Liberty Law Talk

Richard Reinsch: Today we have Daniel Mahoney to discuss with us all things liberalism. Daniel Mahoney holds the Augustine Chair in Distinguished Scholarship at Assumption College. He’s the author of many books, essays, and reviews, including most recently The Idol of Our Age: How the Religion of Humanity Subverts Christianity. He’s also the author of The Other Solzhenitsyn, and currently is working on a book called The Statesman as Thinker: Ten Portraits of Greatness, Courage, and Moderation. Dan Mahoney, you are one of the most trenchant, wise voices in conservative political thought out there. We’re glad to welcome you back to Liberty Law Talk. Daniel Mahoney: Oh, my great pleasure, Richard. Richard Reinsch: Dan, a situation that has bothered me, it’s bothered you. It’s a very recent controversy amongst many other recent controversies that keep piling on is the fallout inside the editorial board of The New York Times, a newspaper that bills itself as the leading newspaper in our country. The end of last week and the beginning of this week, the second week of June, there was intense controversy over an op-ed written by Arkansas Senator Tom Cotton that was published in the initial days of the protests and the riots where he called for the military to be deployed, and the content of that op-ed, as many will now know, led to an internal revolt, particularly among younger editors and staffers at The New York Times who said that this piece constituted violence, particularly against their minority friends, and was unacceptable, and should not have been published. This has now led to the resignation of the editor of the editorial page, James Bennett. Ross Douthat today Friday, June 12th, his column takes his colleagues to task, and he says they are now engaged in something that supersedes liberalism, and is a psychology of anger. It’s a psychology of paralysis, crisis over identities, and seeks to use words really as weapons, not as an attempt to understand truth or political reason. Your thoughts on what, if anything, this crisis might mean for American liberalism. Daniel Mahoney: Well, I think for a long time now American liberalism has been post-liberal or anti-liberal in a very aggressive way. We can talk more about whether the American political order rightly understood is simply a liberal order. I don’t think it’s just a liberal order, but it has a very important liberal component, and that has to do with respect for dialogue, respect for persons, respect for fundamental liberties, a proper prejudice against censorship, against the idea… not that there’s truth, but that any person simply possesses the absolute truth, and has the right to impose that on everyone else, et cetera, et cetera. I think, and perhaps going back to the ’60s where we saw the rise of anti anti-communism, and then a series of cultural issues, a tendency to write off half of the American population as horrible or homophobic, or to make it out like pro-life Americans are anti-woman. These kind of currents have been around for a long time, but in the last 10 days or two weeks we’ve seen a tremendous radicalization of a large part of the left. These are categories as Ross Douthat properly says that are far beyond the liberal order, and that are filled with anger. By the way, I would add these are not voices that defend human dignity because they have replaced one absolutely unacceptable position that some people, some races are superior to another. By the way, very few Americans ever defended that proposition, even when racism was rampant in American society. They’ve replaced it with a different kind of Manichaeism. They are absolutely certain who the victims are. They are permanent victims. They are absolutely certain who the oppressors are, and they demonize the oppressors, who are whole groups of people and not persons who share mutual accountability, and they justify the silencing, and perhaps much more to the future of those who have been demonized. What we are witnessing at The New York Times, and our universities, among the wider intellectual clerisy is a totalitarian logic, not totalitarian yet in practice or fully totalitarian, but it’s heading in that direction. It’s not even a particularly soft totalitarianism. It is the justification of silencing many people of goodwill who do not accept a… It’s the tyranny of ideological clichés. I’m afraid that increasingly are present and unless people resist and show intellectual and civic courage it’s most certainly in our future. The episode of The New York Times is what Charles Péguy called a cas éminent, an eminent case, an eminent case that reveals the new liberal logic at work or proto totalitarian logic at work. Richard Reinsch: When you say totalitarian logic, this position that one group is ontologically a victim, and can do no wrong. Another group is ontologically an oppressor, and can do no right. Where does that lead? Daniel Mahoney: Well, it’s a fully totalitarian logic. As you know, I have written widely on Alexander Solzhenitsyn, perhaps the greatest human being of the 20th century, and Solzhenitsyn insisted over and over again that the line between good and evil runs through every human heart, not through races or classes, nations or regimes, and we need to judge human beings as persons. When we condemn whole groups as intrinsically evil, as you were saying ontologically evil, evil in their being, and others as victims who… and by the way, the victimization part is just as bad as the demonization part because as somebody like Frederick Douglass pointed out or Booker T. Washington in a very different way, Black Americans, like all human beings and all Americans, need a certain degree of pride, of self-respect, and self-help. When they are told they lack agency, when we’re all told we lack agency, that we’re simply prisoners of fate, that we are either ontologically innocent or guilty, we’ve destroyed the freedom, the agency, the mutual accountability at the heart of human dignity and republican self-governance. When I see our civil institutions, when I see our intellectual clerisy bowing before a Black Lives Matter ideology, I’m not talking about the idea that all Black Lives Matter. Of course they matter. All lives matter, but the ideology that accompanies that particular movement, which is not an anti-racist ideology. It’s an ideology of victimization, and demonization. It’s anti-Black. It’s anti-human. It’s fully totalitarian in its logic and effect. Richard Reinsch: How did it come to pass? I’m just sticking with this thread of The New York Times. A newspaper composed of we might say certainly a class with great credentials. I imagine most of the writers and editors are Ivy league educated. Certainly, we’ve known for decades this is not just the leading newspaper in America, but the leading source of liberal opinion. What made the liberalism of The New York Times susceptible to accepting the logic of these, quite frankly, millennial editors and staff writers that language is violence, and silence is complicity in it or something like that? How did that happen? Daniel Mahoney: Well, it happened because our universities… Gramsci’s long march through the institutions. This ideology that is eating away at our civility, our freedom, our mutual accountability it has been in the universities for a long time now. It colonized humanities departments. It became the default language. English departments don’t teach literature. They teach post colonialism, a kind of para-Marxism. Another version of that ideological manichaenism and ontological demonization we just spoke about. These people weren’t educated in the great books. They weren’t educated in the Western tradition. They weren’t educated in the values of civilized order or with liberty. They were educated in agitprop, and I think I said this many years ago that eventually the spirit of illiberalism, of hate, of ideology that has substantiated their selves at our colleges and universities, and our intellectual class would come to in effect some body politic, and I think that’s what happened. Why do an increasing number of millennials praise Marxist Leninist regimes, think communism is a beautiful idea? Why do they buy into a loathsome “culture of repudiation” to use the late, great Sir Roger Scruton phrase? I think they’ve never been exposed to an alternative. I think the agitprop begins early. You go to school, and instead of being challenged by what Matthew Arnold called “the best that’s been thought and said.” For the most part, unless you know better, you are initiated in this language of victimization and demonization, and there’s a point I made in the Idol of Our Age that I think is more relevant than ever. I argued that our present situation is marked by a mixture of toxic relativism and toxic moralism. When you no longer have rational standards of judgment that are the basis of a regime of stability, then there is no restraints on moral indignation or anger because nothing, no judgment is ever judged before the tribunal of reason. Michael Polanyi called this a “moral inversion” that people are officially relativistic, but morality goes underground and comes back as moralistic indignation and ideological fanaticism. That’s exactly where we are. That pattern of anti-reason, of toxic moralism, toxic relativism, if it didn’t completely dominate the universities, it was the leading force, the leading presence, and now it’s invaded the body politic. Let me add one more thing. In speaking about why so many left liberals were taken in by communism or today, perhaps, by a certain softness for radical Islam, Polanyi says, “They confuse the homonyms where the communists talked about justice, peace, and equality.” They did not mean what Christians meant by justice, peace, and equality or conservatives and liberals mean by that. These were homonyms with a very, very different meaning. Liberation theologians, progressive, Christians have taken, lots of political pilgrims got taken. I think the same thing is going on now. I think a lot of people have goodwill. I’m not sure whether these younger militants are people of goodwill, but many of them are taken in by the homonyms. They think when they endorse anti-racism they’re endorsing anti-racism. We should endorse anti-racism, but on the ground of rational assertion of human dignity and liberty, not on the grounds of ideological demonization, but the rot, the sickness, has been around for a long time, but now it’s metastasized throughout the body politic. Richard Reinsch: The toxic relativism was to clear the way. You undermined. You dismissed, mocked, ignored, laughed at, I’ll say a stand-in, Jerusalem. You laughed at Athens. You dismiss the bedrock foundation of American constitutionalism as racist. You say our society is built on slavery. All of those things clear the way for something else to replace it. Do we have a coherent sense of what those in the streets right now in June are trying to erect in its place? It seems to me there are a lot of demands. We see corporate America scurrying to try to placate them, try in many cases to enlist themselves in their cause, or to be seen as such. Is there a coherent package yet, or is that to come once they think they’ve got one, if not both, political parties subservient to what they want? Daniel Mahoney: No. There is no coherent project, but it’s a project of intellectual political and moral destruction. That’s why I mentioned Solzhenitsyn. When you see educated Russian society, members, middle class educated people, rich people, regime officials, intellectuals mouthing the slogans of nihilists, a radical culture of repudiation, as you said, you attack our religious traditions rooted in this rich tradition of logos, and ethical affirmation in scripture, and the larger religious traditions. If you reject the metaphysical truths or the practical reason inherent in Athens in our philosophical traditions, if you assault the West as an essentially culpable civilization. One of my favorite lines is from W.B. Yeats, “Come fix the accusing eye on me. I thirst for accusations.” Well, if the West was just the only truly self critical civilization in history, is ontologically condemnable, we’re talking about nihilism. We’re talking about nothingness. So they have no positive program, except self loathing. Well, if these rituals we’re looking at… Again, we haven’t reached the point of blood or official tyranny and, hopefully, we’ll never reach it, but the structure of it is so similar to that self-loathing one saw in Paris in ’68 or Dostoyevsky’s novel, or the Chinese Cultural Revolution. Somehow the idea that negation is liberating. This is so anti-political because it cannot give rise to rapport. It can only destroy, and I don’t know how this kind of indignation goes on forever. It destroys agency. It destroys dignity. It destroys the pride necessary for common life, but while it lasts, it’s a force of pure destructiveness. Do you remember Eric Voegelin’s definition of ideology that it’s the forcible imposition of a second reality on the real world? I think that’s what we’re seeing now. Richard Reinsch: How does a tough-minded liberalism begin to respond? Daniel Mahoney: Well, a tough-minded liberalism is also a tough-minded conservatism. I wrote a book a few years ago called The Conservative Foundation For the Liberal Order. Pure liberalism has always been a problem; freedom without ends and purposes, progress without tradition. Michael Polanyi once said, “The goals of Tom Payne can only work if they’re wedded to the ideas of Edmund Burke, tradition, continuity, order, civilization.” So a liberal order, first and foremost, can only survive and be worthy of surviving if it repudiates the culture of repudiation. If it renews itself with respect for our principles of our order, which are not racist. I was appalled the other day to see a piece of Public Discourse, an otherwise fine piece by Marco Rubio, saying the American Founders believed that Blacks were three-fifths of a human being, the old canard. It was the anti-slavery North that wanted to count blacks as three-fifths for representation precisely because they didn’t want a slave-owning oligarchy to dominate the new constitutional order. Richard Reinsch: The men who introduced the three-fifths compromise were men from northern states who were opposed to slavery. I think it was Elbridge Gerry and James Wilson, if you read the debates. I’m not sure. Daniel Mahoney: Absolutely. Richard Reinsch: It’s incredible. Daniel Mahoney: By the way, you could not even find a South Carolinian in 1787 who said slavery was good, at least anyone at the Constitutional Convention or in the ratifying debates. That all developed as we know much later with people like George Fitzhugh, and John Calhoun. Yeah, but what’s going to happen is under the guise of anti-racism, a false anti-racism, a racist anti-racism, an ideological approach to things so that our past is going to be erased. For me to publicly make the argument, as Frederick Douglass did in 1852, that our constitution is a fundamentally anti-slavery document, to make the kinds of arguments that the great Abraham Lincoln, and I should also say the great Frederick Douglass, made in his Peoria Address of 1854, and the Cooper Union Address six years later, showing that in no sense was the Constitution pro-slavery. The Supreme Court was wrong in Dred Scott when they said, “The Declaration and Constitution are instruments of oppression.” They’re instruments of ordered liberty, of human dignity, and they were, as Martin Luther King still recognized in his famous speech in I have a dream in November 1963, it’s precisely because of going back to those promissory notes, the Declaration, the Constitution, the Gettysburg Address, that our political order is able to actualize our founding principles, which are principles of liberty and human dignity. I’m absolutely convinced that the new ideology will say, “I make the argument of Frederick Douglass, of Abraham Lincoln, of Martin Luther King.” I don’t mean me personally, but anyone who makes this argument, is ipso facto racist, or this is a form of violence. Do you remember Eric Voegelin’s definition of ideology that it’s the forcible imposition of a second reality on the real world? I think that’s what we’re seeing now. Richard Reinsch: Voegelin says you can’t ask questions. Daniel Mahoney: That’s right. The reason why in his probably most polemical book Science, Politics, and Agnosticism from 1959, Voegelin said that Heidegger, and Marx, Nietzsche were swindlers, he said in every case, whether it’s Nietzsche’s atheism or Marx’s atheism and revolutionism, or Heidegger’s turn to Hitler in ’33. I’ll give you an example. In part two of the Communist Manifesto, Marx is making his argument for the four abolitions, so property, family, religion, and nation, and he says, “I am not even going to respond to arguments made against my position in the name of natural right or natural justice.” He just dismisses any kind of moral or philosophical or political objection, and, of course, Marxism, which is one example of explaining that away, attributing nefarious motives to people who are simply philosophizing, searching for truth. So this is where we’re heading. We will not be able to ask questions, and we will not be able to dissent from answers that are not rooted in empiricism, and by empiricism I don’t mean positivism. I just mean the world around us, experience. We’re going to be forbidden to raise the questions or to provide dissenting answers. Richard Reinsch: We’ve been talking about this throughout the interview. It’s this position also of your thought is determined by who you are. You aren’t actually capable of reason, of logic, of conscience, of subjectivity. You are Dan Mahoney, middle-aged white man. You are therefore incapable of telling me what an anti-slavery regime is. You’re complicit within it. Daniel Mahoney: I noticed when I first started teaching in the ’80s that women who were the most influential political women in the world, Golda Meir, Margaret Thatcher, Jeanne Kirkpatrick, were not considered to be women by the hardcore feminists or their academic allies. To be a woman was an ideological category. Thomas Sowell, Glenn Loury, Shelby Steele, Robert Woodson, who by the way if there is a more noble voice for Black America, I can’t think of one, they’re not Black because they’re in some ideological category. By the way, a homosexual who is against gay marriage or a woman who is for the right to life, they don’t fit these preconceived ideological categories, so they simply are written out of the narrative. This is very, very dangerous for all sorts of reasons. It’s the attack on agency. That’s why I think this radical sociologism where people are wholly determined by race, class, and gender. You asked before where this came from. Let’s not read Shakespeare. Let’s say he is the project of the English patriarchy. He’s a white guy. “Hey, hey, ho, ho, Western culture has got to go,” as the marchers chanted as they destroyed the great books program at Stanford. How demeaning to all people, how demeaning to black America, how demeaning to free-thinking people. It just means that nobody can think. Nobody can reason. Everyone is a prisoner. By the way, why are these ideologues and activists now not prisoners of their own experiences, something they’re incapable of answering? Civility really isn’t just, “I won’t shoot you and you won’t shoot me.” Civility is always grounded in some kind of mutual, moral consensus where we recognize the common world of reason, a common world of citizenship, a common world of mutual accountability. Without that, it’s war of all against all. Richard Reinsch: I think it is philosophically the move against nature. There is no nature. There is will. There’s the naming of things. There’s the determining things according to political categories, and that’s it. That, of course, immediately would shut off liberal education. What would be the point of that? Do we even have a conversation about truth, or what man could know about himself, what it means to be a human person? Why have conservative liberals, tough-minded liberals, sober liberals, whatever you want to call them, found themselves on the back foot? Did they do something wrong, not necessarily in the last two weeks, but 10 years ago, 30 years ago, 50 years ago? Your thoughts? Daniel Mahoney: Well, I don’t know. You probably have seen a couple of these essays that Joshua Mitchell, a very good political theorist at Georgetown, has written about the whole low culture. Josh’s argument is this is, as I said before, a toxic and angry moralism that is radically pagan in the modern sense of the term. I don’t mean Cicero and Aristotle. I mean, post Christian, anti-Christian. That means it has no room for humility, limit, or recognition of imperfection, and sense, and above all, no room for repentance or any penitential involvement. The cancel culture really says, “If you said something, it doesn’t have to be really unacceptable. It just has to be perceived today with these ever-changing quasi totalitarian standards as unacceptable.” You are written out of the human race, like the great Soviet encyclopedia of the ’30s where people would get notices saying, “Cut out the picture of so and so, or cut out this article. These people no longer exist.” Orwell has a few things to say about that in 1984. This lack of mercy, this hardening of hearts, this treating of people as if they’re not persons worthy of consideration, it all flows from the animating categories rejecting nature, personhood, and agency. A decision has been made that a person no longer belongs to the human race. Richard Reinsch: Yeah. Daniel Mahoney: By the way, I don’t want to be hyperbolic, but I think that’s more or less the spirit that animates the reckless anger of people in The New York Times newsroom or the editor at The Philadelphia Enquirer is a liberal, and pointing out that burning down buildings, and people’s homes, and livelihood is a form of violence. They matter, too, and to be dismissed for that? Richard Reinsch: The editor of The Philadelphia Enquirer fired for approving of the headline “Buildings Matter, Too”. Daniel Mahoney: Absolutely. By the way, you may have seen the headline about the progressive newspaper, one of the Carolinas, when the mob was attacking it. They said, “We’re with you. We’re with you.” It reminds me of a scene in Eugenia Ginzburg’s first great memoir about the gulag. She was a Soviet communist, but she ended up in the camps anyway. She talks about a refugee from Mussolini’s Italy who is arrested for no good reason, and he is about to be shot, and he’s yelling, “Io sono comunista!” I’m a communist! Well, it doesn’t matter. These editors are woken up. It’s the radicalization that took two or three years in the French Revolution happening at least in a symbolic way overnight, and I think these institutions are hopeless. Now, thank God we’ve got a great independent newspaper like The Wall Street Journal. Richard Reinsch: They’ve been indispensable in this. Daniel Mahoney: Yeah, and thank God people can criticize Fox News all they want. It adds to the sum total of pluralism, and by the way, we talk about liberalism. One thing tough-minded liberals and tough-minded conservatives can agree on, all of us committed to the liberal order, in the fullest sense of the term is that pluralism is an essential good. Not a relativistic pluralism that says, “Who’s to say what’s right or wrong?” The great John Courtney Murray put it, “Where civility operates.” Civility really isn’t just, “I won’t shoot you and you won’t shoot me.” Civility is always grounded in some kind of mutual, moral consensus where we recognize the common world of reason, a common world of citizenship, a common world of mutual accountability. Without that, it’s war of all against all. I think these intellectuals accepted that premise, but it’s really kind of amazing. They accept nihilistic premises, but they think in the end justice will arise. That’s absurd. Richard Reinsch: You’ve written a lot about, you’ve thought about the French political thinker Raymond Aron, who had wonderful thoughts about the events in May, 1968 in Paris where they almost topple the government, and were finally stopped by General de Gaulle. Are there things we can learn from him, even though he’s 50 years ago in France for our present situation? Daniel Mahoney: Oh, well. Aron his wonderful book La Révolution Introuvable, the Elusive Revolution, he reproduces many of his columns from Le Figaro from May, June, July 1968. He was a one-man voice of truth. When everyone was going mad, Aron says, “Everyone played a role in ’68.” He said that, “A lot of people did a good job acting like the Jacobins, or Robespierre, upper-middle class students.” Aron says, “It pains me to see these demi-educated students praising Che Guevara, while in fact, an authentically great man like Charles de Gaulle,” and Aron had his differences with de Gaulle, but Aron says, “Well, I sort of played the role of Tocqueville, what Tocqueville had played in 1848.” The sort of voice of reason against this insane radicalization all around him, and Aron really saw it as this tyranny of ideological clichés. One of the most famous is it is forbidden to forbid. Boy, that manages to be totalitarian and nihilistic all at once, and Aron was a conservative-minded liberal. He stood up to the totalitarian intellectuals in the ’50s with his great books The Opium of the Intellectuals. He stood up for the liberal university, and for the French Republic in ’68, and he made many, many enemies. He even set up a committee to stop terrorism in the universities. So he was a man of utmost courage, and he just could not understand why people who lived in a free and prosperous society were committed to destroying it. I think he thought it was a kind of intellectual contagion, a kind of madness that simply needed to… I think Aron’s example is really good because without Aron, I think ’68 might have had a different… Without Aron or de Gaulle, ’68 may have had a different outcome because so many people had given into this ideological madness, and still in France. I mean, La Révolution Introuvable was re-released last year, but every five, 10 years when there’s a celebration of May ’68, it is hagiographical. You know? These Maoists and terrorists, and people who intimidated, and they’re celebrated. Richard Reinsch: Well, they moved through the institutions, and write the scripts now. Daniel Mahoney: They do. They do, and my French friends always say that ’68 is the turning point when a kind of liberalism rooted in the larger arc of Western civilization really… They didn’t establish their Maoist utopia, but they institutionalized the culture of repudiation, and post structuralism, deconstructionalism, anti-Western narrative. That’s the leading import from France in the last 60 years. It’s part of our problem, too. So there’s direct connection between May ’68 and what’s going on now. Richard Reinsch: What makes liberal political orders weak or are they? Why is that the case? We think about an array of voices writing now on the right, even in America, also, wishing for the end of liberalism or equating liberalism with the things that are happening now, not making any distinctions. What do we make of that? Daniel Mahoney: Well, I think liberalism has been prone to radicalization and self-subversion. When mutual respect and civility become a debilitating relativism… Deborah Lipstadt the great critic of Holocaust Revisionism pointed out in one poll 25% of students said, “Holocaust Revisionism ought to be given a hearing because they’re afraid to say any intrinsic ideas are right and wrong,” and that goes… Things like this, liberalism, sometimes has a hard time standing up to its enemies, and so many liberal intellectuals or left-of-liberal intellectuals apologized for totalitarianism in the 20th Century, saw communism as more democratic than democracy, so there are problems, but those problems cannot be addressed by some mindless anti-bourgeois repudiation of the American founding. Even this talk about a radicalization doesn’t mean that the radicalization is inevitable or can’t be resisted. But we need Churchillian fortitude. We need people who stand up, are courageous, who are not worried about “The herd of independent minds.” So we have a lot of conformity around now. It takes some risk.  Bob Reilly in his new book America On Trial he talks about there were American founders all the way back in the 1790s, especially Hamilton, and Adams, but also George Washington. They knew the French Revolution had nothing to do with us. They didn’t like the unreason, the false reason, the murder, and the pillaging, and the anti-Christianity. I think if we’re going to defend liberalism, we need to save it from the people who love it too much. That’s the same with my friend, Pierre Manent, that to love democracy well is to love it moderately, by which it doesn’t mean we love our political order moderately. It means this pure democracy or pure liberalism where all the contents of life: authoritative institutions can be wrecked, including the family, including religion. We’ve already wrecked the universities. Without authority, without order, without the moral capital that the Founders largely presuppose, but sometimes have earned. They all believed in rational, moral sense. They weren’t relativists. They were not enemies of the Christian religion. I think the liberalism we need to defend is it needs a place for statesmanship, for Lincoln, and Churchill, and de Gaulle. It needs a place for intellectual authority. You can’t be afraid of truth, but I’ll tell you. No good comes from condemning the American founding as part of the problem. I think as you put very nicely in your review in National Review of Bob Riley’s book, you end up agreeing with Justice Kennedy in his famous claim that American liberty is some kind of juvenile existentialism. It has no end. It’s just about anything. David French is the other extreme. He says, “The Constitution is founded on neutral principles.” No, not neutral principles, but not the syllabus of errors. We need a constitutionalism that defends liberty and human dignity, and rejects the culture of repudiation. It’s so clear to me. I don’t understand these binary distinctions between integralism and the woke rejection of the Founding. Richard Reinsch: I think what we’re dancing around here, too, is the weakness of a liberal republic is does it transfer and teach its tradition to the next generation? I don’t think we’ve done that for two, maybe three generations. Inevitably, that vacuum gets filled with a new account of truth, a new account of meaning, and to me when I read, say, the Catholic right is doing this, or we look at, say, The New York Times editorial board, that’s really what we’re witnessing here is a new account of truth filling a spiritual void. Daniel Mahoney: I agree. By the way, I have some sympathy for these Catholic traditionalists who their political and historical judgment is wrong, but they are responding to the regnant nihilism, and- Richard Reinsch: I agree with that. Daniel Mahoney: … again, they’re making the terrible mistake of conflating the principle of our political order with the present madness, and I think that’s wrong for a thousand reasons, but the renewal is going to have to involve, to use a fancy word, a dialectical reflection where we repudiate this faux liberalism and leftism, while reaffirming the deepest resources of our tradition, and the problem with this kind of position, the position of Brownson or Tocqueville or us is that it can’t be argued in two or three easy steps. It involves liberal education, civic education. Why did conservatives, why did people with good sense, why did political moderates, why did we allow the elementary and high schools to be colonized by people who teach young people that our civilization is evil, and our founding order is corrupt from the beginning? How do we expect this economic determinism on the right that thinks, “Oh, as long as the stock market’s going up and we have economic growth, let the kids learn all the nonsense. Ideas don’t have consequences.” I think there was a blindness among too many people who do love this country thinking that all that nonsense, all those race, class, gender nonsense, that doesn’t have anything to do with the real world. Yes. It does. It’s an absolute subversion of the civic order in the real world, so- Richard Reinsch: Well, I think, too, it was lessons looking back. It’s a willingness to look the other way because you don’t want to roll up your sleeves, and really fight on these hard battles that you have to fight over. Daniel Mahoney: I think that’s exactly right. Richard Reinsch: It was politically incorrect. I think I look back at George W. Bush’s presidency. Of course, it was subsumed by war, but very little desire to take this on, and it seems to me that was a crucial point when a lot of things were lost. That’s just my judgment. Daniel Mahoney: Yeah. You know it’s funny. George W. Bush now is considered to be this humane alternative to Trump. He was as freely compared to Hitler and Nazism as Trump is. Richard Reinsch: He was hated, reviled. Daniel Mahoney: Yeah, and I’m disappointed when somebody like him, he issues a statement last week, praising the protestors in the street, but not a word about the violence, and the nihilism, and the group think. It’s cheap. There’s an easy phrase for it. It’s called cheap grace, easy redemption. You know? But we need Churchillian fortitude. We need people who stand up, are courageous, who are not worried about “The herd of independent minds.” So we have a lot of conformity around now. It takes some risk. We don’t live in a totalitarian regime that’s going to send us to the gulag. Richard Reinsch: Well, you might lose your job, which can be very painful. Daniel Mahoney: But you might lose your job. Richard Reinsch: You might lose your reputation. Daniel Mahoney: Yeah. Richard Reinsch: My point about just to clarify President Bush, was, more specifically, the focus on No Child Left Behind. The nationalizing of a curriculum around one metric, which would just be sort of a utility of education, and what it can prepare you to do. What the left has really been focusing on, and it’s now become very clear they’ve succeeded is not that. It’s soulful education as they deem it. Even under the Common Core standard, that was the same thing, utility. We have to become much more forthright about, I would argue, the soul, and what’s the good, and what should be read and thought? Daniel Mahoney: We need a recovery of soulcraft in education. Yeah. I mean, it became far too common. I think you’re right about the Bush Administration. They pushed STEM. They pushed the utilitarian view of education. They pushed sort of the standards, rather than the content of education. The chickens have come home to roost, and all the while the left was redefining what it meant to be an American. They were faulting the fundaments of our civilization, but again, this didn’t matter. This is just ideas. A presidential candidate the last go around said, “Why do people study Greek philosophy? You’re not going to get a job with that.” Richard Reinsch: That, too, was Rubio. Daniel Mahoney: That was Rubio. Yes. Richard Reinsch: Yeah. Daniel Mahoney: Yes. I didn’t mention him on purpose because I didn’t want to pick on him twice, but- Richard Reinsch: Well, he needs it. All right. Daniel Mahoney: Yeah. He needs it, but what silly stuff. You know? Conservatives need to defend authentic liberal education or true liberals need to defend authentic liberal education, liberal enquiry, and not confuse it with the imposter that has taken over the humanities, and increasingly the social sciences in the universities. Again, I don’t know if that’s going to be possible because I do already sense a terrible hardening, kind of. This is not hyperbolic. It’s a new totalitarianism in the university. People are going to get fired. Richard Reinsch: Yeah. Well, my sense is there has to be a shake up. It could be federal government directed. We could see some red state legislatures really wake up. It could also just be market forces. I mean, my understanding from James Hankins, a piece that ran on Law & Liberty this week, is the finances and revenue for higher education are very thin, and many universities could actually close in the next few years because of that, so that, too, would be an opening, I think. Daniel Mahoney: Well, I have been pretty confident with the overall response to COVID, but nonetheless, it did great damage to our smaller colleges and universities, maybe just all educational systems, and I thought colleges and universities simply out of necessity would not be able to double down on the thought control, but events have a way of intervening. No. Hankins is right, but that doesn’t mean that what’s left of American higher education won’t end up being more liberal, more coercive, more mindless. Maybe we need new universities. I don’t mean just conservative universities, but the kind of thing Warren Treadgold has written about, major effort to establish places where liberal enquiry, and not ideology dominates. That’s going to depend on a renaissance of liberalism, a true liberalism, and because conservatives can’t do it themselves. They’re going to need allies, and we’ll see if perhaps this madness doesn’t give rise to a new sobriety, a kind of recovery of the old verities that have been forgot. That’s at least the hope. Richard Reinsch: My hope is new political coalitions form in defense of a certain liberalism, and the good that it has to offer, and those coalitions could look very different from the ones we have now, so we don’t know. Daniel Mahoney: You know we don’t know. De Gaulle once said, “The future lasts a long time.” I think we have every obligation to respond to the madness around us, and by responding to it we can contribute in our small way to making sure that it doesn’t become institutionalized or instantiated in truly awful and dangerous ways, but we don’t want to overreact in the sense of saying, “Everything is finished,” because it may very well be that the American people, many of them are looking around now and saying, “What the hell is going on? This is not justice. This is not the country I want to live in.” The salvation is not going to come from the intellectual clerisy. It’s going to come from sort of with the remnant of the deliberative sense of the American people of a kind of common sense that isn’t quite dead, yet. Richard Reinsch: Yeah. Dan, well said. Thank you for your time, and we’ll keep doing what we do. Daniel Mahoney: A great pleasure, thank you, Richard. Richard Reinsch: This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk, available at Lawliberty.org.

Richard Reinsch:Hello and welcome to Liberty law talk. I’m your host, Richard Reinsch today. We’re talking with Fr. Robert Sirico, founder and president of the Acton Institute. The Acton Institute is in Grand Rapids, Michigan. Fr. Sirico is also a pastor at Sacred Heart Parish, also in Grand Rapids. Fr. Sirico widely commentates on political, social, religious, economic issues, so we’re glad to have him on the program. Thank you for being here. Fr. Robert Sirico:I’m delighted to be with you, Richard. Thanks for having me. Richard Reinsch:Fr. Sirico, question for you, as you watch the unrest, the violence, it almost seems like an insurrection inside major American cities, ranging from the looting that happened on Tuesday night in New York City and Midtown Manhattan, is the long line of elegant shops there, and if you’ve walked past, were universally broken into and looted Tuesday night. Police officers were standing by, nothing. They didn’t do anything. This has happened in dozens and dozens of American cities. What comes to your mind as you watch these scenes unfold? Fr. Robert Sirico:Well, I think I’m like a lot of Americans. There are a whole bunch of things that come to my mind, and I think where it begins is, of course, with the scar at the founding of the United States. The American founding was basically a set of ideas that are rooted in human liberty. They’re ideas derived from the natural law. They’re not inventions of Americans, but they are something encoded in all human beings. And that is the notion of liberty, of equal dignity, of all human beings. And somehow with our founding, and I understand the historical precedent that slavery was a part of human society for eons before the American experiment; but nonetheless, in this new experiment, we had it. And I think that has left a horrendous legacy, more cultural perhaps now than legal and structural. I know that’s a point of real debate with a lot of people, but I insist that it is cultural prejudice that people have, and I think that’s manifested in what happened to Mr. Floyd and a whole list of other people, particularly black men, but also other minorities. I think in order to understand the riots, you have to kind of back up and see that these actions on the part, not just the police but on the part of our culture, give some semblance of justification for the protest. They in no way give… and for the same reasons by the way, no way give justification for the kind of violence and looting and destruction of property that we have seen in the last few days. We have to hold both of these things in tension with each other and see the common base of them, that is the violation of human rights, human dignity, and the property that you hold. Having said all of that, and I know we are just in the midst of it right now, I am very suspicious that there is a disciplined, organized group of ideologues, probably many of whom are not African American, who are exploiting this circumstance. I think we’ve seen some evidence of that already emerging thanks to the iPhone culture that we live in. I should also just mention that even here in Grand Rapids, which is relatively harmonious community, this kind of violence and the Acton Institute was in the middle of a lot of impact. They tried to break our windows. They broke windows on either side of us. They weren’t able to because our windows are pretty sturdy. We’ve seen it even locally. Richard Reinsch:I’ve read about the violence in Grand Rapids as well. Indianapolis, where we are, faced a severe bit as well. Let me respond though. We had riots. As you recall, in 1968, I think went into 1969, in major American cities, this coming after the Civil Rights Act, the Voting Rights Act, the Great Society. These riots happened. The Watts riots in LA, where there were active attempts to bring, particularly young black men into the economy, teenagers even into the economy. Fifty years later, we’re kind of still here with this sort of… I mean your answer sort of surprised me in a way, because I guess my thinking is at what point is this no longer a reality in America given everything that’s been done or attempted to be done? And one of the things that I note that sticks out in my mind now, Minneapolis where this started, is a progressive city. It has an incredibly progressive leadership class. It has been run by Democrats for decades, all proclaiming that they’re going to do good things, and they’ve tried to do good things. And yet, this problem happened, the riots happened. Do you ever wonder that yourself? When is enough, enough? Fr. Robert Sirico:Well, I think this is a complex topic, just trying to tease out some of the elements of it. I think the origin to the civil rights movement, going back well before ’64, emblemized to my mind by the Letter from the Birmingham Jail, Dr. King’s letter from Birmingham Jail, the religious leadership of the civil rights group, the call at that time of human dignity, the commitment to peaceful protest. One of the most powerful of the demonstrations of that era was a boycott, an economic withdrawal of economic power against businesses, from thinking of the buses in Memphis and the withdrawal of economic power to show that we can remove our economic support. All of these were free actions of people protesting the prejudice. What happens after that? I think ’64, ’68, even before then really, is an institutionalization of a different vision of society. And the fact that many of the civil rights leaders themselves transformed into the acceptance of this notion, that is a more state-oriented resolution to social issues rather than a harmonious economic-free resolution of these issues. I think that institutionalization, that progressive approach, which then more sent to the Saul Alinsky, even more radical forms of leftist resolution to these things, this exacerbates the problem. It sets up class warfare, racial warfare as the solution. It becomes rather than a win-win game, it’s a win-lose game. And it’s political and not religious in its orientation, not moral, now it becomes political. And that transformation, I don’t think enough people have really thought about enough to see, how that has produced what we’re seeing here and now. There could have been an ongoing resolution to this that was impeded by the interventionist state. Richard Reinsch:I was reading yesterday 300 black men died violent deaths in the city of Chicago in 2019 at the hands of other… They had black assailants who killed them. Which dwarfs, by orders of magnitude, those who died at the hands of Chicago Police Department, and dwarfs by orders of magnitude, those who were even unarmed, and we don’t know the facts there. We don’t protest those deaths. We don’t even mention them. But George Floyd’s death, horrific as it is in the video, and I understand the media, but that becomes everything. We have these nationwide protests… There are protests in Canada. I’m reading there’s a protest in Amsterdam today that drew thousands of people. This all, to my mind, speaks of, but now we want to use a new language, 1619 Project, intersectionality, systemic racism. That’s a term I’ve heard dozens of times in two days. And it’s almost as if, and now we’re going to remake institutions like the police a traditional institution, hierarchical institution of its very nature into what we want it to be. That concerns me going forward. I mean, I’m very concerned right now about the unrest. But when the unrest ends, and now the progressive, political, bureaucratic legal class turns the wrench even more because of systemic racism. Fr. Robert Sirico:I agree with you completely that all of this is the result of that kind of status presumption. What I think is very important is that believers in the free society, conservatives if you will, classical liberals, begin with the acknowledgement of the reality of racism. It seems to me that that is a given. The reality of racism isn’t lessened by the fact that blacks die at higher rates at the hands of other blacks. It doesn’t take away from the reality, the broader reality of racism in society. In fact, it may be a part of that, the erosion of the culture, particularly the culture of the family, the absence of fathers in the homes that produce all of this kind of thing. But I think we need to be the leaders in calling for the proper resolution to this, rather than leaving it at the hands of progressive who are going to only exacerbate and extend this. Because there’s a great interest on the part of politicians to have this kind of friction and this kind of division, because then they can justify the programs, the political power. And look at how they have, in effect, seduced religious leaders into becoming politicians. I mean, Jesse Jackson and Al Sharpton, they are classic examples of men who begin as ministers and end up as politicians. This is civil society versus political society. Richard Reinsch:Question for you. 2020 has been an interesting year, not a year that any of us I think will recall fondly. Fr. Robert Sirico:Lord hope. Richard Reinsch:We start the year with an impeachment. We then end impeachment and we go right into the corona crisis. Now the corona crisis, as far as I can tell, has been placed on the back burner, and we’re in the midst of civil insurrection. And through it all, our country is extremely divided. In fact, it, at times, seems like we cannot even speak to one another, speak to those we disagree with. Impeachment, you might expect that. That’s going to be bitter no matter what. Not so much in a pandemic. You should think we would know. We would kind of coalesce around a set of policies and approaches. And then now you would think, okay, an insurrection, we’ll call it, in major American cities, you should know what to do. You put it down. And yet, we don’t seem to know what to do or agree on what to do. And we’re divided over that now. At what point is the question, are we just two different nations in a forced marriage? Is that a question that we should ask, entertain? Fr. Robert Sirico:Well, it is. More than ask it, we need to answer it. We need to understand why. And it goes back well before 2020. It goes back well before the impeachment. The impeachment, the response to the pandemic, and now the civil unrest, are all extensions of a division that really is the result of that win-lose mentality that I was talking about. That is the increased politicization of society. I mean, why in the world would the threat of contagion result in political divides? I mean, when we should just kind of come together. Richard Reinsch:Exactly, yeah. Fr. Robert Sirico:But it has because our institutions of healthcare, our institutions of civil government, our institutions of medical research and the production and all of the regulation that’s attached to things like the production of masks or sanitizers, all of this has been politicized, regulated down to the minute details. Of course, you’re going to have divisions because society itself that has been eroded and the political apparatus has taken over. We think that everything that needs to be done socially has to be done through the agency of the state. And this produces more and more division because it is, what I said earlier, a win-lose situation rather than the market which is a win-win situation, where you persuade people to engage with you economically, rather than force them, coerce them, regulate them to do so. Richard Reinsch:Yeah. Well, I suppose maybe a more positive way of looking at this is, those of us who do believe in markets or in a freer society are posing those arguments in a powerful way such that we’re having this divide. I think in a way that there is still something in America kicking and pushing against this project that’s ongoing. It prompts a question. I know throughout your career, you’ve had involvement with American liberalism. How do you see it changing? How has it stayed the same since it really emerged as the new left in the late 1960s? What do you see as its goals now? Fr. Robert Sirico:I think that they have made great strides in society. I think the movements that I was involved with, and when I was involved with them, were marginal at the time. It wasn’t a step up in social status to be involved in the left-wing movements that I was associated with. It is now. They’re well-funded, well-organized. They have people well-placed throughout government. But I think- Richard Reinsch:Corporations even. Fr. Robert Sirico:… And corporations have been in quite… I mean, you have this- Richard Reinsch:Competing. Fr. Robert Sirico:Phenomenon of “woke capitalism”. Richard Reinsch:Yeah. Fr. Robert Sirico:Yes. I mean, it’s all over the place. My solution to that is education. It’s helping people to understand that these well-intended…. Because I do believe that a lot of these people, even the kids on the street, I’m not talking about the media logs who are there to intentionally create pilots who come armed and ready for it, but the kids who want to be supportive, these white kids from the suburbs who come in and break windows. That if you get into their heart, and now maybe this was a pastor speaking, they don’t want to see people discriminated against. They don’t want to see people marginalized, disrespected, but they haven’t been prepared intellectually to understand how you bring about harmony in society. They think the only way to do it is to rip everything down. That’s the easiest in the world to do. To rip things down is easy. To create… The other thing, let me say, I alluded to the violence in Grand Rapids. One of the things I don’t think has been highlighted at all in Grand Rapids at least. The riots took place last Saturday night, as we were speaking. Sunday morning, I knew that this was going on right around the Acton Institute building. Before I celebrated mass, I went downtown and surveyed the downtown area and wanted to see the Acton building, to see what had happened. As I said, the Action building really wasn’t hit very much. But you know what I saw on the streets? Hundreds, hundreds of people sweeping things up, bringing coffee, bringing pizza, taking shards of glass and throwing them in canisters and dumpsters and stuff; and that was spontaneous, that wasn’t organized. It was just a cultural sense of this city. We will function. We will clean up the mess you guys have made. And that’s the culture that we have to build once again. That’s what made America great. That’s what makes any civilization great is this unified culture where people are winning and winning together. Richard Reinsch:Yeah, it seems as well, there’s now a very aggressive attempt. Although, this has been a part of progressivism going back to its fathers in the late 19th and early 20th century. Woodrow Wilson obviously comes to mind. And what I mean here is this attempt to remove us or to disestablish the American founding on its own terms and to give it new terms, or evolutionary terms, progressive terms. And that now has reached to a very popular pitch in the 1619 Project. We’ve run, I mean a lot of publications like Law & Liberty have had authors comment on it. It’s been universally panned by well-regarded historians, Gordon Wood, James McPherson at Princeton. I mean, they’ve really just pulled this apart. Economists have pulled it apart and some of its claims. But the root argument is we’re built on slavery and we’re built on racism, and our economy grew so fast because of slavery. Now, this is just part of the American Project is oppression. This is sort of becoming a mainstream view, and it just sort of sparks to my mind the question of this is its own virus. And we can do our patient work at Liberty Fund at the Acton Institute, other institutions come to mind. But now, major cities are taking the 1619 Project and putting it directly into their curriculum. Of course, they have declining student enrollment, but there it is. And it’s sort of, to my mind, sparks a question. There’s great disagreement and anger at the American founding. We also see it on the right. And you and I both know about essays that have been written in a journal called First Things, founded by Father Neuhaus, actually to defend American democratic capitalism. Now, the journal seems to be turning against it or has turned against it. Richard Reinsch:Very significant thinkers, an endowed chair at Harvard Law, Adrian Vermeule, I can name a lot of people here, also turning against the American founding and also really against markets as well, wanting a strong administrative state, a corporate estate. This is also going on on the right, but it’s not as impactful yet. Your thoughts here on kind of what all this means and what to make of it? Fr. Robert Sirico:Well, I think it’s good that you’ve linked those two tendencies, these currents in American society. Because I do think, philosophically, they share a certain overlapping DNA, if you will, and it requires a certain historical amnesia to maintain their arguments. Because what we know about American slavery is that it was eroding because surprise, surprise slave labor is not as effective as free labor. Richard Reinsch:Yes, yes. Fr. Robert Sirico:It’s not as productive. It’s not as dependable or reliable. Aside from the moral arguments against slavery, the economic argument against slavery is that it impedes creativity, it represses spontaneity and the resolution of problems. Slaves don’t want to work. They’re not insightful. They’re not going to be insightful and risk. The mentality of slavery, it’s not the same thing. I don’t want to make up a moral equivalent. But if you want to make a cultural observation, the modern cultural manifestation of slavery is in the bureaucracy. People who feel like they’re drones and they’re not the entrepreneurial culture. I think this pointing at the American founding as though slavery was intrinsic to it is false. And I’m not an academic historian, I’ll leave the details to those capable folks, but what I can observe just overall is people who are going to reject the emphasis on freedom, and again, I say there was a scar because there was this contradiction. And it was the contradiction between the status mentality and the entrepreneurial mentality right at the founding. To resurrect that and to announce the founding as such because of the status mentality in the name of the status mentality is an absurdity and a very dangerous one. It is particularly galling to see what’s happening to First Things for the reason that you said with Father Neuhaus. Richard Reinsch:Talk about his… Because I think a lot of people, particularly these younger writers I’m seeing in their 20s, they don’t know what he was trying to do. They see it all through… He was a neo-con, and he was just a neo-con out for war and democracy promotion. And they forget the original vision. Fr. Robert Sirico:Right. Well, Father Neuhaus and I would have had disagreements on some of those kinds of issues, but the real- Richard Reinsch:But it wasn’t what he was all about. I mean, that just sort of- Fr. Robert Sirico:… No. I didn’t even know that it was fundamentally what he was… Richard Reinsch:Yeah, it was just, that’s what you hear. That’s what you hear in this sort of dismissal of that project now. And it- Fr. Robert Sirico:That was not what attracted me to pursue things and my friendship with Father Neuhaus. But what he was trying to do was to show the compatibility between the American founding and the Christian ideal of the free and virtuous society. When you read him, when you read Novak, when you read Weigel, what you find are continuous references to the thought of thinkers like John Courtney Murray, who was the preeminent peritus at the Second Vatican Council. This would have been- Richard Reinsch:’65. Fr. Robert Sirico:A peritus… A theological advisor who made the case in his book, We Hold These Truths. That the American founding was, in many ways, derived from natural law and compatible, rightly understood, compatible with at least Catholic social teaching. And then of course, Neuhaus brought the vibrant ecumenical and interfaith elements into that. That’s what First Things was about, and to uphold the priority of the cultural, which is what I was talking about when we’re talking about civil rights. Richard Reinsch:Yeah. The question, I mean, and I’ve read First Things from 1998 and 1999, all the way until a couple of years ago. Now I read it occasionally, but I used to read it cover to cover. The position now being advanced is pretty critical of markets. I rarely read… I don’t think I’ve read anything from the editor of First Things that praises the free market. It’s always criticism. And I- Fr. Robert Sirico:Just what has occurred to me, and I’m going to go out on the limb here because I don’t remember all the names of the personalities, but you remember First Things was founded out of the collapse of a previous journal that Neuhaus had been editing. Richard Reinsch:Yes. Fr. Robert Sirico:And that was taken over because there was some institutional- Richard Reinsch:Disagreement. Fr. Robert Sirico:… ownership by a group of people that were the Southern Agrarians, much more like this group that has taken over First Things now, than Neuhaus himself. Neuhaus was against that. And I think you’re finding this element, this modern element of the integralists once again. It’s another coup. And I had never said that publicly or really even thought about that. But as we’re talking, it occurs to me that that’s what happened back then that the founding in 1989. I remember it very well. Richard Reinsch:No. In fact- Fr. Robert Sirico:Neuhaus was locked out of his offices. Richard Reinsch:Yeah. No, I’ve heard that story. Yeah, that they showed up and they were locked out, and their equipment was on the street, I think. Fr. Robert Sirico:Right. And he turned on a dime. He turned on a dime. They reconstituted this now as First Things, and the other magazine journal just withered away, which is what’s happening now to this First Things. It’s living off of the fumes of the past. Richard Reinsch:The current editor of Chronicles, which is published by, I want to say the Rockford Foundation or the Rockford Institute was- Fr. Robert Sirico:That was the group. That was the group. Richard Reinsch:… That published the journal that Neuhaus left. But the current editor of Chronicles has basically said, “Things have come full circle,” in a recent piece. And I thought that was right on and that that’s sort of what you’re saying. The point here too, a woke capitalism is working here. I think there’s a lot of just… There’s a sense that the breakdown, the arguments that are around these groups of thinkers, that breakdowns in the family, breakdowns in community, all of which somehow could be explained. And it’s almost a fideistic notion. If we just reintroduce industrial jobs back into America, that’ll give us middle-class incomes and people will get married again and have children. And then with that will come religious participation and vibrant neighborhoods. This is really to skip a lot of steps and to ignore the nature of markets. And then as I’ve written, it actually doesn’t even make a lot of sense with the data. I mean, the data doesn’t even support this, apart from just the logic of free markets. But my sense here though is, what is motivating this underneath is just, it’s really largely a turn against American ideas and practices that have guided us since our founding. There’s a desire for something else. Fr. Robert Sirico:Well, there is. I don’t know exactly what it is the desire for, but it’s something other than what the family and the culture that protects the family and the institution of private property is all about it. It was Marx and Engels… Actually it was Engels who kind of collected a lot of Marx’s writing to produce a book called The Origin of the Family, Private Property and the State, in which they were denouncing these things. It’s the state that was against these institutions, not the market. The private property regime was the protector of the family, and can be once again. Richard Reinsch:Thinking now as you see American politics and economics, I struggle sometimes staying positive, what are you looking to or what gives you hope? And I know one answer to that question. But as you see these things moving forward, what comes to my mind is there really are no new ideas. We seem to be just fumbling around in sort of a loop of ideas, movements that have spanned for decades. And at some point, I think we say, we’re not creating anything in our society. We’re not building. Maybe we should change what we’re doing. We should rethink our entire approach here so we can recover our civilization. The alternative being collapse. Fr. Robert Sirico:Well, I do think we need the radical change in our society. The question is, what is that change? And it seems to me that if we’re going to confront the realities that are ahead of us, once we get through this period of the fear of the contagion, which is exacerbated by the centralization of government in the response to it. When we get past that, we need to ask ourselves, what is going to adapt our culture to the challenge, the ethical challenge, that’s going to be presented to us in, for instance, artificial intelligence? This technology is not going away, and this technology is not evil in itself. What we need to do is see the human person as the priority and the director of the technology. And the technology doesn’t alter nature. It simply is going to be directed by us or this kind of searching around that you’ve described, this wandering in the wilderness, so to speak. And that could become deadly dangerous. Now, if you were asking for a word of hope, it’s that those solutions that are being proposed across the board, both on the right and on the left, that center on the state is the solution to the problem will fail. There is no doubt in my mind that they will fail. They’ve always failed historically. Sparta was not as rich as Athens. North Korea is not as rich as South Korea, not as vibrant. By rich, I don’t even mean just financially, I mean, culturally. And that will stagnate. And as it stagnates, people will look for answers. And I think we can propose what the American founding derived from a more ancient understanding of human nature in society, which is the natural law. Richard Reinsch:Fr. Robert Sirico, thank you so much for joining us. We appreciate your time. Fr. Robert Sirico:Great to be with you. Thank you, Richard.

Editor’s note: This podcast was originally published on January 16, 2019. Richard Reinsch Today we’re talking with John Marini about his new book, Unmasking the Administrative State. John Marini is professor of political science at the University of Nevada, Reno. He is a Senior Fellow of the Claremont Institute in California, and is the author and editor of a number of books on the administrative state, including The Politics of Budget Control, The Imperial Congress, and The Progressive Revolution and Politics and Political Science. John Marini, glad to have you on the program. John Marini: Thank you, Richard. Happy to be here. Richard Reinsch: So John, I think I’ve been hearing you talk about the administrative state and reading your work about the administrative state for over a decade. So this book is, in some sense, a recapitulation of what I’ve learned from you but also I think some new thoughts and ideas as well. The title of your book is interesting, Unmasking the Administrative State. How does one unmask it? Is it not evident in Washington? We mock it, we refer to it derisively, we know its operations, and yet, it needs to be unmasked. How do we do that? John Marini: Well, I think the reason it’s difficult to see is because it’s so pervasive, it permeates almost every aspect of our lives. And so, the administrative state is not merely a thing, the bureaucracy, it’s a form of authority as well. It’s rational authority and it permeates not only the public sector but the large private corporations as well in the way in which organized intelligence establishes knowledge about what it is that needs to be done.And of course in the private sector, the economic sector, those structures and the bureaucratic structures that operate essentially in the same way as the public structures, when those two come together, in other words, when the private and the public sector become enmeshed in the way in which the modern administrative state has worked itself out over the last several decades, it’s very difficult to establish what is genuinely public and what is private. What is a thing that should be political and what should be a responsibility of the private world, the civil society, the institutions that were social institutions that established how it is that human beings accommodated themselves to the social problems of families, communities, associations. All of those were ways that are not political ways but ways that have established a kind of moral conditioning of human beings within those social structures. And the administrative state has undermined the authority of those social structures all the way down to the family. So it’s to- It’s not merely that the administrative state is these particular agencies, this part of the government that is unelected. It has permeated the social, the political. It has centralized almost every interest that exists in human life from the cultural, the religious, the scientific, the educational. All of these things now are part of the modern, rational state I think is a better term. I think Hegel’s a regional term for it. is a better way of describing what we’re up against than the administrative state. Because administration is just one part of what is done. Richard Reinsch: Talk about Hegel’s term and what he was trying to encapsulate with it. John Marini: Well, in terms of Hegel’s understanding of the modern rational state, it was going to be the rule of organized intelligence, of organized knowledge. It was the view, his view was, of course, that the rational was going to replace the natural. The end of history really meant the end of politics and the end of those things that had established the enmities that existed that prevented human beings from having and exercising what is essentially a common will, a will that establishes the moral authority of a regime. And of course, from the point of view of the state itself, the state is a rational organization, but it is also a moral organism. He called it an organism because it’s a growing thing. What it is… It adapts human beings to time or change or progress. So you could say is that the rational state is an organism for the administration of progress. The knowledge that’s necessary to establish the solutions to the problems that human beings face was not yet manufactured in Hegel’s time. He said that he had what he thought was civil service, in other words, the knowledge workers, that class that would accommodate and provide, establish the organized intelligence to conduct the public affairs. He named that at the civil service. The term bureaucracy was not yet in use even in Germany really fully, certainly not in the way in which it has come to be understood. From Hegel’s point of view, the rule of organized knowledge means then that there are those whose purpose is to provide the knowledge on behalf of the State, and therefore must be paid by the state, and that they will seek knowledge and not power. In other words, just to give a juxtapose, say the Hegelian view with James Madison’s view of administration. Madison would never admit that it’s possible for human beings as individuals to separate their self-interest from the other elements that animates human beings desire for power or ambition or whatever. So, Madison would have been skeptical that any people, any part of a government should be given the autonomy and the power to seek solutions to problems that are unrelated to a check upon that power on behalf of political control. Richard Reinsch: It sounds like what you’re articulating is something that we say and sort of a common view that the experts, the scientific expertise that they have to, as you say, manufacture knowledge and find solutions, Hegel is articulating this at a fundamental level. John Marini: Yeah, he is, and what he’s doing and what took time before we developed let’s say a method by which that becomes institutionalized because Hegel established the ground of the necessity for an applied science, practical science of politics. But he didn’t provide a method of how to generate it. That came about within the next, well, almost, about the time when Hegel was dying, Auguste Comte in France was giving a series of lectures from about 1829 to about 1840 that established the method of the social sciences, that detail how it is that human beings can establish a method, an empirical method whereby they can generate meaningful knowledge that is not knowledge that’s associated with metaphysical or theological knowledge. And therefore, is genuine knowledge, in other words, not subjective knowledge. That required of course, the separation of knowledge that is empirical or factual from the opinions that are primarily values. And of course, the only meaningful knowledge and the knowledge that is genuine or objective knowledge is going to be derived from the empirical method. And of course, Comte had established what he called the queen of the sciences for human beings. He called it first social physics, subsequently called it sociology, which was going to be really the science of society. So, rather than politics being the highest sciences as in Aristotle, or in Madison or the founders, of course, what is going to be the directing science of course is the science of society itself, sociology. So, once Comte showed how it is that knowledge of the human mind goes through these various stages, first, the theological, then the metaphysical, and finally, the positive stage of understanding, positivism becomes the method of all knowledge generated in modernity, including the law. So, positivism ultimately establishes the authority of the law, which means that science has replaced both metaphysical knowledge or philosophic knowledge derived from theoretical metaphysics, and religious knowledge. So, one could say, by the end of the 19th century, the authority of religion and philosophy waned and the authority of science waxed. It established the public meaning of everything that was going to be meaningful. Richard Reinsch: Let me ask you this. What you are articulating then is this rational control of society through expertise, through the ability to generate so called solutions to social problems, to the social questions. This replaces politics. Let me sort of bring it down maybe to more of a pragmatic American level. Is the administrative state, though, not really, is it not an inevitability within a modern society of so many interests, needs, desires. There has to be a way to meet those in some way through some sort of, rational body of people providing licenses, certifications, things like that. I mean, are these two, so, yeah. John Marini: I think that there were always ways. Administration is as old as government. Every kind of government in all times has the problem of establishing an administrative apparatus. The question of administration, of course, is what establishes its authority and what’s its relationship to politics? In the American founding, just read Federalist number 72 or read Federalist number 68, where Hamilton or, particularly Hamilton talks about administration. Administration is always understood in terms of what they would have considered the faculty of practical reason or prudence. You’re asking a question that presupposes that technical knowledge is required for the things that we do. But why is that the case? You’ve always had social institutions in which those activities were always done in an orderly way. I’m not saying that we’re not required to use human reason, we’re just required to use practical reason rather than theoretical reason. The problem with the applied sciences that becomes the social sciences, those are a form of abstract theoretical reasoning that try to provide solutions to problems that are practical problems and are intelligible in a common-sensical way or a reasonable way prudentially. What social science and what Comte did, and what the Hegelian thought has done, his philosophy of history has done, has destroyed the element of prudence in modern political life. What is the role of prudence? I don’t blame Hegel, I think Comte is really to blame for this. That’s another more theoretical question. Let me put it this way, because I think I always find, my students have a hard time understanding this too. They think that rationality, when they speak about rationality, they think of rationality oftentimes in the way that we would think about reason. The human capacity for reason or rationality is a natural human faculty, if we are to believe the philosophic tradition of the West. And so, reason and intellection is a part of human nature. And of course, it’s something that human beings have and have always utilized ever since they were capable of intellecting and establishing ideas, whether metaphysically through a metaphysical reason or theoretical reason, or in terms of practical reason, that is trying to accommodate how it is that we understand the abstract ideas in terms of concrete situations, because the abstractions Of course, have to be accommodated or approximated, and they have to be understood. So, always you had a problem of accommodating ideas in a way that required practical reason or prudence. I’ll give you one example. When Lincoln dealt with the problem of slavery during the Civil War, unlike the abolitionists who understood slavery in Comtean ways, in a Comtean way, as if that moral evil established the practical way of dealing with it. And Lincoln knew that was not the way you could possibly deal with slavery in America. And his prudential way of understanding slavery, of course, was trying to make the principle of equality intelligible, as the ground by which to condemn slavery and make that possible politically, which required of course getting the consent of the governed. So, Lincoln’s use of prudence is a perfect example of practical reason in operation that made it possible to actually deal with slavery in a way that had the abolitionist view that moral indignation that was established without the necessity of thinking about this politically and prudentially would probably never have been able to succeed in America. I think that we have in the 20th century, turned over much of our judgment about politics to those who have purported knowledge that derives from abstractions, from theories that are- … that are unrelated really to whether or not these things work practically. That’s why it’s so hard to ever find social science theories that the theorists themselves condemn as saying, well, no, it doesn’t work. Because the beauty of it is always in the theory. They always have an excuse as to why it doesn’t work. Well, we didn’t get enough money or this or that or whatever. Richard Reinsch: You say social science replaces practical reason. By social science, you mean that there is, those who espouse it say, there is a technique in this time, in these circumstances that could solve this problem, if we have the right people, the right amount of resources, etc, etc? John Marini: The social sciences establish a method by which to generate knowledge. That knowledge is the empirical method of establishing a hypothesis and testing it scientifically. The hypotheses that they create, of course, then, the truth of a proposition, the truth of the method is established in the way in which the hypothesis is established and whether or not it can be falsified or not. In other words, it’s the method itself that reveals the reality of what it is that one is trying to study. The empirical method, in other words, says that the only genuine or meaningful knowledge is knowledge derived from this scientific method. It can’t be knowledge derived from the abstractions of philosophy or religion, which had for so many thousands of years tried to deal with these moral problems that they had understood as moral problems, and never were able to solve. Because when you think about what the social sciences in their origins purported to be able to do is to solve every human problem through the use of science in a manner in which it could never have been done through philosophy or religion. Richard Reinsch: You’re suggesting or arguing the way we should think about the administrative state in terms of [crosstalk 00:19:20] they can’t achieve? John Marini: Yeah. I think what you have to understand is, so much of our educated class that comes to become part of the administrative state, their knowledge is derived from a specialized area of study. And not from the practical activity of the things that actually, or the experience of the things that actually, that they have to deal with. Let’s take foreign policy. When somebody is dealing in the area of foreign policy and has a great deal of experience, practical experience in it, that’s a form of knowledge that’s very useful in understanding that problem. Yet you have, when you study that in the university, you’ll also get a way of thinking about these things, these things abstractly. It’s not developed through the experience of it, but through the way in which the theoretical character of the phenomenon is revealed as the reality of it. My question about the modern administrative state is whether or not the method of science actually makes it possible to discern reality or whether it distorts reality. The goal I think of understanding something is to understand the reality of it. And the way in which humans normally understand reality is through the senses that they have, of which of course the sense that makes sense of the senses is the common sense. What experience does is related to how the older view of prudence would suggest that if you want somebody to help you understand this problem, you should get somebody that has had a long experience of dealing with that particular problem. But you notice how many of the young people that go to Washington, all they have is the knowledge they got from their university education. And yet, their expectation is that they have some kind of genuine knowledge about politics. I ask the question, is that genuine knowledge? I don’t think it is to tell you the truth. Richard Reinsch: They’re going to make a life in the bureaucracy and the Securities Exchange Commission and the Treasury Department. John Marini: Of course, of course. Richard Reinsch: And they will develop the expertise and the knowledge and the impartiality to [inaudible 00:22:03]. Let me ask you this question, how does the administrative state shape government, federal government, but also, and you write about the book also, state government, and also sort of the very diverse and local interest of our country? And I’m thinking in particular, what type of Congress do we get? What type of politics do we get? How does the sort of administration change who we are as a country? John Marini: Well, I think what happens is once you centralize the policymaking process in Washington, what you do then, of course, the only error in which decision making is truly important is in Washington. In other words, before, say probably up until the mid 60s in America, you had a relatively dynamic state and local political process whereby other interests that were decentralized, interests that were accommodated at the state and local levels could be accommodated more effectively politically. Because what happens when you create an administrative state or a centralized administration, what happens is all of the important decisions are made at the center. And so, everybody is forced to organize itself as an interest, as a petitioner in a certain way. And that’s true of both public and private forces in the country. So it’s not only the economic and the social and the scientific and the educational interests that mobilize and create lobbyists in Washington. It’s also the state governments, the mayors, the governors, all have their organizations that go to Washington and become lobbyists. The question that I was trying to get to in the earlier discussion is, so much of the way in which these questions are posed, the way the dilemmas of how to manufacture knowledge about these things, is no longer in the political realm. It’s put into the hands of those who supposedly have the expertise in terms of dealing with that particular situation. Richard Reinsch: Reading your book, it’s interesting, we hear particularly from conservatives, classical liberals, why doesn’t Congress do anything anymore? It seems to be this rather impotent helpless branch of government. One manifestation of this is the budget process, which has essentially been dead now for well over a decade and we have, as somebody said, we have government by resolution. They take one vote on one budgetary number to fund the entire federal government and you no longer have debates over how to fund certain departments and agencies. I suppose as I’m reading your book, and I’m thinking, Congress doesn’t do anything anymore because it no longer understands itself to be a national legislative body. And at the level of budgeting, and I think this is in part related to the administrative state, most of the budget is off the books, or not off the books, but, it’s on autopilot. And so in a way, the administrative state and Congress is a part of this, it’s created it. And it sees itself as you write throughout the book, sees itself as a way to kind of curry favor, but no longer sees itself as a deliberative policymaking body. Maybe talk about that too because it seems to me [inaudible 00:26:00] John Marini: Well, I think what that means is that when you have that process that reveals itself in the necessity of having only a few leaders decide what it is in the budget that’s going to be retained as the final budget, what you’re really saying is that the budget has already been created by the bureaucracy. And what you’ve got at the end of the process is you’ve got just a few leaders. You’ve got the president and a few of his advisers. You got the senate majority leader and a few of us advisor, and the Speaker of the House and a few of their advisors as those who say, this has got to be what the final budget is. And then the members simply have to acquiesce or close to government debt. What that means, though, is that the bureaucracy has established a budget, and without a great deal of oversight. You see, the problem with the republicans since the ’90s is that they’re not even very good at oversight anymore. And by centralizing, when they had control, they weren’t as good as the democrats were in the ’70s and ’80s at controlling the bureaucracy through the uses of congressional power because that required decentralizing the power of the legislative body and giving a good deal of power to committee and subcommittee chairs over certain elements of the bureaucracy. When the Republicans took control in ’94, they wanted to try to get rid of the administrative state in a certain way or lessen its influence. Newt Gingrich thought he had to do that by centralizing power in the speaker. And that meant of course making the legislative branch something akin to a parliamentary system, except you had a president. And of course, in the way in which Congress and the President interacted in the ’90s, particularly with that closing of the government under Clinton, the republicans lost that battle. But what the democrats learned and the Clinton administration revealed was that before in the ’60s and ’70s, Congress really dominated in terms of how the administrative state performed. But after the ’90s, what Clinton realized, when he said the era of big government is over, I think he meant it. What he really meant though was, now is the era of big administration from the executive side. The executive was always a foe in the earlier period. Nixon and Reagan were foes of the administrative state. The Congress was the defender of the administrative state. Once the executive realized that they could direct the administrative state from the executive branch through executive administrative orders and signing statements and all the various ways that you could use the administrative power of the presidency, of course, then the executive branch became a central player in the administrative process in a way in which it had not been prior. And so, that too made it a lot more difficult. What Congress ended up doing, of course, was having to delegate more and more power to the executive branch. And in doing that, when the administrative state was expanding, in doing that, you have to give discretion to the executive, because you can’t administer these things directly from the legislative branch. The best you could do is what the democrats were doing in the ’70s and ’80s. And I don’t say I’m in favor of this, but I’m saying if you’re going to have an administrative state, it’s better that Congress have some control, and I mean Congress has a body have some control over the bureaucracy. But you can see in our time, the bureaucrats don’t even fear Congress anymore. Just go back and look at some of those congressional hearings in the ’60s or ’70s or any earlier type, and see how the bureaucrats look at Congress and how they act before Congress compared to, say, any of the recent ones. They’re just completely arrogant and contemptuous of Congress. Maybe with the democrats in power, it might change a little bit in the house. I don’t know, but I doubt it. Richard Reinsch: You have this distinction too, you talk about administration versus lawmaking. And you say administration is inherently, must be partial, detailed, touch local interests, and that Congress naturally sort of would support that, and would bring these sorts of, all these types of interest to the administrative state. And as you were suggesting just now the executive was more inclined to think nationally. These things have sort of merged. But it also suggests too the administrative state truly by having the executive branch and the congressional branch, truly controls the country, I think. John Marini: I think the problem with the way in which Congress has given up it’s deliberative capability. I mean, when you talk about lawmaking, what you’re really talking about is deliberation that culminates in the accommodation of the various interests through the lawmaking process. So, deliberation culminates in lawmaking. But if Congress delegates its authority to specialized bodies, of course, the deliberation is replaced by supposedly expert administration. The problem of politics, there’s no way of getting around the fundamental problem of politics, and that is how to establish a common good. Now the American Constitution does provide that each of the branches try to understand the common good, both from the perspective of the nation and from the perspective of their constitutional role. So, the Congress of course not only has a duty to look out for the common good of the country. It also has the constitutional duty to protect its own institutional prerogatives. So Congress functions on behalf of a good that is in a certain way intentioned with the good of the executive branch. But those two both have a duty of trying to establish a common good of all of the nation as a whole. All of this is impossible. It’s not possible to speak about or pursue or even articulate a common good anymore in American politics as far as I can tell, in the absence of war. Richard Reinsch: Also it seems, the administrative state also is able to, and you have this concept, use this term in the book, or maybe you’re quoting a political scientist, the idea of the unfinished law. The way I read that is, Congress knows it could not really secure passage of a law or a massive package of reforms if it were to spell out everything in advance. It sort of passes as this general law that, general meaning without details, and passes it over to the administrative state. But that in a way is a subversion of the governed, and things could never happen which, you saw this sort of, I thought that was interesting with Obamacare is, and Nancy Pelosi kind of famously alluded to this, we have to pass it to find out what’s in it. John Marini: Oh, of course. That was absolutely true. Richard Reinsch: Certain things came to light and people revolted, like, famously what Sarah Palin referred to as the death panel, which has never been implemented, as far as I’m concerned. The consumer protection, or what is it the, this board of physicians that was going to determine expenditures for the country. Things like that, it’s just sort of interesting to see what comes out of- John Marini: Well, the problem is, look, when you do that, the reason why they don’t pass laws, of course is you’re right, you can’t get an agreement in a body like the legislative body as to how to actually pass a general law that applies in a manner that would be acceptable to a majority of those in Congress. It’s very difficult to pass. General laws have to be laws that fall equally on everyone. What you do when you delegate authority, you’re really giving, you have to allow whoever is given the authority, the discretion then to determine how it is that the problem that you want solved is going to be solved. And what does really is it creates the conditions whereby those who are governed by these laws, become conspirators really with the people who are regulators. This was true all the way back from the very beginning, when they tried to do it with the railroads, with the Interstate Commerce Commission. When you particularize an element of the policy arena, and you put several forces in a symbiotic relationship with one another, regulator or regulated, they have more in common with each other than they do with the whole. And so they learn to accommodate each other in a way that makes it impossible to establish a common good out of that kind of activity, the exact opposite of what you would want because what you’re doing is you’re establishing privilege. You’re creating privilege. Richard Reinsch: Players game the system. Repeat players learn how to game a system. The thinking here also, so this sort of all kind of leads to a question of, what could lead Congress to get its act together, to reassert itself, and the only answer I can come up with is a sea change in our politics. So let’s talk about Donald Trump, President Donald Trump. You wrote favorably of his candidacy, you’re one of the few. And you’ve written a lot of interesting things since his presidency. Talk about the relationship between the operation of the administrative state and Donald Trump and how, as I’ve read you it, it’s impossible to think about the rise of Donald Trump without the administrative state. John Marini: Well, I think it is partly because of the way in which he came on the scene. He came on the scene completely outside the political sphere, completely outside the policy arena sphere of anyone who would be a serious candidate for the presidency. In other words, if the knowledge that he had of it was not derived from the kind of knowledge that is typically thought to be useful knowledge in politics, he didn’t have a PhD or a law degree law or any of those degrees that usually prepare you for a political life. What made me think about him in a different way was that his demeanor was the demeanor of a political man who understood politics common-sensically. In other words, he understood that his campaign not in terms of turning it over to those specialized in running campaigns. I mean, he used technical people when he had to. But the grand strategy of his appeal was pretty simple, and it was, it was tied to what he viewed the political purpose of an election is, to go to the people, present what it is you want. And when you went and tried to actually put that into effect. So many of the elections of our time, certainly since Reagan, who was controversial because he did try to do that, but most of them, they run with a view, this is what you have to say to win. And then when you win, you ignore how it is that you won. You don’t have any obligation really to fulfill the promises that you make to the electorate. So in a way, you’ve made the electorate superfluous. All you do is you break the electorate down into groups, you establish ways of appealing to groups, you keep the country divided in terms of groups, and you never really have to establish any kind of ground that would link the governed to those who hold the office. When the people get the offices, they tend to do what they want, and they’re only useful in the sense that the organized interests have access to them. I think we have to admit that America has done a very good job, and much of the rest of the world probably at accommodating the organized interests at the center. And maybe the next fight over the next decades will be whether this is a global center or whether it’s centers that are established in national capitals. But you could say that American organized interests are well served by the American government. They’re well served with access to Washington, they’re well served with being accommodated by every element of the American government, from the legislature to the executive branch, to the courts, to the bureaucracy. It’s a government in which the established players have a good situation. And I think they don’t want that situation disturbed. They have been oblivious really to the reality of American politics over the last several decades. I think what really precipitated the the crisis that Donald Trump comes to try to address is the I think mismanagement of American politics after the end of the Cold War, because it became much more difficult then for them to even understand what their offices were on behalf of, because no American president or no American office holder could ever think about the world in the way in which they have done since the end of the Cold War as if the national offices, the obligation to the Constitution or the limits imposed by the nation state were almost completely ignored. So, just what was radical in a certain way about Trump was his defense of the nation. It was in the defense of borders, all the defensive citizenship, all of those things that are attributes of the sovereignty of the people that had been, in a sense, just completely overlooked by the elites, and who have overlooked all of the social turmoil that resulted in the way in which we accommodated the end of the Cold War by allowing American companies to profit abroad from cheap labor and make huge fortunes in America without even using their capital on behalf of the good in America. Whatever you say about the robber barons or the so called wealthy of the 19th and early 20th century, they benefited their country as well as themselves, whereas you can see that the wealthy elite in America now don’t even have that necessity imposed on them, that their wealth be used on behalf of the good of their own country. So all of these things were ways in which I think Trump knowingly or unknowingly seemed instinctively to be able to figure out that these are problems that can be solved and can be solved differently. Dogmas like- Richard Reinsch: I was going to say, it seems in an immediate sense too, Donald Trump most effectively responded, and part of this was sort of his brutal language but to the way that Barrack Obama used the administrative state. Not that presidents since its creation have not used it, but Barrack Obama seemed to be willing to play in almost a Carl Schmittian political way with the administrative state to punish opponents. I think of the contraceptive mandate, immigration, subverting welfare reform, all these sorts, the ways in which, there’s several more that come to mind, but it was almost like he was deliberately saying too his opponents, I’m going to rub your face and the fact that you lost to me. And that as we know psychologically, politically, did not go over well. But yet, what conservative politician was really responding to it? John Marini: Well, I don’t think any were, but I think the biggest problem that Trump had, and this is a problem that I have been also arguing about over the last 40 years, and that is, of course, who shapes public opinion in America. The elites that shape public opinion are the same elites that are the defenders of the administrative state. They are the professional classes, and the professional classes and the intellectuals really are those who establish what is authoritative public opinion. And public opinion has, in a certain way, responded to the forces of political correctness that made it very difficult to try to appeal in the way in which Trump did without taking on the press, without taking on that media, that medium between the people and the office holders. Whoever directs how it is or what it is that’s permissible to talk about in election is already ruling the country, right? They’re already in charge of what you can say and how you can appeal. No president, no candidate for the office has been willing to take on that force. Now, others presidents prior didn’t have to do it because it wasn’t as clear as it is in Trump’s time. But it was very clear that Nixon understood the importance of a hostile press. Reagan understood it. It wasn’t as uniformly hostile then to the things that somebody who’s opposed to the administrative state would be in our time. But it clearly was something that is very hard to know how to fight. How do you come into the political arena that has already established the authorities. These are the authorities, the elites that determine what is respectable in political or public life. And Trump comes along and he basically says none of this is respectable in my view. And here’s a guy who has no political office. He comes to be understood and he’s identified not by his political persona, but by his persona, his private personal persona. And so, the objection to Trump that many had right at the beginning, which were private, have persisted because he’s not judged by politics in the way in which most of the people that behaved as Trump behaved in their private life, never had their politics judged by their private life, the other way around. Clinton’s private life was judged by the understanding of him politically. And yet, with Trump, it’s the opposite, right up to now. Even after two years of doing something, those people who judge Trump right from the beginning personally, privately, in terms of what they perceive as his character, still do it. They can’t disassociate that. And yet, when you think about Trump or you think about how American politics established the way we understand somebody, if you think that every president, if you judge them by the partisan character of the election, just think of how Jefferson and Adams would be understood in the election of 1800 if that was how you did it. It’s very hard to judge political people by partisan election because everything that is, and so, one of the great difficulties is Trump is, how do you judge the guy? How do you judge him? We live in a time when character has very little meaning in the old sense of that term because character presupposes the ability to distinguish vices and virtues. Richard Reinsch: Well, and hence the authorities you were talking about. So how do you judge someone? How committed are you at fighting climate change? How committed are you- John Marini: Sure, sure, all of that. Richard Reinsch: How committed are you to this group of politics, identities, all this sort of business. And Trump makes none of the right moves in that regard. Trump could help himself though I think you would agree with me with tone on many occasions. John Marini: No, I agree. Richard Reinsch: Maybe to tie in your analysis globally, and you kind of alluded to that earlier, if we think about, I think today is the first day of the term of the new Brazilian President, Bolsonaro. You’ve got nationalist parties throughout Europe. There’s widespread concern of, as I’ve been reading about, we’ve gotten May European Parliament elections coming up and the nationalist parties are posed to do incredibly well. It is as if the knowledge class as it exists and our leading centers of power, our leading countries is no longer perceived given the deference it would receive because it doesn’t deliver anymore. It doesn’t deliver [inaudible 00:50:10]. This seems to be all coming true. There’s already the suggestion, I mean, it’s being written that, you think about Brexit and the way in which I think it’s fair to say, those in authority in Britain tried to negotiate the Brexit they wanted, not what voters thought they were getting. And already, but it’s sort of like, so that’s been rejected I think, that negotiation May wanted. So now it seems to be, the prospect will be a no deal Brexit. And it seems to be increasingly Britain is coming to the view or enough of the Conservative Party is coming to the view, we’ll take our chances with that. To me, it’s all sort of a slow crisis in confidence, but we don’t know what the resolution will be. John Marini: Part of the problem of the administrative state is that it doesn’t necessarily seek solutions as much as it wants to manage problems. And of course, Burnham was right, this managerial revolution, when you look at our foreign policy, how hard it is for a president, let’s say like Trump, who wants to get troops out of Syria or Afghanistan, when those policies were made, whether 17 years ago when we decided, you never get to the point where you say, is this a success or is this a failure? Because when you manage a problem, you manage it through every phase of everything. You just keep managing it. That’s what you’re talking about, that class that claims to have this knowledge that allows them to manage a situation. People are doubting that that’s sound. That is not sound policy after a while that you just keep hundreds and thousands of people and hundreds of bases around the world that America has just because we have this large class of people in all of these institutions, these institutions, these organizations, these rational structures who want to manage these problems. And of course, one would say, well, we’d be happy to have you to manage them if they have a successful conclusion. But at a certain point, you’ve got to draw the line and say these things do not work. I think it’s true, it’s going to be, here’s my fundamental, I think the great dilemma of constitutionalism versus the administrative state is that it’s impossible to have an administrative state or a managed state that is compatible with consent of the governed or political rules. In other words, you can have a rational or administrative state, and that state can provide for the needs of the people in many ways and can accommodate those needs. But it can’t accommodate the possibility of people participating in their own self-rule. At a certain point, if people want to rule themselves, they’re going to have to deal with these kinds of questions that because the modern state, the global state or the nation state or the centralized state, the rational state, whatever you want to call it, has become so pervasive globally, that these problems are beginning to reveal themselves in a way in which it was very hard to detect say 40 or 50 years ago. When I started writing this, we didn’t even use the term administrative state. I use Tocqueville’s term, centralized administration. That’s how I tried to understand this phenomenon right when it was just starting to emerge as a problem because America’s administrative state is not that old. We’re the last country really because it doesn’t sit well with the Constitution. Richard Reinsch: Well, John, on those thoughts, we’ll bring it to an end. John Marini, thank you so much for discussing your book, Unmasking the Administrative State. John Marini: Okay, thank you, Richard. Richard Reinsch: This is your host, Richard Reinsch, and you have been listening to a podcast that can be found at Libertylawsite.org, where you can subscribe, comment, and find other episodes and links related to today’s conversation. Our email address is lal@libertyfund.org.

Richard Reinsch:Welcome to Liberty Law Talk, I’m your host Richard Reinsch. Today, we’re talking with a special guest who’s returning to Liberty Law Talk, Robert Reilly. Robert Reilly is a man of many talents, many interests, he’s done a lot of wonderful things. He’s served in government for over two decades, special assistant to the President, and director of the Voice of America. He was senior advisor for information strategy to the Secretary of Defense, and he’s taught at the National Defense University. He’s the author of a number of books and essays, including the award-winning book, The Closing of the Muslim Mind. He is also a Viennese Waltzer. And, he told me one time in his earlier life, he was a stage actor. Was it a Shakespearean stage actor, I think? So Robert, we are glad to welcome you. Last time, we discussed the end of ISIS. Now, we will talk about your new book, America on Trial: A Defense of the Founding. Welcome. Robert Reilly:Great, Richard. Thank you for doing this. Richard Reinsch:So Robert, thinking about the title of this book, America on Trial. America has been on trial throughout it’s history, it’s particularly been on trial the last 50 years with the new left, rejecting its claims, and recently with the 1619 Project, insisting that all of America is just a footnote to slavery, so this has been going on for quite a while. Why, specifically, did you write this book? What are the charges you see being leveled against the American founding? Robert Reilly:Well, I wrote this book because the very people who should be defending the principles of the American founding are attacking it. And some of those people might be known as conservative Christians, Catholics, and so forth, who should be the new Michael Novaks, who should be praising the principles of the American founding within the context of Judaeo-Christian civilization, Greek philosophy, and its noble lineage. I believe it’s the dimensions of the catastrophe today that lead people, almost desperately, in search of a cause of it. Who did this to us, who’s responsible for it? They’ve arrived at this peculiar notion that the American founding did it to us, that it was a poison pill with a time release formula.  They’re not doing that, and the reason I think they’re not is because they need to answer the question, whose responsible? Who put us in the degraded moral condition in which the United States exists today, with widespread pornography, a flood of drugs, the dissolution of the family, same sex marriage? Now, the transgender nonsense. But, where has this come from, and why have we so largely succumbed to it? To the point that we’ve had Supreme Court decisions saying some of these things are guaranteed by the Constitution? Richard Reinsch:Guaranteed by the word liberty, in the due process clause of the 14th Amendment, specifically. Robert Reilly:Well, and of course, by what Justice Anthony Kennedy called the autonomy of the individual, which is not something that is found in any of our founding documents, but fabricated by him. And then, of course for the legalization of same sex marriages. Now, the critics of the American founding on the Christian right are, basically, agreeing with Justice Kennedy, saying he’s right, the American founding was the product of a radical enlightenment thinking about the autonomy of the individual, and the perfectibility of the human being. Both of which notions are inimical to Christianity as it was practiced at that time, in the 18th Century, and indeed, is inimical to it today. I believe it’s the dimensions of the catastrophe today that lead people, almost desperately, in search of a cause of it. Who did this to us, who’s responsible for it? They’ve arrived at this peculiar notion that the American founding did it to us, that it was a poison pill with a time release formula. And, as we become less and less a Christian country, we conform more and more to these principles of radical enlightenment ideology. Richard Reinsch:What specifically is their claim, that in the American founding there are these principles of an unencumbered individualism? What do they cite, what do they list for that evidence? Robert Reilly:Well, that’s one of the interesting things. When I read their arguments in order to rebut them, they have very little to offer in textual evidence from the founding. The way they read the Declaration of Independence, and the way they read parts of the Federalist Papers are, I tried to show, completely wrongheaded. They misunderstand these texts, they get it wrong. Now, why do they do that so consistently? It’s because they’re looking through the wrong prism, and therefore they see the wrong thing. The prism is, basically, Hobbes, it’s a Hobbesian founding, and it is in this way. They take John Locke to be the primary influence on the founding, and of course, Locke was a big influence, and was mentioned from the pulpit in the state legislatures with frequency, he was broadly read. Now, they contend that John Locke was simply Thomas Hobbes with a smiley face. He was just a nicer version of Hobbes, with the same Hobbesian principles obtained in him, and therefore, leeched into the American founding through John Locke, and that’s why we are approximating a Hobbesian state today Richard Reinsch:When you say Hobbes with a smiley face, can you describe that more for us? Robert Reilly:Well, it’s that they would say the idea of a contract to which man consents in the foundation of a similar political order is based on nothing other than his will. Richard Reinsch:Okay. Robert Reilly:That it makes the will primary in political order, and it is not geared to any natural law or natural right. Even though those terms are used, they’re evacuated of their meaning. If you just strip those away, you see what’s really there, which is the Primacy of the Will. What I try to show in my book is that those statements of Locke are grounded in a great tradition. The first tradition in which it’s grounded most immediately is the thought of Thomas Hooker, and his laws of ecclesiastical policy. Hooker, as you know, was a powerful 16th Century thinker, he was a priest, and he was the first theologian of the Anglican church. What Hooker was facing was the radical Puritan thought at the time, which was against human laws, thought that the laws on England should be abolished, and we should be ruled only by the Bible. By the way, when you translate the Primacy of the Will politically, you ineluctably get Hobbes’ Leviathan. That’s what Hobbes does, he shows us what that means in a political order of absolute power of the Leviathan. But, that’s not what you get from Locke, you get an entirely different kind of democratic Constitutional order, based on the equality of all men, representation, the requirement of consent, and the right to revolution, the right to tyrannicide. All of these things, of course, aren’t present in Hobbes. Richard Reinsch:You also make the point in the book … I mean, I can find certain disturbing passages in Locke, that I think are nominalist, or seem to be admitting of, let’s say, certain individualistic tendencies. But, you make the point, which I think is well taken, that the founders read and used Locke as statesmen, themselves. They used him in a political constitutional sense of independence and limited government, not in a full anthropological, theological, epistemological manner that is alleged by thinkers like Michael Hanby or Patrick Deneen. Robert Reilly:That’s right. This was not an adoption of Locke’s epistemology and his letter on human understanding, it’s his second discourse on government. They took from Locke his very powerful arguments against the divine right of kings, and the absolute state. What I try to show in my book is that those statements of Locke are grounded in a great tradition. The first tradition in which it’s grounded most immediately is the thought of Thomas Hooker, and his laws of ecclesiastical policy. Hooker, as you know, was a powerful 16th Century thinker, he was a priest, and he was the first theologian of the Anglican church. What Hooker was facing was the radical Puritan thought at the time, which was against human laws, thought that the laws on England should be abolished, and we should be ruled only by the Bible. Everything else was superfluous He wrote against this, quite powerfully, and did so by resuscitating both Aristotle and Thomas Aquinas, particularly the Medieval articulation of the limits of political power, and the equality of men has a right to consent in representation, et cetera., and the respective spiritual and political realms, which are not coterminous. It’s hearkening back to the two swords teaching, that you give to feast the things that are Caesar’s, and to God the things that are God’s, which had been instantiated so completely in the Middle Ages. So, Hooker saved those things, let’s say he saved the reformation from itself by using Aristotle and Aquinas against the radical Puritan thinking. Locke quoted Hooker more often than anyone, regarding these basic things. Richard Reinsch:You note in the book, too, you said on this constitutional thinking, saying constitutional in a capacious sense, across the centuries of unwritten tradition that forms the American founding. You situate Locke, Hooker, Robert Bellarmine, 16th Century Jesuit, Francisco Suarez, another 16th Century Jesuit. These are thinkers who are, in many ways, in touch with a tradition that stretches across the centuries, urging the King is under law, basic notions of political consent, ideas of right of revolution, potentially. You show that this actually forms, or is recovered by, the American founding. The American founding is not, as you say, Hobbes with a smiley face, or individualism run amok, it’s a part of a grand tradition. Robert Reilly:Yes, absolutely. You will find articulations of these basic principles in those thinkers, that they come right out of the American founding. Richard Reinsch:You listed them. You have pages where you list parts of the Declaration, and how they mirror things in the Virginia Declaration of Rights, and how they mirror what Bellarmine, and Suarez, and Hooker were saying earlier. I mean, I thought that was incredible. Robert Reilly:Yes. They sound like paraphrases of each other, don’t they? Richard Reinsch:Yes, definitely. Robert Reilly:Then, also let’s not forget Algernon Sidney, and his discourses on government. He, too, relied on Hooker a great deal, but he also acknowledged Suarez and Bellarmine. The reason he, more or less, had to do that is that the book defending the divine right of kings, written by Robert Filmer called Patriarcha, was basically addressed to the arguments made by Bellarmine and Suarez, and it was an attempt at refutation of them. Filmer was an honest enough writer that he would take large chunks out of Bellarmine and say, “Here’s what the schoolmen say, the scholastics. And, here’s what I say, and here’s what Suarez says.” He quotes Bellarmine the most, Suarez the second. When Sydney’s writing his refutation of Patriarcha, he grudgingly acknowledges Bellarmine, a hard thing for a Protestant to say, “This Catholic Cardinal’s got it right.” And he says, “But Bellarmine really is doing nothing but expressing the commonsense of mankind.” Which is no slight on Bellarmine, because that’s what Bellarmine himself says he’s doing. Because they’re all appealing to the same tradition of natural law as against the supremacy, the absolute supremacy of the state, whether it’s articulated in a totally secular way, as it was with Locke, or in the Divine Right of Kings way, as it was by James the First, or Robert Filmer. The thing is, the absolute state as it appeared in the 17th Century, was something new. It was totally alien to the entire Medieval mindset, as it denied all the basic constitutional principles which had been developed at that time. As you just mentioned a little earlier, Richard, indeed my book makes the case that the American founding is a return to those principles, it’s a restoration of them. So, you can’t see it just simply as a creature of the radical enlightenment, when it is grounded in this great tradition. What are the ideas that make the American founding conceivable, and from where did they come? What ideas do you need to have to conceive of such a thing, a political enterprise such as the American founding? That’s what I tried to trace. It, of course, predates Locke by millennia. Richard Reinsch:You know, a lot of people, I think, would say you seem to be switching categories, or switching received wisdom here. Isn’t it the Medieval period that’s the problem, and the enlightenment is a solution? When we say there’s a recovery here, of Medieval principles, what are specifically … maybe we can talk a bit about those Medieval principles. And, are we talking about England, primarily? Robert Reilly:Well, England, no, no we’re not except later on. Richard Reinsch:But, that’s what’s going to be most important, immediately. Robert Reilly:Yeah, but England withstood some of the absolute trends and tendencies that took over on the continent, which were under Roman law, and England chose not to go with Roman law which is one reason why freedom was preserved there, to a greater extent. Let me just give a little larger perspective of the book, Richard. The question the book asks is, what are the ideas that make the American founding conceivable, and from where did they come? What ideas do you need to have to conceive of such a thing, a political enterprise such as the American founding? That’s what I tried to trace. It, of course, predates Locke by millennia. As you know, I start in pre-philosophic man, to show what that looked like, and we go through the significance of the discovery of Greek philosophy, of universal truths and principles, the revolutionary revelation of Israel, of monotheism, of a transcendent God who creates ex nihilo, and makes man in his own image and likeness, extraordinary in the sea of polytheism that the Jewish people adhered to, this teaching that there is only one God. The significance of that, with Greek philosophy, as both came to be assimilated in Christianity, is extraordinary. And, as I talked about Greek philosophy, as you know, including the pre-Socractics, they wondered … First of all, we observed that there is an order in creation, there’s an order in nature. It’s a rational order, and with our reason we seem able to apprehend it. Now, where did this rational order come from? The speculation is there must be a divine intelligence behind it, it must be a manifestation of a divine intelligence. Richard Reinsch:Plato reaches that verdict. Robert Reilly:Plato reaches that, but before him, Heraclitus does, too. Because I believe it’s Heraclitus or Anaximander who first uses the word logos to describe this divine intelligence that is responsible for the rational order in creation and for man’s reason. Logos, of course, as you know, the Greek word for reason, or speech. Or, that’s the way they spoke of it, which makes intelligible the gospel of Saint John, when he says, “In the beginning, was logos. In the beginning was the word, and the logos was with God, and the word was God, and all things are made through Him as logos.” Which means that now we know why we have a rational creation, because the creator is, Himself, this reason logos. With the added astonishment, can you imagine if Heraclitus, having speculated on logos, met Him coming through the door? Then, indeed is Christ, entering his creation. But, this logos is not simply logos, the mystery of man, who we know is made in the image and likeness of God, the mystery of man is revealed in the infinite love of Christ. I would say our civilization is based on Genesis, that man is made in the image and likeness of God. That is the source of our conception of human rights. Richard Reinsch:Yeah. It’s difficult to argue how one would come to a conclusion of the equality of man as man, if there is nothing higher. When you think about Tocqueville’s statement, “that to understand equality it took God to come to Earth in the form of man.” But, this also, as you point out, this revolution in thinking about who man is has incredible implications for law, and for government, and for how he would govern himself. Robert Reilly:Well, it does particularly when, through Christ, this revelation of God is love, and God’s redemptive love for each person. This exploded the ancient world, that man did not have access, as an individual person, to the divine. The only person who had such access was the divine, or semi-divine ruler. Your religious obligations were your civic obligations, the divine was only accessible through your polis, or your empire with the Pharaoh. Get as near to the Pharaoh as you can, because he’s the divine person through whom your supplications might be heard. But, you certainly, as a person, have no such access to the divine, and therefore, your religious duties are your civic duties. If anyone said there’s some kind of separation between religion and state in the ancient world, they’d have no idea what you were talking about. The Christian revelation explodes that. Through man’s individual relationship with God, his eternal destiny and that transcendent God is reached, outside the state. Richard Reinsch:So, the state is now limited? The state does not reach to the highest ends of the soul, yeah. Robert Reilly:The state is not the vehicle for his salvation. This, of course, is the origin, then, of the separation of church and state, and rooted in Christ’s famous statement of giving to Caesar the things that are Caesar’s, and to God the things that are God’s. Richard Reinsch:I suppose, Aristotle had the idea, Plato’s . . . The highest idea, or the highest form of existence for the human person would be contemplation of the divine, but that was a pretty limited conception just to the philosopher, as a rare being, a rare creature. Robert Reilly:Yeah, it was a conundrum. Aristotle, who said, “Nature always acts for a purpose, for an end.” The end of man that Aristotle saw was, as you point at, at it’s highest, his contemplation of the divine, to become as much like the divine as man could. Only his contemplation of the divine- Richard Reinsch:Only contemplation. Robert Reilly:Could do that, but the condition, the condition for doing that was twofold, virtue and leisure. Therefore, Aristotle said, “Few, if any, can achieve this.” How can that be, if this is the end of man, and man is incapable of reaching it? Except for the very exceptional person. Well, Christianity had the answer for that, how the non-philosopher also reaches the transcendent through God’s grace and mercy, and will share in divine life as God offers it to him, so that everyone has access to this through grace. Richard Reinsch:And this begins, also, moving forward in the book, one’s existence can’t be defined by the government, so you start to see separate spheres of activity emerge, new categories of law recognized by the state, perhaps, but not defined exclusively by the state. You start to have associations emerge. Out of the canon law itself, new forms of law emerge. Robert Reilly:Yeah, it demotes the state forever. But, as you just pointed out, it’s one thing to say you’ve got these two spheres, or they’re called, in the Middle Ages, the two swords. The ecclesiastical, spiritual sword, and the secular sword of the political ruler. But, how do you instantiate that, how do you order a society around that? Because what it pre-supposes is dual sovereignty over the same persons, the spiritual sovereignty exercised by the church, and the political sovereignty by the ruler. The Middle Ages is working out that problem, how the individual can live under this dual sovereignty, and it was a highly developed articulation of that. Of course, these two sovereign ties kept bumping into each other, it wasn’t always a peaceful association, but it generally worked out. Both sides recognized that these two spheres did exist. What this gave man, more freedom, he enjoyed a … What can we say? There was a larger amplitude for him to exercise his freedom because neither sovereignty could claim the whole man. Well, let me just jump ahead to the development of canon law, because it was through canon law that all of the constitutional principles I have mentioned were developed. There was a lot of thinking about law and political order, occasioned by the rediscovery of the Justinian Code. The canonists began examining it, and they extracted certain Roman legal principles, used them but changed them dramatically. One of the most important of these, that became central to the Middle Ages, and the order of both in the church and the state, so much so that it continued to influence political order to the time of the American founding. The principle is “quod omnes tangit ab omnibus approbari. What touches all, must be approved by all.” It sounds like an early articulation of no taxation without representation, and indeed, that’s what it was. Richard Reinsch:That would have emerged in church corporations, monasteries, governing bodies in the church, and then migrated into government? Robert Reilly:That’s exactly how it happened. That there was, first of all, the principle of equality was broadly recognized in both spheres, the equality of all men who are rational, and therefore their consent in their rule is required. As you say, this took place in the Dominican order, other orders in church councils. In order for this to function, they had to have the right for representation, so various church chapters could send a representative to a council, and that representative spoke for that chapter, and what was decided would be binding, and so forth. So, the requirement of consent, popular sovereignty, equality, representation, and the Dominicans had quite an impact in England, as it was observed how they rule themselves according to these principles. The canon didn’t simply work in ecclesiastical circles, they were also in the courts. I mean, the royal courts. So, these principles leached from the church into the civic and political realm, and there you have the development of the early parliaments. Which, quoted again, that same quote on this tangent principle, what affects all must be agreed to, approved by all. So, the shires were able to select a representative to be sent to the Parliament when the King wanted new taxes, and they could approve it or not approve it. One thing that was clear through all of this, the Abbott or the King was not above the law. It had to adhere to the law, as did all others. The King was made a king by the law, he was not above the law, so he made the law with the approval of those who were ruled by it. This was the norm in the Middle Ages, it was the norm throughout Europe and in England. Richard Reinsch:So, what happens? How is that gift, we’ll say, how is it upheld, or not upheld as you argue in the book, as we move into modernity? Specifically in the 16th Century, you talk about some thinkers, one we’ve discussed, Hobbes. Machiavelli, also Luther as well, thinkers who seem to be articulating, reflecting ideas reverting back to the primacy of will, and more towards and unlimited notion of sovereignty. But, as you also note throughout the book, I guess the theme in your book, too, is the primacy of reason versus the primacy of will, and how that unlocks a new anthropology thinking about man as a being of will, whose reason is shaped by his will or by his passions. Then, that unlocks, in turn, a different way of thinking about government. Robert Reilly:That’s exactly right. This change started taking place in the late Middle Ages. William of Ockham is one of the most prominent thinkers who proposed this nominalist and voluntarist way of thinking, that was the obverse of Thomas Aquinas, and the synthesis of faith and reason that he had achieved in his magnificent work. The key to this is theological. As Aquinas said, it’s God’s divine is primary to the divine will. It’s the intellect that conceives, or knows, and it is the will that executes. The reason logos is primary, because it is reason in God’s essence, and will secondary or instrumental, is because it obeys the intellect. Now, what William of Ockham does is he flips that relationship, he makes God’s will his primary, and the divine intellect his secondary. It is the will that decides, and there is nothing constraining the will, it can decide anything. The intellect is, then, just an executor, finding the best way for the will to reach its end, its decision, and it is unconstrained. William of Ockham was upset that this Pagan philosopher, Aristotle, who had infected Thomas Aquinas, was constraining the omnipotent God. And that Ockham was going to set Him free, you see, by removing these restraints. But, he had to do so at the price of reason and nature. Now that the will is primary and God can do anything, what happens to the essences of things In other words, things have natures, as Aristotle and Aquinas said, that lets us know what they ought to be, what their telos, or end is. What makes a human being flourish, and become more human, and what doesn’t? What is good, and what is bad? Are things we know through our knowledge of the thing’s nature, of man’s nature? Ockham says that we can’t know any of this, because there are no essences anymore. Richard Reinsch:It’s a divine will, that’s how you know what you should do? Robert Reilly:All of these things are the object of God’s will, and the words you use for things, this is phenomenalism, the nomine, the Latin for name, they don’t relate to anything out there. There’s no correlation between the name you give things and what they are because you can’t really know what they are. There’s no order in nature, because there’s no nature. This is a terribly radical teaching, and you can see how it has this ontology of the will unmoors everything. God can do anything. As Ockham scandalously said, “God can make us hate Him, and there’s no gainsaying Him.” There is nothing right or wrong in itself, other than God says it’s right. He may change His mind tomorrow and say it’s wrong, and we have to follow Him. So, all that we can know regarding morality, and morality is defined by whatever God wills, and He can will anything, we know only through revelation, we can’t know any of this stuff through reason. So, this is an enormous demotion of reason, and it is picked up, he influenced Martin Luther profoundly, because, Martin Luther also bifurcated. Richard Reinsch:I was going to say, you pick up with Luther on how this really shaped the way he thought about government, and also how this would reflect law, its command, and our obligations under it. Robert Reilly:That’s right, and you see in Luther, under Ockham’s influence, he explicitly denies popular sovereignty. The Medievals all thought no ruler rules by divine right, he’s just another human being. All authority comes from God, but God doesn’t … Richard Reinsch:Pass through the people, yeah. Robert Reilly:It’s mediated through the people who are sovereign. Luther explicitly denies popular sovereignty, he explicitly denies the requirement of consent representation, and he explicitly denies the right to revolution. So, this new theology of a voluntarist God, a God of pure will and power who, of course, is incomprehensible, such a God is not accessible to reason, you can’t know anything about His essence when that’s will, and it’s a will that is not under the control of anything and through anything, at any time. The voluntarism in theology is reflected in voluntarism in man. The primacy of will, when you get down to the level of man, is reflected, then, in the absolute ruler. James Wilson, who was probably the most profound natural law thinker in the American founding, quoting “quod omnes tangit ab omnibus approbari. What touches all must be approved by all.” So, he was a natural law thinker, quoted Cicero, Aristotle. Of course, he quoted Richard Hooker quite a bit, he admired him a great deal. So, they were returning to these natural law, natural life principles, all of which had been denied by both forms of state absolutism. Richard Reinsch:Which emerges in the 16th Century, and you quote Lord Acton. Robert Reilly:Yeah, 17th Century. Richard Reinsch: How did we steward these gifts? Not very well. And, you see the emergence of Divine Right of Kings. As you note, absolutism. Divine right of kings, as I read your book, that teaching is a very anti-political teaching. Things are not debated, compromised in the pursuit of a political good for a constituted people, things are handed down by a king, willfully. Robert Reilly:The king is above the law. Richard Reinsch:The king is above the law, so we can see how that is definitely a part of how that become part of modern political thinking in other forms as well, and king democracy as some would say. So, you talk about that, that absolutism rising. You argue that the Colonists see their part as a restoration, a reaction against that unbound thinking. Robert Reilly:You see a founder like James Wilson, who was probably the most profound natural law thinker in the American founding, quoting “quod omnes tangit ab omnibus approbari. What touches all must be approved by all.” So, he was a natural law thinker, quoted Cicero, Aristotle. Of course, he quoted Richard Hooker quite a bit, he admired him a great deal. So, they were returning to these natural law, natural life principles, all of which had been denied by both forms of state absolutism. The secular absolutism, offered by Thomas Hobbes, and the divine right absolutism, offered by Filmer and James the First. John Adams “They, the Revolutionaries, begin by reminding the people of the elevated rank they hold in the universe as men, that all men by nature are equal, that kings are but the ministers of the people. That their authority is delegated to them by the people, for their good, and that they have a right to resume it, and place it in other hands, or keep it themselves, whenever it is made use of to oppress them. These are what are called revolution principles. They are the principles of Aristotle and Plato, of Livy and Cicero, and Sidney, Harrington, and Locke, the principles of nature and eternal reason, the principles on which the whole government over us now stands.” You’ve got that opposition to them coming from the natural law tradition within the catholic church, with people like Suarez and Bellarmine, and you have the opposition coming from the Anglican, like Algernon Sidney, who has kept that same natural right tradition through Richard Hooker. And, through Aristotle, and the others. Now, Sidney, as you know, was a hero in the American colonies, he was considered a martyr to Republicanism. His book, Discourses on Government, was considered a Bible in the American colonies. It was Thomas Jefferson who said, “This is the book to which we should all turn, and all the young of America should be educated on the principles of Republican government by Sidney’s book.” Of course, we have Hampton Sidney College, here in Virginia, which was … Named after Sidney, that was created at the time of the American Revolution. So, you see the influence here of this lineage of these ideas, is very direct through Sidney. Richard Reinsch:On this, I wanted to read. You quote John Adams, and I think this really nicely encapsulates your point. This is Adams, “They, the Revolutionaries, begin by reminding the people of the elevated rank they hold in the universe as men, that all men by nature are equal, that kings are but the ministers of the people. That their authority is delegated to them by the people, for their good, and that they have a right to resume it, and place it in other hands, or keep it themselves, whenever it is made use of to oppress them. These are what are called revolution principles. They are the principles of Aristotle and Plato, of Livy and Cicero, and Sidney, Harrington, and Locke, the principles of nature and eternal reason, the principles on which the whole government over us now stands.” Robert Reilly:There it is. Richard Reinsch:There it is. Robert Reilly:You can find that being said multiple times by multiple people in the Middle Ages. As we just talked about, Richard, there was not a straight line development of those principles in more refined constitutional forms directly to the American founding, because of the interruption of that, the break off of the absolutist forms. Richard Reinsch:But, this tradition, that Adams quotation, impressive list of thinkers, philosophers, contained there, that full tradition we’ve been trying to describe, trying, in some way, to give justice in 45 minutes, to this unbroken, unwritten tradition of thinking that the American founding stands on. You mentioned in the beginning, the book, you’re addressing is to certain thinkers, Catholic thinkers, some Protestants, turning against the American founding. John Courtney Murray, in the middle of the 20th Century, thought that if we lost this natural law tradition, that the American proposition, as he termed it, would be eviscerated at one stroke. He always thought, though, that if people did turn against it, it would be those thinkers within the natural law tradition, primarily he thought Catholic theologians, and philosophers, and lawyers, who would uphold it. Yet now, many of them, turn against it. And, in many ways, mock it. I don’t know how else to read … You quote Patrick Deneen on four separate occasions, misquoting Publius and Federalist No. 10 to support his theory of an atomistic founding. I don’t know what else to make of it, other than a willful refusal to reject evidence in favor of some post-Liberal project. Robert Reilly:Well, as you know, I also quote Patrick Deneen in a passage in which he says that Václav Havel in Czechoslovakia did not seek a reformed form of communism, but the end of it. In other words, the end of this law, there wasn’t a better form of this law. He made that statement in parallel of what he thinks of the American founding. Richard Reinsch:That it’s also a lie? Robert Reilly:It is a lie, and there’s no better form of it, there’s no reformation of it. It must be replaced, and that’s what he calls for, he wants a different founding. He never exactly says what, it would be very interesting for him to articulate that. As you know, I argue somewhat passionately, Richard, that this is a very damaging teaching, because it cuts off the source of recovery. The case I make is the dire moral straits in which we find ourselves today is not a result of the founding, but a denial of its principles. And, our path to recovery must include a return to those principles. Now, to say that those principles themselves are corrupt, that we have nothing to return to, leaves us exactly where? Richard Reinsch:Nowhere. Robert Reilly:I wanted to tell you, my oldest son is a Marine Corp Officer, of rather recent vintage, but in his political philosophy course at a Catholic university, the professor taught something very along the lines of Patrick Deneen. So, he didn’t use Deneen’s writings, and he didn’t present it as one of a variety of views of the American founding, but he convinced the class that the founding was morally compromised, it was corrupt. My son struggled back against this, but the majority of the students bought it. So, at the end, they said, “Okay Professor, you’ve convinced us, we agree the founding was corrupt. Well, what are we supposed to do now?” Richard Reinsch:I think this is why your book is so important. I think a lot of people aren’t even aware, really, of the history, philosophy, and legal history that you present in the book. I think they don’t understand that, and they really are cut off from the full tradition, that would not have been possible generations prior for educated political thinkers in America. You know, progressivism goes back over a century, and they’re willfully rejecting something, but they know they’re rejecting it. I’ve often wondered, too, it’s just there’s moral disquiet, there’s a sense that things are wrong. And oh, plunk, here’s a reason why. I think your book could really strike a chord, in that regard. Robert Reilly:You know, if I could say, Richard, we’re probably near the end of our time here, but when people ask, okay, how did we change, or what happened here? In the book, I do quote one passage from President Barack Obama’s The Audacity of Hope, in which he says, “Implicit in the Constitution’s structure, and the very idea of ordered liberty, was a rejection of absolute truth. In fallibility of any idea or ideology, or theology, or ism, in any tyrannical consistency that might lock future generations into a single, unalterable course.” In other words, the truth does not set you free, the truth enslaves you. Richard Reinsch:Yes. Robert Reilly:He, here, rejects the fact that the American founding was based upon truths that are transcendent, through everywhere and at all times, for everyone. Now, if that is so, we have something of immeasurable value that we need to rescue. If not, if Obama is right, then indeed, killing unborn children, taking drugs, pornography, same sex so-called marriage, it all fits within it, because there is no transcendent truth. Richard Reinsch:It also unlocks the door to authoritarianism. It unlocks the door, because there’s nothing really worth fighting for, at that point. Robert Reilly:It makes despotism dispositive. Richard Reinsch:Acceptable even. Robert Reilly:It leads to despotism, it leads to Leviathan. I would say, Thomas Hobbes is winning right now. But, we have the resources to fight back, but that requires a return to our founding principles, just as for our founders it required a return to the articulation of natural law and natural right principles, that were very ancient lineage. And, on which they based this great thing that they did. Richard Reinsch:I think that’s eloquently said, and a point we can end on, thank you so much. We’ve been talking with Robert Reilly, author of the new book, just published, America on Trial: A Defense of the Founding. Thank you so much.

Richard Reinsch: Today we’re talking with Brad Watson about his new book, Progressivism: The Strange History of a Radical Idea. Brad is a professor of politics at St. Vincent College. He’s the author and editor of many books. I’ll mention one that I’ve read. It came out in 2009, Living Constitution, Dying Faith. Brad is also a reformed Canadian patriot. He told me about some quality time he spent this past summer at the US/Canadian border. Not because of Trump’s fascist America but, I think, of incompetence of border officials. Brad’s also the Sage of Latrobe, Pennsylvania. It’s not Arnold Palmer, it’s Brad. Welcome to the program. Brad Watson: Well, thank you, Richard, for that introduction and thank you for having me. Richard Reinsch: So, thinking about progressivism and maybe, just for the benefit of our listeners, maybe catch us up to speed a bit on progressivism. Give us a working definition of what it is and what it aims to do. Brad Watson: The definition that I use in this book, just to kind of set the table for what I’m talking about, which is how historians over the course of the 20th century systematically distorted the idea of progressivism. Progressivism, as I define it, is the idea that the principled American constitutionalism of fixed natural rights and limited and dispersed powers has to be overturned and replaced by an organic evolutionary model of the Constitution that facilitates the authority of experts dedicated to the expansion of the public sphere, the expansion of political control and especially at the national level. Liberalism has never really had an honest conversation with itself about this because the liberal historians who define the progressive narratives in the 20th century didn’t really come clean. The progressives in the late part of the 19th century, early part of the 20th century, were very suspicious of the Founders’ Constitution as limiting the power of the state, all the things that progressives want to do. So the story of my book is really the story of the academic biases and blind spots of professional academics, especially historians, who simply do not tell this story either honestly or completely. They make this what I claim is a radical progressive idea, hostility to the Founders’ Constitution. They try to domesticate it, to make it non-threatening and therefore, I think, forward to this book, friend Charles Kesler said liberalism has never really had an honest conversation with itself about this because the liberal historians who define the progressive narratives in the 20th century didn’t really come clean. Sometimes I think they were willfully blind to these things and sometimes inadvertently blind. Richard Reinsch: What composes progressivism? The critique you present, I think, is well known or that they are at odds with the American Founders with the limited Constitution. But what are they drawing from? Where are they getting this? Brad Watson: Yeah. The progressives in the early going drew from a number of intellectual currents that were floating around, really, in America, and in Europe to a certain extent almost immediately after the age of Lincoln. So I trace the origins of progressivism to two or three distinct strains of thoughts but sort of related strains of thought. One is social Darwinism. With the publication of Darwin’s Origin of Species, Darwinian concepts were just in the water, as it were, among the intellectual classes. Darwinism, of course, insists that evolution, change, growth, is always and everywhere good, a sign of strength. And stasis, or fixity, including the fixity of the Founders’ natural rights Constitution will get in the way of necessarily organic evolutionary growth. Overlaid on top of that, where it was the philosophy of pragmatism, which was really a distinctly American philosophy, if there is a philosophy that owes its origins to Americans, it’s probably pragmatism. Which suggests that experimental methods and means are likely to prove the situation, anything that gets in the way of constant experimentation, again, and the fixed Constitution does that to a certain degree of political sphere. Anything that gets in the way of that kind of experimentation is dangerous. And then, finally, some American progressives are influenced by categories of German idealism, a kind of worship of the state, the confidence that history is moving toward a concentrated, rational state and we shouldn’t get in the way of that inexorable political movement. All of these things cut against the old Founders’ Constitution view that certain things are fixed. The Constitution fixes the leaps and bounds of our common life together. And the way we effect change is through the consent of a republican people. The progressives always want to displace the consent of the informed people with reported expertise, the people who understand the dynamic of history, the people in the tweed jackets who sit around academic offices and government offices, really understand where history is going. So social Darwinism, pragmatism, and German ideals put together form a potent intellectual cocktail which morphs into, by the early 20th century, into what we have come to see as intellectual progressivism and eventually that, of course, the father of modern liberalism, New Deal Liberalism, Great Society Liberalism. Richard Reinsch: Thinking about progressivism, I want to get more into your book on how the historians and other academics have told the history of progressivism. But you would be a part of the notion that progressivism is a foreign import to these shores, Germany being a primary place where it starts. And American academics go to German universities and learn things and those ideas are then brought back to America universities, most notably John Hopkins, the University of Wisconsin. Brad Watson: Right. Hopkins, Wisconsin. I talk about these places a little bit in my book, and some of the people who were there. In terms of it being a foreign import to American shores, yes and no. There are certainly strains of, as I say, there’s this German idealism among some of the progressives. But others I would say are picking up on more what I would characterize as indigenously American intellectual phenomena, such as pragmatism, social Darwinism. In some ways, social Darwinism had its most prominent adherence in the late 19th century in the United States. So you can’t simply ascribe it to a kind of foreign virus infecting America or something like that. Richard Reinsch: The German invasion. Brad Watson: The German invasion, right. I don’t want to overstate the German invasion. I know some people broadly on my side of things want to attribute all of this progressive phenomenon to the German invasion but there’s a good deal of, I think, indigenous roots to this, too. Richard Reinsch: On this point of the German invasion, I guess I ask that question because I agree with you. I think there’s an indigenous part of this. There’s also Americans writing much sooner than the later, than the last quarter of the 19th century. One that sticks out in my mind is Orestes Brownson, who was a major public figure, writer, in the 19th century in America who, in the 1820s, in the 1830s, is sort of channeling a lot of liberation theology, a lot of humanism. He’s a disciple of Kant at one point in his career and, I know, broadly articulates a progressive approach, a very muscular, progressive approach to government and sort of a rejection, in his writings, of how American government is understood at that time and the way he interprets the Declaration of Independence as being not necessarily about natural rights but about some sort of broad humanitarian emancipation. So I agree with you there. I’m thinking the ideas do seem to come together in a very powerful way, though, with academic learning from Germans. So here’s my question. Why have they been… Or I don’t know if you agree with this. They seem to have been very successful in the academy, in American universities in the 20th century, and very successful politically. Not yet having remade our Constitution into their image but, at times it seems, getting closer and closer and closer. Brad Watson: Yes. The academy, I think we all know, has long been dominated by what many of us would call liberals or even radicals, in some cases. But, really, the origins of modern American academic disciplines, I’m thinking now about political science. I’m a political scientist. I’m thinking also about history, and in this book I’m dealing mostly with historians. I like to say I’m not a historian but I play one for the purposes of this book. I’m really dissecting and deconstructing the peripheral or progressive historian’s approach to things. These disciplines were really founded, invented, the Modern American Political Science Association, the American Historical Association. These were founded in the late 19th or early 20th century as adjuncts of ways of channeling progressive ideologies, specifically into the American academies. So in a way it’s not accidental. The progressives were there at the foundation of modern American academic disciplines. The disciplines, primarily among the academic disciplines that really try to transmit the American story, history political science. So in a way it’s not something accidental that so many liberals inhabit these disciplines because the disciplines were set up precisely to channel progressive ideology, at least in the United States. In Teddy Roosevelt you see this interesting mixture of progressive elements with, to a certain extent, the old language of American politics. Richard Reinsch: On the point of just the success of progressivism politically, one thought that I’ve had, and I’m interested to hear your thoughts, it arises in the, politically, as we’ve been discussing, turn of the 20th century, later part of the 19th, and then sort of explodes. Teddy Roosevelt referred to it as Hegel on horseback. Woodrow Wilson. And then we have the 1920s where the brakes get put on. Is there something quintessentially American about progressivism in the sense of a people who settle a continent, who set up commerce throughout the continent, who build railroads, who settle it, who have experienced amazing gains in wealth in industry and technology and the whole American settlement story? Is it not then the case that you would then take, “And we can do this in government,” or, “We can improve government. We can make it stronger, more precise. We can make it do more.” What do you think of that? Brad Watson: Yeah. Well, I’ll say something about Teddy Roosevelt. It’s not quite as poetic as Hegel on horseback, but he’s really more of a kind of social Darwinist/pragmatist on horseback, I think, than Hegel. Now, Woodrow Wilson is a progressive successor. He’s more influenced by Hegel, I think. But in Teddy Roosevelt you see this interesting mixture of progressive elements with, to a certain extent, the old language of American politics, which I think you’re alluding to, which is a kind of sense of the possibilities, the fluidity of American society and the openness of the frontier, the striving that defines Americans. So the question really becomes if these old categories are close or not to the new progressive categories. And I don’t think they are that close because progressivism as it comes down to us really embodies not just good old fashioned American striving or desire for economic improvement, advancement, the settlement of the frontier, whatever. But, really, a philosophy of history. A belief that history is unfolding inexorably and inevitably in a certain direction and it requires expert superintendents in order to get it there. The older language of American politics had, I think, a more bottom-up flavor, a self-governing people striving for greatness, as it we’re, whereas the progressive vision is bound up with this philosophy of history and this top-down model. TR is interesting because he’s kind of a transitional figure between these two worlds, the old language of American politics and the new, whereas Woodrow Wilson is more explicitly the new language of the enlightened administration. Richard Reinsch: On the enlightened administration point, do we still believe in that? We have the sort of inertia of massive bureaucracy and administration and we have, as I ask you that question, no small amount of ink is spilled on, including in Law & Liberty, on the decline of self government, the decline of Congress. And yet do Americans really believe in rule by experts or the best and the brightest? Isn’t that a point of mockery now? Is that aspect of progressivism still alive? Brad Watson: Yeah. This is interesting. Functionally, of course, we’re stuck with this legacy of progressivism. But one of the interesting things about the United States, I think, compared to, frankly, most other advanced liberal democracies, which you’re aware I’m originally a native of Canada, as you mentioned. It seems to me there is less resistance among the people in most advanced liberal democracies to this idea of expert rule, top-down rule. They’re more complacent. But the Americans are less complacent. So that raises the question, what accounts for our, at least residual, distrust of expertise? I think, at least relative to other countries. And I think part of the answer to that is simply the enduring power of the American Founders’ Constitution, the enduring power of republican ideas, the enduring power of American imagery linked to the Founders’ notions of a self-governing people who take responsibility for their own affairs. I think whether America has become a fully progressive nation, it kind of depends I think on where you’re coming from. When I first moved to the United States I used to say to some of my lamenting conservative friends who always think the American cup is half empty. Coming from Canada, I think it’s half full. Americans are not quite as comfortable with this model of top-down government that some other people are. So there’s a battle for the American soul, I think, still going on. In broad terms you can describe it as the Founders’ America versus progressive America. We’ve moved a lot in the direction of progressive America, toward a vision of expert rule, but we’re not fully there yet. There’s a lot of Americans who still resent it or are still willing to fight against it. To some extent I think the Trump phenomenon is a reflection of this, right? The peasants are out and they have their pitchforks. They’re as mad as hell and they’re not going to take it anymore, even if it’s a little bit inchoate in some instances. It’s there. It runs through and through, I think, American politics and always has. Although recently we’re told by our betters that we have to behave ourselves and, in some respect, our betters are now on the Supreme Court and we just have to accept whatever these experts hand down to us. A lot of Americans still don’t buy it, so it’s a complicated question. Richard Reinsch: Yeah, I know. And a part of that, too, I think is the institutions progressives have built increasingly don’t look so lovely and don’t seem to have- Brad Watson: Exactly. They’re not working. Richard Reinsch: Yeah, they’re not working very well. They don’t seem to have, I don’t know, inspiration, imagination, a hold on people. Particularly higher education, I think a lot about you’re obviously invested in greatly. And even if we think about the most progressive states in this country, the moving van test, which way are the moving vans pointed. They’re pointed towards the benighted conservative red states. There’s where most economic growth and population growth is happening in this country, including for our left-wing millennials. They’re moving to these states, also, to find a job. So I think that all should be said. Now, tell the story or help us understand how academics wrote about the progressive emergence. Brad Watson: Yeah. I’m looking, as I said, mostly at historians in this book. Historians became, some of the big-wig historians that many people would be at least passingly familiar with, the Richard Hofstadters, the Arthur Schlesingers, people like that, big-wig historians of the 20th century, but many lesser lights, too, how they told the story of American progressivism. And pretty much systematically I conclude, after going through them all in this book, they downplay the hostility to the Founders’ Constitution, that the early progressives exhibited, or the Constitution is simply absent in some cases in their story. It seemed to be a quaintly irrelevant anachronism. They also downplay the kind of fervid, secular millenarianism, if you will, of some progressives. Some of the early progressives were actually Christians but they pointed Christianity towards- Richard Reinsch: Social justice. Brad Watson: … the social justice, as we would now call it, sort of immediate economic concerns. And to the extent that, in some of the early progressive theologians on the Protestant side, people like Walter Rauschenbusch, who I’m going to talk about on campus sites. People like Father John Ryan. Richard Reinsch: John Ryan. Brad Watson: It’s almost as if traditional Christianity, or Christianity concerned with individual sin and salvation, is replaced entirely by social Christians. That is to say, a Christian who is concerned about economic policy, in this case. The historians don’t tell this story. They don’t tell the story of the hostility of the progressives to the Founders’ Constitution or this, I like to think of it as a kind of secular millenarianism that goes along with modern progressivism. Modern progressives who’ve lost all connection to their Christian roots, nonetheless still have this sort of self-righteous edge to them, which I think in some ways they derive from the earlier more explicitly Christian fore bearers. But the historians don’t tell this story at all. Progressivism is kind of hollowed out. It’s told as the phenomenon that is somehow organically compatible with American political categories. And, for some of the reasons that we’ve already discussed. America, they’re telling at least, has always been a kind of progressive nation. There’s nothing to see here. Move along. The progressives just tried some social reforms. Some of them succeeded. Some of them failed. So progressivism comes across as a warm and fuzzy social movement to improve whatever labor laws, factory conditions, things the progressives were concerned about. What it doesn’t come across as is a coherent intellectual movement that is so fundamentally hostile to the notion of a fixed Constitution, fundamentally hostile to the Founders’ Constitution. And you can read book after book after book, somebody defining history of the 20th century, and believe me, I did this in writing this book, and is some cases see nary a mention of the Constitution or what the progressives themselves agreed on. I’m not trying to be polemical in this book, at all. Richard Reinsch: Do you attribute that to the discipline of history and how they understand what they’re doing? Do you attribute that to they themselves, many of these historians, didn’t take the American founding that seriously as its own coherent set of ideas and principles and/or, and maybe these are all running together, these guys are themselves progressives and, of course, don’t see anything there? Brad Watson: Yeah. A little bit of both. I open the book with the notion of confirmation bias, as I call it. That is the tendency of investigators to seek and elevate those things which confirm their pre-existing hypotheses. In modern psychology this is a real thing and I suggest that professional academics, especially historians, were nominally dedicated to objectivity, having to prove immune to confirmation bias or professional deformation, if you will, in their attempt to transmit the progressive idea. They are themselves progressives. They share some of the progressive assumptions about the inevitability of historical progress, the desirability of expert rule, suspicion of the peasants with pitchforks, the ordinary people for America. So when they’re looking at and purporting to describe as professional historians, progressive phenomenon, they just see it as American as apple pie. They think so. So it’s partly the fact they are progressives. It’s also partly, as I suggested earlier, baked into the cake of the American historical profession. The formative orthodoxy of the early historians with the formation of professional associations, the AHA, was this belief in scientific history. That is to say, what evolutionary categories, Darwinian categories, the suspicion of transcendental principles of, with a suspicion on fixed truth. And I’m talking about discipline-wide now, with the foundation of the modern historical profession. Faith in progress. Richard Reinsch: That ideas are epiphenomenal to- Brad Watson: … historical forces. Richard Reinsch: Right. And you see in ideas are also relative or fixed to their time and place, to specific groups and people. So they really aren’t ideas. Brad Watson: Absolutely. And the historians and… historical profession, it tends to, like most of the intellectual classes of their day, emphasize the utility of statism, the chimerical status of natural rights in the face of what? Well, Darwinian and pragmatic criticisms, especially. The anachronistic nature of the Constitution that is rooted in natural rights, rights that don’t change with time. So both the historical profession and individual historians are thoroughly infected with these ideas. So when they look at the progressive phenomenon, they see themselves reflected. They see nothing hostile to the American constitutional order. Richard Reinsch: Do you see this primarily mid-century academics, and one can also see they themselves, Richard Hofstadter, which you open the book with a long quotation from him, where he basically calls himself a man of the progressive wing, writing about progressives. So they themselves certainly don’t want to highlight and just don’t see any dramatic change here between their ideas and the founding and all of that. Does that hold true, though, with the new left scholars? Does that hold true as we move into getting into the beginning of the 21st century, to the extent their scholarship, progressivism. It seems to me they now want to play it up. And maybe a popular indication of that was Hillary Clinton saying, “I’m not a liberal. I’m a progressive,” and progressivism now being something worth building an intellectual defense around. Contemporary liberals believe that we must live under a living constitution but, of course, to live under a living constitution, which lives and breathes and grows and changes with the winds of progressive elites, is to live under no constitution at all. The very nature of a living constitution is to not fix things, or put certain things beyond the bounds of ordinary political change. Brad Watson: Right. That’s a good question. I move chronologically in this book, sort of following the historical accountings of progressivism from the 1940s through the 1950s, then through the ’60s and ’70s. And the original new left scholars, those who were originally associated with that term, came on the scene in the 1960s. And they were operating in neo or fuzzy Marxist categories. And, like the more consensus historians, like Hofstadter, Schlesinger, they also claimed that progressivism was of a piece with the American historical tradition. Their sort of more Marxist analysis simply said that progressives were only trying to grease the wheels of capitalism, basically. Again, there was nothing to see here but from a hard-left point of view, as it were, there’s nothing to see here. Everyone, including the progressive reformers, is trying to further economic expansionism, et cetera. Some of these more contemporary progressive, or new new-left, if you will, thinkers of the current century, they do try to reinvigorate the label of progressivism and hold it up as something to be proud of. Hillary Clinton certainly tried to do that. Brad Watson: And their understanding, though, I think, is, again, that progressivism essentially is America. The Constitution has always been, of necessity, must be a living constitution and the early progressives understood this, and later progressives like the Fells, merely make clear this truth against the fuddy-duddy conservative right that they hold up as straw men who want to make us live like we lived in the 18th century and all these nonsensical notions of what a fixed constitution is. So the contemporary, there is some effort to revivify the label of progressive to make it useful to contemporary liberals. Liberalism fell out of fashion and Hillary Clinton I think got the idea that she’d call herself a progressive. That would be better than liberal somehow. But, really, contemporary liberalism is the natural outgrowth of early 20th century progressivism. Contemporary liberals believe that we must live under a living constitution but, of course, to live under a living constitution, which lives and breathes and grows and changes with the winds of progressive elites, is to live under no constitution at all. The very nature of a living constitution is to not fix things, or put certain things beyond the bounds of ordinary political change. Richard Reinsch: Let me go in a different direction a little bit but still kind of staying with the academy and the intellectuals. You think about progressivism, Teddy Roosevelt, Woodrow Wilson, FDR, and then moving up to LBJ and the great society, and then the new left. I guess I want to try and see or think about the connections there, and also academic connections because clearly that will remake the American academy in a major way. It takes a generation to do it. But the connections, though, have to be with the earlier progressivism. How do you see that happening? Brad Watson: Yeah. As we were discussing earlier, in many of the most important disciplines in humanities and social sciences in American universities you see the disciplines themselves orient towards the progressive project from the get-go. Obviously hiring over the last, oh, my gosh, I’m tempted to say 100 years in the American academy, but at least over the last 50 years, has been very much hiring from the left, by people in the disciplines that I’m most interested in, like political science, history- Richard Reinsch: Sociology. Brad Watson: … law, and sociology. Yeah. Believers in what? Growth, change, often evolutionary growth, pragmatic experimentation. The rejection of transcendent truths. And, in this sense, there is a broad compatibility of the direction of the contemporary American academy with progressive early 20th century progressive premises. The idea that, for example, within political science, that would want to teach the Constitution as a fixed document embodying truths, nature and nature is God, is really, really weird in most places. And I teach at a fairly traditional liberal arts college. But when you get students out of high school, it is simply the belief that the Constitution, changes evolve over time. It’s like mother’s milk. Everybody, to the extent they’ve thought about it at all, believes this is obviously the case. You have to kind of spend some time explaining what the Constitution is, what a written constitution is and isn’t and if we’re going to have changes, obviously we are, then we should have the through consensual public mechanisms, legislation, not through pretending the Constitution guarantees every fashionable preference of the day. But now this is everywhere. It’s in the high schools, it’s in higher education. You can blame a lot of this, I think frankly, on the progressives, on early 20th century progressivism. There are a million people to blame here but certainly the progressive intellectual movement has played a big role in defining the academic disciplines which, in turn, defined what high school teachers have been taught, what people through and through education circles have been taught. So that’s a great story to be told. Richard Reinsch: You made an interesting observation in the introduction that the rise of progressivism, paradoxically, even though they are always claiming to be exalting the individual, diminishes the realm of the private and diminishes the conscience. I wanted to talk about that and you spend a lot of time talking about religion. Mainly what has come to be called mainline Protestantism, but also Catholicism to a certain extent, as in a way, and I don’t know if this holds true with Catholicism in the period, but definitely with Protestantism, a falling away or I think it starts in the seminaries, a dismissal of what would be thought of as orthodox doctrines of Christianity. Dismissing those, that’s not really the point of Christianity. It becomes something else. More immanent, more involved with things of the city, of equity, of distribution of wealth, things like that. But that filters out. It goes in the seminary. It then goes with those students as they go out in the pulpits. You’ve got the leading voices of Protestantism saying this. And then you get this great split in Protestantism in the early 20th century in America where you have more conservative churches form and they’re much smaller and they don’t have nearly the cultural influence. Just sort of drawing a line with that observation, the diminishment of the realm of conscience. It’s almost like the evacuation that there’s any ground or metaphysical substance or good to freedom or to human action. Americans don’t articulate it like that, but I guess more and more I tend to think it’s what happens in Protestantism in the 19th century in America that really starts to shape the American mind. And now we have the complete loss of mainline Protestantism in America, basically, certainly as a contributor to public discussion. And then anything about what’s left and you have a diminished Christianity. I was just going to make that observation to see what you make of it. Brad Watson: Yeah. I think the early Christian progressives, Rauschenbusch, Father John Ryan, as I mentioned, they really lay the groundwork for the kind of nowadays explicitly secular but, frankly, very self-righteous elite progressivism of the day, which speaks in moralistic terms, minus God. So, as I look to say, the early Christian progressives seem to believe when the fullness of time was come, God sent the administrative state. Progressive theorists embraced this notion that you get material and spiritual fulfillment through the good graces of the state, essentially. So the idea is of an organic political whole which makes us whole, which solves all human problems in the here and now. Richard Reinsch: Yeah, yeah. That was a great line. And you quote Teddy Roosevelt. I had not seen that quote in quite a while “Let us battle for the Lord, as in the day of Armageddon.” Something like that. That’s powerful. Brad Watson: Yeah. And that religious language ran everyone through progressive political gatherings. Richard Reinsch: It’s inverted, though. The symbols of Christianity are being inverted, yeah. Brad Watson: Let me address your question this way. When you start to think as the early Christian progressives do, and now the later secular ones do certainly, that all aspects of the state really should be understood to be the means to human welfare and, frankly, all aspects of moral and theological thought direct themselves to the immediacies of the here and now. The early progressives thought you could cleave to essentially the good judgment of Christian rulers. Vast amounts of discretion as to what constitutes the public welfare. The main thing you have to overcome, whether it’s people’s attachments to the right to property and things like that that talk about the social good, the purposes of government come to be seen in very broad terms. The furtherance of general welfare in the light of God’s purposes. So what happens? Well, any notion of natural rights or fixed rights, including property rights, have to be done away with. Natural rights are seen as less natural, less fixed. Less protective of the irreducible spheres of human thought and activity, certainly than would have been acceptable to America’s founders. Progressive theorists embraced this notion that you get material and spiritual fulfillment through the good graces of the state, essentially. So the idea is of an organic political whole which makes us whole, which solves all human problems in the here and now. So you get some extraordinary statements from these early Christian progressives about how Jesus was misinterpreted when he said the Kingdom was not of this world. The Kingdom really is of this world. You actually find Walter Rauschenbusch saying, he writes socialized love, as he calls it, is necessary in this world. So what becomes important? Well, the idea of the realm of the private, even the realm of conscience is diminished because the only things that are measurable and manipulable by the experts are things that the state controls. So economic data start to replace theological teachings. During his teaching time at St. Paul seminary, Father John Ryan, for example, I discovered some interesting little things like this. He devoted more than a quarter of his course on moral theology to what? Economic history and political economy. That is moral theology for the early Christian progressives. So the realm of conscience is diminished because the only things that are important are the things that are manipulable and controllable by the state. And we see the ramifications of this today in mandates on religious institutions. The only things that are of importance. I think these are all kind of outgrowth of this early millenarian progressivism which was rooted in progressive Christianity but has become secularized over the last 100 years. And, again, the historians forget about that, telling the story. They just don’t do it. They don’t see it. Richard Reinsch: Well, and the way in which, if you kind of diminish the idea, or do away with the idea, of their being natural rights or a pre-political aspect that the government should recognize and protect, you quickly then get to the view, well, whatever you have you don’t have it without the state. Brad Watson: Exactly. Richard Reinsch: You then reintroduce almost like a feudalistic notion of being a subject, of course, famously expressed by Barack Obama. “You didn’t build that.” That’s a core progressive notion that your wealth was made possible by the state, building the roads, educating your workers, all this, and refusing to see any value add from capital or entrepreneurialism or skill or daring or courage of someone starting a business. That doesn’t really matter. So, yeah, you can see it even in that expression, as well. The diminishment of conscience also, everything is evolving obviously. Nothing’s fixed. You’ve kind of talked about that. So I guess my question for you now, thinking about progressivism in 2020. In many respects, we’re sort of dealing with a metastasizing program. We kind of said Americans no longer believe in rule by experts. But the goals, I think, for the descendants of progressivism are now to completely wipe away any veneration for the founding, any notion of a core American nation culture. Samuel Huntington sort of touched on this in his… sort of did in his last book, Who Are We? That, in a sense, the promotion now is to sort of destabilize America as having any sort of coherent identity and goodness. Brad Watson: Yeah. I think that’s right. And there’s a parallelism between the early progressives and contemporary progressives or post-modern liberals, whatever you want to call them. The early progressives saw the Founders’ Constitution and the older notion of Christianity as standing in the way of what? Economic reform and political reform. So you have to overcome these things to move history to the next stage. Which was largely understood in economic policy terms. The contemporary progressives, or the post-modern progressives, are doing the same thing. The Founders’ Constitution, and certainly the older notion of Christianity, stood in the way of what? Culture reform. Culture reformation. So economic radicalism, or economic growth, has now been replaced with culture radicalism or cultural growth and evolution toward the next stage. But it’s interesting how progressives of 100 years ago and progressives today, both see the Founders’ Constitution as getting in the way of this, which is why so much effort is expended by contemporary, liberal especially, in the academy trying to destabilize, trying to undermine people’s confidence in their political institutions, trying simply to dismiss the Founders’- Richard Reinsch: The 1619 Project. Brad Watson: The 1619 Project. The proximate goals, you might say, are different. One, to affect economic and political change, the other to affect radical cultural change. But both groups see, from a spread 100 years apart from each other, both groups see that the Founders’ Constitution gets in the way of this. The American Founders’ political philosophy gets in the way of this. Old fashioned Christianity gets in the way of these transformations. So you have to reconfigure these things. And now, of course, it’s liberal Christianity, progressive Christianity, says you have to reconfigure old Christian categories, else be deemed a racist or a sexist or a homophobe. The same way early progressives said you have to reconfigure Christian categories or you’re mired in the past in terms of economic and social policies. But they see the same enemies, even though their objects have shifted. Which shows, again, the power of these things, I think. That is to say, the importance, the defining character of the Founders’ Constitution despite all the assaults against it. All the progressives understand it stands in the way of their radical project. Richard Reinsch: Brad, as you think about the American academy, which we’ve talked about on this interview, being so decisively shaped by progressivism and its ideas for how the state should regulate higher education, as you look ahead, as you look forward, how do you see things shaping up? Do you see any reform efforts happening? Or is, as I think, the best that could be done would be immediate deregulation and trying to return something like a market to higher education, apart from any thinking about curriculum or all that stuff. Brad Watson: Yeah. It’s very difficult to know what should be done. One of the things that is being undertaken, of course, people are forming, developing, promoting enclaves within the existing academic structure. Certainly we’ve done that at my institution, whether it’s a center for political thought or a politics program, and a number of places within the college where we’re trying to reinvigorate the study of what? The serious book. The great book of Western civilization, the great writings of the American political tradition. And these things now exist at all kinds of institutions large and small. So people are working within the existing framework. But, I think it’s important, as you suggest, to think outside the existing framework, how to create a market in higher education, given the stranglehold, even if we agree that’s a good thing, given the stranglehold of regulatory agencies, especially accrediting agencies which operate under the color of right, the Federal Department of Education, things like this. It’s bureaucratically almost impossible under the current conditions to imagine a real market for American higher education. So the first thing we do politically, I think, and republicans have talked about it for a long time, but we’ve got to destroy the Department of Education in its current configuration and the ridiculous bureaucratic accrediting agencies, which hand down increasing numbers of mandates that get imposed so forth and really prevent entry into anything like a real market for higher education. But this is a political problem. Ultimately it’s a problem of federal control of education, or largely a problem, at least the federal control of education. Which, in turn, is a progressive goal. Let the feds control everything, right? Richard Reinsch: Brad Watson, thank you so much for your time today. We’ve been talking with the author of Progressivism: the Strange History of a Radical Idea, published by Notre Dame Press. Thank you so much. Brad Watson: Richard, thanks so much for having me. I appreciate it.

Richard Reinsch:Hello and welcome to Liberty Law Talk. I’m Richard Reinsch. Today we’re talking with Michael Strain, author of the new book, The American Dream Is Not Dead: (But Populism Could Kill It). Michael Strain is an economist. He is resident fellow at the American Enterprise Institute, where he is the Director of Economic Policy Studies. You will know him, as I do, as a long time contributor to public debates and discussions from an economics perspective. He’s a regular columnist at Bloomberg, and is someone that I have found very useful in thinking about all of these issues surrounding debates about wage growth, labor productivity, unemployment statistics, and just sort of the general matter of discussion these days on economic questions. Richard Reinsch:Michael, welcome to the program. Michael Strain:Thanks so much for having me on. It’s great to be here. Richard Reinsch:So thinking about your book, now, you address the American Dream, the question of the American Dream, from an economics perspective. How are you defining the American Dream and why is it not dead? I focus on that economic component and I look at some very standard economic questions. “Are wages stagnant?” “Do workers see the fruits of their labor rewarded?” “Do the gains from the economy only accrue to the top?” “Has quality of life improved?” “Has household income gone up?” “Have the forces of creative destruction created economic opportunities for middle-class American?” “And is America still upwardly mobile?” Michael Strain:So I think about the American Dream of being an amorphous kind of thing that encapsulates many things. People think about strong communities, people think about home ownership, and people think about strong families and things of that nature. I think central to anyone’s definition of the American Dream is a large economic component. The idea that hard work will pay off, the idea that you can better your economic situation and see your wages and income go up, and especially the idea that your children will do better economically than you. So in the book, I focus on that economic component and I look at some very standard economic questions. “Are wages stagnant?” “Do workers see the fruits of their labor rewarded?” “Do the gains from the economy only accrue to the top?” “Has quality of life improved?” “Has household income gone up?” “Have the forces of creative destruction created economic opportunities for middle-class American?” “And is America still upwardly mobile?” I define in part, the standard questions that people ask. “Do kids grow up to do better than their parents?” I look at all those. And I walk away with the conclusion that the American Dream is alive and well. Now, that’s not to say that we should be satisfied. Of course, we can always have even faster wage growth, even faster income growth, even more upward mobility. And it’s not to deny any of the real challenges that are facing American workers in American households. Most notably the coronavirus spread, which materialized after the book was published. But at least to say that when you kind of look over the long sweep, when you look over a 30-year period, a three-decade period, you see substantial economic progress. The progress is not uninterrupted. There are of course challenges and setbacks that occur along the way, and right now we’re facing a serious challenge with coronavirus. But the long story is the story of economic progress. Richard Reinsch:I want to get into the book. Real quick, as an economist looking at the recent stimulus bill that was passed and how the federal government is managing the situation, do you see troubling long-term trends that could develop from this? Or is it as many would say, the government is reacting to this unprecedented crisis in a novel way, but things can hopefully be put back together again once it’s over? Michael Strain:Yeah, I think the government’s response has been about right. The scale of this crisis and the suddenness with which it hit the economy are unprecedented. Right now, there are something like 250 million Americans being told to stay at home, over three-quarters of the people who live in this country. Over 30 states have lock-down orders. Well over a dozen cities have lock-down orders, and Washington DC is locked down as well. Just this morning we learned that in the two week period that ended on March 28th, 10 million people filed for unemployment insurance benefits for the first time. That dwarfs by a factor of 10 any previous weekly increase in unemployment insurance claims. Richard Reinsch:Yeah, that’s a massive number. Michael Strain:It’s a massive number. I mean, obviously it’s very hard to forecast, but we could easily end up with annualized quarterly GDP growth of negative 30% or higher for the current quarter. We can end up with a 10% or 15% unemployment rate as peak. I mean, this could be a really, really bad economic situation. And so, I think Congress was right to act very quickly and aggressively, and I think the program they put together has a lot of really good components to it. The million dollar question is, of course, how aggressive will this virus be? And we don’t know. We don’t know that. If the virus, if it’s on a more aggressive side, we may need even more. If it’s on the less aggressive side, then we will be back open in the late spring or early summer and things may be relatively normal. And so I think it’s just very hard to know. Richard Reinsch:Do you see anything bothering you though? Things that I’ve read, the extent of Treasury having something like a $500 billion portfolio to loan out money to businesses. And then of course, it seems what I’ve read, a new step of Treasury taking ownership stakes and companies that were buying bonds, corporate bonds, commercial paper, things like that to float companies forward. I understand that, but sort of making our economy more centralized and more brittle long term. Michael Strain:I’m worried about the potential downsides of that $500 billion fund, for sure. I think that there will be some extraordinary and unusual things that the government is going to do. I don’t expect any of those things to be permanent. I mean, the government took an ownership stake in some companies 12 years ago with TARP. TARP ended up making money for the taxpayer, and the government no longer owns car companies or owns any stakes in car companies, or things of that nature. So I think everybody recognizes that extraordinary measures have been taken, but that they’re emergency measures that won’t last. Giving that much money to Treasury to allocate as it sees fit is something that raises an eyebrow, and we’ll see how they do with that. Hopefully everything with that works out reasonably well. That’s one part of the larger package. I mean, the total amount of money that’s been spent on this is $2 trillion, $2.2 trillion, something like that. And for that, $500 billion is kind of a minority part of the whole package. Richard Reinsch:Yeah. Thinking about your book then, or returning to the American Dream, you have an opening passage that I wanted to read and then I’ll ask you a question and get your comment. You say, “The American Dream is not dead. It is surprising that such a sentence would be so controversial, but it is. If you’re looking for bipartisan consensus, start here. Leading politicians and presidential candidates from both parties have voiced agreement on these points: America is no longer an upwardly mobile society.” And then a couple of lines down, “The game is rigged for everyone but those at the top.” Why is that sentiment so pervasive? And I’ll say 2016, 2017, that’s actually how I came across your work. I started to think maybe my own thinking about the free market and the American story, that I had missed a lot of facts to have the political situation turn out the way it had. And so I was willing to question a lot of my prior beliefs and did a lot of my own research. And of course, it’s not something that’s gone away. It’s been a part of the Democratic primary contest, and it’s sort of become the lingua franca of a lot of particularly younger conservatives as they think about politics. Michael Strain:Yeah. I mean, I think it’s a combination of things. I think one factor, and I talk about this in the book, is that we do have real challenges. If you’re an adult male worker without a high school degree, you have a hard time. Now, that’s a very small share of the overall population, but that’s a serious concern to be sure. There are some towns that have been left behind by technological automation. Again, it’s a very small minority of towns. It’s even a minority of towns that back in the ’70s were manufacturing centers. But those problems do exist. The opioid epidemic was a real thing, is a real thing, excuse me. We have seen a very troubling increase in the number of suicides. And I could go on as well. So there are real pockets of problems in American society and in the American economy. I think we focus so much on those pockets of problems that we miss the broader story. So what I wanted to do was zoom out to the 30,000 foot level and say, okay, yes, there are problems. There are challenges. There’s no question about it. Don’t want to deny those, don’t want to minimize them. But most people are not residents of a failing town. Most people are not 50 year old men without a high school diploma trying to make it in today’s labor market. I wanted to characterize what is the experience for typical Americans in typical situations. What does the economy look like at the 30,000 foot level for most people. And so that’s the purpose of the book. I mean, there are other reasons too, I think, that this narrative is so common. One reason is that bad news sells, and if you’re an aspiring politician trying to get people to vote for you, you need a rallying cry. And often that rallying cry is more successful if it focuses on bad news rather than good news. Another reason I think this narrative is so prevalent, it’s the Great Recession. And the Great Recession was really, really bad. And millions and millions of workers and households were hit so hard financially and economically from the recession. And until three weeks ago we were, economically speaking, we had recovered from the Great Recession. But we had not like psychologically recovered from that. And I think it still lingered quite a bit in people’s minds. So there are a bunch of reasons of why I think the narrative is so prevalent. But, I also think the narrative is wrong, and that’s what I tried to demonstrate in my book. Richard Reinsch:You talk about isolated cases and maybe things that aren’t so representative. Many though point to just generally say, “Well, wages haven’t gone up for people in the 50th percentile, much less people in the 20th percentile, 30th percentile of income, their wages have been stagnant. That’s constant.” And I think I’ve heard that for going back since I was a college student, I remember people saying this or reading this, that’s not necessarily new, but it’s sort of the way we think about the economy now. And this is sort of the support for increasing the minimum wage or having the government be more involved in healthcare, things like that. People on, not just on the left, but also traditionally conservative minded people like an Oren Cass have argued this should bring us back to an industrial policy because what’s missing are the evaporation of industrial jobs, only to free trade and some do automation, although it’s more automation than free trade. But, we should bring these things back and this would help get wages up. This would help get men back into the workforce. This would solidify families, small towns and these are, I think they would argue more general things, not just isolated things. How do you respond to that? Michael Strain:So, I question the premise. In the book I share a bit, if you look over the last 30 years at average wages for production and nonsupervisory workers. That is average wages for workers who are production workers in manufacturing and construction workers in construction or workers who aren’t managers in the services sector. That’s about 80% of all workers. You can think of those as workers, not bosses. Average wages for that group have gone up by a third over the last three decades. I show that median wages have gone up. I showed the wages at the 20th and 10th percentile have actually gone up faster than the median over the last three decades. I showed that income, which includes wages, but also includes other extremes of financial resources, has gone up even more over the past three decades. So the first thing I would do is just dispute the premise. When you mentioned that you heard that when you were a college student, the data shows that average wages for a typical worker did stagnate or decline from say the early 1970s to the early 1990s. So if you were hearing this, as a lot of people were when Bill Clinton was running for President, the message was true at that time. And a lot of people are still kind of stuck there. So it’s not to say that there’s nothing to this story, but if you go back over 30 years, if you go back from 1990 to 2020, what you actually see is the stagnation story is just not right. It’s just not accurate. It was accurate for the ’70s and ’80s, it’s not accurate for 1990 to the present. And that I think is … it’s something that has just been missing from the debate. Richard Reinsch:Something that I’ve found, and I’d like to get your comment maybe just broadly on this, because I know you’ve encountered this in doing research as an economist. And I’m a non-economist, I’m a lawyer by training. But when I read studies of income growth, I am whipsawed by how many different conclusions people come to, or I say how many different, but different stories we might say of decline, of stagnation or of growth. I mean just help people, when people see these studies, measuring, comparing incomes, what’s generally your approach to thinking about that? What are people doing when we see consistently incomes decline? And one of the things you talk about in the book is which deflator do you use? I’ve noticed Oren Cass, who someone who is claiming that wages have stagnated or declined, always uses CPI, but you make a claim, Scott Winship, another person who argues wages have increased, insist on using the PCE deflator, which seems to be a better way to account for how people actually navigate in the marketplace with prices. Could you talk about that some and just the difficulty of measuring income? Michael Strain:Yeah, it’s very difficult. I mean you have to, the first thing you have to do is define income. So what counts as income? Do you include wages? Yes. I think everybody agrees that you should include wages. What about non-wage benefits like health insurance, things of that nature? Do you include that? Do you make allowances for taxes? Do you subtract tax payments from people’s wages to compute their income? Do you add in government transfer payments? Some of those payments take the form of cash. Some of them don’t. Do you, for example, include Medicaid benefits in people’s wages? If you do, how do you value and how do you assign a dollar value to Medicaid benefits? So you have to define income. Then you have to define whose income. Are you talking about individual workers? Are you talking about households? If you’re talking about households, how do you adjust for the fact that household size has changed so much? The third thing you have to do is account for inflation. As you mentioned, there are different ways of accounting for inflation over time. And another thing you have to do is figure out over what time period you’re interested in making the comparison. So I think you’re right that a lot of this debate among analysts comes down to this question of how do you account for price changes? That’s a difficult question to answer. What I’m trying to do in the book is move the debate away from a debate about how you measure price changes and toward a debate about what time period do you care about Richard Reinsch:Yeah. Michael Strain:If you want to say wages have been stagnant for decades. Okay. Define for decade, and define it with some precision. Richard Reinsch:You choose 1990. Why did you choose 1990 as the starting point for an income basis? Michael Strain:I choose 1990 because that was … I choose it for several reasons, but I choose 1990 because that’s three decades ago. Three decades is a long time, Richard Reinsch:In the life of a worker. Michael Strain:Yeah. In the life of a worker. When politicians and opinion leaders say wages have been stagnant for decades, I think a lot of people hear that message as referring to their own wage. When you go back 50 years, not a lot of people who are working today were working 50 years ago. I think 30 years is maybe even too far to go back. But, certainly I think you don’t want to start the comparison further back from 30 years ago. Another reason to start in 1990, is the reason I mentioned earlier, that there was this period of stagnation and decline in the ’70s and ’80s, and then since the early ’90s we’ve seen an increase. And so, I think you don’t want to conflate those two different eras. You want to look at, if you want to go back 50 years, fine. I think you’ve got to say wages were stagnant or declining in the ’70s and ’80s, and then from 1990 to the present, wages have been increasing. I don’t think you want to conflate those two eras, because wages behave so differently during both of those eras. Another reason to start in 1990 actually relates to the inflation question. The further back in time you go, the harder it is to account for price changes. So if you look at, you mentioned the CCI and the PCE. If you look at those two theories, and there’s a graph in the book that shows this, if you look at those two different ways of accounting for inflation, they actually agreed quite a bit over the last 15 years. They even agreed quite a bit over the last 30 years, whether or not you use the CPI or the PCE, you still find that wages have not stagnated for the past three decades. But the further back you go, when you try to make these comparisons starting in 1970 or 1973, the further back you go, the more it matters which price index you use. So, that’s just another reason not to try to go back too far. Richard Reinsch:I noticed in his response to you, you had two responses in the book. One from E. J. Dionne, the well known progressive columnist in the Washington Post, and also Henry Olsen, also now of the Washington Post. But, more of a conservative populist writer. Dionne points to your use of 1990 and says you’re cherry picking. And that the relevant comparison is the early 1970s. So I think, why does he want to insist on, I think he says 1973, what’s so magical about that year? Michael Strain:Well, look, I mean I think he’s just wrong. And you’re right, E. J. and Henry Olson offer response pieces that are in the book. And I think that’s great. Because it gives the reader the opportunity to see some really interesting and thoughtful counter-arguments to my argument right there in the book. And then I conclude the book by responding to both Henry and E. J. So I think that’s a great part of the book. And the editor, I’m sorry, the publisher wanted to put that in the book. And I think it’s really terrific. People want to start in 1973 for a bunch of reasons. I mean, that’s when wages started to decline. The decline I mentioned that starts in the early ’70s and goes through the early ’90s, the stagnation and decline, that starts in ’73, that’s one reason. People are concerned about … a lot of people want to kind of link this to the rise of income inequality. And so you see people want to start in 1979. A lot of it, I think is just people think about the kind of post-war era, the ’50s and ’60s as ending, that era kind of ending in the early ’70s, so people start the comparison in ’73 for that reason as well. We had oil price shock. I mean, there are a bunch of reasons. And look, these are good reasons. But, for exactly the same reason that I think it makes sense for analysts in the 1990s, let’s start your calculation in 1973 rather than in 1950. I think it makes sense for analysts in 2020 to start the calculation in 1990 and not in 1973. I think we just shouldn’t be conflating information from these very different eras. Richard Reinsch:On just this point, you argue, and I think this is what people will read in the book and might think, no, that can’t be right. So you say people in the 20th percentile of wage earning, meaning 80% of the people make more money then, we’re in the 30th percentile, have over the last 30 years in America, have seen their wages grow. One question I had for you, yes, but if that involves a lot of transfer payments, which is something we can really hang our hat on? Michael Strain:Some of it involved transfer payments. That’s true. Not all of it. And I think you’re right, it’s counter to the narrative that you hear and I would encourage people to buy the book and look at the data. It’s right there. Richard Reinsch:I’ve had that question and one thing about transfer payments, of course that’s the decision collectively that’s been made as to how we’re going to allocate resources. And so one has to take that into account in measuring income. But I’ve always, I’ve just thought incomes have grown but so much of that is transfer payments. Have they really grown or by how much? And then thinking about how that builds into mores and how people think of their own independence as well. Just the wages at the 10th percentile have increased by 36% over the last three decades. At the 20th percentile they’ve increased by 34%, and at the 30th percentile they’ve increased by 29%. So that’s not stagnant, that’s significant growth. Michael Strain:Just to be clear on that, you can look in the book at the statistics on market income. So that doesn’t include transfer payments. And you see that’s gone up quite a bit for households at the bottom of the income distribution as well. So your point is well taken, that we want to look at at income that people earn in the market and we also want to look at income that people receive from whatever source, whether that’s from income earned in the market or whether that’s from government transfers. And I think it makes sense to know what’s going on with both, but both have gone up, and that’s not the common narrative for sure. But if I can find the chart in the book, which I’m looking at right now, I’d be able to tell you how much. Richard Reinsch:And you also make the point as well, which people don’t realize how expensive their healthcare is for their employer. Of course their employer’s getting a tax break for providing it, but that also is a part of your income and you may not think about it, but it goes up generally every year. It has to be accounted for at some level when you think about compensation. Most people don’t think about it in that way. Michael Strain:That’s correct. So I found it here. I’m sorry it took me a minute, but wages, so not income, just the wages at the 10th percentile have increased by 36% over the last three decades. At the 20th percentile they’ve increased by 34%, and at the 30th percentile they’ve increased by 29%. So that’s not stagnant, that’s significant growth. Richard Reinsch:Question on labor share of productivity, you also see this: people argue has been stagnant or declining and the conclusion they draw from that is well capital or employers are cheating them or not sharing the rewards with them at some level and this is unjust and should require intervention by the government. E.J. Dionne makes that argument in his response to you. How do you respond to that? Michael Strain:I think it’s a more complicated issue than I think a lot of people make it out to be. If you actually look at what’s driving that particular industry, and there’s a lot of churn beneath the headline statistic, I think what matters more is what’s the relationship between productivity and pay. If you see productivity at the macroeconomic level go up, does that translate into worker’s pay going up? The answer from the most recent and best economic evidence is yes. There’s a good paper written by Larry Summers who, or coauthored by Larry Summers, I should say, who was Bill Clinton’s treasury secretary and the top White House economic advisor to President Obama and is also an eminent economist. And he concludes in a paper published about a year ago, that the relationship between productivity and pay are very strong. After I published the book, a new paper came out by Ed Lazear at Stanford where he used a different methodology but came to exactly the same conclusion. And of course basic economic logic suggests that the same thing should be true as well. Richard Reinsch:Well, markets would have to be non-competitive in significant sectors of the economy for it to be true, I would think. Michael Strain:Yeah. I think that’s right. And again, if you just look at the evidence, productivity and wages are very strongly related in a statistical sense in the data. And how does that relate to this? That suggests that workers do receive the fruits of their labor. That suggests that hard work does pay off. These are key tenets of the American dream and the evidence shows that they’re alive and well. Richard Reinsch:Talk about another thing that comes up a lot is income mobility. You talk about that in the book. Many arguing that there’s much greater mobility in the Nordic social welfare democracies, perhaps America should look more like those countries. That’s been a theme. Of course, it’s been a theme of the Bernie Sanders campaign. Is there mobility amongst quintiles of income in America or is there still mobility but it’s gone down in recent decades? If you were raised in the bottom 20% and you’re in your forties today, 86% of you have a higher household income than your parents did. So that, to me, suggests that there is significant upward mobility in the United States.  Michael Strain:So I spent a good amount of time on that question in the book and when you just look at the basic question, do people grow up and end up having a higher income than their parents did? That’s the question that people want an answer to when they’re thinking about the American dream. Are my kids going to do better than me? And what the data show… So what I did was I found a bunch of people who were in their forties today. I got a data set that had… I represented the sample, a statistically valid sample of people who were in their forties today, and I computed their income. And then I looked at their parents’ income and I computed their parents’ income. So I’m matching individual people with their parents and I say how many people who are in their forties today have a higher household income than their parents had when their parents were in their forties, when their parents were the same age? And the answer is about three quarters. About three quarters of people in their forties today have a higher household income than their parents did. Then I say of all the people who were raised in the bottom 20%, how many of them, how many of those 40 something year olds today have a higher income than their parents? 86%. If you were raised in the bottom 20% and you’re in your forties today, 86% of you have a higher household income than your parents did. So that, to me, suggests that there is significant upward mobility in the United States. I also looked at wages. So that’s household income, but I wanted to say how are people doing in the labor market specifically. And so I compared male workers who are in their forties today with their fathers, how much money are men earning today in the labor market, and how does that compare to how much money their fathers earned in the labor market. And there, again, the solid majority of male workers in their forties are earning more money than their fathers did. So it’s just inaccurate to argue that America is not characterized by upward mobility. Again, 86% of people born in the bottom 20% are out-earning their parents. I wish that were 100%, so we could have more mobility. We shouldn’t be satisfied. We should have public policy that helps even more people to have higher incomes than their parents did at comparable ages. But on the question of whether or not America is economically mobile, upwardly mobile or not, I think the answer really is that America is an upwardly mobile society. Richard Reinsch:Do you find, just thinking, and maybe you could talk a little bit more about how we get these quintiles of income, do we find though people who are, say in the second quintile or the third quintile, which would be working class or middle-class, moving up into, say the top 20%? And I guess my sense is most people answered the question, I don’t know most, but I’ve read a lot, people are concerned. Don’t think their children will do better than them by very large numbers. Is there a sense of that? The data support a sense of, well, if you’re in the top 20%, top 10% it’s pretty fixed and there could be a lot of institutional reasons for why that is. Things need to work better, but that there’s no longer movement along those lines. Michael Strain:Yeah, so I look at that too. And what I find is is that even by that measure you still see a good amount of upward mobility. One thing you want to know about is the rags to riches stories. So if you’re born at the bottom, can you make it up to the top? And I find that about seven percent of people who were born in the bottom make it to the top. That’s, I think, actually very good. You certainly wouldn’t expect everybody who was born in the bottom to make it to the top. Richard Reinsch:No. Michael Strain:And so what you would expect, I think, is that that kind of a rags to riches story, it should happen often enough that it’s not shocking when we see it, that it should be something that happens regularly, but not often. And so then the question is, does that seven percent suggest that that is true for America. And I think it does. If seven people out of every 100 who were raised in the bottom make it to the top when they become adults, to me that suggests that the rags to riches component of the American dream is alive and well. Concurrently, about eight people out of every 10 who were raised in the top end up at the bottom. So there’s a lot of downward mobility on that front to. So I don’t think we’re too sticky. Industrial policy really isn’t the solution to any problem that America is facing. First of all, it doesn’t work. We’ve seen that President Trump’s trade war has actually reduced manufacturing employment rather than increase it. So, not only is it raising consumer prices for the rest, not only is it hurting export intensive industries like agriculture, it’s not even helping manufacturing.  Richard Reinsch:And your book is exclusively an economics book. There’s a lot more we could say about why mobility may not be what we want it to be, as well that goes to other actors. Thinking about though, the deaths of despair, the opioid crisis, the China shock doctrine. Many people do link that- The China shock doctrine. Many people do link that academics with a lot of data papers, think about the China shock paper that now goes by the acronym of the first letter of the author’s last name’s, ADH. That sort of when China joins the WTO, you see numerous communities in America affected by a decline in manufacturing work, a decline in industrial work. And it has an outsize effect on particularly male earners who really aren’t able to move into these service jobs that involve, or struggle to. And then I can see that that involves a lot of human contact or personal social interactions the way service work does. How do you respond to that? Is the response that we see from Marco Rubio and now from Josh Hawley of moving towards an industrial policy that other nations adopted at prior times? Is that just sort of a thing we should do just to try and help compensate those disruptions in the market? Michael Strain:No, I don’t think so. I think industrial policy really isn’t the solution to any problem that America is facing. First of all, it doesn’t work. We’ve seen that President Trump’s trade war has actually reduced manufacturing employment rather than increase it. So, not only is it raising consumer prices for the rest, not only is it hurting export intensive industries like agriculture, it’s not even helping manufacturing. So it’s not going to work. And I think that we need to be more optimistic about the ability of American workers to thrive in other industries. We need to have good training programs and things of that nature to help people do that. But American workers are perfectly capable of working in many different industries and a government program trying to micromanage that is going to end up doing more harm for workers than good. Richard Reinsch:Yeah, as I’ve looked at the data, the China Shock Doctrine and you do see the decline of manufacturing jobs. Of course, manufacturing jobs have been declining, as you know, going back to the 1970s. But at the same time from the 1970s to 2016 we’ve had a rapid, massive increase in jobs. So it’s not the case that there are no jobs, there are different jobs, new jobs that have been created. And I think that’s right. And this may be a question we can end with, a deeper question. Part of it is though, do Americans still see themselves as having primarily the opportunity to take charge of their own lives to care for themselves? Or is this some sort of acceptance in America that I’m not a free agent all of the time? That things have been done to me that I can’t make sense of. Thinking about the title of your book. The question that I’ve thought about, I don’t know if you have, have enough Americans at this point, have they come to accept a different American dream? Egalitarianism, comfort for every hurt, government should be very active. And I think also I’ve wondered if there is just an aversion to risk, and one of the points here is the refusal of many Americans to move to where the jobs are, I think. Michael Strain I think part of it’s related to what we’ve been talking about. All Americans are hearing from their leaders that they can’t better their situation, the game is rigged against them. Upward mobility is a thing of the past and things used to be a whole lot better for them back decades ago than they are today. And I think one way to turn some of that around would be to stop talking like that. I mean, first of all, it’s not true, it’s not accurate. The data tell a very different story. And secondly, it’s demoralizing and demotivating. It dims aspirations and it saps energy. The message we should be sending is that if you work hard, you can better your economic circumstances. If you work hard, you can provide for your family. If you work hard, you can create the conditions so your kids do better than you and the economy is changing constantly, of course. New opportunities are being created, those opportunities are opportunities you can capitalize on. We’ll have good government policy to help you do that. But you are not a victim and you have agency and you have the ability to better your situation, and you have a responsibility to do so. That’s the message people need to hear. It’s true and it’s motivating. So I think if we could get back to talking like that that would go some way to solving the broader problem. Richard Reinsch:Even in the Republican party, you don’t see enough politicians, or it doesn’t seem to happen in the way it once did of just endorsing economic growth itself. You don’t seem to hear that anymore and I think that’s a bad sign. Michael Strain:Yeah, I think that’s right. I think that’s unfortunate. And it’s short sighted. If we really want our kids to have a better life than we do, to do better than we’re doing. Seemingly small changes in the rate of economic growth accumulate a lot over a 20 or 30 year period. And so we should be all in favor of growing the economy. I mean, growing the economy is not just some abstract thing. Growing the economy means more opportunities for people, a higher standard of living for people, faster wage growth, faster income growth and the ability to provide more for themselves and for their children. It sounds abstract but it’s not. Richard Reinsch:Yeah, I mean what’s the difference over 50 years or 25 years of 3% growth, versus 1.5 or 2% growth? It’s a massive difference. And I suppose also one problem, and you acknowledged this productivity growth itself has been flat or has not increased that much in the last few decades. Industrial policy does little to solve that problem. Michael Strain:Yeah, no. Industrial policy would make that problem worse. Industrial policies are predicated on a false notion. America has benefited from trade with China. American workers has benefited from trade with China. Certainly it’s the case that there’s been an upside and downside to it, and it’s hurt some communities quite badly. But on the whole those communities have come back strong. Not all have, but certainly most have. And if you look at the other things that trade with China has done, export opportunities, employment in export intensive industries and the whole holistic set of effects, if anything, trade with China has increased the demand for workers not decreased it. And it’s helped make people’s paychecks go further by lowering prices. And on the whole it’s been a good thing and that part of the story isn’t told. Richard Reinsch:Let’s hope that doesn’t get lost amidst the current anti-free trade narrative that is only going to increase with the coronavirus crisis, I’m afraid. Michael Strain. Thank you so much for coming on to talk about your new book, The American Dream is Not Dead. I appreciate it. Michael Strain:Thanks for having me.

Richard Reinsch: Welcome to Liberty Law Talk. I’m your host, Richard Reinsch. Today we’re talking with Michael Greve about his new essay in National Affairs entitled “Is the Roberts Court Legitimate?” Listeners of Liberty Law Talk and readers of Law & Liberty will know Michael Greve well. He’s been with us from the beginning, since 2012. He was one of the first podcasts on his book The Upside-Down Constitution. Greve is professor at the Antonin Scalia Law School, author and editor of a number of books, and a great writer and someone who can make you laugh while also making you think. I’ve appreciated his contributions over the years. Mike, welcome to the program. Michael Greve: Thanks Richard. Richard Reinsch: Mr. Greve, the title, “Is the Roberts Court Legitimate?”. Now, apart from protestors dressed as Handmaid’s Tale actresses shrieking in front of the courts in Washington in protest, Justice Kavanaugh, et cetera, who says the Roberts Court might not be legitimate? Michael Greve: The first thing, and you’ll forgive me, but those crazies, the slightly more unhinged members of our public discourse, they in fact have champions in the legal academy as well. Richard Reinsch: Names available upon request or … Michael Greve:Don’t get me into trouble here. Some of the attacks in the blogosphere and even in law reviews have been dismayingly vehement and slightly unhinged. Michael Greve: Underneath that, it seems to me there is a real question about the public credibility of the court at large. Both Justice Gorsuch and Chief Justice Roberts as well as a large number of appellate judges have begun to worry about the talk and the atmosphere and the public debate that has begun to surround the court and the federal judiciary in general to the effect that more and more people believe that the federal judiciary is just one more combatant in the political debate as distinct from, well, an independent judiciary that protects and safeguards the Constitution. All that stuff has become corrosive. There are legitimate worries about what Richard Fallon, for example, a highly regarded professor at Harvard, has called the sociological legitimacy of the Supreme Court. That is to say its public acceptance and credibility. That’s what most of the essay is actually about. It’s not the crazed attacks. Richard Reinsch: On this point, the Roberts Court, I remember just in my lifetime, criticisms of the court are frequently said to be questioning its legitimacy. One thinks of Bush v. Gore and the aftermath of that. I think about Justice Sandra Day O’Connor trying to respond to criticisms of the court and implying they were questioning the court’s legitimacy. This isn’t exactly new, as you know. Many listeners will say we’ve been wondering about the court for a long time, particularly conservatives, particularly on rights claims where any rights claim that’s been accepted by the intelligentsia, it’s preordained, the outcome when it comes before the Supreme Court no matter how many appointed Republican appointed justices are on the court. When you say Roberts Court, what is it about this court that people are questioning? Michael Greve: First of all, that’s a terrific point. I am actually somewhat critical of the high-mindedness or of an attitude that says any criticism of the court runs the risk of undermining its legitimacy. At some level it’s good to have public criticism of the Supreme Court. What strikes me as new and a little bit worrisome is several things. First of all is just the vehemence and the personal nature of the attacks on individual justices. Again, that is not completely new. We’ve had these episodes before but it’s reached levels that, I think, are troublesome. The second thing is that a lot of the critiques of the court that are now being brought forth have no constitutional or legal reference point at all. It’s just whose ox is being gored. While that is always an undercurrent in the debate, the complete disconnect from any kind of serious or halfway serious legal argument, that worries me as well. The third thing is simply something that has nothing to do with the court per se. It’s just the deep division and polarization of our politics in general. That makes the whole debate more corrosive and troublesome. It increases the difficulties for the court now and going forward, it seems to me. Richard Reinsch: Is much of this about Donald Trump, the Kavanaugh appointment, the Kavanaugh battle, the desire to de-legitimize what could be years and years of rule by a conservative majority on the Supreme Court that has not been seen in quite some time and the desire to lessen legitimacy coming from that, particularly on these questions of abortion, religious freedom? Perhaps we see the court for the first time since Roe v. Wade not expanding individual rights every term in some way. All of that strikes me as part of this. Michael Greve: Yeah. I think there’s a great deal to that. My sense is that we would have had that problem even with a president who is somewhat more within ordinary American politics and standards of political decorum. Any conservative president would have appointed justices who are very much like Justice Kavanaugh and Justice Gorsuch. I don’t think there’s any doubt about it. The more structural, serious issue, which you alluded to is, and this is something that is rather unprecedented I think in American politics, you are looking at a court that will have a conservative majority very likely for quite some time in a very, very divided country that is divided, so a 50/50 where either party may gain control of the White House and of the Congress at one time or another. It’s a court that has an identifiable political coloration in a very divided country. That’s something new and something worth thinking about. I’m sure that that is on the justices minds for much of the time. Richard Reinsch: You have this term you use in the essay, “the court’s latent legitimacy.” Talk about that and perhaps the waning of that latent legitimacy. Michael Greve: I didn’t make that up. It’s the political scientists. Richard Reinsch: So they made it up. Michael Greve: They made it up, yeah. What they mean by that is if you look at public opinion polls, Gallup polls and a lot of other polls, approval of the court, confidence in the court correlates, obviously, at some level quite highly with partisan affiliation. Currently, Republicans are very high on the court and have a lot of confidence in it, and Democrats not so much. What political scientists mean by latent legitimacy is an undercurrent of public sentiment that yeah, we trust that these guys and gals on the court will by and large try to do the right thing and enforce the law as they see it even if we don’t agree with this, that or the other decision that comes along so that the court doesn’t constantly have to look to the partisan implications of whatever cases before them but can have reasonable confidence that its rulings will be accepted as lawful, conscientious, and legitimate. Richard Reinsch: Something I kept looking for in your essays, I think John McGinness has written about on Law & Liberty a few times is how much of the court’s work isn’t really traceable to partisanship in a wide number of areas where it’s really hard for someone to look at this and think there’s an ideological outcome, that there is, in fact, real judicial craftsmanship going on. You talk about that some later on in some cases. Do you see that, that there’s a huge mis-story here and what we really just see are a couple of opinions in June every year? Michael Greve: Yes. That’s my strong opinion. Justice Gorsuch has made this point repeatedly and it’s a terrific point, it seems to me. The indeterminacy in the law and the extent to which law is or can be driven by the justice’s ideological intonations is grossly overstated. There are hundreds of thousands of cases rattling around in the federal judiciary. Relatively few of them are appealed to Courts of Appeal. When they are, even those decisions are mostly unanimous. When they get to the Supreme Court, which due to its discretionary dockets, picks cases where lower courts have disagreed or cases that are genuinely difficult, even then you get a ton of unanimous or near unanimous rulings, cases in which the justices don’t vote or rule in an expected way. It’s only a relative handful of highly visible cases over really incendiary issues where those kinds of things break down. When you look at the tragedy, so to speak, of our immobilized political discourses, of course, people then focus on those particular cases and that drives public perceptions of what law and the Supreme Court and the federal judiciary are all about. That’s a gross and wild misperception, and it’s hard to counteract Richard Reinsch: I suppose the exceptions prove the rule because the nature of politics is to rule, to command, to order, and reshape a society. Some of these opinions do do that, particularly over time. They shape the way we think, live, talk, what we think we can say, what we think we can’t say, think. All these sorts of things come out. I suppose in a way it’s a small part but it’s really the biggest part, it seems to me. Michael Greve: Yeah. I don’t deny that at all. Richard Reinsch: You make that point at one point in your addressing Richard Fallon. You’ve already mentioned the Harvard Law professor who wants to lessen the power of the court but except not over rights cases. Michael Greve: That’s one major or one theme of this essay. What the Supreme Court’s rights jurisprudence over the past several decades has done is simply turn rights into trumps and instruments of interest group and identity politics. There’s no easy way out of that. My advice to the court if it wants it and even if it doesn’t want it is to tread lightly in those domains. As an initial matter, for example, you can have all sorts of opinions about same sex marriage but that’s mostly water under the bridge. It seems to me a huge reliance interests at stake now. It would be not a good thing for the country, let’s put it that way, if the court or somebody else were to reopen that particular can of worms. This is true of rights, debates, wherever you look. They’re mostly zero sum games. They’re so now intermingled and so closely connected to identity politics and interest group politics that the Supreme Court is just superintending compromises among those groups. That’s by and large not a good thing. It’s a very, very difficult arena where I think the court ought to tread lightly. What I have in mind is, and what makes me a little more hopeful is that I think the predominant theme of the Supreme Court’s jurisprudence now and going forward is the courts and the judiciaries relation to the executive. That is an area where it’s not zero sum and where interest group coalitions and constellations are a lot more fluid, where there’s a lot more room to do productive work in the sense of reconstitutionalizing American politics to some extent. Richard Reinsch: I want to get to that. I want to get to that in a minute because there’s a lot there. I also want to think; one, about Congress and the court. You’ve written on that. And also this term you introduced and maybe we’ve been talking about it, “constitutional rot.” Are we in danger of constitutional rot? Michael Greve: Yeah. There has been a lot of agitation. We’re having a constitutional crisis. You read the newspapers, and this has come up. Lots of people, law professors and politicians and bloggers and pundits … Richard Reinsch: Whose ox is getting gored? We’re having a constitutional crisis. Michael Greve: The various fears and I fear this will come up again in this presidential election. The country is coming apart and it’s a constitutional crisis. I want to resist that a little. To me a constitutional crisis is tanks on Pennsylvania Avenue and we’re not remotely there. What I think is worrisome and worth thinking about this gradual disintegration of constitutional norms that were once taken for granted by and large observed by partisans on both sides because they figure, look, one of these days we may lose an election and then we’d want our opponents to treat us with respect. There’s some value in having those constitutional norms obeyed and preserved. A lot of those unwritten small c-constitutional norms have I think eroded over the past decades and that’s not a good thing. That’s what I’m a little bit nervous about. Richard Reinsch: The constitutional rot question. Let’s talk about Congress and how that affects your analysis. Michael Greve:To borrow a phrase from Yuval Levin, Congress is a platform, not an institution. It consists of 535 political entrepreneurs. It has become immobilized to a dismaying extent. There are lots of examples of this. The president’s tariffs. Everybody understands that the unbelievable amount of discretion that the president enjoys in imposing tariffs on just about anything and anyone for any reason he sees fit- Richard Reinsch: And statutorily … Michael Greve: You ought to be able to cobble together some bipartisan coalition that says, “No, wait a minute. This is not a good idea. We ought to put some limits on it.” Apparently, it can’t be done. That stuff is being litigated. The same is true over the diversion of funds or whatever you want to call it, the reallocation of funds for building a wall and on and on and on. While the executive motors on, Congress sits on the sidelines, and that’s not a good thing. Richard Reinsch: You mentioned a case that was a big deal and still is from, what, six years ago, King v. Burwell, five years ago, on the creation of these healthcare networks which by statute could only be created by the states but were created by the federal government and the Supreme Court blessed it. Very strange opinion. You note that one of the assumptions you could say that the court had there was this is a mistake, but the Congress wouldn’t fix it so they had to. Michael Greve: Right. That’s a good example. Look, during the oral argument, this came up. General Don Verrilli, who was then the solicitor general, was faced with questions along the lines of, look, if the statute is misshapen, it’s not our job [to have] Justice Scalia fix it. I think Congress might want to fix this. General Verrilli says, “Yeah, well, this Congress.” The courtroom laughed. That included a number of illustrious senators and congressmen and congresswomen who were in the audience there. I didn’t find it amusing at all quite frankly. That’s a breakdown of the system. We used to have this image of the relation between Congress and the court. It’s a dialogue. The court interprets statutes as written. If it gets it wrong or Congress thinks it gets it wrong or sees some reason to fix it, Congress will come back and will, in fact, fix it. It’s very hard to have a dialogue with an actor that’s mute. That puts enormous pressure on the court, it seems to me. There’s so much at stake in every single statutory case. Not cases that involve grand constitutional questions. Those have a different configuration, but statutory cases where the court is increasingly tempted to sort of say, “Let’s rewrite this statute. Let’s fix it on our own because Congress can’t be trusted to do anything about it.” Richard Reinsch: One, to state the obvious, the separation of powers idea from the founders assumed a certain amount of competition and pushing among the branches, between the branches. If one isn’t pushing or competing, then the other two branches can also see, not just a, “We have to step in and correct this” but “We must” and it’s good that we have to do it. You see those dynamics get altered in a negative way. Michael Greve:Look, that’s obviously a very central problem of American politics, probably the central institutional problem. Lots of smart people have begun to pay attention to it. That’s all to the good. But everybody realizes that that is a long-term project. For the foreseeable future, we’re stuck in this constellation where the game that really matters is between the White House and the Court. Richard Reinsch: Thinking here, so we go to the absence of Congress, you suggest, you outline one feature of the constitutional rot is the incredible amount of power in the executive branch and the administrative state. You note, these are problems the court will also have to deal with. That also builds on this Congressional problem and the way they design and craft statutes and allow for enormous amounts of power like what you were talking about earlier, the incredible amount of power the president has to enforce tariffs. Even, you note in the essay when Donald Trump called on American businesses to remove their operations from China, many people said how can he say that. He doesn’t have the power to say that. He’s just blustering. You cite William Galston, that perhaps he did have the power statutorily to say that, which is incredible. With regard to this executive power issue, that is a way perhaps the court could restore not only its legitimacy but repair constitutional rot, what path forward do you see there? Michael Greve:Let me put it this way. Even that is an enormous problem for the court, in particular, under this administration, but I don’t think the situation would really change under the Sanders government. The problem is this. With the executive so powerful, the court runs a risk in those kinds of cases that involve relations between the judiciary and the executive. To be seen as either caving in to an overbearing executive or else as torpedoing [the] goodwill of the people. That is to say we now have this plebiscitary presidency. It’s something close to a coup d’etat if the courts force the president in a really big way on some issue that really matters. That’s a very, very difficult position for the court to be in. You see this in lots of cases involving high visibility issues from immigration to Congress’s authority to issue subpoenas to the president and on and on and on. That’s a reason to be nervous. The reason to be a little bit confident about it- Richard Reinsch: Let me ask you this, nervous because you don’t really think the court could act in such a way to thwart the executive or whichever way it acts, it’s going to be seen as partisan and just contribute to the problem you’re describing. Michael Greve:There has been alarming rhetoric it seems to me surrounding the court and its relation to this administration and the president himself has not been particularly helpful on this, quite frankly, for example, in suggesting that certain justices should recuse themselves from cases involving his administration. There have been similar scurrilous suggestions from the other side. None of that is very helpful. All of that is, to my mind, playing with fire. The one thing that gives me a little confidence and reason for hope is that our politics is so closely divided and at the same time, the justices, most of them in any event, can expect to be around and on the court for quite some time. Even if they wanted to play political games and be very tactical about their decisions, they can’t afford to do that because they always have to think about “how will the rule or the rule of decision that I announce today play out under a different administration in a different political context and environment?” It seems to me that that is an opportunity to re-introduce a somewhat more long-term perspective and orientation into American politics and institutional politics. Richard Reinsch: You’ve taken the position in the past that there’s very … not very little, that these grand questions of administrative state power that conservatives have been preoccupied with now for decades, ending Chevron deference, say, the court really could end Chevron deference but in a way it wouldn’t really matter because the administrative state is so large it’s still going to find a way to do what it wants but with limited oversight from the courts. Are you now revisiting that with this essay or are you saying this is the best we can afford given current conditions? Michael Greve:No. What I criticized in those writings that you alluded to is the preoccupation with Chevron indeference canons. There are deeper issues about the separation of powers and the structure of the executive branch and on and on and on that would really make a difference and that the court could attend to. If you look at the current docket and the cases that rattle around in the cert petitions, there are serious questions about the Consumer Financial Protection Bureau and its structure. There are serious cases about the enforcement authority, especially of financial agencies, the CFTC and the Federal Trade Commission and so forth. They don’t directly involve Chevron or judicial deference at all but they are really, really meaningful in terms of what is the executive allowed to do by way of messing around with people’s livelihood on a daily basis. It’s on those issues that I think there is some real cause for hope. Richard Reinsch: You do talk about a recent case which you say may have, without naming it as such, brought our deference to a heel, that being where agencies can interpret their own regulations if a question is presented. Talk about that maybe as another path for what you see for the court limiting the executive branch. Michael Greve:What that case is about is … Richard Reinsch: The Kisor case. Michael Greve:What the Kisor case is about is should agencies get judicial deference, that is to say when they interpret their very own regulation. This has been cause célèbre in the law reviews for quite some time and much discussed pro and con. The reason why I mentioned that case in particular is it’s, to the larger public, unless you’re a law dork, you don’t know anything about it and you have no reason to know anything about it. But what’s striking about the case is the mere unanimity. The votes were divided in the usual fashion, one might think. But the fact of the matter is that the liberal justices severely pulled back on our deference to the point where it’s not really worth having anymore for agencies because it’s so hemmed in. That is part of a re-think. I hate to sound partisan about it but what was dismaying about the Obama years and the Supreme Court’s jurisprudence in this area was that the liberal justices were just completely in the tank for the administration. That wasn’t a good thing. In a weird way, the Trump administration has, I think, brought it home to a lot of people that there are two sides to it. There may be a real problem in giving the executive that much leeway, and that’s a good thing Richard Reinsch: On a separate note, I know, this essay, you’re focusing on the Supreme Court. What about all the federal district courts, I think, acting, and you’ve read about this on Law & Liberty, rashly to thwart Trump executive policy with a single district court issuing a nationwide injunction to stop the implementation of a policy. How do you see that playing out here? Michael Greve:That is a disturbing phenomenon all by itself. Richard Reinsch: Citing anything, is it pretextual reasons or things that the president said on Twitter, etc., to support their judgment? Michael Greve:Yeah. I don’t think that’s a problem with [the] good judiciary at large. It’s a problem with the vein [in] which these kinds of cases are being litigated. Highly organized litigants frequently state they know their just judges, so to speak. Then they can go to four, five favorable district courts and the administration has to run the table and they have to win only once to get a nationwide injunction. What that does in turn and has done in turn is to compel the administration to seek rather extraordinary relief from those kinds of measures. That’s what Justice Sotomayor complained about, which is permanent emergency appeals to the United States Supreme Court. She has a point there. That shouldn’t become a habit. On the other hand, you can see why the administration feels compelled to do it because there is this larger pattern out there. My hope and my general sense is that slowly, slowly, slowly the Appellate Courts are getting this under control. Michael Greve: And that district courts will slowly but over time will get the message. It’s a disturbing thing to my mind but not something that warrants any great alarm. The Supreme Court frequently has monitoring problems and enforcement problems in making sure that lower courts don’t step over the line. There’s just one of those occasions, and it’s overloaded with partisan hype and politics but it’s not something that the Supreme Court and the Appellate Courts can’t get under control. I expect that they will pretty soon. Richard Reinsch: It seems Chief Justice John Roberts, and maybe you can help me describe it, but the way his jurisprudential reasoning to decide cases on the smallest grounds possible to now cast forward with new doctrines or new scope of reasoning, something like that, that could be useful here also in writing in the executive state or not. What do you think? Michael Greve:Yeah. You can view that from at least two vantages, I suppose. On the one hand, you can say, look, there’s way too much of tactical maneuvering there and that on its own threatens to undermine the Supreme Court’s legitimacy. Ilya Shapiro from the Cato Institute has made that point repeatedly. That’s just one example. There are lots of people who share that view. On the flip side, one has to acknowledge; one, that the chief is operating in a very, very difficult environment; and that, two, several of his decisions have been small steps but steps in the right direction. Richard Reinsch: No, I was just going to say a slow recovery of legitimacy maybe, moving carefully. Michael Greve:Yeah. There’s a case several years back. It’s called Free Enterprise Fund. It has to do with the president’s power to remove inferior officers. That’s John Roberts opinion. Nobody at the time believed that this was any big deal but lo and behold, here it is. In the ongoing controversy over the Consumer Financial Protection Bureau, that case looms very, very large and it’s the starting point of any serious brief on that particular issue. That’s an example. On some issues that come quite readily to my mind at least, the chief has been strikingly firm and insistent. That’s particularly true with respect to broader issues of the separation of powers. Richard Reinsch: I want to end. There’s a section, the last section of your essay, an Executive Under the Law. You quote from certainly one of the more famous cases in the court’s history, Youngstown Sheet & Tube Co. where you say has a lot of similarities to our present situation regarding Congress and the court and the executive and the political environment there. I’ll just read for those listening. This is from one of the opinions because there were how many just separate opinions, six in that case? Michael Greve:Yeah, six. Richard Reinsch: Six. Justice Robert Jackson … Michael Greve:For the majority. Richard Reinsch: For the majority. I’ll read this, then I’ll let you comment on why you ended with this opinion. I found it alarming, interesting at the same time. “Men have discovered no technique for long preserving free government except that the executive be under the law. Such institutions, speaking of constitutional institutions, may be destined to pass away but it is the duty of the court to be last, not first to give them up.” Michael Greve:That’s from Robert Jackson’s opinion in the case which is the most celebrated of those opinions. The reason why I mentioned that case or why I went back to it and why it actually made me think is, first that is perhaps the most, short of Marbury v. Madison, it’s the most dramatic confrontation between the court and the executive in our history. Michael Greve:What the court was afraid of … This involved President Truman’s seizure of the steel mills during the Korean War. What the court was afraid of was- Richard Reinsch: When he sees the steel mills, literally government agents went on private property and were closing it down or were about to? Michael Greve:They had to break a strike. President Truman instructed his cabinet officers, “Look, keep the steel mills open. Bring the workers back to work and let’s go. We need the steel for the Korean War.” That was the situation. In many ways it bears some resemblance to the current situation. The reason why the court … The Supreme Court almost never stops the executive in the middle of a war from doing anything at all. What it’ll do is make some noises, let the executive fight the war and after the war, try to pull back a little. That’s one of the things that makes this case so unusual. The reason why they were willing to do that I think was that they thought to themselves if we permit this, if we let this go through without any legislative authority, then it’ll be impossible to articulate any firm boundaries that … legal constitutional boundaries, that will control the executive and that we cannot have. They had all kinds of theories, none of them very convincing and compelling to my mind, why the president could not do this what he had just done. At the end of the day, they pulled the president back and it was on all accounts, or most people think, it was one of their finest moments. Richard Reinsch: You think coming out of that also it seems is a realization not just anything could happen but for so long … the year of this was 1950? Michael Greve: Yeah. Richard Reinsch: That for so long the executive had had its way and they had to actually pull back. You see a parallel maybe now at this time. Michael Greve: Yeah. Richard Reinsch: A rough parallel maybe. Michael Greve: Parallels break down, okay? Richard Reinsch: Yeah. Michael Greve:The reason for seizing on that particular case in this particular essay was to impress that, look, I don’t think the confrontation between the court and the congress is … which is what much of our constitutional law and law revolve around that that is the central issue going forward. This is around a confrontation between the executive and the court. I think that is what we’re looking at now for the foreseeable future. Do I foresee a dramatic confrontation between the court and the executive on that scale? No. It’s much more small bore I think and will be for some time. The larger issue there, an executive that slips the legal reins. That’s the same issue and that is what I think we ought to be watching. Richard Reinsch: Michael Greve, thank you so much. We’ve been discussing your essay, “Is the Roberts Court Legitimate?” In the winter 2020 edition of National Affairs. Michael Greve: Richard, thank you.

Is the abolition of the death penalty in most western countries an unmitigated good? Craig Lerner, Professor of Law at George Mason’s Scalia Law School, discusses this question and the willingness of liberal societies to defend law and order. Richard Reinsch: Today we’re talking with Craig Lerner, Professor of Law at George Mason’s Antonin Scalia Law School, about the moral and political meaning of the death penalty and if its demise is, as we are frequently told, imminent. Professor Lerner, you recently wrote an essay on the death penalty called “Is the Death Penalty Dead?” in the most recent issue of the Claremont Review of Books, which I read and thought significant. You analyzed this punishment through several different ways: political, philosophical, and also a geographical survey of jurisdictions around the world, civilizations around the world, and how they treat the death penalty. Before we get into your essay, maybe just an obvious question here, one that I think any enlightened, certainly liberal arts professor would ask: Is it not an unmitigated blessing that the Western world has basically abolished the death penalty, America excepted? Craig Lerner: Well, I would say no. Or, I would say that it’s at least a question whether the impulse to abolish the death penalty is unambiguously good, or whether it reflects a diminishing impulse to justice and a sense of a community that demands justice that is not unambiguously good. I would say certainly there’s a narrative that the decline of the death penalty in the West is an attempt to support higher principles of the enlightenment. And that the impulse to retain the death penalty is atavistic urge to pursue vengeance, which we should welcome its demise. But I think there’s a legitimate argument on their side that has been articulated many times over the centuries, and I think still has some viability today. Richard Reinsch: What does it mean? What does it exactly mean to abolish the death penalty? Is it in fact an unwillingness, or even not an unwillingness but just a sheepishness about imposing justice on those who commit heinous crimes? A lot of people remarked the Norwegian shooter who murdered 70 teenagers on an island in Norway was a political assassination. Obviously a deranged person. But the most he could receive for that crime, I read, was 20 years in jail. Of course, in America you would probably receive the death penalty. I mean, that sort of I think maybe illustrates your point. Craig Lerner: Right, and a similar case when the bombings in Madrid in Spain. Richard Reinsch: In 2005. Craig Lerner: Right. 200 people died. I think that in that case, I forget exactly what the punishment was, but it was comparable. Again, a mass murder and a Western European nation imposing something not simply less than death, but just less than life. And the question is if that’s something that we should applaud as a sense that these nations have ascended to a respect for human rights? Or is it something to be concerned about that a nation will tolerate this grievous harm to the community and not have the conviction to exact a far more serious punishment? Richard Reinsch: Now, thinking about your essay. You do something interesting in it. In this, you review three books, The End of History and The Last Man by Francis Fukuyama. Famous book, obviously. And also another famous book, The Clash of Civilizations and The Remaking of World Order. Also, a third consideration is the late Walter Berns’s book on capital punishment, Crime and the Morality of the Death Penalty. How do these works illustrate the way you write about the death penalty and what it means for nations? Craig Lerner: Well, the two books have been often paired because they present these very competing frameworks for viewing the world and predicting its trajectory. Fukuyama’s book, which to some extent has been caricatured, because I think his thesis is more nuanced than it’s sometimes made out to be. But at some level it is this idea that the principles in the Western enlightenment are being adopted throughout the world. And this is somehow an inevitable ascent of almost a Hegelian necessity. In this view, the world is ascending to a particular world view that will have universal adoption. And then Huntington two years later counters with a different framework that suggested that he saw that the world was divided now and would, at least as far as we could see into the future, would continue to be divided into these different civilizations that are rooted in different histories and at some very high level value different things, and that this will continue. Richard Reinsch: Thinking about Fukuyama, who I think is also a student of Alexander Kojeve, that some other future would be a universal homogenous state, more or less. I mean, that’s a simplification of Fukuyama’s thesis, but a liberal democratic world order in which, what? What would that mean though for how we defend that position? Or would it need a defense so much as just verbal articulation and defense that way because its gifts would just be so manifestly good. What would that mean for punishment? What would that mean for how one would defend these orders? Or would they need to be defended because they’re just good in themselves and that would just be realized? Yeah. Craig Lerner: It was a small part of Fukuyama’s book, a very small part. I don’t want to make it out to be a crucial part of it, but I was struck that at one point he suggested modern liberal societies would have a decreasing tolerance for violence. He predicted that the spread of compassion, the sense that it’s simply wrong to punish people would gain in wider and wider acceptance. He thought that that would correspond to a decrease in support for the death penalty. And, as a description and as a prediction, that seems to have been correct, in the Western world at least. Richard Reinsch: The exception of America. Craig Lerner: And then even in America, sorry. Richard Reinsch: But, I think also here, you quote as a response, I mean he wasn’t responding to Fukuyama. The book was published in 1979. But Walter Berns’s book for capital punishment. Let me read you a quote from that book and get your reaction. “There is a point in the history of society when it becomes so pathologically soft and tender that among other things it sides even with those who harm it, criminals, and does this quite seriously and honestly.” Craig Lerner: Actually this sort of situates that book in a particular time in American history. It’s actually quite interesting. There was a Supreme Court opinion in 1972 which had the effect of imposing a moratorium on capital punishment. Richard Reinsch: Furman vs Georgia. Craig Lerner: 1976 there was another opinion that essentially said that with amendments that capital punishment could continue. But at the time that Berns wrote the book, and there were very, very few if any, I think, executions. It is interesting that he wrote at a time in which it seemed as if capital punishment was, if not exactly dead, in its death throes. What’s interesting is that in the years that followed Berns’ book is capital punishment did make a significant return. And actually the number of executions in America increased over the next 20 years, reaching its height around the year 2000 at around 100. Actually, it is interesting that these things go in cycles and so it did reach a low point in 1979, but it returned and I think we’re actually retreating again. Richard Reinsch: The perception in the ’70s and ’80s was, rightly so I think, of a crime wave in this country, particularly in urban areas. The death penalty became a response of what the revenge, blood lust of Americans had returned. You note in the book that after this Supreme Court opinion in Furman vs Warren, Furman vs Georgia, 35 states reenacted death penalty statutes. What do you attribute that to? And maybe now it’s this perception that the war on crime has been won in a big way. We hear the stories of large cities, New York, Chicago, other places where crime is greatly declined. Although recent upsurge in the last few years I’m told and so similarly does that explain a falling off the death penalty? Craig Lerner: Well, it is true that there was the crime wave in the ’80s and you can explain in some sense that the increase in executions by that, although I think that it was interesting after Furman that this, I’m not sure how high the crime rates were in the ’70s. I think what was striking to me when I researched this in the early ’70s you had the justices, apparently some of them amongst themselves, they’re wondering whether it is even necessary to abolish the death penalty because in their view, the support of the death penalty was declining and it would evaporate even without any elitist intervention. And it was so striking that immediately after Furman was decided, you had this overwhelming number of states saying, no, we want the death penalty. To me that was just part of an interesting kind of narrative in which elitist opinion or elite opinion consistently underestimates the depth of the support for capital punishment. And I don’t think that support is simply a matter of assessing crime waves. I think it goes to something deeper about what people think is just. Richard Reinsch:  That would be sort of the elite read of opinion regarding the death penalty that it’s sort of blood lust and that’s about it. Craig Lerner: And in recent years, the number of executions has gone down actually about 20 or so this year so far, 25 last year, which is again down from the peak around 1999, 2000. But, and even more dramatic, the number of death sentences has declined. I would wonder, I’ll just say one quick thing. I would wonder whether that represents a really significant decline in support for the death penalty or just the incredible number of legal hurdles that are now necessary to be surmounted before a death sentence could be imposed? Richard Reinsch: In 2015, Supreme Court justices, Stephen Breyer and Ruth Bader Ginsburg, and you used a quote, “The death penalty is dying away and majority of Americans reject capital punishment.” Justice Antonin Scalia astutely responded, “Welcome to Groundhog day.” Craig Lerner: And the very next year, as I pointed out, as many people have pointed out, there were these state referenda in Oklahoma, Nebraska, and California about the death penalty and the ones in Oklahoma and Nebraska, the death penalty one by two to one or 60% but it will seem even more striking in California. There were two referendum and each one with respect to the death penalty won narrowly. I don’t want to make it out to be overwhelming. But, even in California. So in the last few months, the Governor of California commuted the sentences, which was totally unnecessary because none of the people on California’s death row are going to be executed. But it was a symbolic gesture. It was noteworthy. It’s still the governor doing it because it couldn’t prevail or didn’t prevail in the referendum. Richard Reinsch: But that sort of prompts a question and you ask it in your piece. Why does America bother to retain the death penalty? I mean one answer would be, we have an incredibly secure criminal justice system. We can warehouse these people, criminals for the rest of their lives. They’re not a danger to the community. It’s not a question of resources allocation really. So why retain it? Why do we retain it? Craig Lerner: I don’t want to suggest that there’s not a good argument for abolishing the death penalty in the quite peaceful and orderly conditions of the West. So there are strong abolition arguments. My point is that there are also very strong arguments on the other side. And actually it does seem as if the arguments that have been raised for millennia by virtually every political philosopher who thought about the issue until, Cesare Beccaria, the Italian criminologist in the 18th century. But I mean sort of the monolithic Western tradition on this has been support for the death penalty until 1800 or so. The founders all thought it was morally justified with just one minor exception. Benjamin Rush. So Abraham Lincoln thought it was morally justified, Immanuel Kant thought it was morally justified. So I mean it’s not like these are odd creatures who we can regard as morally debased. If you put Abraham Lincoln and Immanual Kant on one side and you’re on the other side, if you were in favor of abolishing the death penalty. So I guess the question is who bears the burden here? If I’m supporting the death penalty, I have Immanual Kant and Abraham Lincoln. You have Benjamin Rush and Cesare Beccaria. So who’s the weightier figure? So I mean, I would just say that this is one way of approaching this, but I would say with respect to why America retains the death penalty is that there are certain crimes that just seem to call for the greatest punishment because the harm to the community was so grievous that anything less than that would somehow be disproportionate and unjust. At least that’s a sentiment that many people have. And I think the criminal justice system to some extent has to reflect the views of the community. Richard Reinsch: Moral retribution. Would be a philosophy that would support the death penalty, I think. How difficult is it to execute someone inside the United States? Craig Lerner: Well, it’s extraordinarily difficult. After Furman vs Georgia, there’s a 1976 opinion that essentially said that states could have a death penalty under certain conditions. And over the past 40 years, there’ve been just dozens of precedents and some would say that ever changing goalposts as to what the states must do in order to achieve a death sentence. And you know, actually, first of all, you could say in response, well, it should be very hard. And I don’t question that. It should be very hard. First of all, we are in a criminal justice system in which it’s established that before you can even get a conviction, the state has to prove beyond a reasonable doubt every element of the crime. So it is difficult and it should be difficult. and it should be difficult then to get a death sentence. And the way it operates today is there’s a completely separate penalty phase in which you have the state introduce aggravating factors and the defendant has an opportunity to raise mitigating factors. And at this point, although it’s never been healthy, constitutionally required, in every state, there needs to be a unanimous and the federal system, that unanimous jury verdict in favor of the death penalty. So only one juror can dissent and could prevent the death sentence. So there’s simply that mechanism that it’s very hard to secure a death sentence. And then even if a death sentence is secured, then you’re talking about decades of appeals and in many jurisdictions in America today, it’s extraordinarily difficult to prevail in affirming that death sentence. Richard Reinsch: Also we were discussing Western nations and the abolition of the death penalty almost. It seems also what’s lurking in here though is secularism, progressivism, and individualism, sort of a loss of belief and injustice or truth, accountability for one’s actions. This seems to me, what I think about the West and I kind of situate this within the Roman Catholic church’s response to the death penalty from Saint John Paul the Second forward, which has been at least up until Pope Francis that it was justified, but prudentially unwise, or it shouldn’t be done really anymore in the West. Of course, he didn’t limit it to the West, but as I thought about that, and the support for the death penalty, it seems to me more of a, I’ll say extension of the enlightenment more than anything else for the retraction of support for the death penalty. Craig Lerner: Yeah, I agree completely and actually Justice Scalia made this point, various points and he’s not the only one that the decline of the death penalty corresponds to an increase in secularism, not an increase in the religious impulse. And it’s noteworthy that in Western Europe where, which it has declined in its influence that the death penalty has quickly taken hold. And I actually wondered about this and was hoping to do a kind of empirical study, but it does seem as if you know those states in which you’re more likely to find church attendance, you’re more likely also to find capital punishment. So it is nonetheless striking. As not a Roman Catholic, I don’t want to opine on what  the Church is doing. But I do want to point out actually there was a very interesting book I mentioned that you may be aware of it or maybe some of your listeners, by Edward Feser and Joseph Bessettw, which I came across, and it’s By Man Shall His Blood Be Shed. So these are Catholics who are questioning I think the view of Pope Francis on the death penalty. And so they gather a great amount of evidence that calls into question, I think the current Pope’s view that the death penalty can’t be justified. So I recommend that book for it. Richard Reinsch: And I think it’s also worth pointing out, that’s interesting too just thinking about first a major starring role, so at least within Christianity against death penalty is really more the egalitarian strains of the Reformation, which are really calling into question authority generally, but also government authority. And I think there’s also this sort of attribution to the government of sort of individual agency as opposed to seeing it as a separate entity called to uphold order itself or impose order, maintain it, and that it stands in a trustee relationship. It’s not acting and thinking as an individual. Craig Lerner:  Yes. Actually Justice Scalia made that point in his, I think in his First Things essay on the death penalty back in the 1990s. So I’m inclined to agree with that. Richard Reinsch:  So let’s think about also, in the essay you moved through geographically and civilizationally around the status of the death penalty. Talk about that. Craig Lerner:  So that was I thought one of the contributions of that article is that if you look at the global trends in the death penalty, I mean there’s one way of looking at it, the way Amnesty International does it every year now where you kind of do it the way that the UN General Assembly would do it. You count the nations that have de jure or de facto to abolish the death penalty, and if you do it that kind of way, something like 170 of the 193 nations in the world have abolished the death penalty. But I thought that that was probably not the best way to approach this. So I thought looking at it through Huntington’s civilizational framework was quite interesting because if you do it that way, that the trends are far, far less clear. First of all just pointing out for a second that of the 170 of 193 nations that abolished the death penalty, if you look at population wise, I mean the nations that have retained the death penalty correspond to over half the nation’s population and over half the world’s population over half the world’s GNP. The 23 outliers are actually significant nations. But then if you just look through the Huntington framework, you’ll discover that what he calls the Sinic civilization, which is predominantly China, overwhelmingly has retained a death penalty. The Japanese civilization, and this is Japan, when I wanted to focus on because it’s really a complete embarrassment to those who really make a lot about the embarrassment that the United States has retained the death penalty. They always have to gloss over Japan because I haven’t actually crunched this, but I strongly believe that on a per homicide basis, Japan has more executions in the United States and it’s been that way for the past 20 years. So it’s hard to question Japan’s status as either a civilized or industrialized nation, but they retain a death penalty. And then you go to the other civilizations in the world, I mean the Islamic civilization in the world there, there are nations that have to some extent abolished it, but there are also other nations that have very emphatically retained a death penalty. And so that’s what I go through the various civilizations and it’s unclear whether the West is the dominant or the outlier or in any event, the minority of you here. Richard Reinsch:  And I think also you raised the question, so when we talk about these sorts of issues or the assumption is the hegemony of the West and the inevitability of the West, but that also is something that can easily be called into question. We don’t have to imagine that far ahead in time to see now the rise of China, the ongoing diminishment of Europe population wise, resource wise. And so you begin to think that this is really a perennial question. It’s not something that’s going to be solved by sort of aggressive mentality of the end of history. Craig Lerner: Right. I mean, it was striking to me is how when we even speak about European abolition, the death penalty, I mean it’s really Western Europe frankly, that has abolished the death penalty. Essentially Europe and Eastern Europe have gone along because they’ve been basically made to by the EU leaders. But if they ever had an opportunity, many people have very strong doubts that the nations of central and Eastern Europe would go that way if they were free not to. So there’s that. And then the power of the EU to brow beat other nations of the world. Again, at this point, they do have that power, but you know, who knows with population trends and economic trends whether the EU will continue to have that power. Richard Reinsch:  You note in the article, January 2018, the Israeli Knesset voted preliminarily to authorize capital punishment for convicted terrorists and EU delegation to the state of Israel criticized the move promptly. And then also with the question, the nation of Sri Lanka, the EU threatened to withdraw the favor trade status if they reinstated the death penalty. So not afraid to throw their weight around. Craig Lerner:  The Sri Lanka thing struck me as just amazing because the conditions in Sri Lanka is so vastly different from the conditions in Brussels and it does seem excessive to demand that the nation of Sri Lanka abolish the death penalty. And of course that actually was before the horrible Easter Sunday killings. So I mean the conditions in Sri Lanka are just so different from Brussels, but to insist that Sri Lanka have abolished the death penalty seems unfair. Richard Reinsch:  Another form of colonialism in a way. Craig Lerner:  You could suggest that, yes. Richard Reinsch: Thinking about the death penalty also and the European Union, European Union has no army or armed forces to speak of. And of course many European nations themselves have pared back their defense forces and also have abolished a death penalty. Did you see a connection there at all in a sense of an unwillingness to think seriously about what order requires and the willingness to defend one’s community? Craig Lerner: Right. I think this leads into actually in your essay you connect the death penalty or Europe’s attitudes for the death penalty through the work of Pierre Manent. I think that’s where leading with this question is that it seems of a piece that an unwillingness to confront the state of nature that lies behind civil society goes along with both an unwillingness or difficulty in retaining an army as well as the difficulty in pursuing the death penalty against those who have committed horrible crimes. So you could see them at some principled level being the same. Richard Reinsch:  Yeah, and when I wrote that essay, it was in 2018 after Pope Francis had made the decision that somehow within Catholicism he could unilaterally change the teaching on that and condemned the death penalty outright. And then I began to wonder about Pierre Manent’s point when he looked at his native country of France and also European nations more broadly, and he looked at America and said, “What really separates America from Europe is their willingness to defend their nation state evidenced by the ability to project force abroad.” He said this in 2007. But also their retention of the death penalty because the use of the death penalty is to suggest that the state of nature never goes away. And the European insistence is that somehow we’ve surmounted that and there’s nothing really to be afraid of. There’s no danger here. There’s just sort of permanent prosperity. And Manent said to the effect, if you make that move, that somehow nations begin to lose moral authority before their people. And I’ve reflected a lot on what he means by that. And I think it’s sort of an evisceration of any real devotion or standing on the part of citizens to their country. And the refusal to defend it in a lethal way. Craig Lerner:  I think that putting it in a favorable light, the impulse to execute criminals is a way of affirming your sense of a community so that the person who was killed or the family of that person, they’re not strangers to you. They’re part of a community that you value, you treasure it. The harm that was done to them is a harm that was done unto you. You feel anger about that. And anger is not something that we want to promote, but it’s not something we want to extinguish. We want to channel it in some way that’s how they can do so. Assuming that it’s not a lynching, it’s after appropriate judicial process. So you could say that the impulse to execute a criminal is a willingness to absorb a great cost because the person who died was not a stranger to you. And similarly, the willingness to go to war to defend one’s nation is a sense that the nation or the community means something that you’re willing to absorb a cost. So I think that the two are united in that way. It could be seen as united. Manent makes another connection about the refusal to put the worst persons to death in your country. Also, it seemed to go along with the unwillingness to defend your country in war. That is, how could I be asked to do this if the government doesn’t even do this? It’s sort of another interesting way to reflect on it. Craig Lerner: Right. And now I think Walter Berns in his book on the death penalty talks about the majesty of the law as being most displayed by the use of the death penalty. And if law is simply seen as an instrument of self interest, it kind of loses its power. And sometimes the death penalty is a way of a nation saying, this is something that the law is something more than simply the instrument of self interest. It’s essentially greater than that. Richard Reinsch: You end your essay with an interesting account of the trial of the Tsarnaev brothers. Dzhokhar Tsarnaev who participated in the Boston marathon bombing in 2013 and along with his brother who was killed, which I didn’t know this, that the federal prosecutors sought the death penalty as punishment. And in this sentencing phase they had to go through the sort of celebrity Catholic sister Helen Prejean who spoke out against imposing the death penalty on him and you sort of quote the back and forth between the prosecutor and Prejean. And what he nicely does is communicate to the Boston jury, she’s not a part of our community. She does this all over the world. She’s sort of a celebrity in this regard, humanitarian celebrity. That’s really how she’s seen. So why would you necessarily listen to her? I thought that was an interesting, interesting part of the essay. Craig Lerner: And I had the fortune of talking to one of the prosecutors on that trial team and he was discussing the strategy that they were thinking about. How to cross examine that witness, which they knew she was going to come and testify and they had a sense that she was going to come and testify that she had spoken to Tsarnaev and that he was repentant. And Helen, she’s a quite sympathetic figure, especially to probably a predominantly Catholic jury in Boston. And so they had to think about how to undermine her testimony. And so they just needed a few questions to bring out that she really wasn’t from Boston. She was kind of a globe-trotting as you say, celebrity. And so they did get the capital sentence there. And I should just say that, I mean it was really testament to the horror of that crime that the jury returned the death verdict. Because you have actually, there are several cases in the past few years in which really quite, quite heinous crimes and the jury has not returned a death penalty. So, but in that case the jury did so. Richard Reinsch: And I thought also, we’ve been bringing it up as we’ve been talking about sort of this aspect of defense of the community, the Boston marathon, at least the things that I’ve read about, it was really a significant event within the city for the city. It’s well attended and regarded as sort of an annual event that marks the changing of seasons among other things. And so that all seems to go to that idea as well of this is our place and you tried to destroy it. Craig Lerner: Right. There are actually a number of interesting things about that because actually that the prosecutor told me one. One of the victim’s family in that case actually requested that federal government not seek the death penalty and they pursued it anyhow. Which is interesting because it really makes the point that in some sense the criminal trial that the client for the prosecutor is not quite the victim. It’s the community in general. Of course the victim is someone extremely important in a criminal trial and I don’t want to discount that, but, the harm was to the entire community of Boston, not just to the people’s families of those who died or were injured. So it was a controversial decision on the part of the federal government there to seek the death penalty. President Obama’s Department of Justice to seek the death penalty because Massachusetts has abolished the death penalty. One of the victims did not want the death penalty, but nonetheless, then they pursued it and they did get a verdict. Richard Reinsch: I’ll conclude with your last sentence from the essay, “The evidence suggests that the death penalty is far from dead.” Craig Lerner, thank you so much.

Yuval Levin returns to Liberty Law Talk to discuss his new book, A Time to Build. He makes the case for rebuilding the key institutions of American life, which have changed from frameworks that molded our character to platforms that allow us to project ourselves. Richard Reinsch: We’re talking with Yuval Levin about his new book, A Time To Build. I’m glad to welcome Yuval back to Liberty Law Talk. He has appeared on the show to discuss The Great Debate and The Fractured Republic. Maybe this book is the completion, it seems of a system, a tripartite system of books here. Yuval Levin is the editor of National Affairs and is the Director of the Social Cultural & Constitutional Studies Project at the American Enterprise Institute. He also worked in the George W. Bush White House. Yuval, welcome back. Yuval Levin: Thanks very much Richard. Richard Reinsch: So the book, A Time To Build. Now I’ll read the full subtitle. Yuval Levin: It’ll take a while. Richard Reinsch: From Family and Community to Congress and the Campus, How Recommitting to Our Institutions Can Revive the American Dream. Now that sort of answers this question, what are we supposed to build, Yuval? Yuval Levin: So in a way the reason the book is called A Time To Build is because it feels a lot of the time like we are living in a moment that sees itself as a time to tear down. Our politics is really focused on the work of demolition, some of which is necessary work of demolition. But a sense that what’s required now is draining the swamp or clearing the field. And there is some of that necessary. But I think that we too rarely see that what we really need in this kind of moment is to build and rebuild institutions, there’s a lot of the social crisis that we’re living through in America is a function of weakened and deformed institutions. And that requires more than demolition, that really does require some construction. Richard Reinsch: I want to read from the beginning of your book, page two, and maybe get your comment here because I thought it expresses well what you’re saying, “we are not only restless amid plenty” and I think that’s important. And it’s something as I’ve been engaging in this area of industrial policy, now here we are in the midst of economic plenty, in the midst of a growing economy for a decade and yet we’re sort of in this problem of deaths of despair, of opioid problems, of drug abuse, suicides of youths rising. You note that in the book and the question becomes, why are we in this situation? You go on to say: [W]e are also awfully daunted by what on the surface seem like readily surmountable obstacles to our thriving together. This is in part because we underestimate our strengths, but we underestimate and misconstrue the problems we face. We lack the grammar and vocabulary to talk about what is breaking down so we can’t even begin to do something about it. We look for diagnoses in the realms made visible to us by our sciences of society, but the troubles we find there are not sufficient to justify our despondent mood. Something has gone wrong somewhere else in some invisible realm. And we have been straining to perceive and describe what it might be. So what do you perceive? Yuval Levin: Yeah, I mean the book really begins with that kind of mystery where I think the reigning mood of our politics is darker than you would think it ought to be if you look at the normal measures of wellbeing, like economic wellbeing, and health and safety and the sorts of things that we might first look to if we want to ask ourselves, “Why do Americans feel as though things are going in the wrong direction?” And I think once you explore those, it looks like the problem is something that we don’t see so easily. And I turn to the question of institutions because I think institutions are a kind of invisible infrastructure that underlie our social life. They make it all possible, but one of the reasons that we enjoy our freedom, the way we do in our country is that we often don’t see institutions, don’t think about what it is they do, especially the formative work that they do. And that’s great when they’re strong, it means that we feel even more free than we are. But when they break down, we have real trouble knowing where to go to fix things. And one of the things that this book tries to do is to make those institutions more visible, to articulate what it is they do, and therefore what might be going wrong in this moment in ways that are not obvious from the usual kinds of social science statistics and economic data. Richard Reinsch: So what is an institution and why do they matter? Something you note in the book, I think was right on. Institutions are frequently depicted as our enemy, as things that constrain those things that we need to be redeemed from, to come out of and be who we are. So what are they and this isn’t really a political book. Maybe, we could say it’s a work of political thought, but it’s not really a political book, you’re talking about a lot of institutions. We’ll try and go through those in the interview. Yuval Levin: I mean I think the resistance to institutions, the sense that we don’t need them is a long running thread in American social, cultural, and political life. American culture is rooted in a certain kind of individualistic protestantism that wants to deny the need for mediation and for formative institutions. But ultimately I’d describe institutions as the durable forms of our common life, the shapes, the structures of the things we do together. And we tend not to see them because we have a very individualistic understanding of ourselves, and our culture, and our society and institutions are not individualistic. They’re precisely the things we do together. And they’re the ways in which we give shape and form to what we do together. So they do become very difficult for us to see. But ultimately they’re central and unavoidable, they’re the ways that our social life actually happens. And so in a moment like this one, they seem to be in trouble. It’s particularly important to think about what they are, what they do, and the ways in which they offer us something that I think is ironic if not paradoxical, which is they offer us a liberating and empowering form of constraint. They give us specific roles in places. They tell us what to do and what not to do in those situations. And by doing that, they give us a kind of shape or form that lets us be effective in various ways in different parts of our lives. And it’s important to appreciate that because it doesn’t come easy in the language of our kind of easygoing individualism. Richard Reinsch: So the institutions, they aim at practical results, consequences. And maybe we can get more specific here about the types of institutions, but there’s a form, there’s a purpose to the institutions themselves as to what they provide or I guess you’ve been sort of talking about that formation, restraint, integrity and purpose and those who participate in them. So that explains the situation we’re in now. The emptying out of that, how precisely? Yuval Levin: I mean each institution, of course, in our society does something that we value, right? It might educate our children, or enforce the law, or protect the country, or just provide us with a good or a service that we value. But as it does that, each institution also forms the people within it to do that in a way that takes integrity seriously, that it follows a certain code and that therefore makes those people trustworthy as providers of that service for our society. And so to trust an institution is really to believe that, that institution fosters an internal ethic that makes the people trustworthy. One of the things we do know about institutions now in American life is that we’re losing trust in them. There are decades of data that show us that American confidence in institutions has been declining, and I think the reason for that, or a core reason for that is that we’ve lost this sense that these institutions form people who are trustworthy. And that’s not just because of traditional kinds of corruption where there are always people who try to abuse institutional power. I think it’s also because of a different change that’s really at the heart of this book where our expectations of institutions have changed from thinking that they exist to form people to thinking that they exist to provide people with platforms, with a stage to shine and be seen with prominence and a high profile rather than with a particular kind of form that they have to be given through the institution. So that if you look at our political institutions for example, Congress is a great example of this. A lot of members of Congress now basically think of Congress as a platform for themselves, as a way to get a better time slot on cable news, as a way to be heard on talk radio, as a way to get a bigger Twitter following, and what they do with that is a form of expression and particularly expression of frustration, even frustration with Congress. They don’t think of themselves as insiders operating within the institution and shaped by it, but as outsiders who are just particularly prominent commentators about the institution. That’s how president Trump used the presidency. He will stand on top of it and yell about the government, even though he is the chief executive of the government. And once you notice that, you see it in a lot of our institutions where people who ought to be functioning like insiders are actually functioning like outsiders, and that makes those institutions very hard to trust and take seriously. Richard Reinsch: You’ve run this analysis through politics, Congress most obviously. We talk a lot about that at Law & Liberty, the executive branch, journalism, education, legal professions, legal profession is one, but the professions generally. A question that I have for you, the molds and platforms, the institutions no longer mold us, shape us and just thinking about what you said about, in your chapter on education and universities. No one really thinks—outside of say maybe some of the great books colleges or some of our more religiously Orthodox campuses—that they’re supposed to shape you in some way. The university is there to give you a step up into the next realm of your life, or into a new class, or a profession or something like that. Richard Reinsch: And that the contrast there would be, I thought Calvin Coolidge’s autobiographical account of his time at Amherst College where there was a definite formation process at work, theology, philosophy, history, and this sort of expectation of becoming a man of that college. So we’re not that far removed necessarily from what you’re describing, but we are far removed from it, it seems in the individualism, and the other side of that is the egalitarianism of our culture that we somehow see these things, a formation process really as a threat to us. I don’t know how one overcomes that other than just to say, “Wow, this is just really an unhappy situation.” Maybe I really should look to tradition and the formation across generations that an institution can embody. Yuval Levin: Well, I think that’s quite right. I mean the ways that a lot of these prominent institutions, including educational institutions, which are unavoidably formative in one way or another, the way they understand themselves is often much more expressive and performative. I think of a friend who had a daughter who was at the age of starting to apply to colleges and he showed me a brochure that she got from Brown, which at the very top said in big letters, be yourself. And that’s a strange way for a college to express to a potential student what it’s all about. I think that if you look to the exceptions when it comes to American trust in institutions, ask yourself, what are the institutions we do still have high regard for? This difference becomes even clearer because the most significant exception is the military, which is one institution that Americans have higher regard for now than they did two generations ago. And the military is a formative institution. It is unabashedly formative. It takes a certain kind of human being and produces a different kind of human being who is more inclined to take seriously things like honor and duty and country and we value the military not only because it’s very good at protecting us from our enemies. We value the military because it produces trustworthy people and we end up trusting it for that reason. A lot of our institutions could think of themselves that way and have reason to think of themselves that way, but very few of our institutions actually do think of themselves or present themselves that way to our larger society, and I think that does get to a kind of discomfort with the idea that we even require formation and formative institutions. You say this is not really a political book and I think that’s true, but it is a deeply conservative book in one sense that it assumes an idea of the human person as beginning in a very imperfect form and requiring formation to become really capable of the freedom that we in this free society exercise. The idea of the human person at the heart of this argument is an imperfect fallen creature that requires formation. That’s not the idea of the human person at the heart of a lot of our popular culture now and of our elite culture. We think of the human person more as just requiring a platform, a way to be seen and heard, to have status, to be regarded. And if that’s what you think, then institutions really just ought to be platforms. But if you think we need formation, then a lot of our institutions need to rethink how, what kind of role they play in society. Richard Reinsch: No, I mean there’s a sense in which in your book, I think I mentioned in the beginning, I think your book sort of is the triptych here of what you’ve been doing maybe the past decade because your first book, The Great Debate, the debate being between Edmund Burke and Thomas Paine could evidence this in a foundational sense. Thomas Paine released the shackles of society and let men be free and see what great things they do. Edmund Burke, well, freedom to what end and freedom itself only matters through a process of what we’re describing here of formation and all of the ways in which the various parts of your civilization have contributed and embodied excellence about human nature. Do we form people well? And freedom becomes lovely. And your book in a way could be, is very threatening if it’s described that way, because it does involve these qualities of moral judgment that we seem to be so afraid of now. We struggle even to have a language to describe this. And so this is a difficult thing you’re after in the book. However, some people might describe it as sort of a benign book and in that regard, but it’s not at all. One of the things that’s interesting here as well, it seems, the American military, if you look at public opinion polling in the 1970s, not hard to understand, not nearly as highly regarded as it is now. And maybe coming out of Vietnam and things like this, but it recovers great credibility and is now the most trusted of our governing institutions in the country without parallel. Congress as you know is at 11%. The federal government, when they started asking these sorts of questions of trust and high regard, I think in the early 1970s, 1973, pretty high regard, that’s obviously declined dramatically. I don’t even try and suss out all of the reasons for that. But the military itself is an interesting case and even within higher education, the service academies. Somebody says they went to Harvard, you think, “Oh, you’re really smart. Good for you.” Somebody says they went to West Point and more, we think they’re smart but more qualities naturally flood into our mind about that person. So maybe talk about that. Yuval Levin: And now I think part of the story here actually highlights the importance of thinking about where our starting point is for these trends. The story of American confidence in institutions is one kind of story, if you begin in the middle of the 20th century when Americans had very unusually high confidence in institutions coming out of World War II, after the depression and really several decades of national mobilization, there was an incredible confidence in governing institutions, operations, in the labor movements, and educational institutions. That began to decline somewhat by the middle of the 1960s, from what we can tell, as you say Gallup really started measuring this in the early 1970s, and so part of this is actually a kind of normalization. I mean I think if you had checked in on the United States in the 19th century, you would probably not have found very high confidence in institutions, certainly not like the level that we found in the middle of the 20th century. But the most interesting story in this pattern which quickly went beyond normalization, I think to extremely low confidence in institutions. The interesting story is the military, which in the 1970s had unusually low public confidence and that’s partly because of Vietnam, I’m sure. And the sense that the military was part of this sort of complex that was being dishonest with the public. But I do think that it’s also partially an explicit effort by the US military to present itself and its role in our society as more than just fighting wars effectively although that’s extremely important and is its job, but as forming people, as forming men and women who are distinct in American life for the ways in which they take seriously certain core ideals. The military presents itself that way, and it actually is that way, and the public confidence in it I think has risen tremendously for that reason as it has declined in a lot of other institutions that have presented themselves less that way and have come to understand themselves and to show themselves to the public much more as providing arenas for expression. The military has presented itself as providing an arena for formation and I think that tells us a lot about what we value by institutions. Richard Reinsch: And not to keep on the military point. The United States Marine Corps as many have noted doesn’t fail to meet its recruiting goals. And is seen as the most rigorous in terms of physical training and preparation to enter that branch, which I’ve always thought stands out. Higher education, I liked your analysis of what we might characterize as the Campus Wars. We’ve been talking some about higher education, and its role as an institution, and what makes it an institution. How should we think about higher education in America? I’m partial to the idea of removing the federal government almost entirely from its workings and trying to create a true market for higher education, which I think would make it a much more responsible set of organizations within higher education. You probably don’t disagree with that, but in the book you talk about more, more that needs to be done, and I also think we can get into your analysis of say the Campus Wars, which I think is also prescient. Yuval Levin: In some ways the university is really at the center of this argument. It’s at the center of the book in a structural sense. The other chapters are kind of built around the question of the university, and I think it’s at the center of the culture war that is really at the heart of the transformation of our culture that the book tries to describe, the university that you would think is unavoidably a formative institution. It’s an educational institution. It’s essential to the character of our elite culture. It is where the American elite sends its children to be formed and shaped to take positions of significance in our society and the university is at the heart of the dysfunction and deformation that we find. The question of how to understand that the formation though I think is a challenging question and the approach I take to it is not the approach that all of my friends on the right do. I think universities serve multiple ends unavoidably. They’ve always been home to, what I describe in the book, as basically three kinds of educational cultures. One is about professional development, about giving people the skills they need for the economy. Another is about a kind of culture of moral activism, even social activism, which is not new in the American academy. In some ways, that’s what Harvard and Yale were created for, first American university, and then a culture of liberal education, the truly traditional academic culture. All of them have existed in the American academy from the beginning and all of them have tended to function in different ways through teaching and learning. That’s what the university does. It’s about teaching and learning. I think what’s different now, it’s not that these cultures exist, but that they are very badly out of balance. The culture of moral or social activism has overtaken the ethic of the university, particularly because it dominates the thinking of university administrators, which is really where I think the crisis of the campus has been focused in the last decade and a half. Not just that there are some professors who see their role as a kind of social activism on campus, but that, that’s how universities tend to understand themselves and govern themselves, and there’s a tremendous need for pushing back to make room both for liberal education, which I think is a central. And even just for traditional kinds of skills training which universities would form. I think the answer to that is not just arguing for free speech though. I’ve been concerned somewhat about the ways that we have tried to defend the culture of the university, have identified it with free speech. The university doesn’t exist for free speech. Richard Reinsch: Or merely academic freedom. Yuval Levin: Or merely academic freedom, exactly. Richard Reinsch: Those are two formative things but there are purposes… Yuval Levin: They’re necessary, right? They’re prerequisites, but they’re not the ultimate purpose of the university. They’re means, not ends, and I think we have to recover an idea of what the university is for, which is a formative idea. And so the argument that I’m making for what can be done about this, really called for pushing back against the culture of university administration in a way that tries to recover the ethic of the academy as a formative institution. Richard Reinsch: So that does spark an obvious question. How should we judge higher education if it’s teaching and learning? Yet there is a vacuum there, you note that in the book. There’s a vacuum in our society. You quote Alan Jacobs, Jody Bottum is another thinker here, that what’s filling that vacuum is some Puritan inheritance divorced from traditional theological context, but now playing out most powerfully in the university of sinners, redemption, purity. You quote Alan Jacobs that the campus is the sanctuary, which is why we see speakers disinvited or shouted down because they are invaders of some kind, central invaders. So, that’s one way to think about higher education. And it seems to me that it loses in the end, although it can do a lot of damage in the meanwhile, the standard you’re proposing is, could you put something on that? Yuval Levin: Part of what we’re seeing is filling a kind of spiritual vacuum and it wouldn’t be wrong really even to describe the culture of moral activism on campus as a kind of deformed puritanism. I think we’re wrong to think of it as fundamentally relativistic or nihilistic. It has elements of that and there are ways that a certain kind of radical egalitarianism points in those directions anyway, but I don’t think we should understand the Left on campus is fundamentally relativism. I think it is highly moralistic, but in a misguided way and we should see that as an opportunity. I think there are a lot of students who are looking for a morally freighted way of understanding the good and the true and the beautiful in society. That says to me that they may be open for one thing, for some kind of religious conversion, but at the very least it means they could be open to liberal education presented to them as a way to pursue the truth as a way to understand justice, which after all is what liberal education is. I think this is a moment that begs for liberal education to present itself, not in defensive ways, not as struggling for its life against evil forces trying to crush it, but as the answer, as the solution to what these students are actually looking for in a way that would be much more constructive for them, much more appealing for them, and open up a lot more paths than the kind of social activism that they’re presented with. And so I think this has to be a time when those of us who care about liberal education on campus make the case for it in inviting and appealing ways, but too often because that culture is under siege somewhat, the champions of liberal education seem alarmed, panicked, and frightened and that’s not as attractive as it might be. I think we should think about how to gain converts more than just how to defend territory. Richard Reinsch: It seems most of the efforts at liberal education, I’ll say, properly understood, aren’t necessarily happening in the academy either. Summer programs, the students weekend programs, you’re involved in those, I’m involved in those and trying to bring to them sort of a nonideological approach to education. How one does that on campus with a more broad effect is hard to see. Humanities majors declining, I think one reason for that is students maybe look at that and say, “I don’t want any part of that,” but the other reason is practical. The cost of an education is so much, and you might as well major in business, something you think you could do something with, and I understand that as well. So definitely one’s work is big here. Yuval Levin: I don’t think that there are easy solutions here and as I said, I think it’s understandable why the culture of liberal education is in a kind of defensive crouch. It is under assault and there’s not an easy way to regain the offensive here. Liberal education has never really owned the American academy. It’s always been a minority culture on campus and it’s going to remain so, but it doesn’t have to be quite as under siege as it is. And I think that that means for fighting for the culture of the university by using any leverage we might have over students and parents and trustees and outside forces that the universities will have to listen to ways of changing the culture of administration. But I don’t think we should be under the illusion that any of that will be easy. It is not at all easy to see the kind of cultural transformation that would have to happen. Some of the response has to be from outside. Richard Reinsch: Yeah, and requires a lot of different policy steps too. Yuval Levin: I agree with that. I think the role that public policy plays now is basically counterproductive and has to be rethought. Richard Reinsch: The biggest challenge to higher education, I think, is happening right now, which is the curve in enrollment. I read recently enrollment is down in higher ed since 2011, something like 11% to 12%, which is not insignificant if one thinks about the demographic challenges and how that will play out. But I think discussion of higher education may naturally bleed into a discussion about our elites, which is also a huge part of the contention in our society. For what you say about elites fits into this molds and platforms analysis. What is the crisis of the elites? Are our elites up to no good? Yuval Levin: The book sort of ends with that question and views it through the lens of meritocracy, which is how we now think about the formation of elites in our society. We think about elites that way because the elites that produced our meritocracy, and that ran a lot of our institutions for a lot of American history came to be perceived and even to perceive itself as too exclusive, as making it too difficult for people to rise into elite positions in our society in various ways. And I think that was true, but when we think about it that way, it keeps us from seeing that there are really two ways that elites have to legitimate their power and position in democratic societies, in egalitarian societies. One is about how people rise into the elite, but the second is about how elites use their power and use their positions and authority. And I think the problem we have today is much more about the second than about the first, and meritocracy contributes to that problem because it leaves our elites now thinking that their positions are earned, that their authority is legitimate by default because they’ve been selected into elite institutions of higher education in particular. And then I’ve had a kind of path to power in our society through that and an elite that doesn’t think it needs to be constrained is a very bad fit for a democratic society. It invites the kind of resistance, frustration, and ultimately populism that we’ve seen, and I think it deserves that response. Our elites in fact don’t think enough about how to constrain themselves in ways that could make it clear to the larger society that they’re playing a legitimate and valuable role. And I think institutions have an enormous role to play in that because our elite institutions can constrain our elites in ways that put them to use for the larger society. That’s what the professions do. That’s what political and cultural institutions do when they’re functioning well. But if we understand our institutions as performative, as just platforms for people to stand and shine on, then they don’t really function to constrain our elites. They just display our elites and increase the frustration of the larger society with them. I think part of the solution to this part of the problem our country confronts is an idea of institutionalism that requires much more constraint and formation, that requires people to understand themselves as needing to prove that they operate by some standard of integrity and public service and that would require a real cultural change in a lot of our elite institutions. Richard Reinsch: But I think they would take on your position, say, “No, no, we’re doing that. We’re showing how we serve, how we’ve been formed, and how we’re restrained with all of our wealth, power, and intellect. That’s our commitment to social justice. That’s our moral capital.” That’s what these leading C-suite executives saying, “we’re not beholden to the shareholders but to our stakeholders.” Which would include the working class, which would include the environment, all of these sorts of considerations, much broader sets of considerations that make us better companies, universities similarly, leading law firms. You note that and these quotations of with the legal cases they take on in their pro bono efforts, isn’t that their justification? But as you and I would say, I think, persuasively, that’s a problem, too. Yuval Levin: I think that the way that they would make that case, points exactly to the expressive understanding of institutions that dominates now in our culture, which is to say exactly by describing themselves as advancing an idea of a virtue or responsibility, that’s basically about expressing the right opinions rather than as existing in order to constrain people with power and put them to use in public service. It seems to me that the solution they offer is an example of the problem and what the elite professions do for example, think about the legal profession. The legal profession ought to be a great way to constrain elites because it literally puts people with training and power in the service of other members of our society as agents, as counsel. But if we think of the legal profession instead as advancing a social revolution as existing to transform our society in light of progressive ideals, then that institution does not constrain our elites, it empowers them, it helps them feel better about themselves, but it doesn’t give the rest of society the sense that people with power are also held to certain standards of responsibility. That’s what our elite institutions could do and should do. But very often when they’re pressed on that point, as you say, they just say, “Well, we’re well-intentioned. We’re expressing the right opinions, we’re advancing right ideas. So don’t worry about it.” Richard Reinsch: Incredibly self-serving forms of action that morally emboldened people as well. I think I’ve seen that from firsthand experience. Okay, so putting all of this in a explosive cocktail mix is social media. You have a great chapter, I think, and I told you that before the interview started on social media. I think as people read it, they’ll recognize maybe their own actions on social media in it, but a larger role, that you note is how expectations for social media, which I never bought, you probably never bought either. That it would bring us together and make us better and more communicative of information, et cetera. That hasn’t really proven to be true, and I think most people now agree with you, even though everybody still rushes to engage in it, and Facebook and Twitter are leading companies on the stock exchange, et cetera. But social media has led to, fueled, it seems, this decline in institutions. Talk about your critique. Yuval Levin: Yeah, social media in a sense are native 21st century institutions, so that they arose in this period when what we expect of institutions is to serve as platforms and to display rather than form and the social media institutions, our platforms, I mean we call them platforms. So that’s what they are, they are places where we can stand and be seen and they encourage a kind of a culture of exhibitionism. They turn us all into our own paparazzi. We hound ourselves for photographs, robbing ourselves of privacy for the sake of exposure. It’s a very bizarre kind of thing when you step back and think about it. But I think more important than that, they come to substitute for what we understand to be the place of our social lives. A set of habits and practices that really aren’t particularly social and that aren’t formative of suitable sort of social habits and norms. And ultimately social media exacerbates these problems in other institutions. The name of the chapter in the book on social media is the informality machine. They serve to take forms out of the ways in which our other institutions operate. So if you think about, for example, how social media interacts with political journalism, which we talked about before, journalism is trusted to the extent that people think that it imposes some standards on the people who practice it, that it requires people to be edited, and to some standards of verification, and various kinds of layers of confirmation. And then you have prominent political journalists standing on their own, on a platform on Twitter, and just expressing their views and mixing it with what seems like reporting and effectively deep professionalizing themselves in an ongoing way on Twitter. There’s a way in which that’s what social media does for all of us in all kinds of ways. It robs us of the forms that makes it possible for us to know who to trust, and what to believe, and what to take seriously, and makes it very difficult for our society to address the kinds of problems that arise out of our other institutions. Richard Reinsch: Yeah, It’s interesting, social media, it can be your own highlight reel where you’re always posting the best things about yourself to others. And it can also be this place where you show the worst part of yourself to others. Yuval Levin: That’s right. It confuses us about what’s public and what’s private, right? And you never quite know if you’re talking to your friends or you’re talking to the whole world. And so people do and say things on social media that would just never happen in the everyday world. And you stand there, your jaw drops and you think, “How could this person have done that?” But the form of the interaction encourage it. Richard Reinsch: There’s a case for not everything being made public, certainly not in real time, but also you get into these moments and you see people, you can tell they go on a three-hour extended discussion on social media and what’s driving that is anger, adrenaline, passion. But this has all been, this is transformed, it seems to me transformed maybe to much of a word. It’s changed the nature of political discourse in this country. And arguably Twitter helps get Donald Trump elected. It’s hard for me to see him doing the things he did without Twitter and being able to speak directly to so many people. Many would say that’s a good thing. I think it’s more mixed, but Twitter certainly never came along thinking it was going to get Donald Trump elected. But it did, I think. Yuval Levin: Yeah, I mean, Twitter itself, it’s much smaller than Facebook say. But I think because of the role that it plays in our elite culture in particular really has been just transformative of some facets of our public life. And it’s had an enormous effect on politics, changing the basic nature of the discourse, the basic culture. And doing it in a way that by robbing at forms makes it extremely difficult for politics to be substantive, for people to think before they speak, the kinds of things that are just essential for a democratic politics to function well and to rise above the lowest possible level. And so my view of Twitter is just not mixed. I mean, I think it has been a disaster. Richard Reinsch: You’re not on Twitter, are you? Yuval Levin: I’m not. No, no. Richard Reinsch: Yeah. That’s interesting. I’ve noticed you’re not on Twitter and I’ve thought… John Podhoretz had a great piece in the New York Post talking about his Twitter life, because he was always on Twitter, constantly. I mean, I remember he would appear every time I opened my feed and then he disappeared and now I know why. He recognized a need to step back. But also if we put this all together, it’s not just the case, I don’t think, and I don’t think you’re saying social media destroyed institutions. It does come along at a time when they’re very weak, I think. And if we put together your analysis, you talk about, you say on page 15, “if the absence we are experiencing looks like isolation, mistrust and alienation then it is also a shortage of belonging, confidence and legitimacy.” So we would have lonely, angry people at times, disconnected at times, not seeing themselves belonging to something. Bam, Twitter! Yuval Levin: No, exactly. I don’t blame it for these problems, but I think that it’s made them worse in ways that we couldn’t possibly have imagined when this got started. Richard Reinsch: So here at the end, I want to go through one more very important institution in American life and then also get into your case for commitment, religion and institutions. Talk about how you see it. You discuss at length Roman Catholicism and evangelical Protestantism, but also what’s missing here, not necessarily from your analysis, but missing is the collapse of mainline Protestantism, which the repercussions for that, as Jody Bottum again has noted, are tremendous. Yuval Levin: I think that’s absolutely right and that’s about more than the religion story in America. I think the case that Jody Bottum has made is very persuasive in helping us see the decline of many of our other institutions too, in that the sort of framework, the core moral consensus that had held them together in a lot of ways became dramatically weaker and was replaced by this different attitude about what institutions do. In talking about religion, the book focuses on Catholics and evangelicals basically because those are the two largest religious groups in our society. I think that the patterns we find exist in many other religious denominations too. They certainly exist in the world that I know best of American Judaism, and I think part of what you find is the same kind of transformation of institutions that ought to be formative, that ought to be changing souls and changing hearts instead becoming performative, becoming just another stage for people to demonstrate that they have the approved kinds of virtue and for people to make political arguments and culture war arguments. You find that all kinds of different institutions in our society that have different purposes, and different roles, and should have different cultures just become interchangeable stages in arenas for this kind of expression of cultural and political views so that what happens at the New York Times just isn’t very different from what happens at an elite college. They’re both just places to yell about oppression, and in American religion some of this happens on the Right where you find institutions that become just places to express the views of a political sect rather than the views of religious tradition. And the effect of that combined with certain kinds of celebrity culture that also is an acid poured onto our institutions is to leave us without the kind of formation that these core institutions can offer us at their best. I don’t want to paint too grim a picture of American life. This book is actually ultimately a hopeful book, but I think that the kinds of problems we’re living with become much clearer and sharper when we see them through this sort of institutional lens. Richard Reinsch: I was evangelical Protestant, now I’m Roman Catholic. Evangelical Protestantism, it seems to me reading your book, is a pretty thin group, we think a lot about politics, and just looking around me in the suburbs of Indianapolis, evangelical Protestant churches are full not just on Sunday, but throughout the week. They’re offering a lot to people, it seems to me. Yuval Levin: Absolutely. Richard Reinsch: And I’ve experienced that. Catholicism, well known betrayal and mistrust, which I’ve also lived with now for over a decade. And also there’s another part of Catholicism too, which is a lack of confidence, I think even in itself as an institution, apart from just the sexual scandals. But it seems to me the collapse of Mainline Protestantism is so large within American religious life, Catholicism and Evangelical Protestantism really can’t, maybe they can’t take that on, but it’s going to take a long time and involves a lot of things. But this is crucial too because how does one reach those who are alienated, Tocqueville features into your book. He has a way of describing religion being sort of one of these pre-liberal institutions that helps us think not only about our liberty, but also about its use, or using it well, and both emboldening it, but also limiting it. And that crucial factor missing is huge and gets replaced by other things. Yuval Levin: And in an institutional sense, it helps us grasp that we require formation, that we need that, both from religion and from other institutions, and seeing that I think is key to any path forward for us from these particular kinds of problems that our society faces now. So that I think American religion has an absolutely central role to play in any recovery along these lines. Richard Reinsch: So the case for commitment. Because that in itself is the long patient work, it seems to me, it also seems to me building institutions is inherently a work of elites at a basic level also, but I’ll let you maybe end with that. Yuval Levin: Yeah, I think that’s true in some ways, but we all have a role to play in some set of institutions. Some people have roles to play in elite institutions or in national institutions. Some people have roles to play in the institutions right around them, in local institutions, whether that’s educational, or work, or religion, or family, community, and civic life. It seems to me that the first step toward a recovery, if the problem is roughly along the lines that I’ve described it. It’s for us to try to think of ourselves through the lens of these institutions a little more, to ask the question that is really the great unasked question of American life right now, which is given my role here, how should I behave? Given that I am a member of Congress, or a CEO, or a worker, or a member of the clergy, or a congregant, or a parent, or a neighbor, or the vice principal of this elementary school. What should I do in this situation? I think the people who we look up to in our lives are people who seem to ask that question before they make important judgments. The people who drive us crazy in America, who we think are part of the problem are people who seem to never ask that question when they should so that we could each begin by trying to force ourselves to think that way when we have to make decisions. That’s a small step but if we each take that small step, then I think we could really make some progress on these problems. And beyond that, there’s a real need for institutional reform. And the book tries in different ways by thinking about the different institutions that it takes up to suggest some ways that the incentives that confront people in these different institutions could be changed. That the way we think about the purpose of these institutions could be clearer. But that kind of institutional reform requires first recognizing the problem in these terms and requires us really to see the need to think institutionally in different parts of our lives. And so I think it really does begin with a change of attitude. And ultimately the book is hopeful that this can happen because I think people do see the problem and there aren’t very many people who are just happy with the status quo, but it’s no easy thing and it will require a real cultural change that can only happen over time and from the bottom up.  

  Richard Reinsch: Today we’re talking with Christopher Caldwell, about his new book, The Age of Entitlement: America Since the Sixties. Christopher Caldwell is the contributing editor to the Claremont Review of Books. He’s contributing opinion writer to the New York Times. Many of you will have read him in The Weekly Standard where he was senior editor, and also a columnist for The Financial Times. He’s also the author of a great book on the European situation Reflections on the Revolution in Europe: Immigration, Islam and the West. Christopher Caldwell, welcome to the program. Christopher Caldwell: Great to be here, Richard. Richard Reinsch: So tell us what is The Age of Entitlement? Christopher Caldwell: Well, as my book has it, it’s basically the period that runs between the Kennedy assassination and the Trump election. And I started on the book because I thought it was kind of a self contained period. I think it’s basically the period of the baby boom, in power. And I traced the line along which the country had changed in over those almost five decades, more than five decades. And focused on gender relations, for one thing, on war, for another, on economics as another, but I think it’s probably the line of thinking that has gripped people most has been the constitutional one, because I do present the changes of the 1960s with the Civil Rights Act of 1964 at their heart as being a kind of a new Constitution, which is kind of proved to be in conflict with older constitutional ideas. Richard Reinsch: Now, let’s talk about that, because that’s really the heart of your book is what is inaugurated in American constitutional thinking, political thinking, and social thinking from the Civil Rights Act of 1964, you argue we get a new constitution and I think you’re arguing that it’s virtually or becomes irreconcilable with a previous constitution, that is the Constitution of 1789 and the Constitution of the even though the 14th Amendment. Those are two things that can’t be bridged and produce many divisions, new thought patterns and new ways of being political and constitutional in America, talk more about that, if you would. Christopher Caldwell: Yes, I think that the Civil Rights Act does grow out of the 14th Amendment. So I think that has less of a problem. There’s less of a problem, bridging it there. But, I should be precise here. When I talk about civil rights, the reader should not get the impression that I’m friendly to segregation, or hostile to the civil rights movement as it existed for the whole of the 20th century up until 1964. In fact, I’m very much in sympathy with the claims to an agitation for equal citizenship that went on up till then, but there were problems in the Civil Rights Act that were not evident at first. We should probably start with what the Civil Rights Act did. The problem that faced Americans with segregation in the South, is that segregation in the South seemed to have been implemented through democratic institutions and it kept being ratified by democratic institutions. And what the Civil Rights Act did was, it pretty much declared the democracies of the South illegitimate or at least, not worthy of self determination. They had to be overseen and surveilled by Washington. And so the Civil Rights Act gave Washington powers that it had never had before in peacetime. First of all, it created a lot of crimes related to discrimination, it banned discrimination in voting, public accommodations, and in public facilities. Richard Reinsch: Education. Christopher Caldwell: Created a lot of new authority. Yes, education, yes. It created new authority, Civil Rights Commission, the EEOC, it created offices of civil rights in the different cabinet agencies and these were enormously powerful. They had the power to cut off funding to states and municipalities and to lay down hiring practices for companies that had more than 15 people. The EEOC had the right to file lawsuits and conduct investigation. This was really strong medicine. Now, there were a lot of people who worried about how strong a medicine it was at the time, but Americans didn’t worry about it too much, because the problem that civil rights law aimed to fix was so spectacular and so exceptional that it seems to limit the application of those laws. But in fact, as soon as they were passed, they began to deepen. You got new measures that were meant to aid the cause of desegregation, like affirmative action and busing and most important of all, these laws spread to other areas of American life in a way that I think very few Americans had imagined. So you had the tumble of the 1960s going on, you had women wanting to be promoted up the corporate hierarchy. You had a certain number of immigrants wanting their children to be instructed in their own languages. And when they turned to court and said, “You know what, I don’t want to wait for Congress to vote a law. I want that new system.” When they asked that the court said yes. And so civil rights spread to larger and larger areas of American life and began to crowd out the traditional system. Richard Reinsch: Thinking about the Civil Rights Act itself, my understanding is that title four and title seven of that act, explicitly say that a racial balance is not the goal. That is to say, the goal is neutral principles, neutral principles of law, and justice for all Americans regardless of race. Isn’t it despite what happened, part of as I read your book, it’s the sort of unbridgeable tension between these two constitutions and yet, the Civil Rights Act of 1964, one could easily make the case was supposed to be colorblind, and of course as you note, affirmative action comes pretty quickly. We start getting the quotas, we start getting all these other things. I mean, sex is obviously in the Civil Rights Act, that becomes part of the goal, particularly under title nine, very aggressive. You also note something we talk a lot about it on Law & Liberty is the way in which the administrative state was able to act, particularly the Office for Civil Rights notoriously, probably one of the most notorious agencies in the federal bureaucracy for running around the Administrative Procedures Act, and being able to govern just with guidance letters. And that being recognized by the federal judiciary as such. You talk about the origin of busing, nothing was ever passed by Congress to give us mandated busing. It was, in fact, the guidance letter. But as I think about your book, and the Civil Rights Act, what are conservatives to do? Where does this situation leave us? Christopher Caldwell: Well, I think it is, as you say, it is extremely deeply entrenched. And it’s not only deeply entrenched, it has been deeply entrenched for a long time. We’re talking about a system that is now 50 or 60 years old. And it’s worked through a number of different modalities. It’s exactly as you say, there was no mention of resorting to quotas in the Civil Rights Act. But that was the way the offices of civil rights measured educational progress, and they were able to mandate the schools change, including through busing in order to demonstrate progress. I think if I had to identify the problem at the heart of it, the reason it could not be stopped from spreading into every single area of American life is that there was a sort of a short circuit in checks and balances. And this is not an area in which I’m an expert, but there’s some beautiful literature in the kind of James Q. Wilson style on the politics of bureaucracy by Boston College professor, political scientist named Shep Melnick. Richard Reinsch: Yeah, he’s been on this program to talk about that. Christopher Caldwell: Well, he’s an extraordinary analyst of this situation. And what he shows is that there was a kind of a ping ponging back and forth between regulatory agencies and courtrooms, where you could get these programs ratcheting up with incredible speed. They could undergo several escalations in the course of a year, you’d have a classic example that he has studied in detail is bilingual education. There was never a bilingual education law, what you had was a Supreme Court decision that said that there could be a right to bilingual education, and then guidelines written around it and that’s it. And it’s still on the book, actually. So, I think that there are many, many avenues through which this system expanded, but the thing that they all have in common is that they provided a way to short circuit legislative scrutiny. Let’s say that. Richard Reinsch: You talk about, as I was reading your book, there’s something that is a perennial topic amongst conservatives as you know. Yuval Levin is one commentator, Chris DeMuth is another one, and that is the decline and wane of Congress, which you’re just alluding to. And as I read your book, maybe the way in which to think about that is the Civil Rights Act itself,  and the way we think about policy became moralized, black and white, and retreated into the judicial and administrative state sectors and there was very little Congress could do about it, or really wanted to do about it in terms of these major issues. You argue that the cost of the Civil Rights Act surpasses any war or effort like the space program or something like that, that the American federal government has attempted. Christopher Caldwell: Yeah. I know that the Vietnam War, which was a relatively very expensive war was not that expensive because the deficit in certain years since has been the equivalent of the entire federal budget at the height of the Vietnam War. We know that when we emerged from World War Two, our debt was not larger than the GDP. So I think this is a long standing program, this commitment to social change that began in 1965. I think that’s pretty clear. Richard Reinsch: A question that comes to my mind, and I just interviewed Amity Shlaes, and in thinking about her book Great Society, because those aren’t just all civil rights programs. And there’s just a lot of social spending in the Great Society at the same time of this period you’re describing, the Kennedy assassination, moving into the 1970s. How does that figure in and in particular to the proper size of the federal government, the spending of the federal government, a lot of problems we’re facing now, just the social spending aspect of this, and the tremendous costs incurred there and the ways in which those costs sort of subsidized and promote I’ll say, lifestyles that aren’t exactly conducive to independent, free citizenship. Christopher Caldwell: Well, that’s an interesting subject, the social consequences of the Great Society, but it’s not really the subject of my book. Richard Reinsch: Well, I guess I asked the question because I take it your book really spins, or you start and talk a lot about how the Civil Rights Act starts this new constitution, and gives us sort of a deformed Republic, in many ways, unintentionally, so but there it is. I asked that question, because I’m thinking through your thesis, but there’s a lot of things going on here. But particularly as we move through, sort of the conservative unrest that you also talked about, and we can get out of some of your political analysis, but the conservative unrest that elects Nixon, that elects Reagan, in the end, you end with, right as Trump is beginning to announce his campaign for 2016. And, it’s part of that turn against the Great Society, it’s not just civil rights. And so I’m just trying to think through all of that, and thinking about just the cost of the Great Society. To what extent is that civil rights, to what extent is that something else that’s happening, social spending, et cetera? Christopher Caldwell: I think it’s very hard to say because at a certain point, the culture of civil rights becomes the official governing culture of society. So I would have a hard time quantifying it. There’s one problem though, there’s one budgetary problem that I think is particularly salient. That really came to a head in the Reagan years. And that is, Lyndon Johnson built a kind of consensus for civil rights in 1964. But there was never a consensus built for the extension of that regime, that is the regime of regulation and judicial decree into other areas of American life. And so when civil rights started to affect things like immigration law, women’s rights, gay rights and that sort of thing, you had a large agenda that the country was not on board with and would not pay for. So by the late 1970s, there’s something going on, where you had a very expensive and very entrenched new constitution, but a public that was not willing to pay for it, and wanted to go back to the old constitution or so it seemed. And what happened, I think under Reagan, is that Reagan, to a lot of people’s surprise, was not strong enough to overturn some of the newfangled programs that he had campaigned on overturning, I mean, you remember in the late 1970s, Reagan had said he could eliminate affirmative action with the stroke of a pen, he could eliminate the Department of Energy, he could eliminate the Department of Education. None of that happened, the constituencies were too strong. But you still had a public that was not willing to pay for it. And I believe that the deficit, the big deficit, that country began to run in the 1980s as a result of that legitimacy gap in the new system. Richard Reinsch: So let me think about that. I mean, because what are the costs of affirmative action? Or the cost of the Equal Employment Opportunity Commission, or the cost of not getting a job because of affirmative action? Are they truly that weighty? Christopher Caldwell: I have not calculated them economically. I just calculated them constitutionally. Richard Reinsch: Affirmative action, one can make an argument that it’s constitutional. You could also, I think making a reasonable argument that it’s not. Whereas the Civil Rights Act, I think is much stronger ground. Think in this regard the Bakke case you talk about, there’s three opinions in the Bakke case, famous case about a man who had scored in the 97th percentile, I think on the medical college entrance examination was denied entrance to University of California, Davis medical school. And there are three opinions that the Supreme Court gives on his denial. They order him to be accepted, they argue, on one hand, racial quotas are wrong but race can be a factor. That’s ultimately the plurality opinion authored by Powell, race can be a factor in admissions, along the lines of what has now come to be known as a diversity analysis that somehow racially diverse student body is a good thing, which strikes me as inherently a racialist type of an argument. And then there are four members of the court in that opinion that argued for the colorblind constitution. So you had two reasonable positions, I think. You had affirmative action to redress past grievance, then you had the colorblind constitution, then you had this wacky thing I would think, with Justice Powell and the diversity argument, and that comes to be a huge moment in our political constitutional life. Christopher Caldwell: Well, I mean, when you talk about the court, again, I haven’t calculated it, but we have what is called in this country, a diversity industry. And it has, I would say now probably hundreds of thousands if not millions of people employed in it and diversity was pretty much invented in the Bakke case in 1978. What Powell said is a very strange thing in retrospect. He said quotas are bad but there’s a better way of dealing with this, which has been developed at Harvard. It was the Harvard Undergraduate Admissions that had this idea that the Harvard community ought to be diverse. Now, since the problem at the time was trying to find minorities and specifically black people to enter into positions of leadership, you can say that the Harvard undergraduate program probably had an easier time of doing that than any other institution in the entire world. And so to argue that it could be a model for more local, less prestigious universities, let alone like small businesses and that kind of thing which it came to be imposed on, was really an extraordinary blindness. It was an equivalent of a let them eat cake kind of thing. Not every business has the leeway that Harvard has. Richard Reinsch: Thinking about your critique of Reagan, which is interesting, and worth I think spending some more time on, but you argue before that there were enough American voters that really wanted Richard Nixon to challenge these programs and their development that we’ve been discussing, but then he’s impeached. And so obviously, that doesn’t come to pass, and we get Ford and Carter. And then you argue that America was actually perhaps at its most conservative moment, with the election of Reagan, and the desire to challenge these programs, but he doesn’t do it. Instead, you argue and this was an interesting critique, he seals the peace between those favoring the Great Society and those opposing it through tax cuts and through deficits. Could you talk more about that? Christopher Caldwell: I think that he pretty much called a truce between two generations. And I think you’re right. I do believe the late 1970s was perhaps the most conservative time certainly since the 1920s and maybe all the way back to the Civil War. I think that there was a perception in the public that the progressive impulse had gone too far. And I think that you can see it on a number of fronts. First, certainly on civil rights, second, on sex and what would later come to be called gender as you had people turning on the Equal Rights Amendment, which had nearly been ratified by the requisite number of states. But when you had certainly started to have states unratifying a constitutional amendment, which is something that really hadn’t happened before. And then finally you had a very isolationist mood in the country at large in the wake of Vietnam. So I think it was a very backward looking country, there was a call for a restoration. And I should say, when I talk about Reagan as having created a truce, I say a couple of things. One is, I think Reagan was one of the two or three great politicians of the 20th century. I do not blame him for accepting that truce when he saw an opening for it. That’s what politicians do to build coalitions. And they tend to be more drawn to building the next coalition than honoring the last promise, but it was very much at odds with what he had come to Washington promising and about the debt, I will say that this is one of the mysteries actually, that really motivated me to write the book in the first place, which is there’s a basic question about the 1980s, which is when we really started going into debt as a regular matter in peace time, really the only time we’ve done it in the country’s history. Why did we have to borrow in the 1980s? If you look at the country, demographically, you would have thought it was the very last time in the history of the country when we would ever need to borrow because we had this gigantic baby boom, and they were all in the workforce, we had a relatively minuscule number of dependent children and dependent seniors. And yet, it was just then that we went so deep into debt. So it’s my belief that what was going on is we were paying for two social orders, the pre-1964 one, and the post-1964 one. Richard Reinsch: So the costs of the pre-1964 are to try and enable economic growth, social mobility, I take it, that’s part of the Reagan tax cuts and continuation of the deregulatory efforts that Carter actually started. But then also, you’ve got this new constitution you’ve got to pay for, which you’ve got to spend in deficits to do it. A couple of questions that come to my mind as I read the chapter on debt, which I thought was incredibly interesting one. One, though I assume structural deficits are inevitable, once you get the three together Social Security, Medicare, Medicaid, not to mention the host of other lesser entitlement programs that come along with the Great Society. So in that regard, that seems sort of inevitable that we’re going to end up there, given that we have these constraints on the federal budget that are largely automatic unless you’re going to repeal them or substantially reform them, they’re there. But then also Reagan’s desire to build the military to confront the Soviet Union and also the tax cuts at the same time, which you allude to, I mean, in a way, it just seems, given his goals, that upon entering office, the notion of confronting the civil rights constitution isn’t on his radar screen the way maybe it should have been. Christopher Caldwell: It didn’t seem to be, no. And, certainly when you talk about it that way, it wasn’t on anybody’s radar screen. And, I talk about civil rights now, I talk about the civil rights constitution. I think that people were talking about it, even in the 1980s as the rights revolution and you might sort of say well, why don’t you just call it the rights revolution? It sounds less controversial. You know what I mean? I think Reagan was interested in limiting the rights revolution, I think that there was an attempt to nominate, for instance, conservative jurists to the Supreme Court. The reason I use the word civil rights instead of the rights revolution is that I think that a lot of the arguments for the expansion of this style of government to the transfer of power, let’s say, from the democratic parts of our government, to the judicial and the bureaucratic, a lot of the impetus for transfer came from moral arguments, should we allow courts to impose consent decree on such and such a municipality that they need more females in positions of authority? And the answer was always yes, because the question was always posed in terms of this being the equivalent of the Civil Rights conflict of 1964. It was the women are the new segregation or as Joe Biden said the other day, transgender is the new civil rights movement. So, there was always a moral language to this expansion of this kind of state. Richard Reinsch: Even Richard Neuhaus, editor of First Things, couched his opposition to abortion using civil rights language, the push to end abortion was the civil rights struggle of our time, he famously said. You note at the end of the Reagan administration, that this seems to ramp up, which might prove your point about ignoring or not seeing what was at stake during the 1980s. And your first piece of evidence is the famous episode of Robert Bork, but then also sort of a new energy and strengthening feminism, as well as gay rights at that time as well. Christopher Caldwell: Yes, I think you noticed a few things. Political correctness, the sort of ruining of people’s lives for saying things that were only kind of like, would previously have been considered only mildly wrong or uncouth, like Al Campanis, who was Jackie Robinson’s roommate with the Montreal Royals before he came up with the Los Angeles Dodgers, saw his entire career ruined when he said on television that he thought blacks might lack some of the necessities to be managers. I don’t know if he meant anything by it, but no one was going to give him any benefit of the doubt. That sort of thing came up. You had a very, very increasingly aggressive local government in pushing forward new gender understandings and schools. One that I talked about in the book was the attempt to promote gay parenthood in Queens through a book called Heather Has Two Mommies, which in the early 1990s, was considered just laughable excess of the gay rights movement, but actually, whenever these things were litigated, they would come before judges and the judges were really not of the same view that the voting public was. And so you had a situation where, by moving through the courts and through the bureaucracies, activists could get written into law, things that were actually highly unpopular, things that really never stood a chance of getting legislated. And so I think the early 1990s was a crucial period. And it kind of came to a head I think, when Newt Gingrich was elected, and there was a widespread belief among Republicans who did not feel they had really reaped the benefits of eight years of Reaganism. There was a widespread feeling among conservatives and Republicans that well, it had really always been about Congress. And so now that we’ve got Congress, everything’s going to change and we’re going to get the conservative revolution that we were promised. But in fact, Gingrich was no more effective than Reagan had been. And it began to dawn on people that the real power was in the courts and the bureaucracy. Richard Reinsch: I think it is also the case of the left in this period, communism fails, communism loses and Marxism itself undergoes a change in the intellectual mind and becomes about race, becomes gender oriented, becomes open to appeals, to grievances itself as a part of forming a new left wing. I think about the first time I heard the term political correctness I was beginning high school in the early 1990s. And, as I look back and think, yeah, that all sort of makes sense, because the Leftist mind was changing in response to the conventional failure of its ideas, and needed to put together a new coalition. Christopher Caldwell: Yes, but there was a lot of that attitude among conservatives at the time, and I think that people looked on political correctness as utterly ridiculous. I mean, people look at it as a series of jokes and much of the 1992 Republican Convention was that way. It was assumed that the politically correct people in the United States were just holdovers and that the lessons of Europe were kind of written on the wall, our left wingers would soon go the way that the communists had in Europe. But in fact, something like the opposite happened. It turns out that European communism, or let’s say, the worldwide expansion this Soviet type of communism has actually been a kind of albatross around the neck of the left. And once communism was vanquished, people weren’t scared of barriers, let’s say anti establishment or counter cultural causes anymore. And so it wound up giving them a good deal of leeway in fact. And they seemed to have used it. Richard Reinsch: So thinking about this sort of fashion and you’re alluding to the unpopularity of a lot of this cultural movement, particularly in the early 1990s. But yet it continues to find success or stay in power. And, the famous phrase moving through the institutions comes to mind, it’s able to ensconce itself. And then it becomes the question of those conservatives who challenge it now face severe reputational costs, and so it has protection. How does this sort of unfold as you see it in the first decade of the 21st century? Christopher Caldwell: Well, I think that Barack Obama was a very important figure in sort of sharpening the division that I described in this book. Richard Reinsch: One question before we get to Barrack Obama for you, I’m sorry, George W. Bush, though. How does he figure into these two constitutions or how does his presidency figure in? Christopher Caldwell: George Bush, I should say he does not figure very largely in my book, he, I would say, was a figure, very similar to David Cameron in the United Kingdom. He was someone who sort of felt that his own party’s ideology was antiquated and was doing his very best to bring it into line with the opposition parties. And you can see that in the only piece of domestic legislation he passed in his entire two terms, which was No Child Left Behind Act having to do with schools. George Bush had a basically centrist view of domestic policy, which is to say that he accepted the powers that had been claimed by courts, and bureaucracies in the Clinton administration. And when 9/11 came, as you will remember, that ran down the curtain on domestic policy, nothing further happened on domestic policy. Although, if you look at the tenor of Bush’s response to 9/11, it was rhetorically very much in line with the idea of expanding rights, Islamic peace, let’s make sure we keep the gates of America open to the world, that sort of thing. Richard Reinsch: And then we move into Barack Obama. You know at one point in the book, he was constantly defining what it meant to be an American by progressive standards and suggesting that if you disagreed with him, you’re in effect disloyal and that he enjoyed playing with fire that way, I thought that was interesting. Christopher Caldwell: I think that the key thing about Obama is that he’s the first president to really understand this new way of delivering rights, this civil rights’ model of government action as being a new constitution. And he said so even, I think quite explicitly in his Second Inaugural address when he paid tribute to Stonewall and Seneca and Selma, basically gay rights, women’s rights, civil rights. Richard Reinsch: As expressing the core of American citizenship. Barack Obama, in my mind, the way if you watch him proceed, it was always to drop little bombs on his opposition in the expectation that they would react or maybe not react, but understand that they were not included and that they were a part of the past. You note in the book, just because people might be afraid socially to express opposition, there was a lot of opposition to what he was doing, but opposition doesn’t necessarily go away because it’s made politically incorrect, it smolders and waits and then comes out at a certain time, an opportune time. Christopher Caldwell: Right, and 2015 proved to be an opportune time, but I think that in general the public is less knowable than it was before the time of political correctness. Richard Reinsch: The question that I asked you in the beginning is sort of where does your book leave us? And I also know you end the book with the HBO show, Real Time with Bill Maher. And Ann Coulter was on the show, right at the time that Donald Trump just announced, and I remember Jon Stewart mocking Donald Trump at length for his announcement that he was running for the presidency, but you end with that, as if to say, who was the joke on? I thought the joke is on the elites, the joke was on the media, who didn’t see this coming, who didn’t see a Donald Trump campaign being successful, including many in the Republican Party. And I assume you do that because this would explain these two constitutions most pointedly. Christopher Caldwell: Well, it just seemed sort of a good note on which to sort of stop the narrative. I thought that was the point that I reached at which I demonstrated that we actually had two constitutions that we’re now in, or that had grown so irreconcilable, that they couldn’t even get the proponents of the one to really even understand the proponents of the other. Richard Reinsch: Question for you though, a lot has been noted and you note in your book, a lot of what’s supporting Trump though, many note these counties in rural America, X-urban America, largely white, but a lot of social dysfunction, jobs in certain respects having left those areas. Does just the two constitutions explain their plight? The call for an industrial policy to sort of reinvent, to revive these areas with industrial jobs or manufacturing jobs, does the civil rights constitution now explain all of the social pathologies of those areas or most of them, or is there a lot of other causalities? Christopher Caldwell: Well, I don’t think that anything explains everything. But I do think that it’s true that there’s a certain sort of non urban, non counter cultural character in American life, when we might call the white, heterosexual working class male, who first was totally ignored for about 50 years by the grand narratives of this country, if you ask people what their country was now about, this character would be the last person mentioned. And I think that as the civil rights style of government was built out. What it meant is that we used to have the segregated South required special attention from Washington, and Washington had powers to act really forcefully to govern there. And soon women required special attention, and gays required special attention, and immigrants required special attention. And pretty soon you had this group of people who were the only people in the country who were not getting special attention. And so their claim to be second class citizens was actually more than a metaphor. And I think that a lot of the, let’s say, passion that they brought to the Trump campaign which so surprised people in 2016 was actually kind of, it was only a matter of logic that it would arrive sooner or later. Richard Reinsch: Christopher Caldwell, thank you so much for coming on to discuss your new book, The Age of Entitlement. I appreciate it so much. Christopher Caldwell: Thank you, Richard.