ faces and also they come up to me after the classes, they’ve never heard of those before. The whole lineage of that was just not in their education any place. So then I end up teaching Aristotle, too. I joke a lot, and this is what John’s point is, an awful lot of what conservatives do in higher education is remedial education, willy-nilly. I end up telling people what Plato’s Republic is about or certain parts of it because that’s not read anymore. I sneak in Tocqueville. I think, again, why conservatives teach differently is it’s not uniform but a lot of us are actually teaching Western Civilization in a clandestine way because it’s not taught. Even liberal students kind of want to know it. Richard Reinsch: Yes. I think that’s right. In the summertime I teach various courses for conservative organization students. These students are remarkably open to that and prefer that, and many of them attend institutions or take classes where that’s the case. I haven’t had the general experience of what you’re describing. Steven Hayward, so you go on. You’ve not been canceled. You obviously have a lot of places to write and publish, and you’ll still be at the law school, so we look forward to continue to hear from you. Steven Hayward: Well, thanks, Richard. This has been fun, as always.

Richard Reinsch: Welcome to Liberty Law Talk, I’m Richard Reinsch. Today we’re talking with two wonderful scholars of the life and thought of Thomas More, about a new volume they’ve edited called The Essential Works of Thomas More. We’re visited today by Gerard Wegemer of the University of Dallas and Stephen Smith of Hillsdale College. I’ll introduce to you first Gerard Wegemer. He is professor of English and Director of the Center for Thomas More studies at the University of Dallas. He is the author of at least six books on Thomas More and a number of other essays and reviews on this thinker. And he has taught at the University of Dallas for a number of years. Gerard we’re glad to have you. Next, Stephen Smith who is Dean of the Faculty and the Temple Family Chair in English literature at Hillsdale College along with being the co-editor with Gerard of The Essential Works of Thomas More. He’s also the author of The Fire of Life: Wonder and Education in Late Shakespeare. Welcome gentlemen. Both of you. Gerard Wegemer: Thank you. Stephen Smith: Happy to be here. Richard Reinsch: Excellent. So thinking about this book The Essential Works of Thomas More, many of our listeners will know Thomas More through A Man For All Seasons which many say is an incomplete account or a maybe not actually true account of Thomas More, but very entertaining and dramatic. Sketch for us, Gerard. Who was Thomas More? Gerard Wegemer: So Thomas More is most famous for The Utopia and for holding the highest office in England under Henry the VIII. He was a poet, philosopher, historian, lawyer, judge, and a statesman who died for the rule of law and conscience and the proper autonomy of church and state. He was also, as a lawyer, a turning point in the history of liberty. Richard Reinsch: Talk about that. Gerard Wegemer: Well, More understood as a lawyer and a judge, a very experienced lawyer and judge, that liberty was justice through the rule of law ordered towards the good of the people. He as a young man learned Greek so he could understand these issues of jurisprudence from Plato, Aristotle, Cicero, and Augustine and Aquinas. He studied these in the original language so he could understand all the elements and the complexity of it achieving some measure of justice in an imperfect world. Richard Reinsch: I want to come back to that later, particularly his humanist learning and his scholarship in that regard. This volume is absolutely enormous and as I was saying to both of you before we started, I thought I understood Thomas More fairly well. I realized there’s a lot that I don’t, that I need to learn. Stephen, what does this volume reveal to us about the thought of Thomas More? Stephen Smith: I share your experience of the book as one of the makers of it, with Gerry, I think I speak for both of us in saying the labor of making this, bringing this book into published form, challenged us at every turn, that More was more comprehensive, more challenging, addressed more subjects and wrote in more forms. It’s hard to put into words what the experience of making a book like this is. The reader encountering it would encounter the versatile and challenging and comprehensive wit of this genius, Thomas More. The book has all of his essential Latin and English writings, he wrote in both Latin and English. It has both his poetry and his prose. A lot of people don’t know that More wrote poetry and wrote at a very high level. It has as many of his letters as we could fit in it. It has complete chronologies and timelines, appendices giving the earliest biographical writings on More from the 16th century. Really if listeners out there want to get a kind of turbo and great view of the book, they should just go to www.essentialmore.org, the supporting website, which is a beautiful supporting website and probably the best introduction to the book that I could recommend. But really when we made the book, Richard, what we were doing was aiming at a single service, providing the readers with everything they need to encounter and study the comprehensive Thomas More. I think your experience of More is like many, which is we know of him through A Man for All Seasons, we know something of the historic and legal drama, but my goodness look at all these writings, to the tune of 1500 double spaces, double columned pages in all these different forms, on literature, on philosophy, on law, theology, poetry. It’s an extraordinary achievement and he’s the first major writer of the English Renaissance and we want everyone to know that. Richard Reinsch: Thinking more specifically, I want to come to you Gerry, on just the legal question that Thomas More confronted, and indeed much greater than a legal question, I think probably a regime question. What specifically is he confronted with and what does he do in response just for the clarity of our listeners? Gerard Wegemer: Well that’s where the entire career of More is important and necessary, to see how even as a young man he was grappling with the issues that deeply affect the life of peace and justice in England. So England is just come out of a civil war when More is seven years old. They are threatened to go into another civil war periodically. Richard Reinsch: Would this have been the War of the Roses? Gerard Wegemer: That’s correct. That’s correct. In fact he will write a history of Richard III, which is about the end of that tremendous war. He’s immersed as a historian in the cultural and the historical issues that face every leader of government. This is where he feels himself inadequate as a young man, and goes back to study the classics and to study medieval history and to study law. He lectures on law twice at two different law schools before he becomes a judge and a lawyer for the city of London, and then eventually under certain conditions, accepts, after a conversation about conscience with Henry VIII, to be an advisor to him, which he does very successfully for 12 years until tensions arise about constitutional issues of church and state. Richard Reinsch: So you’re saying because of the tumult he experienced in England as a young man, this drives him in to scholarship. This drives him into humanist learning. Gerard Wegemer: Yes. He’s a person who deeply is immersed in the life of London, but he’s also immersed in the best way as an intellectual in the fundamental issues that any lawyer or judge has to deal with. It’s why in our tradition, lawyers and judges have received the highest and best education available in each of their countries. Because justice is a very fraught issue with dangers and limitations and requires extraordinary prudence to know, “What can we do under these actual circumstances?” Richard Reinsch: Thinking about, just for a minute, More is confronted with Henry VIII who declares himself head of the church of England, which he reforms, reshapes, according to his will, and More must give his assent to that, and he refuses to and therefor is executed. Is that sort of a simple understanding of what’s happened? Gerard Wegemer: Yes, and along the way, clear manipulation of Parliament under Cromwell’s strategic genius. But also manipulation of convocation, the church’s legislative bodies. Two people remembered that Warham, who’s the head of the church, completely dissociates himself publicly and confronts Henry VIII in Parliament. From everything that they passed under his pressure, Henry visits Parliament personally three times and asks for a division of house. So he knows who’s on his side and who’s not, and Cromwell is going to bash into Parliament that is going to do the will of himself and the king. That’s why More, his trial and the execution, prays that God give Henry good council and refers to the Parliament such as it is. Richard Reinsch: Thinking about this time in England, there isn’t much resistance from my understanding, Thomas More, there’s a bishop, John Fisher, those are the only ones I can find. Is this the sort of natural human tendency towards weakness in the face of overwhelming power and fear for one’s own security and future? Or is there a lot of other things going on? Gerard Wegemer: That’s where there’s a lot of research that has yet to be done, and records that need to be looked at again. But what you recounted is the usual story. But there was considerable resistance and there was an anticipation that what was promised would actually be fulfilled. This is where More’s life is a drama. This is where Chesterton would talk about More as being the turning point in the history of liberty. Liberty is very hard to achieve and it requires citizens who are educated and prepared, not just intellectually, but also as citizens equipped to confront the difficulties that people who want to achieve power and money at any price will always exert. There are certain perennial issues in everyone’s life. Richard Reinsch: Stephen, just sort of switching gears here, you noted the collection of poetry in the volume earlier. What does the poetry reveal about More’s mind and what he loves and presents in the poetry? Stephen Smith: To mention before, most people don’t think of More as the poet, but not only was he a poet, but was scoffingly referred to one. But his poetry is in English and in Latin and Dr. Samuel Johnson who did that great dictionary of the English language, he gave a large sample of Thomas More’s work as poetry and some of his other writings because they were considered models of pure and elegant style. He was known for his eloquence. In the poetry in particular he wrote a poem called “The Pageant of Life,” which imagined human life from birth to eternity, and he wrote poems on fortune and poverty. Late in the Tower of London he wrote a poem called “Lewis the Lost Lover,” which is a little ditty about this guy Lewis who rejects eye flattering fortune when it comes to him offering him help. He has all these really wonderful English poems, but perhaps with the most interest and the least well known, his Latin poetry, his epigrams. Two great critics of these poems wrote that they display More’s logical energy, muscular realism, and penetrating intelligence. These Latin poems were paired and published with Utopia. When you go and you pick up a copy of Utopia at the book store, at the library, you don’t ever see all of these Latin poems with it. One of the things we hope to do eventually is to put an edition out that puts them back together again because the Latin poetry really sheds light on Utopia in a number of startling ways. Just to give you a sense of what the Latin poetry addresses, it addresses human friendship, it addresses comedy, but a lot of the poetry on political life and political philosophy is maybe the most interesting. He has a poem called “What’s the Best Form of Government?” Is it rule by one, or rule by a senate? He has a poem entitled “The Consent of the People” both bestows and withdraws sovereignty. He has poems about good kings, poems about tyranny, so this poetry is an important part of his legacy that’s really not well known and not studied enough, and these epigrams in particular show as much of his mind as anything he wrote. His humor as well. One of my favorite ones is kind of silly, but it’s just a short poem that goes like this: “If an untrimmed beard makes a philosopher, why could not a bearded goat be a Plato?” This is the humor of More is very, he was so serious about Henry VIII and tyranny and decapitation but this is a soul who is famous for his good humor and his good cheer and his wit. It comes out in this poetry as well. In Richard III, for instance, he points out in the Latin edition that it’s Parliament that has the absolute political authority in England, not the king. Now he doesn’t say, “Not the king,” but More is clearly writing for ages and part of the way of overcoming poverty and civil war is to have more mature and robust political institutions. More’s the first person to write a speech in Parliament as Speaker of the House defending the need for free speech and he makes this address to Henry himself.  Richard Reinsch: It seems just as I read the poetry, he seemed to be concerned with the end state of man and with sort of a robust soul in approaching the problems of life, the difficulties of life. In my mind, help me understand the type of soul he was, and the largest question he would confront at the end of his life. Stephen Smith: I think he’s searching for a perspective on human life. For that “Pageant of Life” one of the hardest things to come by is a reliable and clear and trustworthy perspective on our human drama. We so often elude that altogether and can’t see it all. That’s why in the history of Richard III, More cries out against the blindness of our human nature. Richard Reinsch: Thinking along these lines about human nature, how did his thinking about human nature shape what he thought about politics? Do we have him preferring, from The Utopia, a republican form of government, and sort of a begrudging acceptance of monarchy? That makes him a very interesting thinker within England, to say the least. Stephen Smith: That poem, “What is the Best For of Government?” It does contrast a sure council with blind fortune when comparing an elected senate and hereditary monarch. In a similar way, Utopia introduces to England the vocabulary of Cicero in terms of the elements of republican self government. This is the dimension that is rarely referred to in that important book. On the other hand, More is extraordinarily discreet. After all, the chief spokesman in Utopia is called Raphael Hythloday, speaker of nonsense. More is not proposing any of this. It’s Raphael who’s pointing out all the serious difficulties of hereditary monarchy. Also the poverty that occurs when you don’t think about the good of the people. More never uses the word subject in his literary writings. It is always citizens and the people. He has a deep, deep assessment of England’s whole history. In Richard III, for instance, he points out in the Latin edition that it’s Parliament that has the absolute political authority in England, not the king. Now he doesn’t say, “Not the king,” but More is clearly writing for ages and part of the way of overcoming poverty and civil war is to have more mature and robust political institutions. More’s the first person to write a speech in Parliament as Speaker of the House defending the need for free speech and he makes this address to Henry himself. In the 1523 Parliament Henry grants free speech because of More, although he will never do it again. Richard Reinsch: So More as a young man confronts the King of England and was briefly thrown into jail, isn’t he? Stephen Smith: This is where More goes back to the sources. He even writes in his letter to Oxford, in some of these humanist writings, that it’s necessary to learn these original languages because translations are so inept. These are complex issues and we need subtle writers and subtle minds. Another aspect of his poetry is you see that even from his teens how serious and committed he is to improving his writing and his thinking. Over 100 of his 300 poems are translations and imitations of Greek poems. He’s trying to understand from within the many arts that a lawyer and judge need and one of them is the art of language and being able to speak to a people in a way that is persuasive and moving to that particular group of people. Richard Reinsch: Talk about, Stephen if you would, I just want to switch gears here for a minute, because I want to keep on covering, I want to keep this legal track, law track, but also with a humanist track. Thomas More and Erasmus, their friendship and what does it mean? Stephen Smith: This is an incredible relationship that lasted much of More’s professional life. We actually have a letter that survived from Erasmus that described his friend Thomas More in detail and it’s one of the best introductions you could have, I think, to Thomas More and to Erasmus and to what they valued as humanists. I won’t get bogged down in all the details of the letter but one of the famous things Erasmus says is that Thomas More was born for friendship and that if you needed a perfect example of friendship and action, you could see it in More. That letter identifies so many things that are important to More but the friendship that is the emphasis there. Both Erasmus’s adages begins with friends share all things in common. In general the subject of human friendship is at the heart of More’s project, that the human being needs friends. He has epigrams about this, a statesman exercises something like civic friendship, there should be civic friendship between citizens, but that emphasis on friendship is crystal clear and it’s really the key to this relationship. Stephen Smith: After More died, there’s a beautiful line from Erasmus in August, More died in July, so in August Erasmus wrote someone and said, “When More died, I seem to have died myself. We were a single soul.” This close relationship between these two great humanists. The key thing I think for us is their common commitment to an understanding of friendship and for listeners, some of the great sources on friendship that More knew and that we can return to ourselves, are Aristotle’s ethics, Cicero on friendship, and there are scriptural texts on friendship. Aquinas has written on friendship. It’s one of the most important parts of his legacy. When he was A Man for All Seasons, he had these different titles, but I really like that, “born for friendship.” I’m sure Gerry has more to say about Erasmus. Richard Reinsch: Yeah, please do Gerry. Gerard Wegemer: One of the things we included in this book was the play written in Queen Elizabeth’s time called Sir Thomas More. It’s by five different playwrights. Of course it was never performed. The first time that More is introduced in this play to Erasmus, the noble and poet Surrey says this about More: “This little island holds not a truer friend unto the arts, nor doth his greatness add a fainted flourish to his worthy parts. He is great in study, that’s the statesman’s grace, that gains more reverence than the outward place. That study is the general watch of England and it the Prince’s safety and the peace that shines upon our commonwealth are forged by loyal industry.” Now the words that the playwright uses are fascinating. “Friend,” “Statesman,” “Study,” as a way of achieving commonwealth, the common good and peace. But it’s forged by loyal industry. That’s another term that is associated by anyone who knows More well. It’s part of his mystery. Here is a genius who works harder than anybody else. Richard Reinsch: Thinking about Humanism, we keep using that term, the Humanists are about the study of classical literature, philosophy, politics, poetry, to the displacement, or ignoring the Christian contribution and Christian tradition. But that wasn’t More and Erasmus. How do they understand their Humanism? Stephen Smith: Well they shared that common Renaissance spirit of wanting to return to the sources, to those great sources of wisdom in Latin and Greek writings, but they certainly didn’t see those as, or didn’t put their Christianity aside when they did so. These things can go two ways, you can look at the integration that they achieved between Christianity and the best of classical wisdom, but you can also look at it in terms of that spirit of going back to these key sources, ad fontes. In famous letters that we include from More to Oxford University in which he actually addresses secular learning on the one hand and the liberal arts and theology on the other. He says in this letter to Oxford University, which I would probably put on the short list for listeners to look up, he says, “Secular learning prepares the soul for virtue, and it fosters prudence in human affairs, a thing that’s not useless to theologians.” Richard Reinsch: That’s very true. Stephen Smith: I thought that, to me, a real important sentence. They understood learning as having this preparatory role, preparing the soul for virtue, and in particular, histories and literature fostering prudence in human affairs. It’s not so much an either or, in terms of the classical Christian or Humanism but the both and that’s the one sentence that comes to mind from that letter to Oxford University. Gerard Wegemer: Another letter to put on the short list is the letter to Gunnell, that’s the tutor to More’s children, and in that he insists that if we put virtue in the first place and learning in the second-now he had a daughter who’s a genius like himself, but he clearly understood Aristotle’s point that as a person is, so does the person judge. The character makes an enormous difference on what you see, and if you’re able to see what is actually there. This is where harmony that was traditionally understood between the classical and the Christian became so important for More and Erasmus. When Erasmus goes to England, there he’s actually convinced by More in the circle to take up and master Greek himself. He will spend the next several years doing that and that’s where More challenges him to dispute translated content and More chooses a classical author that’s not usually on people’s short list. That comic philosopher Lucian. More tells us why he chooses Lucian and he says that Lucian has this capacity because of his humor to probe more deeply that anyone else without upsetting the readers’ equanimity, calmness of soul. Lucian can get people to think without stirring up those emotions that impede thinking. This is a worldly wisdom that can be lost. This is what Erasmus and More were trying to recapture. This is the fullness of human life in which there is no opposition between their best nature and of revelation. Richard Reinsch: How would he have related revelation and nature to one another, Thomas More? Gerard Wegemer: I think most by his example. As a young man, he quotes, and he quotes this throughout his life, the biblical passage that God loves a cheerful giver. This explains, for instance, but scandalizes people at his death, when More mocks his own death, making jokes on the scaffold and on his way up. How could a person mock at his own death? Well, God loves a cheerful giver. We see this in More at the very end. Richard Reinsch: So he would understand himself, he is giving his life for the truth and he should do so cheerfully. Gerard Wegemer: And also for the country. That here again he gives his life for the rule of law, liberty, and the common good. You actually have an example of an extraordinarily free person, even in prison, even going to his death. This is what makes his death so shocking to those who are trying to intimidate and to bend him to their will. They had no power over this person. Here was a person with true liberty. Richard Reinsch: True freedom. Talk about the theme then, of tyranny and Thomas More’s writings. Either one of you, maybe we’ll start with Gerry and then move with you Stephen. Gerard Wegemer: It’s surprising that More’s very first published work, which no one knows about, you can find anybody wanting to do the full span of More’s writing, is on the nature of journey and the grave problems that republic faces when a tyrant takes over. That is included in his book of translations on Lucian that he proposes to Erasmus. They both address this topic. Then of course, his most famous book on tyranny is Richard III. But he has at least 10 poems on this topic which he appends to The Utopia. Of course, Richard III is the work that profoundly influences Shakespeare, and Shakespeare bases his first four places on More’s Richard III. Richard Reinsch: So Stephen, you thinking about, your thoughts on tyranny and More’s writings and what he thinks is the depth of tyranny. Stephen Smith: You know in that letter I mentioned that Erasmus wrote on Thomas More, he not only said he was born for friendship, but he told us what his friend loved and hated. He loved equality, actually, and he hated tyranny in particular. One of the things that comes out of that letter is not just born for friendship, but this particular interest in tyranny. To Gerry’s point about his first published writing being on tyrannicide and then history of Richard III addressing Richard’s rise, how it happened, how England failed to prevent his tyranny, and in the poem what you have is a kind of glimpse into something that’s at the core of More’s understanding that this is a possibility in politics and if we’re going to be educating citizens and educating leaders, we need them to understand this phenomenon, understand this possibility. How does a tyrant come into being? What is a tyrant? And then of course, why do cultures fail to resist them? How do they take root? How do they maintain themselves, how do they succeed? This interest in tyranny links More back to, of course, earlier thinkers like Cicero and Aristotle and Plato on the subject. So much of his early writing is revealing and educating on this crucial subject. One of the poems, for example, says, it’s kind of a funny poem about death and tyrants. More presents death as the only tyrannicide when you really get down to it, that tyrants can’t live forever. Shucks. Death ends up conquering them. But then Richard III, this spectacular, incredible English and Latin text on Richard’s rise. Why did England fail? They were of course dominated by fear. The narrator points out several times, they also didn’t have enough wit to resist tyranny. They didn’t understand what a tyrant was willing to do to secure his rule. It’s a powerful text and Gerry mentioned a Shakespeare connection as well. Shakespeare’s breakthrough tragedy is History of Richard III and More is his major source. I like to think of the young Shakespeare who is so keenly interested in England, so much aware of the problem with civil war in that country and culture. I imagine that young man, that young brilliant dramatist, sitting at the foot of Thomas More and reading his history. Wow. The things that happen in that play and afterwards in Shakespeare are legendary. Gerard Wegemer: I think he’s his best student, frankly. Stephen Smith: And tyranny also has a personal dimension. So yes, well understand political tyranny, but many of More’s epigrams and poems show how ridiculous each person is by being a tyrant to those around them. We all can by tyrants. This is where, again, More’s comprehensiveness as a thinker that you need citizen education if you’re going to have a free country. You need human beings who aren’t slaves to their own passions, who are slaves to ideologies that they haven’t thought about and made their own and we find through conversation with good friends. The tyranny issue, one of the most important things in classical literature, Xenophon’s famous book on tyranny, one couldn’t be a liberally educated person unless one understood the perennial possibility of tyranny in a country and tyranny in oneself. Richard Reinsch: That should lead us to shudder then about our own country’s fate, given the overall lack of civic education and the overall lack of awareness of how passions destroy freedom and how ideologies destroy freedom. Thinking here, Brad Birzer recently said on Law & Liberty that those who love the liberal arts the most suffer the most. He referenced several figures, Socrates, Cicero, but also Thomas More. As I’m listening to you two gentleman describe his thought and his humanism, it’s almost as if were he not to have done what he did in regard to Henry VIII, he would have repudiated his entire life and what he had been about. More does talk about the duty of integrity and the duty of protecting one’s integrity. Of the harmony between what one says and thinks and what one does, and that is the greatest challenge to every human being. Gerard Wegemer: One thing, again, More is convinced that there is such a thing as providence. This is one reason why one has to reflect on his own calm of mind even in the Tower. Also on the short list of things to read to get to know More as More would be his two Tower writings. One is the Dialogue on Comfort. It is a Socratic dialogue, which deals with how to overcome a passion that’s taken control of the soul. The passion of course is fear at this point and it’s a really depth study of how difficult it is to rule oneself. It’s a conversation between and old person on his deathbed who’s gone through terrors throughout his life and the young person who’s just about to face the worst terrors possible and imaginable, is overcome by fears of what’s going to happen. We wouldn’t have that conversation, we wouldn’t have that book if More were not imprisoned. The second is his Sadness of Christ, which is his last work, and it’s probably his most accessible work. It’s short, he has to write it in a hurry. He knows he’s only got a few weeks to live. But it gives his last lessons on what one must do to be a free person. Richard Reinsch: Which is? Gerard Wegemer: Understand your soul and have a good friend to help you see your own self contradictions. Also to form what he calls a right imagination, not one dominated by fears and false imaginings. It actually shows the importance of Socratic conversation, that is, Socrates is most famous for raising questions about the nature of virtue and getting people to come to know themselves at least in a beginning way. Self knowledge is the beginning of wisdom, but you can’t really know yourself unless you’ve been put in dire situations you don’t expect. You might be surprised at how fearful or imprudent or rash or cowardly you can actually be. But once you know that, well then this is where one becomes open to put virtue in the first place and learning in the second. This is part of the interest of More’s writings on education, but the masterpiece is going to be his Dialogue on Comfort. It’s a book longer than The Republic, but is a book that is designed to be over nature of the soul and how one can train oneself to overcome fears. It’s interesting if you read the prison letters, More confesses to his daughter that he’d always considered himself a fearful person. Now that’s not the persona anyone sees, but he had overcome that. He says in one of his letters that he scandalizes himself before being imprisoned about his fear. Richard Reinsch: Thinking about More though, his conscience, he would have had clearly this conception of conscience being a window of his soul that God spoke to. I’ve read both of those that you referenced and it’s clear to me that his courage, conviction, strength, comes through his belief that he’s participating in God’s will. Gerard Wegemer: That’s very well put. This is where the playwrights are so perceptive by singling out More’s commitment to study. Finding out the truth and then habituating themself to live in the truth. More does talk about the duty of integrity and the duty of protecting one’s integrity. Of the harmony between what one says and thinks and what one does, and that is the greatest challenge to every human being. Richard Reinsch: Did More ever comment on through the overall political condition of England at this time as he reflected on what had happened and how it had come to pass that basically, something like a complete change in its laws and constitution was worked by the king, Henry VIII? Gerard Wegemer: Stephen can comment on this also, but two elements come right to mind for me is his comment just before going into the Tower and his last work he’s writing on before going into the Tower where institutionally, kings had changed the process of selecting bishops. Where they had done it sometimes for pleasure, sometimes for favor, and sometimes for money too. Institutionally this is the great problem that England faced. Half of the House of Lords were habits and bishops whose work often was more for the king than for any spiritual project. More clearly identifies that as an institutional problem but no surprise, Beckett, the long centuries controversy of what the church-state role is going to be in terms of what are actually tremendously powerful cultural courses. Emperors wanted the church on their side because the church serves the people and good people in the church know the people. That’s one, and the second is that the bishops themselves, that’s on the side of the state, the bishops themselves did not reform themselves. They had the laws on the books. They knew what they should do. But they didn’t do it. Richard Reinsch: Stephen, your thoughts on this? Stephen Smith: I think that on that last point, in The Sadness of Christ, this is a nice link between Sadness of Christ and Utopia, More describes how there is a shameful ship captain, a cowardly captain, who relinquishes the ship in the storm and hides away in some cranny in the ships hold and just sort of consigns the ship to the waves. That does seem to be a critique like you’re suggesting, Gerard, where it’s like in The History of Richard III as well where we can never underestimate the failure of will, of sheer fortitude, and courage. In that famous passage in Sadness of Christ, which links back to the text in Utopia about never giving up the ship in a storm, there was a storm of the first order in these years and I think what More indicates in that last writing is many, many, gave up the ship in the storm and hid away in the ship’s hold out of fear, out of the desire to preserve their life, to their own benefit. Any number of motives like that, but it was really a failure of captains. Richard Reinsch: What becomes of Thomas More’s place in English life after this? How is he regarded? He loses and of course England will become a protestant empire after that. Is there sort of a look back within English intellectual life at his greatness or is he sort of, they don’t know what to do with him? Stephen Smith: Well he’s very good at inspiring wonder in onlookers. Gerry mentioned the historian Hall who said, “I don’t know whether to call him a wise foolish man, or a foolish wise man when I consider how he went to his death.” In the 16th century at least, the answer is mixed verdict, but there does seem to be an admiration, even wonder over his wit and then either happiness that he stood with the church or lament that in that matter he just went the wrong way, depending on the historian or the writer. That capacity to inspire wonder in people is really at the heart of Thomas More. Who was he, how did he prepare himself and educate himself, how did he play the part he played on the English stage unto death? It’s really wonder inspiring and it makes you want to learn and to study him. Later in the 16th century he’s still known in London as the best friend that the poor ever had, for example, so you had this whole complicated legacy. I know one reason we wanted to put this book out there, to gather these works together, to make them available, is to not only help people wonder over Thomas More again but really to study him and to learn from his life and writings. I would direct the attention to that conscience that is the whole fruit of learning according to More. If you at the end of your education don’t have a rightly functioning conscience, and if you haven’t learned the need for the courage to follow, you’ve gained the whole world but you’ve gained nothing.  Richard Reinsch: Gerry, your thoughts here? Gerard Wegemer: Well the 16th century play Sir Thomas More is completely favorable to Thomas More and despite five London playwrights who had completely different religious and political convictions, they’re the most unusual group you would expect to be together. But even for A Man for All Seasons, when that came out in ’66, it was immediately translated into 10 languages. It became part of the reading list for English prep schools for the next 20 years. This model of conscience is something the world needs. Richard Reinsch: That’s very true. Thinking maybe we can end with this, and you both take this on, Gerry I’ll start with you, Thomas More, because you started talking at the beginning of our interview, More and his regard for liberty under law. How did he approach the duties of being a lawyer? Gerard Wegemer: Wit and good cheer. For 10 years he was elected every year as under sheriff, under 10 different sheriffs of London. This meant that he was the presiding legal officer at the court of the sheriff of London that heard all kinds of cases. More became famous for befriending the city, being someone who would give a fair hearing to everyone and often needed the money and recommend that they not pursue this because it wouldn’t work or that it would be less expensive not to go through the law courts. But he was seen as a person who would give honest council and who was genuinely committed to the good of the whole city. That’s where, again, you can see the benefits of his learning. He knew Cicero’s On Duty very, very well and two of the principles that Cicero gives on core justice is that you have to think in terms of the good of the whole of the body of politics. You can’t favor one part. This More understood clearly. So his book called Utopia, the actual title in Latin is De Rei Publicae Statu Respublica. Republic. Commonwealth. Good of the people. That horizon people need in terms of thinking about justice. That’s where he’s particularly important in our own time where we’ve become so divisive and uncivil and the lack of the sense of look we are all in this body of politic together, let’s do the best we can together. Richard Reinsch: Yeah. Stephen your thoughts on Thomas More as a lawyer? Stephen Smith: You know, on that short list reading, the letter to Gunnell, the one that’s addressed to his children’s teacher says, “I prefer virtue joined with learning to all the treasures of kings.” He also says, “The whole fruit of learning is a right conscience.” A rightly working conscience. I think that’s really at the heart of his legal success is that he indeed enjoyed the fruit of that particular fruit of learning. He not only understood his education as forming his conscience to work rightly, and to set up a lasting friend throughout the whole of life. He brought his education, his formation, his commitment to virtue, his right conscience into his work. He had the courage to follow the judgments of conscience right to that scaffold. To me, Thomas More, the lawyer Thomas More professional, it’s really Thomas More the man and I would direct the attention to that conscience that is the whole fruit of learning according to More. If you at the end of your education don’t have a rightly functioning conscience, and if you haven’t learned the need for the courage to follow, you’ve gained the whole world but you’ve gained nothing. That right conscience is what stands out in my mind and answer to your question. The lawyer is a man of conscience. Gerard Wegemer: And we see that in More’s very last words, he says “I die the king’s good servant and God’s first.” When he said those words, he was reminding Henry VIII of the two most important conversations they ever had, and they were both about conscience. Before he agreed to work for him as a councilor, and before he agreed to become Lord Chancellor of England. Henry said to him on both occasions, “Look first to God and your conscience and then to your king.” This is where for More, there’s no conflict between good law and conscience. Probably the most famous line of Man for All Seasons, the letter that Roper, his lawyer son in law writes about More, is that he would give even the devil his right, and he would follow the law, because law is the work of good reason and conscience is the judgment of good reason. That’s where you need lawyers and judges who actually do have a command of both-of the law and of the principles that undergird the law. Richard Reinsch: I think that’s very well said and I think that’s a wonderful way for us to end. Gerard Wegemer and Stephen Smith, thank you so much for discussing this volume you’ve edited for Yale University Press, The Essential Works of Thomas More. Gerard Wegemer: Thank you Richard. Stephen Smith: Thank you Richard.

Richard Reinsch: Hello, I’m Richard Reinsch, and welcome to Liberty Law Talk. Today, we’re talking with Colleen Sheehan about Publius and how he contributes to our knowledge and thinking about American constitutionalism. Colleen Sheehan is a master teacher of the American founding. She’s also an excellent scholar of James Madison with two books on his thought, one James Madison and the Spirit of Republican Self-Government, and The Mind of James Madison. She’s the Director of Graduate Studies at the Arizona State School of Civic and Economic Thought and Leadership. We’re glad to have her on the program today. Colleen, thank you so much for joining us. Colleen Sheehan: Thank you for having me Richard. Happy to be here. Richard Reinsch: Great. So the occasion of the interview is Publius, but you’re the co-editor with Jack Rakove of a new book just out, a collection of essays called The Cambridge Companion to the Federalist, which has 16 essays from leading scholars on the Federalist Papers and on Publius’ thought from a range of great contributors. You, Greg Weiner, Paul Rahe, Harvey Mansfield, and others. It’s a wonderful volume. As I was reading it, the first question that comes to mind, and maybe for our listeners, and it’s a simple question but a complicated question as you flesh out in the introduction, who exactly was Publius, and why do we need to understand him? Colleen Sheehan: Well, as you know, a lot of folks today probably think we don’t need to understand him. He’s just some dead white male, or maybe dead white three males, some trio of dead white males, that have outmoded ideas that have nothing to do with our nation today. And that’s, of course, one perspective on the American founding and America’s past that maybe what happened in the past in America should stay in the past, and that we are a new and better nation. That’s not my view. I suppose I wouldn’t have spent my time since about 16 years old studying these things if it were my view. I discovered the founders actually at a fairly young age, and thought that there was something more than history going on when I read Jefferson and Hamilton and Washington and Madison. These were people who actually thought that there was something about politics that was ennobling, or that at least it could be. It certainly hadn’t always been, but that it could be. And what I think Publius was up to was looking at the history of the world as a history of the struggle of human beings to live in freedom, to not be governed by somebody else for somebody else’s purposes. Richard Reinsch: There’s that famous opening in Federalist 1 that I thought we could talk about because I think it encapsulates their project, and that is … We should also talk about who Publius is, too. But the Federalist 1, can we found a republic on reflection and choice versus with accident and force, those two different contrasts. What would it mean to Publius to forego instituting this new constitution on reflection and choice, or failing to do so? Colleen Sheehan: Ah, well, I mean I think it means everything. We either do it on the basis of reflection and choice, or we don’t do it at all. When Hamilton says that in Federalist 1, that it seems to have been reserved for the people of this country to decide the important questions, whether societies of men are really capable, or not, of establishing good government around the basis of reflection and choice, or whether they’re forever destined to depend for their political constitutions on accident and force? It’s almost the opening salvo of the Federalist Papers. What that is is really the answer to what Publius says in Federalist 39, that only a republican form of government would be acceptable to the genius of the American people, to the principals of the American Revolution. Because, of course, the American Revolution, and the Declaration of Independence, declares that all just government, all legitimate governments, are based on the consent of the governed. And all governments not based on the consent of the governed are not legitimate, not truly popular, not truly republican governments. And so, it has to be on the basis of reflection and choice. You’ve got to try it, and you’ve got to get it right, or you’ve really not succeeded in anything that the American founding is about. So when Hamilton’s writing Federalist 1, he doesn’t know if it’s going to succeed right? This is the first Federalist paper, and they’re going to be many afterwards, 85 of course in total, written to the people of the state of New York, a state in which it was not at all clear that the federalists would beat the anti-federalists. And if they didn’t win in New York, it was likely that the constitution would fail, we would not have a new constitution. There might not, in a few more years, be anything called America. So it meant everything, Richard. Richard Reinsch: The reflection in choice, but one never gets a pure choice. What events have sort of forced them into this move? First, the Philadelphia Convention, and then this sort of attempt to have a theoretical exposition of the document that’s come out of that convention. But they did change. They are proposing a complete change to the Articles of Confederation, with some, we can go back and forth about the legality of what they’re doing, but they do believe it’s called for by circumstances. And some seem, the anti-federalists as they coined them, unwilling to go along with that. Maybe just talk a bit about the claim that the accident and force would come about if they’re not listened to and the anti-federalists are sort of allowing this experiment to be open to accident and force? Colleen Sheehan: Ah, wow what a great question. Yeah, it would be a kind of drifting. And so we wouldn’t deliberately form a new government, and the economic situation was so bad, inflation was so high. You know, the phrase, “Not worth Continental,” was pretty popular in those days. Widows and orphans of the schools or some war didn’t have enough money to live. We all know about Shays’ Rebellion, and they prevented the courts from sitting so that they couldn’t foreclose on the farmers’ mortgages. And then they’d be sent to debtor’s prison, and then their families would probably not make it. And so the situation was dire. And some of the anti-federalists tried to downplay it, but everyone knew that major changes were absolutely necessary. When Madison says later on in the Federalist Papers, really addressing the question that you just posed and one that the anti-federalists brought up quite a lot, that the convention was not authorized to make these kind of changes. It’s kind of an entirely different, new constitution, on a new basis because it’s not on the basis of state sovereignty anymore, it’s on the basis of popular sovereignty. And so it would be like the UN reorganizing itself so that it would be the sovereign nation of the world. It’s a pretty big change. And the anti-federalists tried to downplay how bad the situation is, but they know it’s bad. And so Madison says later on in the Federalist Papers that this is a question necessity forms, just have to give way when it’s an issue of necessity in politics. Richard Reinsch: And they’re also, by calling for state ratifying conventions, there is the element of popular sovereignty here. I mean you could criticize them on the rule of law, but it’s a question they’re willing to pose to the peoples’ representatives. Colleen Sheehan: Right. And so the constitution’s nothing but a dead letter until life is breathed into it by the ratification of the people of the Federal States of America. So all it is is a proposal coming out of the Philadelphia Convention on September 17, 1787. It’s a pretty important proposal, and it’s got the weight of people like George Washington behind it which means everything. But nonetheless, it doesn’t carry any force of law. It’s simply a proposal. And it has to be ratified by nine of the states until it can go into effect. And of course when it’s ratified by nine of the states, it’s only in effect in the states that ratify it because the authority comes from the people in federal states. Sara Jay kept very nice notes about all of her dinner parties. And there was a dinner party about a week before the first Federalist Papers came out. And interestingly enough, it was all men, which is very unusual. But Hamilton, Jay, and Madison are all at that dinner. Now there are others there, and of course it’s a secret who Publius will be, and they know this is not something told to others, so presumably they don’t talk about this at dinner. But they must’ve huddled in a corner at some point, I mean how could they not have with their plans for this coming out?  Richard Reinsch: Now you mentioned the New York Ratification Convention and the motive for the Federalist Papers, an immediate motive to influence their deliberations. That’s sort of a question, and it’s one I asked at the beginning, Publius is Alexander Hamilton, it’s James Madison, and to a lesser extent John Jay. How do they come together to do this and to sound, although we can find differences in their arguments throughout the Papers, people have pointed out contradictions to me, but at the same time they sound remarkably similar and on point? And these are three people, different people, different experiences, different ideas, and they come together to do this. Talk about that. Colleen Sheehan: Yeah, well it’s the brainchild of Alexander Hamilton, which makes a lot of sense of course. He’s from New York, not originally of course. He’s from a little, little tiny island. Only 30-something square miles in the Caribbean called Nevis, which is down by St. Kitts, but moved to the United States when he was a teenager, and actually at some point in his life says, “What, am I the only American here?,” when people are thinking of themselves of Virginians or New Yorkers or I guess Delawareans, is that a term? Hamilton always thought nationally, yet he lived in New York. Of course he intermarries with the famous Schuyler family of New York, we all know that now because his play and the Schuyler sisters, very prominent family from actually a place down by Albany called Schuylerville. And where I am right now in upstate New York on Lake Champlain, I look out my window and I see an island called Schuyler Island. Great fishing over there I hear from the folks around here who like to fish. Anyway, so Hamilton had been at the convention with two other delegates from New York. And the other two delegates, John Lansing, and Robert Yates, were very good friends of then Governor of New York George Clinton. And these guys were big fish in the pond of the state of New York, and they did not want any major changes to the Articles of Confederation. They wanted New York to keep the power that New York had. And New York was successful. New York had New York City. New York had financial successes that were happening in the United States. But they could strong arm states like New Jersey and some of the smaller states, and they didn’t want to lose that power. So at the constitutional convention, Hamilton was always outvoted by Lansing and Yates. And when they go back home after the constitution- Richard Reinsch: And you voted by you state, you had one vote per state. Colleen Sheehan: That’s right. And so New York went with Lansing and Yates until actually Hamilton left and then they left, and so New York wasn’t even there for a while. But Hamilton returned at the end to sign the Constitution. So he starts the effort in New York to advocate for ratification of the Constitution with Lansing, Yates, George Clinton, and a group of very powerful people who became part of the anti-federalists cause on the other side. So he tries to enlist a number of people to help him, but he’s not successful with some of the folks he asks. Besides Jay, and originally Jay was supposed to do a lot more of the writing than he did. He became ill and ends up only writing five of the 85 papers. So ultimately Hamilton asks a Virginian, James Madison, who agrees to do it. Now interestingly enough Richard, just about a week before the publication of the first Federalist Paper in October of 1787, I went back and looked at this, John Jay’s wife was from New York down in Westchester County. Sara Jay kept very nice notes about all of her dinner parties. And there was a dinner party about a week before the first Federalist Papers came out. And interestingly enough, it was all men, which is very unusual. I mean this is not polite company, wouldn’t be considered polite company. But Hamilton, Jay, and Madison are all at that dinner. Now there are others there, and of course it’s a secret who Publius will be, and they know this is not something told to others, so presumably they don’t talk about this at dinner. But they must’ve huddled in a corner at some point, I mean how could they not have with their plans for this coming out? So wouldn’t you have liked to be a fly on the wall at that dinner party? Richard Reinsch: Yeah. I mean you think about coauthored pieces, how those sometimes get worked out rather quickly. Colleen Sheehan: In the beginning, they tried to communicate as much as they could sending sometimes essays to each other, and trying to get things done in advance. But as we all know who’ve been students, and especially those who’ve been graduate students, that ends pretty quickly. And things get ahead of you and you’re writing late at night to complete the deadline the next day, and that’s exactly what happened to them. So the actual original plan that Hamilton lays out in Federalist 1 isn’t precisely followed at all as time goes on. I mean Jay is unable to write some of the essays that he was originally slated to write. And just the pace that they were following to get these essays done and into print, it’s amazing that the work is as coherent actually as it is given the difficulty there. And especially in speaking with one voice. This is one of the questions that Jack Rakove and I ask in this volume. One note about Jack, Jack is an historian, and Jack is- Richard Reinsch: Jack Rakove, your co-editor? Colleen Sheehan: Jack Rakove yeah, from Stanford. He’s a Madison scholar, a founding scholar. He is a smart, witty, what a pleasure to work with him on this volume. It was a constant going back and not just about getting things done, but talking about the ideas and really, in our correspondence, I think the founding for us during that period of time was very much alive. But Jack and I have different views on a number of things, and one of them is whether we should call the author of the Federalist, Publius, or whether we shouldn’t do that because it’s really three separate people and we should always talk about them in terms of Madison, Hamilton, and Jay. Now I’m fine with it both ways. I like country and western. But Jack, as an historian, really didn’t like the idea of referencing them as Publius. And I said, “Well let’s not standardize this throughout the text. Let’s let folks do it how they want to approach it,” and Jack agreed to that. And so the volume reflects both, those who want to take the Federalist author at his word. I mean every essay is signed Publius. They deliberately chose to speak in one voice, even though they didn’t agree on everything themselves. They certainly did not agree on everything themselves. And there are things that … When Madison has to write about the Senate, it’s difficult for him. He and James Wilson almost wanted to go home on July 16th because they were so incredibly upset about the Great Compromise. They thought it was an anti-republican compromise. Madison could not have been more disappointed in that, yet he’s the one that writes about the Senate and has to try to defend that it’s based on equality of the states. Madison says in one of the Federalist Papers, “Think about not from whom the advice comes, but whether the advice be good.” And so they really did set a very high standard for political discourse, even though it’s political discourse about a particular cause at a particular moment in history. Jefferson called the Federalist Papers, “The best commentary on the principles of government that was ever written.” Richard Reinsch: Some have said, and this I think leads to a broad question, the Federalist Papers, really what you need to read are the convention notes, and there are various versions of those. But that’s really where you learn about the constitution. And the state ratification debate notes, which we now have like a 14 volume edition out on each state’s ratification debate, including press coverage of the debates, contemporary press coverage. And the Federalist Papers are something else that’s been overemphasized, but I think that leads to a question, which is what does Publius add, contribute, to our thinking about the constitution that wasn’t there before? Colleen Sheehan: Well it’s the most comprehensive of all the writings during the ratification era by federalists or anti-federalists. As you know Richard because it’s published by Liberty Fund, Jerry McDowell and I put together a book called Friends of the Constitutions, Writings of the Other Federalists 1787-1788, there’s a whole slew of people who wrote to advocate ratification of the constitution. And there’s some very, very fine writing, foreign spectators, just fabulous material. I think that those essays are excellent, and James Wilson, and a number of others. But no one comes even close on the federalist or anti-federalist side to such a comprehensive examination of the principles and processes of the constitution. So what the Federalist Papers adds is people like Justice Story, and still today the Supreme Court not at all unusual to see the Federalist Papers cited in court opinions. It’s an in-depth, rich interpretation of not just the provisions of the constitution, but the meaning and purpose of the constitution. Now that is not to say that it’s pure philosophy, it’s not. It’s political philosophy, it’s very political. It has a political purpose, it’s for a particular cause. But as Publius says in one of the Federalist Papers, one of the reasons I think that they wrote anonymously, somebody asked me this just the other day, “Why did they write anonymously? Were they trying to hide something?” Well first of all of course it’s very typical in the 18th century for people to use pen names. But I think the other reason is that they don’t want to be identified as either partisan advocates for this, and for people to make a judgment just based on whether they like Madison or they like Hamilton or they don’t like them. This kind of idea that factions are often caused by attachment to leaders. You’re pro-Trump or you’re anti-Trump. If Trump is for it, you’re against it, things like that. They were avoiding that. Madison says in one of the Federalist Papers, “Think about not from whom the advice comes, but whether the advice be good.” And so they really did set a very high standard for political discourse, even though it’s political discourse about a particular cause at a particular moment in history. Jefferson called the Federalist Papers, “The best commentary on the principles of government that was ever written.” Pretty high praise. Richard Reinsch: I wanted to talk about this essay because to the extent people have read the Federalist Papers, they’ve encountered it maybe in a survey course, and it’s one of the central papers. Although, I’ve been taken by one essay in particular on this in your edited volume on the degree to which the Federalist Papers is about national security and having a strong union in order to protect the country. And I’ve tended to always go past that and go straight to the thinking about constitutional liberty and republicanism in the later essays. But the Federalist 10, famous essay, Madison finds a novel idea, perhaps extent of the republic will help prevent against the vices of minority or majority faction through the instrumentalities of the government. Was he wrong about that ultimately? Has he been proven wrong just through sheer size of government and the ease with which special interests can in fact work against the greater good? Colleen Sheehan: This is actually a question that I’ve been trying to myself give some good thought to lately. So I mean his idea, as you know well Richard, is that he sort of turned the small republic argument on its head, and had always thought that you can’t have popular government, government by the people, except in a small territory. Because if it gets large, large nations, and especially empires, are despotic. I mean look at China, look at Persia, look at what happens to Rome when Rome expands. And so there’s hardly … I mean no one disagrees with that until Madison says, “Well but wait. One of the things that a large republic can do is control the violence of factions.” But the only way Madison thinks we can do that is if this large republic is also a federal republic. There has to be small republics within the large republic, so that the tools of self government are still viable. And so federalism is not just a mere compromise for Madison. Federalism is absolutely critical to republicanism. That’s my read of Madison on this. But this whole idea of states, what state does, is create time for deliberation. And Greg Weiner is the master of this, his book Madison’s Metronome, is all about this idea of time, and how time slows things down. Like what they used to say in the 18th century, “Save your breath for porridge.” Today we say, “Count to 10 before you respond.” That cooler heads will prevail, that reason can prevail over passion, if we can just slow things down. Now I actually think it’s more than just time that’s at work here, that space creates more than time, that what Madison had in mind was that something’s happening. I actually, in the article I wrote for this to Jack Rakove’s chagrin, I quoted Buffalo Springfield that, “Something’s happening here.” There’s something happening in this time of this slowing down. And the processes in place, that Madison envisions in place, have to do with the refinement and enlargement of public opinion during this time, and that there’s all of these mechanisms as well as extra-constitutional factors at work. Representation. Newspapers, the growth of newspapers across the country, has to do with communication and that communication is how we refine and sharpen, hone, moderate our selfish and narrow opinions. Basically it’s a form of civic education, right? This is what civic education is all about, it’s elevating the public view. Now what does that mean today? I think that this made a whole lot of sense in the 18th century. I still think theoretically it makes very good sense. The problem with our day is that there are things that are equivalent to the contraction of the territory. When folks say today, “The world is a smaller place,” it’s not that the globe has shrunk, it’s that communication is such that ideas, opinions, even passionate ideas and prejudices, can spread rapidly and quickly. And so the rise of factions is once again a problem, especially because the internet in a way that of course it wasn’t in the 18th century. So even though we’re even a larger country now, in some ways we’re smaller, and this makes the possibility of rule by faction once again a problem in America in a way that hasn’t been quite so … I mean it’s always a problem Richard. The solution in Federalist 10 is not a fantasy yet because in the final analysis, if a majority is determined to be factions, the majority makes the law in the end. There’s no substitute for a republican people being dedicated to republican principles. It’s not an edited book, a political edited book, about how we ought to conduct ourselves and our manners. But it’s all about the idea of what it means to be a free people, the processes that have to be in place to be a free people. And it’s also of course not the government’s job to make us good, or to make us happy. That’s our job.  Richard Reinsch: As I listen to you talk about is the world shrinking, and that brings to mind that technology enables people to demand more from the government or to increase their inputs, and to be dissatisfied even with a Congress being able to handle them and wanting immediate redress of things. But that to me suggests there’s another problem here, and it’s a problem that Willmoore Kendall wrote about evaluating the Federalist Papers, which is how do the people remain virtuous. And he had a great essay, The Missing Federalist Paper, where he tries to argue essentially there’s a paper missing here on the nature of the virtuous republican people and how they deliberate. That there was perhaps too much presupposition in the Federalist Papers about republican liberty in that regard, that there’s not their engagement with virtue that needs to happen. What do you think of that? Colleen Sheehan: Well that of course has been one of the question that’s been predominant among scholars of the American founding for many years, and the dominant thesis about the founding is that they dispensed with the need for virtue in the citizenry. And instead, they created what might be called a modern commercial republic. This was Martin Diamond’s thesis, lots of folks, that you can have a nation of devils and you could still end up with the public good because of the kind of course/counter course, sort of politics, one vice counteracts another vice. And somehow in the end, you get a common denominator, but the low common denominator. There’s nothing elevated about it. So Martin Diamond called it low but solid. It’s mediocre. America celebrates mediocrity. I just don’t see that at all, I think that’s missing the forest for the trees in the Federalist Papers. Publius is not preaching about virtue. Processes don’t create virtue. Madison says in Federalist 14 that what we’re doing is foraging not just a new course, but a new and more noble course. And in Federalist 39, he talks about the spirit and the genius of the American people. And then of course he talks about later on in Federalist 55, is there no virtue among us? Well if there’s not, no amount of check can do anything to make this experiment work. So I mean it really is an experiment in self government, the Federalist Papers. It’s not an edited book, a political edited book, about how we ought to conduct ourselves and our manners. But it’s all about the idea of what it means to be a free people, the processes that have to be in place to be a free people. And it’s also of course not the government’s job to make us good, or to make us happy. That’s our job. The government’s job, when Madison says in Federalist 10 that the first object of government, a lot of people mix this up and they think he said the first object of government is protection of property. It’s not at all what he said. He says it’s the protection of the faculties of man from which the rights of property originate. So it’s a protection of our exercise of freedom, the freedom of the mind, and it’s on that basis that we make choices, hopefully based on reflection in choice, that then creates a free country and a free people. It’s not the job of the constitution to tell us how to live our life. It’s not the job of the constitution to tell us how to live our life, it’s our job to make a constitution so that we can live our lives well. Richard Reinsch: So with Publius obviously we have these institutional mechanism. Maybe mechanisms isn’t the right word, but processes and procedures to both give government energy that it needs to govern, and also to restrain it, channel it, filter its power. There’s famous discussion in Federalist 63, the idea of auxiliary precautions are needed to protect constitutional liberty and the overall workings of the system, separation of powers, checks and balances, the executive veto. He doesn’t mention judicial review I don’t think, although that comes in later. There’s a later discussion of the judiciary. Are these auxiliary precautions still working? There’s a lot of smart people now talking about how this is just a misguided thing. And the discussion’s been going on for a while that of course people put their partisanship now above say defending the interests of the institution that they’re in. It’s far more important if you’re in the party in Congress that you go along with your president rather than say defend precedence that outlines separation of powers. Was this sort of another misguided notion, or is there something deeper going on? Colleen Sheehan: The idea of auxiliary precautions and checks and balances and things like that are are these things still viable today? Richard Reinsch: Are they outmoded? Yeah, bipartisanship, yeah. Colleen Sheehan: Yeah, great question. Let me back up here just a little bit. In Federalist 51, a paper devoted to these inventions of proving auxiliary precautions that Madison talks about if men were angels, no government would be necessary and so forth. When he talks about these auxiliary precautions by which he means essentially kind of four things in particular. Separation of powers, checks and balances. Within separation of powers, also bicameralism, that separation within the legislative branch. And then finally, the vertical kind of separation between states and nations in the form of federalism. And so he talks about the necessity of these auxiliary precautions, these inventions of prudence. But he also says, which is often forgotten in this essay but, “A dependence on the people is no doubt primary control on government. So what experience has taught mankind the necessity of auxiliary precautions. Still, the primary dependence is on the people.” In other words, on the people, their character, what they believe in, what they cherish, their morals, their mores. But remember when these bureaucrats take place of the people’s’ representatives, they’re taking the place of the people. It’s a destruction of any possibility of self government. And what is tyranny except the rule of masters over those who must obey, and that’s what the administrative state in America has become. And so that’s where Publius is always number one. There can’t, as Joe Allen has said so well, there can’t be a republic without republican citizens. And so that’s the forest that’s often missed for the trees by some folks I think reading the Federalist Papers. Of course separation of powers, checks and balances, none of these things are mentioned in the constitution. They’re woven in the processes, the way it’s setup, but the words aren’t there. Are these things outmoded today? Well the progressives think so. This starts with Woodrow Wilson, he really didn’t like Madison’s idea at all. These two Princetonians couldn’t be further apart in their views on government. And Wilson thought it just got in the way of good administrators getting things done. And if Wilson had his way, he basically had public opinion … He thought most people were pretty stupid and that they should be quiet. That’s not Madison’s view. Madison is absolutely … he really was a man of the people in the sense of promoting a reasonable public opinion and trying to find the processes to do that. I think those things are still, separation of powers, checks and balances, bicameralism, still as important and viable today, and necessary if not more necessary today, than they’ve ever been. Look, a lot of these ideas come out of Montesquieu’s Spirit of the Laws. Why is Montesquieu so concerned with these mechanisms and processes of government? Very simply, the prevention of tyranny. Liberty is not safe when all power is concentrated in the same hands or set of hands. And so this is just a truism in politics that these kinds of institutional arrangements are absolutely critical to the workings of a free government. Richard Reinsch: Question for you. How would Publius respond to the creation of our modern administrative state? How would he respond to … I mean you see in the conservative legal side there’s constant talk of the non-delegation, a doctrine that this is automatically unconstitutional. Progressive scholars would say, “No, there was actually a delegation near the founding.” But apart from all of that, just the administrative state holding these three powers in its hand seems to me, as I read the Federalist Papers, the definition of tyranny. And a lot of smart people writing about how to curtail this, a lot of smart people writing about reinvigorating Congress with its powers, and nothing really seems to happen. Colleen Sheehan: Yeah. I mean I think for Madison and Hamilton and Jay, Hamilton might not be quite as vehemently opposed as Madison, but even he would be opposed because these guys are not elected, and they are running the country. John Marini has done such a great job on this subject. Congress has advocated its responsibility to rule. I mean they are supposed to be making the law, which is the most important function of government. None of the others can do anything until there’s some kind of law to be enforced and interpreted. Yet they’re not doing it. They’re allowing these bureaucrats, these nameless, faceless, unelected people, to basically take the place of the people’s’ representatives. But remember when these bureaucrats take place of the people’s’ representatives, they’re taking the place of the people. It’s a destruction of any possibility of self government. And it is what is tyranny except the rule of masters over those who must obey, and that’s what the administrative state in America has become. When David talked about the veracity and kind of an iron cage, and Ralph Lerner wrote a piece once where he talked about, “Shaking the iron cage,” and don’t you feel that way sometimes? I mean who doesn’t in America today with the government is just one aspect of this? This mentally has seeped through our country. I mean it’s in universities. Everything has become the DMV, where nothing is possible to get done without lines that are enormously long with people standing behind the counter who don’t even ask can they help you half the time because they’re talking to someone else. I mean this whole business of people ruling your life, and it’s inefficient, and it’s tyrannical, and it’s meant to make us be some kind of unthinking, mindless, not citizens, just kind of creatures who wait to take the next order from the paternal state. Sorry, I get excited about this because I find this stifling, enervating. I think it’s one of the worst things, and it grows more and more. Universities, and especially state universities, are just absolutely … How can Amazon get you toothpaste within 18 hours, but we can’t get a check paid to somebody that we have come speak and give a lecture. That takes two to three months. Why is it so impossible to get these things done? Richard Reinsch: No, I’ve asked myself the same question at any number of institutions that I deal with. And even as we think about the lackluster response over basic medical goods and devices in response to the COVID crisis, that somehow it became impossible to find an N95 mask. That was because of the administrative state, most people didn’t realize that, and the licensing procedures of the Food & Drug Administration made that nearly impossible at first. And then of course you’re behind the ball and you need it to generate them. I’ll end with a question that I think about, and I think Publius sheds light on maybe how we should think about. It seems light factually it’s nearly impossible to deliberate about serious questions anymore, not only in Congress but in public. What would Publius make of that? And just given your discussion about time and delay and this idea in the Federalist Papers the cool and deliberate sense of the community, I mean this is sort of republicanism working well, but it doesn’t work well, this part now for us. Colleen Sheehan: Before I answer that one, I want to give one example of this whole mentality that goes along with the administrative state of things that can’t be done, it can’t be done. Imagine before the coronavirus. I was just talking with some friends, Zooming with them yesterday about this, and had anybody said at a university, “We all have to go online within the next week,” they would’ve said, “It’s impossible. It’ll take us seven years to figure that out. Absolutely impossible.” But every university within a matter of days managed it. We all just jumped in and did it. I learned Zoom. If I can learn Zoom, anybody can learn Zoom. I’m not very techy. And people just did it because necessity is the mother of invention. It’s amazing what people can do if they give it a shot. These things are not so impossible, and do not need so many committees and so much discussion all the time. So that’s one thing. Why don’t we deal with serious questions anymore in America? Harvey Mansfield’s chapter in this book is about that, and certainly in terms of the academy and the social sciences, political science in particular. Political science deliberately refuses to deal with the important and serious questions because they can’t deal with any of the questions that have to do with value, which of course are all the important and interesting questions in politics. And so political science has just decided to be kind of a boring, meaningless discipline, and it’s no wonder that people who actually are in politics don’t read anything that political scientists write. I mean it has no relevance to political life. I don’t think in a society though, Richard, that we have dispensed with the serious questions. I think they’re out there, and I think many citizens are talking about them. And that’s why there’s so much controversy in the country right now because there’s a disagreement about healthcare, about abortion, about marriage, the list goes on and on. These are all questions about justice and how we should live our life. What it means to be human, and what is the role of government vis-a-vis the individual in these kinds of decisions that we have to make as individuals and/or as a society? Politics won’t go away. These questions are there, they’re important. And I think ordinary citizens are dealing with them. It’s true that Congress tries to run away from a lot of these questions, but we have a presidential election. I mean it’s hidden behind a veil of COVID-19 right now, but I think the American people are demanding that those who would be the leader of the United States take up these questions, take a stand on them, and say why they believe one way or another. Joe Biden has recently taken a very different position on the Hyde Amendment than he held previously, and there’s some people who celebrate, and some people who don’t. But either way, his feet are held to the fire on those kinds of questions, just like Trump’s feet have been and will continue to be held to the fire on what he says and he believes. And what the future direction of the United States is, I think the biggest question for all of us is are we one people? Are we any longer one people? What does it mean to be an American? If Tocqueville came here today Richard, and went around America and observed in that brilliant way that he did back in the 19th century, who would he meet? Who would these people called Americans, what would they be like? What would he think of them?  Richard Reinsch: Colleen Sheehan, thank you so much for your time today. We’ve been talking about Publius, America’s republican genius. Thank you so much. Colleen Sheehan: Thank you Richard, it was my pleasure. Richard Reinsch: This is Richard Reinsch, you’ve been listening to another episode of Liberty Law Talk, available at lawliberty.org.