Senior Writer John McGinnis joins the podcast to discuss the latest term of the Supreme Court. From cases on presidential removal power to birthright citizenship, he concludes that the originalist majority is reshaping the Court’s jurisprudence—though not always in the way the media says.

Accelerating Democracy by John McGinnis
“Blessed Are the Rich” by James E. Hartley, Law & Liberty book review
Originalism and the Good Constitution by John McGinnis and Michael Rappaport
Why Democracy Needs the Rich by John McGinnis

Intro (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund.

John Grove (00:40):

Hello and welcome to this episode of the Law & Liberty Podcast. I’m John Grove, the editor of Law & Liberty, and I’m filling in for our regular host, James Patterson. And today I’m joined by John McGinnis, who is a Senior Writer at Law & Liberty. He’s also the George C. Dix professor in constitutional law at Northwestern University, the author of Accelerating Democracy, Why Democracy Needs the Rich, and a co-author with Mike Rappaport of Originalism and the Good Constitution. It’s fair to say that John is the anchor of our constitutional law coverage here at Law & Liberty. So we’re really pleased to be joined with him, as we are every July, to talk about the recently concluded Supreme Court term.

John McGinnis (01:21):

Delighted to be here, John.

John Grove (01:23):

Well, we have a lot of cases to talk about and I think a through line through a lot of these cases is presidential authority. So we’re going to start with one that was decided earlier this year, Learning Resources v. Trump. This is the tariff case, the question whether the International Emergency Economic Powers Act authorizes the president to impose tariffs, or the Liberation Day tariffs, as they were called by the President. I don’t know that everybody agrees with that term, but the IEEPA gives the president in certain emergency situations the authority to investigate, block, regulate, direct, compel, nullify, void, prevent, and prohibit importation. Do not specifically say anything about taxing or tariffs specifically. So, John, why don’t you start us off on this case, and what was the Trump administration’s argument that this legislation did allow the tariffs? And then how did the opinions come down and what do you think about them?

John McGinnis (02:22):

Well, Trump’s administration’s basic argument was this is an Emergency Powers Act, and it should be interpreted accordingly to allow the president to have flexibility in emergencies. That was his argument despite it lacking the words “a tariff or tax.” And the Court did not accept that. This, I think, is good to begin with because while the term had some wins for the institutional power of the president, it was not a good term for this President’s exercise of power. For the matters I think that most concern this president, beginning with the tariff case, he lost at the Supreme Court. And I think, in some sense, I would consider the headline of the term, at least in a political science sense, that the Court remains a separation of powers entity that can push back on the president even when he’s appointed three of the justices and even when six of the justices are members of his party.

(03:32):

And so what the Court did here was that it said, “Well, this is at least ambiguous because, after all, it doesn’t include tariffs or taxes and yet includes a lot of other sweeping powers. And when a statute is ambiguous and has major effects, we have something called the Major Questions Doctrine, which requires the Congress to speak clearly.” And well, here it didn’t speak clearly because it didn’t mention tariffs. And that’s why, at least in the plurality’s view of Roberts, Barrett, and Gorsuch, he loses. In the liberal justices’ view, he just lost as a matter of clear statutory interpretation. With respect to the dissenters, they said, “Well, we’re fine with the Major Questions Doctrine, but we really think it shouldn’t likely be applied much in the emergency context because after all, there’s a place where we might think Congress wants to have the kind of flexibility that the administration is arguing for.”

(04:36):

So that’s the argument. I think what’s important to note here are a few, again, headline jurisprudential facts. One, there are six votes for the Major Questions Doctrine in domestic and non-emergency affairs. The three dissenters are very strong on Major Questions Doctrine, so it’s going to continue being a presence in administrative law. The other I think important fact is the debate about, well, what’s the nature of the Major Questions Doctrine? And there again, Justices Gorsuch and Barrett really debated that. Justice Barrett arguing that it can be just understood as ordinary language. When you want to give someone a large power, you expect them to be particularly clear. And Justice Gorsuch says, “Well, I’m not sure about that as a matter of ordinary language, but as a matter of our legal tradition and agency law that existed at the Founding, as a matter really of our legal and constitutional language, that’s right.” And so that’s a debate about the nature of it.

(05:43):

This is just ordinary language, which fits very nicely into a kind of ordinary language textualism for Barrett, or is it nested within a legal structure of the Constitution? And that’s why we demand because of our concerns about giving the president, in particular, too much power. That’s why we have a Major Questions Doctrine. And Gorsuch, in what I think it may be the most important opinion he wrote for the court, despite its being a concurrence, he tweaks the liberal justices by noting all of the times when they gave the president tremendous power on canceling student loans, for instance, and refused to apply the Major Questions Doctrine, suggesting that they are not being consistent here. And it was quite, I think, a powerful concurrence by Gorsuch, very long and very scholarly concurrence going back into the legal background of the Constitution.

John Grove (06:45):

Yeah. Could you say a little bit more about some of these distinctions? Because as you note, there’s the Gorsuch and the Barrett debate over how you arrive at the Major Questions Doctrine. But then you also have the three, some quote-unquote, “more liberal justices” who agreed with the outcome, but they don’t really use Major Questions Doctrine at all. And they said, “Well, you can just arrive here through regular statutory interpretation.” So are they basically arguing that the statute here was just clear?

John McGinnis (07:12):

Yes, clear, particularly in context because they said, “Well, there are a lot of other statutes that give the president tariff authority. And so we should read it in that contextually. If we want tariff authority, the president doesn’t lack tariff authority, but it’s bounded by the requirements of these other statutes.” So that was their argument in this case. So that’s why they said that we didn’t need the Major Questions Doctrine. So they just read it as a matter of strict textualism.

John Grove (07:41):

Is that a sign that the Major Questions Doctrine might not be embraced beyond the sort of more committed originalist type justices that have come up with it?

John McGinnis (07:51):

Yes. So I think they were not going to see, but there are six justices on the court who embrace it. The dissenters are very clear in general that they are Major Questions Doctrine enthusiasts. And I think we’re going to see that for this reason going forward. The Major Questions Doctrine, quite apart from whether it’s correct doctrinally, it performs an important function. It allows the court to police unbounded or what it sees to be extravagant delegations without declaring them unconstitutional. So if Congress really wants this, they can come back with the same language and say, “Well, we really mean it rather than revive the non-delegation doctrine, which would actually constrain Congress as a constitutional matter.” Now, not to get ahead of ourselves, here they’re very careful to avoid any constitutional arguments. In some of the cases that we’re going to look at, I think the court reaches out to make some constitutional arguments in a piece that will be forthcoming in Law & Liberty.

(08:54):

I critique the Court for that, but at least let me point out that’s an interesting contrast with Learning Resources versus, for instance, Trump v. Cook, also with respect to the birthright citizenship case.

John Grove (09:06):

Alright. Well, that’s a good segue then. Let’s move on to some of these other cases, specifically these two removal cases, first Trump v. Slaughter and then Trump v. Cook. Trump v. Slaughter, for a lot of legal conservatives, originalists, this is going to be a culmination of a sort of long process of movement towards this presidential removal power, solidifying what is sometimes called the unitary executive and cutting some of the independence from independent bureaucratic agencies, which has often been critiqued as sort of the runaway administrative state. So in Trump v. Slaughter, we have essentially the 99 percent overturn of Humphrey’s Executor. Maybe Roberts leaves like a 1 percent of it. I’ll talk to in just a minute, but give us just the historical background of this of Humphrey’s and how this movement got started to overturn Humphrey’s and revive the notion that really the president is in charge of the whole executive branch.

John McGinnis (10:06):

Yes. Well, this is a predictable decision. It’s a predictable decision because it is as you say, Humphrey’s Executor was in the crosshairs of the conservative legal movement, and it’s easily attacked because its originalist bona fides are weak and because there were always counter principles in the law. It’s not as if a Humphrey’s Executor was the only word on presidential removal. Now, I think we need to begin with a case called Myers, which Taft, of course, who had been president, wrote, and in that case, he suggests that the president does have the ability to fire any officials who wield executive power. Humphrey’s Executor came down, though, after the New Deal started, and it came down with respect to the FTC. And the FTC also exercised what they called quasi-judicial or quasi-legislative powers, what we call rulemaking and adjudicative functions within agencies. And the court said there that because of those functions, Congress was able to insulate the heads of those departments from presidential removal.

(11:26):

They could be removed only either for cause or malfeasance and neglect of duty. So that was these dual cases, which seemed in some tension with one another. The tension was even exacerbated by Morrison, the independent counsel case, in which the Court also allowed insulation of removal of the independent counsel. Now the problem there was the independent counsel exercised executive authority. And so they made it just a kind of balancing test. Well, you couldn’t go too far if the office was really important, you couldn’t insulate it from power. But then because of that, they actually unmoored the doctrine and I think opened the doctrine up to the claim that it’s just judicially made up. And there have been a series of cases that have essentially chosen Myers over Humphrey’s Executor, a case called Seila Law, for instance, in which the Consumer Financial Protection Board, which had a single director but did have quasi-judicial and quasi-legislative functions.

(12:36):

The Court said, “Well, it’s different from the other agencies because it has only a single director.” And the other agencies had more and that meant they were less of an affront to the president’s authority because at least he could appoint some people from his own party. So all of that allowed, I think, Roberts to do what he often does to say, “Well, Humphrey’s Executor has been whittled away by a series of decisions,” a series of decisions that not coincidentally Chief Justice Roberts wrote himself and said, “Well, this precedent, we have to actually go back to the original meaning to decide things here.” And the best understanding of the original meaning is that the president does have this authority because he has all executive authority that is vested in him under Article II. And that implies removal authority just because he can’t oversee the executive branch himself.

(13:35):

He has to oversee his own assistance. And particularly because of a contemporaneous Decision in 1789, which Congress debated this question and gave the president removal authority. So this decision was I think really one of the decisions that was most clearly foretold because it is been I think really in some ways as much as the abortion decision, Roe v. Wade was thought to be anathema to the rights aspects of the Constitution and making up rights. This was really thought to be anathema to the structural sense of the Constitution, both because it seemed to violate the text of the Constitution and because it struck at the heart of accountability. Who was accountable for these branches if the president was not accountable? And so there was also a functional idea and these two ideas came together and I think for the majority in this case made this a relatively easy case to decide.

John Grove (14:45):

I’m going to play devil’s advocate a little bit on this case. I liked Justice Gorsuch’s concurrence here, which I often like Justice Gorsuch’s concurrences. I feel like whenever he concurs, there’s always something that needs to be said that usually John Roberts is not wanting to say. But I really liked his, because he approves of the result of course, but he’s not triumphant about it. He recognizes that it sets up a potential concern in that Congress established a lot of these independent agencies specifically with the idea in mind that they would not sort of just be going with the wind of the president, that they thought these are sorts of regulations that we really don’t want going back and forth every four years. And so for Gorsuch, he says this just raises the question of non-delegation, which is something Roberts, and you’ve written about this very intelligently, that Roberts seems a little bit more skittish about bringing that up than some like Gorsuch do.

(15:37):

But I’m going to bring up just the broader institutional perspective. Is this consolidating a lot of power in the hands of the president in a way that even if the sort of legal arguments about the vesting clause are right the Founders never really sort of had this sort of thing in mind because we have so much regulatory power that has been handed over to the executive that now whatever they had in mind for the unitary executive would not have been wielding this much power? So that’s sort of the institutional question. And then sort of the legal question, I guess, I noticed that in Robert’s opinion, he calls rulemaking executive power through and through. He says, so the power to flesh out statutory regimes through discretionary actions largely outside the remit of courts is executive through and through. But a lot of times we think about this sort of rulemaking power as kind of legislative.

(16:32):

So in some ways these agencies can be seen as wielding legislative powers. So doesn’t that give the legislature some ability to put restraints on the agencies that they’ve delegated that to?

John McGinnis (16:47):

Well, this goes back to a big debate between functionalism and formalism in administrative law, because of course the difficulty with saying that the executive branch is wielding legislative powers is that raises directly the non-delegation question. You’re a formalist. The executive branch has no business. All the legislative powers are in Congress. And the argument has always been, well, the executive of course has some power to fill in the details of how to… That’s part of execution of the law, but that raises the question of how to draw the line between legislative power and executive power. And that of course is exactly what Gorsuch is saying, that if we give all this power to the president and we call it executive, it’s incumbent upon us to draw those lines. Now we do it to some extent through our statutory interpretation through the Major Questions Doctrine, but his argument I think is that’s not enough because it’s not only with respect to major questions.

(17:56):

There are a lot of minor questions that are nevertheless very important to individuals and the separation of power should count there too. And that’s the reason he calls for a revival of the non-delegation doctrine. So I think again, just as Gorsuch I think was on a tear this term, I thought his most important opinion ever was the concurrence in learning resources, but this is also an enormously important opinion. And I do think points to some hard questions that the court is going to be grappling with. The only thing I think a political scientist might say is he might say that he or she might say this is not quite as significant an increase in the president’s power as you might think because actually the independent agencies don’t operate that differently because when a new president is elected, almost always he can designate a new chair and the old chair doesn’t want to stick around.

(19:00):

He resigns. And so it takes him a little more time to get control of the independent agencies, but he gets control of the independent agencies. Nevertheless, the independent agencies have, for instance, not been part of the OIRA process, the Office of Information Regulatory Affairs process, which reviews all non-independent agencies for cost-benefit analysis and for the consistency with the presidential program. And this will allow the president to exert more authority in that respect. So I do think it is significant, but maybe not quite as significant as some commentators have said because of the actual way that independent agencies operate.

John Grove (19:46):

He said there might be this tiny sliver where if you could imagine an agency that is doing nothing but legislative, truly legislative type things and doesn’t exercise any actual executive power, he seems to say, well, that could potentially be like a sliver that Humphrey’s could be right there. But the reality was that none of these independent agencies actually did that and they were all doing executive. I’m trying to get

John Grove (20:08):

At Robert’s understanding of what exactly is legislative power and what exactly is executive power.

John McGinnis (20:13):

But I think the difficulty there, if an agency operates just with legislative power, uses real legislative powers, there’s still the Chada question. Well, how can they operate legislatively without going through bicameralism and presentment? So I think if they’re purely advisory, they just give advice. The court has long said that they can be insulated from review from removal. That’s true of a variety of advisory commissions. I think maybe the harder issue might be if an agency only did adjudication. Going back to Myers, Taft even says, “Well, maybe even there the president should be able to fire them, but he shouldn’t be able to control them. They should be able to make their independent decisions and maybe then only to be fired afterwards rather than before they make those decisions.” So that actually I think might be, but there are very few agencies that I can think of that only do that.

(21:14):

That might be the sliver that I think will most likely be contested. But I think you’re absolutely right. For the most part, for the independent agencies that people talk about, the alphabet agencies like the SEC, the FTC, the FCC, those agencies are now wholly within presidential control.

John Grove (21:35):

Okay. Let’s move on and talk about something that is not exactly the same thing, but that will come to people’s minds when we think about “insulated from presidential control.” And that is the topic of the other removal case, Trump v. Cook, about the Federal Reserve. So the obvious segue here is does the decision in Slaughter have implications about the Federal Reserve and the extent to which the Federal Reserve can be exempted from direct presidential removal? Well,

John McGinnis (22:03):

As it was litigated, it didn’t have really necessarily any at all because the executive branch conceded that it had to go through for cause removal. It tried to constrain that for cause removal in ways that I think were not extremely persuasive, but it conceded that point. So that’s, I think, interesting. And then Roberts nevertheless talks about it and says that the Federal Reserve is independent, which is interesting. He reaches out, Thomas also reaches out if we want to talk about that, but it’s important to understand that the administration does not contest that. And I think there’s a lesson there is that in some ways the independence of the Federal Reserve is so important that even this norm-breaking President who criticizes the Federal Reserve more than any other president won’t go there. Why won’t he go there? Because he thinks it’s too damaging to the stability of the markets and to his own presidency.

(23:14):

So ironically, the for-cause removal for the Federal Reserve may actually not be actually necessary because of the tremendous consensus and function that the Federal Reserve performs. Nevertheless  lawyers like to debate these things and we had a debate in the Supreme Court about

John Grove (23:40):

It. So you don’t think the decision in Slaughter would give a sort of incentive or temptation to sort of change their tune on the Federal Reserve and try it out and see if they could?

John McGinnis (23:49):

I do not. I do not. Well, we have a very lab aisle politics. It’s really very unsettled. We have the rise of democratic socialists and who may probably don’t like an independent Federal Reserve either. But I find it hard to imagine a world in which there is a demand to make the Federal Reserve dependent or at least there’d be tremendous resistance to it. But I think the important point here is, at least in our world, I don’t think the removal power is necessary and the best demonstration of that is the administration’s litigation position.

John Grove (24:30):

Okay. Yeah. You did say though lawyers like to debate these things. So very quickly, what was John Roberts’s distinction? Why does he argue

John McGinnis (24:37):

That the Federal Reserve is different to the Bank of the United States, which of course was very early done by an by George Washington. And as Marshall says in McCulloch v. Maryland, was debated by the purest minds of the Republic. And so it was upheld then. And then there was a second bank of the United States. Now query how persuasive that is. Did they look at all like the Federal Reserve? Did they even have executive powers? The Federal Reserve undoubtedly has today after the Federal Reserve is very involved in regulating banks. I don’t recall that the Bank of the United States involved in regulating the state banks. I think that would’ve been a whole nother constitutional crisis. So I’m not at all sure it’s a very persuasive distinction. And that’s what Justice Barrett says is in her opinion and says, “We don’t need to get into this question and your distinction isn’t really very persuasive.” And so it actually shows, again, at least what some people on the Court have said about originalism.

(25:42):

The Court is going to be originalist, but it’s always going to leave itself and out. Which may go back to Thomas Jefferson, who of course was a kind original intent person and who said in defending the Louisiana Purchase, which at least I think many of his party thought was unconstitutional as an original matter. He said, “Well, we’re going to be originalist in all small things but in really important things…” And of course some people said even at the time, John Quincy Adams, for instance, that that gives the game away. All

John Grove (26:14):

Right. Well, moving on then, obviously the most controversial case of the term, and this switches gears slightly, is Trump v. Barbara. The reaction to this one has been unlike the reaction I’ve seen to almost any other cases because both sides were apoplectic about the results. Those people who argued against birthright citizenship saw arguments that this decision was the parallel to Roe v. Wade, that it was a travesty of justice. But even those who were on the winning side who supported birthright citizenship were very angry that four justices could possibly disagree with them. The reality to me at least, and I’ve again, not a constitutional lawyer, but I’ve had the privilege of reading a lot of good stuff on Law & Liberty and elsewhere from some of the best legal analysts on this question. It just seems like a kind of difficult case. The language of the Fourteenth Amendment can plausibly be read in both directions and you see originalists splitting on this question.

(27:20):

Do you agree with that? Is this just a hard case or was it obvious or …?

John McGinnis (27:23):

I think it’s a hard case. My own view is the majority is correct. And I make an interesting parallel here to the, I hope interesting, to the Slaughter case.

(27:34):

While the traditional originalist view on the Slaughter case is that it’s not that hard a case because of both the vesting clause and the Decision of 1789, a contemporaneous construction of the Constitution. There has been a variety of what I would call revisionist originalist scholarship on that point. And they made interesting arguments. To me, while the arguments have been interesting and make it a somewhat harder question than it might’ve been, they really do not change my mind. And that’s exactly where I am with respect to the birthright citizenship case. The view about birthright citizenship, I’ll talk a bit more about that, the traditional originalist view that the jurisdiction of the United States meant anyone subject to the jurisdiction. And of course as any child born here will be subject to the jurisdiction, our criminal laws, our tax laws, all sorts of laws. And that was really the end of it.

(28:41):

And there were certain exceptions made for Indians and people, foreign consuls, armies, and that was a traditional view. Now it is a little more complicated I think than that because while I think Roberts makes a very good argument that not only is that the obvious meaning of jurisdiction, that there was a kind of birthright citizenship idea, jus soli, idea that went back to English law, that idea may have been changing over time. But I don’t think, to my mind, the revisionist view makes a sufficient argument that it changed the language. And one problem I think for the religious view is at least I think the best view, which is it depends on also the domicile of the parents. None of that’s mentioned in the language of the Constitution. The language of the Constitution just talks about the jurisdiction of the United States over people. And of course, people born here are just people.

(29:43):

So I think that’s to my mind, the stronger view. And then we have an early case which also seems to take that view. It’s not as strong as the Decision of 1789 because it’s not quite as contemporaneous, but it’s pretty clear close to the time. And I think that also makes it a harder argument for the revisionists. The final point I’d make though is again, it wasn’t necessary to decide this case as a constitutional matter because Congress had enacted a statute with the same language in the 1950s, when we had the Supreme Court case, which essentially endorsed birthright citizenship in the 1890s, and we had the executive branch saying that was the understanding. That’s the background against which Congress was legislating. So the court, I think, could easily have said, and in my view, as I will argue in a Law & Liberty column, should have said, “Well, we don’t need to reach the constitutional question. As a matter of statutory, it’s clear.”

(30:45):

Kavanaugh says that in his concurrence. He then reached I think unnecessarily the constitutional question. I think he makes overwhelming argument as a matter of statutory interpretation that whatever ambiguities you have are resolved by this very clear construction against which Congress legislates.

John Grove (31:10):

So is the gist of that, and I did not read Kavanaugh’s concurrence very closely. Is the gist of that then that given that you don’t have to come up with the clear constitutional answer because you have the statute, you don’t have enough to sort of just declare that statute unconstitutional?

John McGinnis (31:28):

Well, you don’t. That statute isn’t unconstitutional because of course Congress could grant citizenship. No one denies Congress could grant citizenship to whoever it wants. It could grant it to indeed people who come here on tourism, right? It could grant that. So there’s no question of unconstitutionality. So Congress can just grant citizenship more so that makes it an easy case. And as I will argue again in this Law & Liberty column, there’s a long, I view, constitutionally based tradition of the court saying we ought not to. We must not reach constitutional questions if we can decide them on other grounds.

John Grove (32:12):

Okay. So that view, then, is basically the Fourteenth Amendment’s language is essentially the baseline of citizenship, but more could be added to that. There could be other avenues of citizenship.

John McGinnis (32:22):

Yes. And I don’t think that is contested.

John Grove (32:25):

That’s interesting. Yeah, that’s a very interesting point. I’m curious, have you followed at all the sort of public reaction of conservatives and the right-wing to this case? And I’m curious what you think about how it’s been received by those who are, of course, looking for some sort of limitation to immigration and potentially limit to naturalization.

John McGinnis (32:46):

Well, I think it’s very understandable because, of course, birthright citizenship is exceptional.

John McGinnis (32:54):

Most nations do not have birthright citizenship and it creates all sorts of problematic incentives. And indeed you might say what it does is requires, if you have birthright citizenship, you have to have a more draconian, stronger border controls because otherwise there are greater incentives, particularly when being a citizen of the United States, like being a citizen of Rome 2000 years ago, is so valuable. So there’s this odd, again, paradox that birthright citizenship is great for those who’ve made it here, but it actually may force us to clamp down more strongly at the border and indeed deport people, indeed the parents of people who come here because otherwise people will feel that they’re having citizens, people citizen of this nation who they’ve not agreed to have as citizens. And I can understand that completely. Of course, that’s a basic fact about originalism. The original constitution is not going to deliver 100 percent of your current policy desires.

(34:13):

It’s just not going to do it because it’s working on a completely different plane. It’s much better if you have living constitutionalism because you can shape that according to your political desires. And there’s no reason living constitutionalism can’t be a kind of conservative living constitutionalism. And I think that’s actually what some people in the conservative movement now want. What they would like is a conservative living constitutionalism, one kind or another, so that it will line up better with their policy preferences. And they’re absolutely right. It could line up better with their policy preferences. The difficulty is I don’t think it’s consistent with the function of a constitution in a constitutional republic.

John Grove (35:01):

All right. Well, let’s move from the most talked-about case to a case that didn’t get much attention, but you particularly wanted to talk about this one because you think it should have gotten more. This is Landor v. Louisiana, which the headlines, when it came out, for the most part, the headlines sort of presented this as a question about whether a Rastafarian’s hair could be cut in prison, which that’s not really what it’s about, but that was the background here is Damon Landor is a Rastafarian. He has his vow not to cut his hair. Prison guards in a state prison did cut it. Now everybody has acknowledged that was wrong, that they shouldn’t have done it. But what then was the issue here in this case? Because it wasn’t about the actual cutting of the hair, it was about what remedies he had. So what was the issue here, and why do you think it’s something that we should be talking more about?

John McGinnis (35:51):

Well, yes, the issue was remedies. The question was whether he would have remedies not against the state, because Louisiana dropped out of the case for reasons I don’t entirely understand. So he didn’t have any longer, maybe he didn’t plead it correctly, remedies against the state for money damages. He sued the prison guards themselves. And what the Supreme Court said was, “Well, you don’t have a right to sue the prison guards themselves.” And the interesting argument was why? Well, Congress had not only not been specific enough about that, but there had been no agreement by the prison guards or by the state to force the prison guards to agree. And why that is significant is it goes to the nature of the power that Congress used to pass this Religious Freedom Restoration Act that applied both to land and to prisoners. It used the spending clause saying that to states you only get certain kinds of money if you agree to this.

(36:56):

And the problem was, well, the prison guards had never agreed to it. And why this is significant is it’s a constraint on the spending clause and in my view, a necessary constraint because there’s this problem with the spending clause. If you don’t actually require some agreement, non-coercive agreement with those who are receiving the money for regulations, the spending clause becomes a plenary power. And particularly in our world, where, because of the Sixteenth Amendment and the federal income tax, the federal government has so much money, all it can do can just go and give money to the states and then regulate people who have never heard of this as they will. And so what Gorsuch is doing is saying, “Well, to have regulation in spending, you must have agreement.” Now he says, “Except of course you can take away the money, but to have some additional regulation like liability, you have to have agreement.” And that’s what distinguishes regulation from spending.

(38:05):

And I think that’s a necessary distinction if the spending power isn’t going to swallow the enumerated powers. And that’s why I think it’s a significant case. Now, of course, Congress can come back and say, “Well, states, you have to write into the contracts with your guards that they have to agree to this if you want to get the money.” So I think there are ways for Congress to get around this, but I do think it’s an important shot across the bow to say that Congress, you actually have to think about the actual power you’re using in framing the remedies you want to impose.

John Grove (38:43):

Does it have wider implications, or is it pointing in a direction more towards limitations on these federal restrictions?

John McGinnis (38:52):

Yes, I think it is. It’s really reviving the idea that you cannot have coercive powers and certainly you cannot have powers that have not been plainly agreed to. And so it is in that sense a restriction. So I think it may have effects on other prior legislation. Whether it will have effects going forward depends on how Congress I think writes the legislation because I think it can probably write around this legislation, this decision, kind of like it could write around the famous United States versus Lopez decision, which restricted the commerce clause to economic matters and didn’t allow Congress to regulate guns around schools. So I consider it maybe more of a symbolic decision, but still an important symbol and deserves more talking about because it reminds us of the limits of the enumerated powers.

John Grove (39:50):

Well, let’s zoom out a little bit and think a little bit more broadly. I know that you sort of see several justices kind of staking out distinctive territory in this term. And we’ve already touched quite a bit on Neil Gorsuch. So why don’t we start with him?

John McGinnis (40:06):

Yes. I think it’s just to say those two concurrences are very important and they point to which I think is his real concern with the structural constitution, number one, and his willingness to be strongly originalist in two senses. He’s willing to consider reviving the non-delegation doctrine. He’s already had dissents along those lines. And he’s willing to understand our statutes against the background of the Constitution. Against the legal background of the Constitution, he thinks there should be a kind of judicial, I don’t know, swerve as it were, even in textual interpretation, given the constitutional context. At least if you can find that as he finds for the Major Questions Doctrine in the way law worked at the time of the Constitution. So that’s the significance of Gorsuch. The significance of Justice Barrett is that on the one end, she wants to stake out being a kind of pure textualism without that judicial thumb on the scales.

(41:12):

That’s her debate with Gorsuch. And she’s also very much a decision we’ve not talked about that’s gotten a lot of blow back from conservatives on the mail-in ballot decision in which as a matter of statute, the court said that election was the time that a voter decided things and therefore states could count ballots that were late arriving so long as the voter made the decision. Again, she was a very strict textualist in this view and I think showed again her independence. So I think that Barrett had an important term in this way and moreover was willing to call out the chief justice in his Cook decision because there was of course a decision where she was more on the conservative side by saying that his distinctions were not really very plausible. And again, that shows her as a kind of constitutional textualist. She’s not having any of these carve-outs that can’t be found in the text.

(42:15):

So she also, I think, gets a lot of points for consistency. The other important justice is Justice Jackson. I think we see, and why I bring up Justice Jackson, is because, of course, there will be more Democratic appointees that we’re going to see a greater radicalism in the Democratic appointees across all fronts. Because just to give you three examples of what I would consider Justice Jackson’s radicalism. Again, in a case we didn’t talk about West Virginia v. BPJ, which is a case about whether West Virginia could ban transgendered people from sports. The Court said it could. And one question was a statutory question, whether that violated Title IX. And the question there was, well, whether Title IX’s description of sex was biological sex. And even the plaintiff in this case conceded that it was biological sex. Not so Justice Jackson. And she said, “Not at all clear and we should interpret things, civil rights laws generously.” I think that’s a throwback to people like Justice Brennan who just remake civil rights law in their own image.

(43:38):

So even if it says that we’re not going to discriminate on the basis of race, well, we can discriminate on the basis of race. So we’re back to the Warren Court, I think, then. Then again in the Hawaii case, I thought she had an extraordinary opinion, which is the Hawaii guns case, Wolford v. Lopez. So that case was about whether Hawaii could ban or require only say the gun owners could only go into public stores, public accommodations if the owner put up a sign saying guns are welcome here or otherwise told them verbally that. And the extraordinary opinion by Justice Jackson said, “Well, this didn’t concern the Second Amendment at all because it was just a matter of property law.” To which Justice Barrett again showing her the strength said, “Well, how could this be true? in a concurrence. Would that mean that the state legislature could pass a law saying that no one could wear a hijab into a store unless the store owner had said, “Hijabs welcome here”?

(44:54):

Of course not. That would implicate free exercise because that’s state action. And I don’t see any plausible argument that Justice Jackson has in that respect. And then finally, in more of a technical area, she’s revived the idea that legislative history can be even more important than text. And I think to underscore her radicalism, Justice Kagan, who I consider the most conservative or most centrist of the liberal justices, has not joined a lot of these opinions of Justice Jackson. So one point I would make to people who are on the conservative movement who are worried about Justice Barrett, your worries are nothing compared to if we saw a lot more Justice Jacksons on the Court. We’d be in a completely different Court. She also denounced originalism despite saying favorable things about originalism in her confirmation hearing. We’re seeing what I think, just as we’re seeing the rise of democratic socialism economically, I think we’re seeing a very strong reaction to the conservative legal movement, a more radical reaction, and Justice Jackson embodies that.

John Grove (46:09):

All right. Well, we’re almost out of time. I know a lot of times you like to take a broad view in that we now have ticking through the years of having a Court that is majority originalist in some sense, although there are obviously divisions between them. How does this year rank in your mind in terms of what we might call righting the ship and getting more originalist decisions?

John McGinnis (46:29):

We move, of course, unlike academics who think, well, focus on the flaws of originalism. This is clearly a court that is moving towards originalism as more of a regulative ideal. I think that’s true. I think the most important thing, it shows that is very different from being a pro-Trump court. Because the matters that concern Trump, his tariffs, which is think one of the core beliefs of Trump, I don’t think the President has all that many core beliefs, but tariffs he’s been on for long before he ever considered running for president. They knocked him down on that. With respect to birthright citizenship central to his immigration policy, he’s knocked down about that. And with respect to the result, which we actually didn’t discuss much in the case, they actually said, “Well, Cook deserved a hearing because you conceded that there’s for cause and you’ve got to actually show that these things actually happened, that mortgage fraud before you can remove her.” And that I think concerns the President a lot as well because he’d like to have a lot more de facto control over the Federal Reserve.

(47:46):

So in all these instances, they were very negative, ruled negatively towards the President. And that just shows, I think, how wrong some of the progressive leftist critiques of the court are. Actually, there aren’t that many instances I think in American history where justices of the President’s own party, three of them appointed by that President have so rebuffed that President. This is an independent Court. To be sure, an independent court, not in the progress image, but doing what you would think the judiciary is absolutely supposed to do, being independent of other branches of government. I can’t think of a term where a Court is more proved it’s independence from the president than this one.

John Grove (48:40):

Well, that’s a great point to end on, John. Always a pleasure to have these conversations with you. Thanks so much for joining us here.

John McGinnis (48:46):

Delighted to be here.

Intro (48:48):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Is America the product of a long line of constitutionalism dating back to the Magna Carta, or a radical break with this tradition? Is it liberal or classical? Scholars and statesmen have been debating these questions since the Founding. In his book, Harmonizing Sentiments, Hans Eicholz explains how the American Founding wove together a number of these disparate but reinforcing threads. 

Harmonizing Sentiments: The Declaration of Independence and the Jeffersonian Idea of Self-Government, Second Edition, by Hans Eicholz
“The Jeffersonian Ideal,” a book review on Harmonizing Sentiments by Michael Lucchese

James Patterson (00:06):
Welcome to the   Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the   Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty and associate professor of public affairs at the Institute of American Civics at the University of Tennessee. Our guest today is Hans Eicholz, a historian and a Liberty Fund senior fellow. He is the author of the book we will be discussing today, Harmonizing Sentiments: The Declaration of Independence in the Jeffersonian Idea of Self-Government published on Peter Lang Press, and now in its second edition, very fitting giving the time of year.

(01:16):

Prior to beginning recording, Hans agreed to do something very important, which is to give a few thoughts on the now late Gordon Wood, who tragically died as of this recording only two days ago. So, Hans, could you please do that for us?

Hans Eicholz (01:33):
Yeah, it’s very appropriate to remember Gordon. Gordon Wood, he is one of the great historians of our day and certainly of the period that is leading into the anniversary of the 250th and it’s just a tragedy that he didn’t make it to this July 4 anniversary. But few people have put that anniversary on the map like Gordon has done through his various works and he was extremely important to a whole generation or generations of historians, my generation as well. I first met him in the late 1980s and he was brought together with a number of other historians to comment on a chapter that I had actually written for my dissertation and he was just very generous with his time and a delight to be with and very insightful, of course, as he always was in his work. But for my generation, very important for stimulating debate over the nature of the American political tradition.

(02:41):

His first book, The Creation of the American Republic, drilled down pretty deeply into the question of republicanism and republican ideas and their roots both in the ancient world and then bringing them forward through Machiavellian and what’s called a classical republican tradition of thought to develop how that framework helped to influence the American political experiment. And so that first book was a wealth of information and raised so many interesting points that scholars like my own advisor were able to engage in a very productive debate over whether the American experiment was fundamentally classical republican and conservative and to what extent more modern liberal ideas of individual freedom and political economy were influential in their outlook. Lockean ideas, which was the previous interpretive school that had predominated before the Republican, what’s often called the “Republican Paradigm,” came to prominence in the late ’70s and early ’80s. Gordon was one of the ones to really bring out the rich source material of that whole way of looking at the American founding and that was with his first book.

(04:00):

But he continued to make that kind of fundamental contribution through really drilling down into the primary sources of American thought and pulling out other strands too. So The Radicalism of the American Revolution, another great milestone really brought out some of the early Democratic ideas and how they challenged that Republican, more deferential political culture that had preceded the time of the Revolution, of the Declaration, and what that meant for the rising generations and how that created a wonderful and fertile mix of debate that informed everything from the ratification through the early Republic. And then he went on to look at how liberal ideas also influenced that. So Empire of Liberty, but also his book on Power and Liberty, a very readable book, but going down into the liberal concepts of order as basically self-propagating and possessing an orderliness that was more spontaneous rather than politically generated, how that influenced and leavened the debates over the American political tradition and understanding.

(05:23):

So in each of these cases, he really was one of the main contributors to really fleshing out all of the different themes that you can find in the debates over the American Revolution and Founding periods. His loss is a tremendous loss and our heart goes out to his family and to all of us who relied so much on his insight.

James Patterson (05:49):
So rest in peace, Gordon Wood. I don’t think there’s a single person in my extended network of scholars that I work with who weren’t touched by his work or even by meeting with him or talking with him. And this account you have of him with your dissertation chapter really does testify that not only was he an excellent scholar, but he was a wonderful teacher and a very good man.

Hans Eicholz (06:14):
Yes, absolutely. And he will be very much missed.

James Patterson (06:19):
Well, on that somber note, we’ll move from discussing the legend to maybe the next legend, Hans Eicholz. Big shoes to fill here, but we’re talking about a book that you published about 20 years ago, Harmonizing Sentiments. And the reissuing of it today is it’s an important thing to do in the 250th anniversary of the Declaration of Independence. So why don’t we start with a discussion of what you think Jeffersonian self-government means?

Hans Eicholz (06:52):
Yes. No, this is good and it really does follow up from what we just talked about with respect to Gordon’s work. The original edition did come out in 2001, so 25 years ago, quarter century. So if we’re going to keep to that idea of anniversaries, it’s rather appropriate. And we’re now approaching in 2026, the 250th of the anniversary of the Declaration. The first edition really was to try to bring out some of the interesting overlays and various themes that you could say by the 1990s had left people somewhat perplexed as to whether or not there was a coherent American political understanding at the heart of the revolution. I’d spoken just moments ago about Gordon’s contribution to what was called the Republican paradigm at that time or the Republican interpretation. And for many people that had taken on such solidity and such paradigmatic dominance that it invited people to try to find all of the ways in which it was not the only way in which to conceive of the relationship of the individual to the state or of the state to society.

(08:17):

One of the things about Republicanism was supposedly its look to the ancients, the fact that it found a place for ideas of virtue and self-sacrifice as opposed to the earlier Lockean conception that was represented by such writers as Lewis Harts and others who had tried to argue that or didn’t try but seemed to be generally accepted, had argued for a kind of Lockean liberal paradigm before. Finding all of this stuff from ancient political thought really did open up a whole new way of thinking about the American political understanding. And for a long time it seemed then that Republicanism was going to be the overarching paradigm for looking at the American Revolution. And a number of people, including my own doctoral advisor, were very instrumental in pushing back against that saying, well, “What Is Still American in the Thought of Thomas Jefferson?” was one of the best known articles of Joyce Appleby on that question and attempted to pull out some of the still liberal understandings of individualism, of the nature of liberty, of the fact that government was not so much to cultivate virtue but to be focused on the provision of law and also to be restrained as a force so as not to interfere with the entrepreneurial and creative aspects of individual freedom, which were to basically well up from the ground up and not necessarily something that you would see created by government as opposed to individual entrepreneurial action.

(10:07):

So she wrote about those aspects of the American Revolution. Others brought in different themes. So you’ve had people come back with ideas of religious liberty and the importance of the covenantal tradition. You had others coming in talking about the importance of law and the common law specifically, which did not necessarily have a connection to Republicanism in the broader political theoretical framework, but a very sort of nuts and bolts legal approach that looked at the common law’s emphasis on precedent and customary legal understandings and their development. You had others who looked at constitutionalism and what that might have meant. So I think of Trevor Colburn, for example, The Lamp of Experience and he talked about the ancient Saxon myths of a primordial constitutionalism that was popular certainly with Jefferson, but also with Adams and others who talked about liberty as something that went back before Magna Carta.

(11:10):

In fact, one of the interesting things developed there was the idea that Magna Carta was not a grant by the king, but it was an affirmation of rights already existing from time out of mind or time immemorial. And this was a notion that was often associated with the ancient Constitution of England or the old Anglo-Saxon Constitution. So you had all of these different languages then that were being rediscovered, if you will, in the ’90s and a number of people were coming forward and saying, “well, we have to accept that there was just a plethora of languages, a virtual babel of languages, and there was no coherent specific tradition out of which American ideas came, but we just have to accept that there were all these tensions and even contradictions and that’s where things stood.” When I wrote the first edition then, that was the primary state of the historiography.

(12:16):

And what I thought was there are a couple of important ways in which all of those different approaches to understanding America and its formative period from the revolution through the constitutional period could be understood as overlays of a very consistent set of concepts all relating to the notion of self-government, that Americans accepted that self-government could be individual and personal, that both the liberal as well as the ancient Republican notions could actually fit together if you understood that self-government had this personal dimension to it. And if you looked at some of the earliest conceptions of government, what it means to govern, they often began with government of the self and were used that way. It’s very clearly that was what Jefferson meant by it. But if you look at some of the very earliest dictionaries of that time, that notion that government was to be the government of one’s own passions, for example, as a prerequisite for engagement in the political, you can see that there’s a direct line of personal individual liberty and political liberty.

(13:39):

So my effort then was to look at these different overlays as being complimentary concepts that when taken together and related one to another could be shown to comprise a, what would you call it in modern parlance, an ideal typical understanding of the self-governing American or revolutionary. And that linked all of the different strands of constitutionalism, political economy, political theory, law, and faith. All of those things worked together and it gave a new, not a new, but I would say, underscored the importance of Jefferson’s later reflection on what he did as embracing the harmonizing sentiments of the day. And it came together very nicely as a title, but that referred to a letter which he wrote where he specifically said, “My purpose was not to do something original or to create thoughts never before conceived of, but to bring forth what was of the American mind of that time, the harmonizing sentiments of the day as embraced in various books such as Aristotle, Locke, Sydney.” I mean, right there, he brought together all of the various themes that historians were interested in that time period. So that was the first primary reason for the first edition.

James Patterson (15:15):
It’s funny, between Madison and Jefferson, there are so many of those pithy phrases that you can use as titles that will never run out.

Hans Eicholz (15:27):
Right. Yeah. I’ve often thought that, boy, I wonder why somebody hasn’t thought of that as a title before, but I was ecstatic. When it hit me, I think I was commuting to work and sitting in traffic when it suddenly hit me. I said, “That’s actually the title. It is the harmonizing sentiments of the day.”

James Patterson (15:49):
That’s always a good feeling. You don’t flinch from talking about slavery and the discussion of the Declaration of Independence and its reception in England. Samuel Johnson uses the hypocrisy argument and “Taxation no Tyranny.” And you describe how the Patriots insist that slavery was an institution imposed on them. Where did they get this argument and is there any truth to it?

Hans Eicholz (16:17):
So this is really quite fascinating. So of course, this is an important part of the discussion over the nature of the Declaration. And when I took up the question first in the first edition, the Declaration seemed like the most natural place to begin a discussion of the ideas of self-government in part because it had both a philosophical beginning but also a very practical and legal argument in the grievances themselves. And so trying to put all of these different concepts together to explain the American worldview, that document presented itself as the logical beginning point for such an analysis. So the first edition did touch on the question of slavery and did talk about it, not as Jefferson’s very particular way of looking at it, but something that was consonant with the American understanding itself. The second edition I decided because of the great importance that developed subsequently in the historiography about that slavery question really went into it a lot more.

(17:31):

And I’ve added a great deal more in developing the whole question of how slavery fit with the universalizable philosophical parts of the opening, but also why Congress both decided to extract the grievance that Jefferson had originally put in, sometimes counted as the 28th grievance that was not included against the king and why they did that and was it really just Jefferson’s own peculiarity to blame it on the British, as you pointed out? And a number of historians have done that and continue to do that. Was he assuaging his own guilt of the fact that he was a slave owner and yet he made these very universal arguments about how all men are created equal? Was he just trying to placate his own conscience or try to assuage his own conscience about that? The conclusion I came to was that, no, this is actually a very old argument.

(18:38):

You can see it raised first in regard to Adam Smith in the theory of moral sentiments. He charges the Americans with, or I should say with slave owners and those involved in the slave trade with being reprobate morally and backward looking, and how can we allow this to continue? And Arthur Lee sees this and writes a response and says, “Well, look, you can’t let yourself off the hook. This is going back into the 1760s.” And then the other thing is that Benjamin Franklin in 1770 writes and publishes a piece in London, an essay where he takes this up directly. In this case, he takes it up with respect to a piece that was published by Granville Sharp who criticizes again the colonies. Sharp is deeply worried about slavery’s promulgation and its ability to be carried on in the colonies, especially on the North American continent.

(19:44):

But Franklin points out, it says, “This is not just something that we have adopted, but it was actually imposed on us. And the empire is just as culpable in all of this.” And so you see that and you realize, well, Franklin’s actually on the committee to help compose the Declaration. And then here comes Jefferson. I don’t deny that Jefferson probably felt that he needed to explain himself to some degree, but it wasn’t original with him. Americans had taken this criticism before and felt very sensitive about it and understood that what was happening was an evil that they had inherited, but they recognized that this was a moral embarrassment and they were going to address it at some level. I think it’s highly within the probability that Franklin was not only possibly in on the decision to include that, well, I mean, we know that he was because Adams and Jefferson and the other members of the committee had to approve it before it went to Congress.

(20:53):

I rather think that Franklin might well have been one of the reasons why Jefferson took as much care as he did to extrapolate that out into three particular charges against the attack against people that had done no offense to the empire and then criticized the transport and the means of transporting and the inhumane conditions on those ships and so forth. I think Franklin probably had a great deal to say on these questions in affirming Jefferson’s decision to include that as part of the grievances that then went to Congress. So that’s an interesting part that I’ve tried to develop and some of the reasons for that. Franklin was part of the Bray’s Associates, which was a group that Johnson, you’d mentioned Johnson, Samuel Johnson was a member of, but Franklin was actually charged with being one of those to inspect schools that were to serve African-Americans in the colonies and to try to encourage the education of African-American youth in America at that time.

(22:07):

They both served in that association. And I think that Franklin probably, we know he was aware of Johnson’s essay, which came out in 1775, “Taxation No Tyranny” in which he made that famous charge and probably felt some degree of responsibility and duty to respond to it. And I think there’s just a lot there, but I bring that out in the second edition.

James Patterson (22:34):
So there’s a discussion in your book of the terms “abuses and usurpations.” And when I teach the Declaration of Independence to students, those terms just kind of pass them by. To them, it just means bad things. These are bad things that happened, but they have a real specific meaning and it’s operating within a kind of constitutional framework. So could you maybe go into detail about that and I’ll mark this down for when I need to explain it to my students next time.

Hans Eicholz (23:07):
Yeah, this is a fascinating dimension to it and it’s the best way I think to really get something out of an understanding of the grievances. So the empire for much of the time leading up to the Seven Years War, which for Americans ends largely in 1760, up until that time have been basically left to themselves. You’ll recall that Edmund Burke famously coined the term a period of “salutary neglect,” but what that period demonstrated was the capacity for these colonies basically to govern themselves politically. And it also corresponded to their, how would you say, the maturation of their political thought and their reflections about their relationship to the empire. One of the things that Americans were very sensitive to was the fact that and very proud of was the fact that they were Englishmen and part of this larger imperial system. And as such, they felt that they shared in the equal privileges or rights of Englishmen.

(24:18):

In fact, Gordon Wood’s work was very adamant, this goes back to the Creation of the American Republic, his first work, just how important a concept that was to share in the equal rights of other subjects. And what they really didn’t want was to be seen as the subjects of subjects. So when parliament decided it was going to impose a tax upon them and they had no representation in that body, it raised alarm throughout the colonies because as Englishmen, do they not have the right to have representation? Isn’t this one of the fundamental rights of Englishmen? And if it’s not, then this does come to illustrate for them that they are the subjects of subjects rather than being on the same level as other Englishmen elsewhere in the empire. But their view then is that they have this set of equal rights and that their own representative institutions, that is to say their own assemblies constitute smaller parliaments within the overall system and that the king’s relationship is as much through his governor to them in their various assemblies as it is to anything in England.

(25:40):

In other words, these are equivalent systems. Now, one of the interesting questions has been to what extent Englishmen understood that. I don’t really go into it to the extent that my later work has been going into that question in the second edition. I emphasize the American perception of the unfairness of that, the illegality of that. And I do emphasize that distinction, which is made, made first in Summary View, which came out two years before the Revolution, before Independence I should say. And Summary View was the pamphlet most radical until Thomas Payne’s Common Sense in which he lays out the constitutional understanding of Americans. And they don’t deny that the king has a great deal of authority to suspend or even veto acts by colonial legislatures. They don’t deny that he has powers of enforcement, that even give him the authority to deploy ships and troops.

(26:51):

He certainly has the power to send troops to the colonies to protect them. And all of these constitute regular and legal, how would you say, powers of the executive. But when he allows others to start trying to exercise a jurisdiction that’s foreign to them, such as parliament’s attempt attacks, that is a different kind of matter. So when you look at the grievances, what you have are the first twelve open up really with abuses. This is the king who’s always willing to negate or veto or suspend acts of legislation on the part of the colonies, but isn’t doing so anywhere else. He is simply always taking his thumb and pressing down on the colonists, but he’s not utilizing his power in any particular or balanced way. He’s using it in a very biased and unfair way and that constitutes an abuse. The nature of that abuse comes out then very particularly when he conspires with others who have no jurisdiction over us and this is the 13th charge and it’s followed by nine specific subcategories that illustrate that kind of grievance and those are not abuses but actual usurpations.

(28:23):

They don’t have the authority to apply a direct tax to us to raise a revenue. They don’t have the authority really to impose upon us any pieces of legislation that we haven’t had some voice in. And so those nine subcategories constitute usurpations. Now there are two primary pushbacks against the Declaration that come out. One is by Thomas Hutchison who had been the last civilian governor of the colony of Massachusetts, royal governor. And Thomas Hutchison wrote a piece called “Strictures Against the Declaration” or on the Declaration. And he took those charges very personally and recognized to some degree the nuance in the differences. John Lind writes for the empire and it’s very interesting to see that he does very much what you say your students do. It’s just all bad things and he goes through and really doesn’t recognize that there’s any distinction between abuses and usurpations.

(29:33):

He charges the Americans with thinking that everything the king does is just a usurpation and dismisses it. But to my mind, Hutchinson had a bit more of a bead on this because of his very personal and direct relationship to the colony of Massachusetts and therefore took it personally because many of the charges were directed squarely against him. The whole dust up over the Boston Tea Party was really his doing actually when you come to think of the fact that he refused to allow the tea ship to exit Boston Harbor, that was his decision. And so he takes it very seriously and that’s why I used his “Strictures on the Declaration” as the way in which to understand the loyalist position within the American debate.

James Patterson (30:27):
You say something that I really agree with and I can’t quite put into words, but I think is very true. And that’s that you worry that Americans have become less Whig and more Tory and they’ve also become less themselves and more European. So what does this mean and why is this bad?

Hans Eicholz (30:48):
Okay. Well, that’s a good question. And my intention there embraced a number of points, but two in particular. The first thing is we’ve often heard the debate cast among historians between American experience and the ideas which they inherited, often European ideas, in fact, predominantly European ideas. And many of those who’ve argued for a kind of American exceptionalism have often wished to downplay the ideational, the ideological, the philosophical, and have wanted to emphasize the predominance of America’s own traditions of covenanting and forming their own constitutions and basically governing themselves politically as the core thing. And so while all historians will point to the grievances as among if not the most important part of the Declaration, they do so for various reasons. And those who have argued for American exceptionalism have often done so precisely because they wanted to emphasize what was uniquely American and it was that experience on the ground.

(32:05):

But the ideas were very important, extremely important for both launching a defense of American institutions, but also for giving them the means by which to say, “yes, this is what we’re doing and we’re justified in doing so.” So when Locke talks about the original contract and why it is that the state of nature doesn’t require the kind of political force that Hobbes had argued was necessary, the absolutist form of government, what he was doing was calling attention to the fact that many aspects of our lives, he said, this goes on before there was a political association, are voluntary and rely on just the ability of individuals to form agreements with each other, to come into association with each other for reasons other than politics. And one of these is trade. He’s making that state of nature not quite as desperate, not quite as awful as Hobbes had argued.

(33:15):

And that allows him to assert that we retain certain of these rights. In fact, the reason why we set up government is not so that the king or the prince can lord it over all of us and terrorize us into submission, but in fact, so that we can protect those most important rights, which are rights that allow us to engage in important productive and creative associations and relationships for all manner of reasons, both social, philanthropic, also economic, that these are the reasons why we actually have a government in the first place so that we can control those who can’t control themselves. And he calls those the quarrelsome and the contentious, the people who will rob and steal and murder and maim, they do exist, they do have to be controlled, but that doesn’t embrace all of us. And so we do retain rights and that’s the purpose of why government exists.

(34:16):

Now put those things together, the theory and the American experience and right away you see that they reinforce each other. Again, this was part of the harmonizing spirit of the time and the harmonizing sentiments of the time that American experience affirmed what was only a theory in Europe. So in Europe, the existing governments asserted these rights and it was very difficult to say as long as it was just theory that they shouldn’t be absolute. The Americans set a counter example that future reformers and revolutionaries would point to and say, see, they’re capable of self-government. They illustrate what Locke was talking about. They illustrate what the Scottish enlightenment was asserting that there’s an inborn moral sense. They illustrate that commerce is an order unto itself. We shouldn’t forget that 1776 is also the time when the great synthesis of those ideas, because those ideas did exist.

(35:21):

Hume had written about commerce as a self-regulating phenomenon, but Adam Smith synthesized all of this, put it together in the Wealth of Nations, and it came out the same year as the Declaration of Independence. But for European reformers, they were fighting an uphill battle. And so to answer your question, the growth and importance of government was simply a fact of European life and this would only intensify over time. In the American case, that was something we could actually say our experience affirmed not the absolutist nature of government, but the fact that it should be limited in nature and we could say that it should be limited in nature because so much of the order of our life, of our associations, of society exists not as the result of active intervention by government, but simply by governments being limited to very specific functions.

James Patterson (36:26):
The book is Harmonizing Sentiments: The Declaration of Independence, and the Jeffersonian Idea of Self-Government and the author is Hans Eicholtz. Hans, thank you so much for coming on the podcast.

Hans Eicholz (36:39):
Thank you very much for having me, James. It’s been a real pleasure.

James Patterson (36:43):
Thanks for listening to this episode of   Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Hillsdale’s Bradley J. Birzer joins James Patterson to talk about the Declaration of Independence. They discuss the American colonies’ devout Protestantism, their love of the classics, and their identification with the Anglo-Saxon constitutional tradition. Birzer concludes with a stirring assessment of why the Constitution matters.

The Declaration of Independence: A Radical Experiment in Liberty by Bradley J. Birzer
Penman of the Founding: A Biography of John Dickinson by Jane E. Calvert
Thomas Jefferson and the Fight Against Slavery by Cara Rogers Stevens
Vital Remnants: America’s Founding and the Western Tradition edited by Gary L. Gregg II
The Language of Liberty by J. C. D. Clark

James Patterson (00:06):
Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring series commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty as well as Associate Professor of Public Affairs at the Institute of American Civics here at the University of Tennessee. With me today is the one and only Dr. Bradley J. Birzer. The Russell Amos Kirk Chair in history at Hillsdale College and Fellow of the Ronald Reagan Presidential Library. Today we’ll be talking about his recent book from Stonehouse Press, The Declaration of Independence: A Radical Experiment in Liberty. Dr. Birzer, welcome to the podcast.

Bradley Birzer (01:18):
James, thank you. I’m so glad to meet you and of course the audience doesn’t know this, but we’ve already had 10 minutes of joking around. So it is so great to meet you in person. I have followed your career for quite a while now and you’ve been a great ally.

James Patterson (01:35):
You start the book with American colonists being decidedly English in their patriotism and in their point of view. So how did this self-consciously English perspective lead almost ironically to an independence movement?

Bradley Birzer (01:50):
Yeah, thanks, James. That’s a great question. I don’t know how to say this without sounding cocky and I definitely don’t mean to sound cocky about this, but you know AIER came to me exactly two years ago in a month. So, 25 months ago, they came to me and asked me to write this book. And at first, the way we laid it out was that it would be a synthesis of everything that’s been written on the Declaration of Independence. And that’s why at the beginning of the book I give credit to the Jaffa students and the Straussians and to the Voegelinians because I’m really interested in trying to tie together all the various views. But the one thing, and again, this is where I don’t mean to sound cocky at all, but the one thing that I came across that hit me really hard that nobody has done, and I think there are probably good reasons that nobody has done this.

(02:48):

Nobody has actually explained, I wouldn’t call it the English character, but what I would call the Anglo-Saxon character of the American colonists. You can find some classicists in the ’30s and ’40s who mentioned this and mentioned that Tacitus was a big deal, or Hengist and Horsa, the original Anglo-Saxon Invaders of England. But when I started digging into it, I found that it wasn’t just Jefferson who was totally taken with Tacitus and with Hengist and Horsa, but that all Americans really saw themselves as the original descendants of the Anglo-Saxons. And James, one of the reasons that I think we lost this view is if you look at American history in the 1830s and ’40s, Anglo-Saxon becomes a synonym for white Protestant and it takes on racialist connotations. When I say Anglo-Saxon in my book, I don’t mean race at all. I’m talking specifically about language, culture, and law, and those are the things that the Americans really embraced.

(04:03):

And so again, one of those things that people have known about but no one talks about when the Declaration was printed in book form on July 6, 1776, two days after its passage, it comes with this 20-page introduction to it by somebody who took the name Demophilus. We don’t know who that is. We think it’s a radical Pennsylvanian by the name of George Bryan, but we don’t know that. That’s a guess. But if you look at this introduction, it starts with the history of Hengist and Horsa, the two great Anglo-Saxon invaders of Britain, the ones the Celts are fighting. It starts with them, and it ends with the passage of the Declaration of Independence being the most recent act of Anglo-Saxon history. And again, as far as I know, unless I missed something, James, nobody’s written about that. And so again, I never went into this project trying to be unique or original.

(05:07):

That wasn’t what the project was meant to be, but that was the thing that I found that hardly anybody else has talked about. And again, I believe that’s mostly because we associate Anglo-Saxonism with racism. And that’s unfortunate. That’s a corruption. That’s not the original. These guys, Hengist and Horsa, weren’t running around saying, “Yeah, we’re white guys.” That’s not what they were doing at all. So that’s something that I’m very proud of with the book that I think I did make an original contribution.

James Patterson (05:40):
You actually describe at one point the militia at Lexington as assuming show of force, not as a way of intimidating the soldiers, but almost to show a sense of mutual respect, right? This is a form of recognition. Maybe explain that.

Bradley Birzer (05:58):
Yeah, I take that argument from Bruce Frohnen. I’m not sure if you’re familiar with Bruce.

James Patterson:
Oh, sure. Yeah.

Bradley Birzer:
Yeah, good. I mean, Bruce is a great scholar, and he had an essay, and it’s not something he’s focused on, but he had an essay in a book called Vital Remnants that Gary Gregg published about 20, 25 years ago. And in that essay, Bruce really talks about the Anglo-Saxon medieval tradition of militias and how in Anglo-Saxon … Now sometimes, and James, I had to be careful with this as well. Much of what the colonists believed about Anglo-Saxon history is probably not true. They believed it, and they believed it was true, but it’s probably more mythological than it is true. But the myth becomes reality because they believe in it. They’re not lying. They actually believe in this. But one of the stories that the Anglo-Saxon Americans told themselves, and I think Bruce Frohnen is amazing on this, they basically told themselves that there are these whole series of ways that a community can show its displeasure with the king.

(07:14):

And the absolute final way of showing your displeasure is by arming yourself and standing there with your arms protecting your community. In the American tradition, once South Carolina did that, it’s secession. And so we in the American tradition tend to think, well, look, if you’re armed, you’re seceding. That is not the Anglo-Saxon tradition. The Anglo-Saxon tradition is, look, we’re at the end of our rope. You guys have pushed us as much as we can. Now we’re arming ourselves. It doesn’t mean you’re not our king. It just means that you have done things that we don’t agree with and we’re going to demonstrate with arms. And that’s exactly … There’s a great … and I’m a Catholic, but there’s a great Protestant minister at Lexington by the name of Jonas Clark, this deep Calvinist minister. And Clark convinces the people of Lexington. Look, we have to stand.

(08:14):

I mean, this is it. If we don’t stand here and show our colors, the British will never respect us at all. And of course, it doesn’t turn out that way. It’s a bloodbath at Lexington, an absolute blood bath. The just horror of horror shows there with a British open fire on the militias as well as into the crowd of civilians. They’re not firing directly into the crowd, but the crowd is right there. And so it’s just a nightmare what happens. But also it’s one of those things, and I think I put this in the book, and I was trying to be dramatic about this, but my argument is essentially once the first Lexingtonian is killed, he’s the first American. That’s the first time we could say: This is an American. Because it changes the whole consciousness to be Voegelinian for a moment or Barfieldian. It changes the whole understanding of who they are and they’re no longer just citizens of Lexington.

(09:14):

They have become Americans. And at that point, there is a kind of secession. But note, and I make a big deal of this in the book. We’re fighting with the British as early as April 19 of 1775. We still don’t declare our independence until July 2 of the next year. So we are openly at arms with the king for 14 months before we secede. Again, I think that’s very hard for us in 2026 to understand. It was not hard for them to understand. It was part of that Anglo-Saxon myth. That’s what you do.

James Patterson (09:52):
How out of step were the American colonists from the culture of the mainland or the motherland, even the British regulars. I’m sure at least some of them, when they saw the formation at Lexington, were like, “What is going on with these people?”

Bradley Birzer (10:06):
Yeah, absolutely. I mean, there are two things I would say about that, James. It’s a great question, but think about this. I mean, just even physically, Americans on average are about five to six inches taller than their British counterparts because of nutrition. And you think about someone like George Washington at 6’2”? That would basically be the equivalent of about 6’6” for us. He’s a giant, and when he’s on horseback, of course, he looks amazing. He looks like a centaur. He’s a mythic figure for the Americans. So even physically, we don’t look like the British, but there’s another real difference. The British are recruiting their soldiers from the lower class. And so when they come to America, and this is something we don’t often think about, but you and I, James, we could go through letter after letter after letter and document of colonial Americans, and we would never find a cuss word or a swear word.

(11:16):

And you know, if a bunch of guys are in a bar or a pub, they may cuss, but it was completely unacceptable to cuss in public, and especially around women. But the British soldiers did this all the time, and they catcalled, and you’re in a place like Puritan New England, where women are treated with almost complete dignity. Man, I mean, it’s no wonder the Boston massacre occurred. I mean, you’ve got these soldiers who are just lower-class dregs walking around a middle-class, very moral society. And so the point I want to make in this second point, James, is there is an immense religious difference between the Americans and the British at this point. I don’t want to exaggerate this too much, but imagine when the Puritans come and settle in New England, they are escaping the Anglicans.

(12:15):

And when the Anglicans come to Virginia and settle, they are escaping the Puritans. When English settlement is going on in North America, it’s at the same time as the English Civil War and the English Reformation. So these are a deeply, deeply reformational people. These aren’t Germans, where they can say, “Yeah, we had that conflict with Luther 200 years ago.” These are people who are coming over in the midst of their reformation. And I always get frustrated with this, James, and feel free to push back on this. Whenever scholars emphasize, well, there’s this great enlightenment project of the Americans, I always kind of laugh at that because yeah, there are four really great enlightenment figures. There’s Thomas Jefferson, there’s Ben Franklin, there’s Benjamin Rush, and there’s Thomas Paine. And then you’ve got the majority of Americans who are so utterly Protestant. As Burke said, they are the most Protestant people in the world.

(13:23):

When you look at the average population in 1775, we are not Enlightenment. We are utterly Protestant. These are deep, serious Protestants. And so that would be the thing I would say, James, to your question. Again, what are the two things that are different? Well, number one, we don’t look like the British because we’ve got this great nutrition. Number two, we don’t act like the British because they’ve kind of lost their Christianity. It’s still there, but it’s not embedded in the very nature of their souls like it is both for the Anglicans in the South and the Puritans in the North. And just good Presbyterians and Quakers! Everywhere you’ve got these intensely religious groups in America. And again, I think that’s very hard for us in 2026 to understand, but it was very hard for the British to understand in 1775, too. And I’m taking this, by the way, I want to give him credit.

(14:26):

I’m taking this argument about the Protestant culture from J. C. D. Clark, his great book, The Language of Liberty, I think, is one of the greatest books written on the Founding. Again, just great stuff. I don’t want to give myself credit. This really is coming from Clark in his argument.

James Patterson (14:43):
Yeah, I know the interest in describing the American Revolution in Enlightenment terms, I think, is a kind of twentieth-century project to maybe open it up to more people because of how Protestant it really was, as well as a consequence of those guys having a lot of writing. Jefferson had the little machine that made copies of every letter he wrote.

Bradley Birzer (15:07):
Absolutely. And those guys matter. I mean, when you’re talking about Franklin, Jefferson, Rush, and Paine, those are serious guys. So I don’t in any way want to downplay their influence. I just want to suggest that they’re unique in what they’re doing.

James Patterson (15:25):
So speaking of the Protestantism here–and this is something you go into in a way that I really appreciate because I’ve talked about it too–is that one of the early causes for the American Revolution was the Quebec Act that the English Parliament passes. Then there’s the line in Common Sense where Paine describes monarchy as akin to popery. So how anti-Catholic, not just Protestant, but how anti-Catholic was all of this and how did it get bound up in the politics of allying with the French?

Bradley Birzer (15:55):
Right, right. No, again, great question, James, and a complicated one. I would say this, the Protestants–and I’m trying to be objective here, even though I’m speaking as a Roman Catholic–the Protestants don’t know what they’re talking about, but they believe very seriously that the Roman Catholic Church is on the verge of worldwide tyranny. The Catholic Church is the force of regression and superstition. It is the force of darkness. It is the opposite of Enlightenment. And so for American Protestants, most of whom who would never in their life have met a Roman Catholic, the Roman Catholic Church is everything they oppose. And so when the British, and of course we in America, we call the Quebec Act one of the Coercive Acts and the Intolerable Acts, that was not what the British saw when they granted rights to the people of Quebec, they basically thought, we’re being good and liberal.

(17:00):

We’re being humane. We’ve controlled these guys militarily since 1759 and by treaties since 1763, now it’s time we give them independent rights. And so the Quebec Act, which is passed in late June of 1774 says two really important things. Number one, it allows Catholics in New France–well, not New France anymore, I’m using that anachronistically, but in Quebec–it allows them to have bishops and that had never been allowed. And one thing we have to keep in mind, and this is part of the extreme Protestantism of America, even among sects in America, when we look at that, even when you have people like the Methodists who have bishops or the Anglicans who have bishops, they never once set them over to North America. Prior to the American Revolution, they would’ve freaked out and it would’ve been legitimate to assassinate a bishop.

(18:09):

It would’ve been culturally acceptable to take a bishop out. And so when the Catholics get bishops for the first time in North America, that is a huge shock to the Protestants. Again, I think the Protestants are dead wrong, but we’ve got to give them credit. They believe this was a horrible, horrible thing to happen. And to imagine now we’ve got French and Indians just north of New England. This was horrible to them. But the second thing the Quebec Act does is that it gives where I’m sitting right now in Southern Michigan, it gives all of the Great Lakes to the Canadians. And this area, what we would call the Ohio country, basically they were already fighting about that in the French and Indian War and the Americans believed that they had already laid claim to the Great Lakes. And now the British are saying, no, we’re going to give that to the Canadians.

(19:09):

So I don’t want to suggest that the Quebec Act is purely anti-Catholic, but it’s at least half anti-Catholic and half worried about territorial expansion. And yeah, I mean the Americans, well, they freak out. It’s no accident that the second, or excuse me, the first Continental Congress meets a month after news has landed in the American colonies that the Quebec Act has been passed. And one of the first things that our Congress, which of course… it’s the root of the House of Representatives. The First Continental Congress is essentially the House of Representatives meeting for the first time institutionally in our constitutional history. But when they meet, the first declaration they make is a horribly anti-Catholic statement about the Quebec Act. As we know, and gosh, this is something in our more modern tolerant age we don’t talk about, but when New England soldiers were on the battlefield, their war cry was no king, no Pope.

(20:17):

I mean, that’s what revolutionary soldiers are saying, and the idea that the Pope would have anything to do with America is ridiculous, but they believed it! And they’re willing to die for that! So that’s a huge part of this. James, sorry, I’m talking too much about this, but that’s a huge part.

James Patterson (20:36):
Yeah. Well, if you’re reading Foxe’s Book of Martyrs and accounts of the St. Bartholomew’s Day massacres, it’s not out of control anti-Catholicism in some ways there’s history there. So I just recorded a podcast with Hans Eicholtz and we were talking about your book after we were done and he said a lot of great things about it. He said that what’s different from the book that he wrote 20 years ago, Harmonizing Sentiments, he spends more time on Jefferson. He says that you spent a lot of time on John Adams and the Declaration. So what is it about John Adams that’s so important to understanding the Declaration?

Bradley Birzer (21:20):
Yeah. Well, first of all, I like Adams. I love Jefferson too, but he’s got so much baggage because of the slaveholding, and because of Sally Hemings, which may or may not have happened. We don’t know. There’s just so much racialist baggage that comes along with Jefferson and as great as he is as a statesman, and he’s very good on the slavery issue in a political sense, he’s really terrible on it in a cultural and personal sense. It couldn’t be worse. And so that’s hard. Whereas John Adams, yes, he’s got a lot of brusqueness to him and he’s obnoxious, but there’s none of that baggage with him. We can look back at him and be really proud. He is anti-Catholic, and I’m sorry he was so deeply anti-Catholic, but other than that, there’s no baggage with John Adams. He’s a serious republican, he’s a serious patriot.

(22:16):

I wouldn’t call him a libertarian because that term’s too anachronistic, but he’s a pro-liberty guy and he’s very anti-slavery. And for a long time, for really almost the first 15 years after the passage of the Declaration, very few people in America knew who had actually written the Declaration. There was actually a serious debate. Was it Thomas Jefferson or was it John Adams? And it wasn’t until about 1826 and the 50th anniversary that everybody recognizes it was Thomas Jefferson. But if you go back and look at what the notes actually say, it seems pretty clear that John Adams helped Thomas Jefferson draft, outline the Declaration. Jefferson’s the author. I don’t want to take that away from him. He is the author, but it does seem to be the result of a very serious brainstorming effort between Jefferson and Adams. So the way I would think about it is Jefferson and Adams are the draftsmen.

(23:28):

Thomas Jefferson is the author and I think I’m guessing a little bit. I don’t know that for certain, but I’m guessing. And what we do know from their notes, and of course they’re older when they’re remembering these things and talking about them they may have faulty memories, but the argument that they make at the time is that Jefferson is the better writer, Adams is the better orator. And I think that’s probably true. Adams is a great writer. You go back, he is truly one of the great penmen of the founding era. He and John Dickinson are the true great penmen, but they’re not going to match Jefferson’s rhetorical style. When it comes to Jefferson’s rhetorical style, the writing of the Declaration is a step below poetry. It is truly prose at its absolute finest, and Adams couldn’t have accomplished that. Adams is brilliant. He’s great.

(24:22):

But that’s not Adams. Adams is a blunt Calvinist. There’s not a lot of poetry. I mean, I think it really takes an Anglican. I think it takes someone with a sense of liturgy and a sense of drama to be able to draw out those things. I’m not suggesting a Calvinist couldn’t have written the Declaration, but I do think it makes more sense that someone out of the Anglican tradition would do that just because of the poetry and the language that’s there. And nothing against Calvin. Calvin was a great writer too. And remember his first book was a book on Seneca’s poetry. So I’m not dismissing Calvin, but there’s a hardheadedness in Calvinism. You look at the Institutes, they’re brilliant, but they’re not poetic. Aquinas is poetic, Augustine is poetic and I think that’s just part of the tradition that we’re getting at. So I’m deviating a little bit from your question, James, but I really do think that we have to give John Adams credit for a lot of the Declaration.

(25:26):

And it is true Adams was a great orator. He may have been the best orator of his day. He was also really good at politics. Jefferson was not. And so Jefferson basically said, look, I’ll write the thing. You get it through Congress. And that’s exactly what they did. So I think for us now in 2026, yeah, we’ll give 60 percent of the credit to Thomas Jefferson, but I think that still means that 40 percent of it goes to John Adams. And I think we would be really unfair to give it all to Jefferson. James, there are a couple of team-ups in American history that I think just make America in so many ways. And I think the first great team-up is Jefferson and Adams. I think the next great team up is John Quincy Adams and Andrew Jackson before they had their falling out. I think there are these elements where these guys–and they end up because they’re so brilliant, they fight each other afterwards–but the moments that they get along, it changes the course of history.

(26:45):

And that to me is what happened with Adams and Jefferson.

James Patterson (26:49):
That’s a great book. The idea of team-ups that become rivals. I like that.

Bradley Birzer (26:54):
Yeah. Right. Well, and again, I mean we hardly think about that, but when Andrew Jackson had his private army running through Florida, it was John C. Calhoun who wanted to send down a counterforce to capture Jackson and to execute him for treason. And John Quincy Adams kept saying,” Are you kidding? This is the greatest Godsend to America. Let the guy run wild.” And then the fact that Quincy Adams and Jackson hate each other in 1824 is such a tragedy because they were the best team up possible earlier, but Jackson didn’t know that. He didn’t know that was going on. He didn’t know that Adams had his back, but he did. So I loved that.

James Patterson (27:41):
Yeah, Jackson was always wheeling around for the next foe, so I just need to stop on that.

Bradley Birzer (27:46):
Oh, absolutely. Yeah. And we don’t think about that. I mean, he had a private army.

James Patterson:
He did.

Bradley Birzer:
This was not sanctioned by the US government.

James Patterson (27:56):
He did some pretty terrible stuff.

Bradley Birzer (27:58):
Pretty amazing. Yeah, absolutely. Absolutely.

James Patterson (28:03):
So Jane E. Calvert just won the Storing Prize on her work on Dickinson and Dickinson comes up in your book, too. And I think she worked very hard on explaining that Dickinson is an important counterpoint to Adams. So should we give him his flowers or was he more of just a pain in the neck for Adams?

Bradley Birzer (28:22):
Dickinson?

James Patterson (28:23):
Yeah.

Bradley Birzer (28:23):
Oh, I love Dickinson. I mean, I think Dickinson is … If you look back at his Letters from a Pennsylvania Farmer, I’m ready to take up arms when I read those. They are so powerful. I mean, when he says in Letter 12 that tyranny is always preceded by sleep, if we could just make Americans realize that over and over again, it’s like, no, be alert. Don’t allow these politicos to get away with this stuff. I think we would be in a much, much better position. And I really, again, it’s Letter 12 for me. I can read that over and over again and I just want to go declare independence after that. So I love Dickinson’s style. He and Charles Carroll are by far the most formally educated of the Founders. These are guys with MAs. These are guys who are figuring out what law decrees are and nobody matches them.

(29:23):

And I love Dickinson in Madison’s notes on the writing of the Constitution and at least the way I teach it, James, and this may have a little bit of hyperbole, but I always tell my students we would never have the Constitution without the radicalism of Madison and the conservatism of Dickinson. I think those are the two great figures of creating the Constitution. And if you go back and look, and I know that the musical 1776 makes fun of Dickinson, but if you go back and look at Dickinson’s arguments for why we shouldn’t pass the Declaration of Independence, they actually make perfect sense. He says, “Look, we need to get a government in place. If you’re just declaring independence, we’re going to go through a period of anarchy.” And it doesn’t happen that way because the revolutionary committees are in charge, but I can understand that.

(30:17):

I can see where Dickinson’s coming from. It’s like, yeah, maybe we should write a Constitution before we declare independence. So I don’t think that Dickinson’s outrageous. I think he actually has a really logical argument right then. He’s wrong, but it’s not an unpatriotic wrong. It’s a patriotic wrong and he’s misguided, but there’s no evil in him at all.

James Patterson (30:45):
So you spend some of the later chapters going through the Declaration structure, I guess just one chapter now. I said multiple chapters. Just one.

Bradley Birzer (30:53):
Right.

James Patterson (30:53):
Both in its final draft and its various edits. Maybe give us a sense of what was the original draft and what was taken out, maybe why.

Bradley Birzer (31:03):
Yeah. There’s only one major change, well, two major changes from the original draft to the one that Congress accepted. So number one, and I think this is really critical. Number one, Jefferson did not include “we pledge our lives, our fortunes, and our sacred honor.” That was not in Jefferson’s draft. That was something that Congress added at the last minute. And I think again, this just tells us so much about the Protestantism and especially a Calvinistic Protestantism. They are, for all intents and purposes, creating a covenant out of the Declaration, and that was not Jefferson’s intent, but that’s what it becomes. And so I wouldn’t put it at the level of the Abrahamic or the Mosaic Covenants, but I would definitely put it above, say, what we might think of as Catholics as a marriage covenant, because it’s a societal one, it’s a cultural one that deals with the entire people.

(32:10):

And don’t get me wrong, I’m not denigrating marriage. I’m totally in favor of it and I’m in favor of that covenant. But this is something in between the Mosaic covenant and a marriage covenant. And I think it has a higher purpose in so many ways. Again, that was not Jefferson’s intent. And remember, Jefferson, on his good days, he’s a deist, on his bad days, he’s pretty atheistic. So we wouldn’t expect Jefferson to make a covenant, but we would expect the Founders to do so. But the other thing–and this is where, gosh, so many hypotheticals and counterfactuals–Jefferson wrote this absolutely huge, beautiful paragraph condemning the king for allowing slavery in the colonies. And historically, that’s not quite accurate, but mythologically it’s true. And if Congress, which had been debating ending the slave trade, that was a part of the debates of the spring of 1776, they were debating it very seriously: should they end the slave trade? Had Congress actually included that paragraph and said, look, what is slavery?

(33:20):

It’s a result of the king. Once they symbolically beheaded the king, they could have destroyed slavery at that moment. And I’m exaggerating a little bit, but it was a possibility and there were so many other revolutionary changes going on. Why not get rid of slavery at that one moment? But South Carolina and Georgia, as they always do, they said, “Well, you guys can do that, but we’re out then. We’re not a part of this.” And Congress backed down. They said, all right, we need you guys. We need all 13 colonies on this so we’re going to ignore that issue. And they excise that paragraph. But here’s what’s so important about that paragraph, not just what could have been but what was. In that paragraph, Jefferson says that men, and it’s capital M, capital E, capital N, that men from a foreign country had been taken away against their will.

(34:23):

And so what we know textually is that when Jefferson says all men are created equal, he did not mean white men. He meant all men. He was including Africans in that. And so that I think just textually is so important. But again, and James, I’m being Pollyannish, but really can you imagine how different American history would be if we had gotten rid of slavery at that one moment? And slavery was already naturally decreasing. Our best estimates–David Brion Davis talks about this in his books on slavery–slavery may have been decreasing during the founding period by as much as 33 percent. Because you can’t say all men are created equal and then go whip somebody. You just can’t do that. It’s hypocritical. And so there are manumissions going around everywhere in the colonies, not in Georgia and South Carolina, but everywhere else in the colonies.

(35:24):

So when the Founders write the Declaration they are, and I think we can give them credit for this, even though they make a bad decision, an immoral and unethical decision, they are under the impression that God and nature is already destroying that institution. It’s on its way out. It still may be another hundred years, but it’s evolving its way out. So I think that’s important too.

James Patterson (35:48):
Kara Roger Stevens has a great book trying—

Bradley Birzer (35:51):
I love Kara.

James Patterson (35:52):
Yeah.

Bradley Birzer (35:53):
That book is amazing. That was my favorite book of two years ago. That was incredible.

James Patterson (35:58):
It was an incredible book sort of trying to parse out how Jefferson’s behavior and his ideas don’t quite align and really like a tour de force.

Bradley Birzer (36:08):
Yeah, Kara and she’s also the nicest person possible. When I think about what is she, early 30s, when I think about the future of the history profession, she gives me great hope.

James Patterson (36:23):
Oh, wow!

Bradley Birzer (36:23):
Yeah. Oh, she’s amazing. Have you met her, James?

James Patterson (36:27):
I have. She won the 2025 Storing Prize, so we interviewed her at the meeting, a Ciceronian Society meeting.

Bradley Birzer (36:34):
She’s a delight.

James Patterson (36:35):
Yeah. Speaking to the Ciceronian Society, of which I am president, so everyone should know that.

Bradley Birzer (36:39):
Yes, and I’m a member very proudly.

James Patterson (36:41):
Yes. You talk about Cicero. There are these figures that are in the background of the Declaration. We know John Locke. John Locke kind of gets a lot of attention, but Cicero’s there as well as people like Algernon Sydney, who people may not know about. So maybe talk about some of the more unsung heroes or influences on the Declaration.

Bradley Birzer (37:00):
Yeah, thanks, James. I always love talking about Cicero. He and Socrates and  St. Augustine. I’ll leave Jesus out of this because he’s obviously above all of these guys. But when I think of Western Civ, I just never get enough of Socrates or Cicero or Augustine. They are the foundations for me of what Western Civ is. And so anytime I can talk about them, I’m more than happy to. And I’m one of those, I’m sure you’re the same way, James. I mean, I’m a nerdy guy. If I have time and I’ve got On Duties, I pick it up and I read it.

(37:37):

They’re not at the level of scripture, but to read On Duties or to read On the Laws or On the Republic, I mean, these are just edifying works. And so there was this practice, we don’t do this anymore because we’re not as liberal in the best sense as the Founders were. They’re deeply classical and liberally educated. Jefferson had like every college student of his era, they kept what were called commonplace books. And these commonplace books are diaries, but they’re intellectual diaries. And what they would do, and all the Founders did this, the Founders who went to college, all the Founders who went to college, about 50 percent of them, they would keep these commonplace books. And so every time I came across a passage in Homer that I loved, you write it down. And you write it down in Greek. And then I’m reading Cicero and I love it.

(38:33):

I write it down in Latin. And of course these guys, we haven’t talked about this, James, and this isn’t common knowledge, but any school child at all who had had any education, even if you were only say eight, nine, and ten before you started doing serious farm work, all education in the colonies was only learning Greek and Latin. That’s all you did. Even as an eight-year-old, that’s all you did. So this is a deeply classical period. We don’t think about that, but it’s a very classical period. And so it was expected that someone like Jefferson would know Greek and Latin and then hopefully Hebrew and maybe Italian too, but certainly Greek and Latin. And so I’ve had a chance to go through these commonplace books and the person who is more represented than anyone else, and it’s not even a close race, is Cicero. Cicero just predominates Jefferson’s books.

(39:34):

He’s everywhere in them, all over the commonplace books. And it’s just clear that Jefferson loved him. And so in May of 1825, Jefferson’s a very old man. He’s 14 months away from death. He doesn’t know that, of course, but he’s a little over a year away from dying. And he’s asked by Robert E. Lee’s father, what was the inspiration of the Declaration? Jefferson responds brilliantly. Again, he’s an old man. It’s 49 years after the Declaration, so he may not be remembering perfectly, but it’s our best evidence. And what’s he saying? He says, number one, I did not say one original thing in the Declaration, not one thing. Everything I said was an expression of the American mind of that time, everything. So there’s nothing original. And he says, these were the common ideas of Aristotle, Cicero, Sidney, and Locke. And so I thought, okay, well, let’s go back and look.

(40:42):

Let’s figure it out. And so for me, and again, I could be wrong, I’m guessing on a lot of this and I did this in chapter six. Now, I had a blast guessing, but I’m guessing. And so I thought, all right, where do we see Aristotle in the Declaration? Well, it’s in the pursuit of happiness. If you look at Book 10 of the Ethics, Aristotle tells us what is the purpose of our life? It is to do excellent things. It is to be happy with our excellences. And when we are excellent, of course, Aristotle doesn’t talk about God very often. Plato talks about God every other page, but Aristotle doesn’t. God is pretty absent in Aristotelian philosophy, but God shows up. And in Book 10, Aristotle says, “What do we do? ” Well, we are excellent because we praise God for the gifts he’s given us.

(41:38):

And I thought, okay, when we’re thinking about pursuits of happiness, that makes sense. And Jefferson’s probably about as pro-God as Aristotle is. It’s not a going concern for him, but it’s there. He’s not doubting it. He’s just not into it. And so I thought, okay. But then I got to Cicero, and you start reading the opening, when in the course of human events and nature and nature’s God, and suddenly the language sounds exactly like Cicero. What does Cicero tell us? What do you and I have in common, James? Even though we’re distinct individuals, we share in the Logos, we share in reason, and who do we share that with? Not just you and me, we share it with the God, capital G in Cicero, the God. And what does that mean? Well, it means that right now I could walk into an immigrant neighborhood in the Twin Cities in Minnesota, encounter a Muslim Somali woman and what do I have to say?

(42:50):

I’m not a woman, I’m not Muslim, I’m not black, but she bears reason. And that I think is incredible for Cicero. Cicero is cutting to the chase and he’s saying, look, the accidents of birth do not matter. Every good person, every man, every woman, every child, black, white, male, female does not matter. They all share in reason. And so for me, when I read, and again, I’m making connections here that may not have been exactly the connections Jefferson was making, but when I look at the Declaration and it says “all men are created equal,” there’s no asterisk. It doesn’t say except for Africans or except for Missouri Synod Lutherans or except for Jews. There’s no asterisk. All men are created equal. And for me, that’s Cicero. And you go back, it’s also Heraclitus. You go back to the earliest Greek philosophers, Thales, Heraclitus when they’re debating, are we earth?

(43:58):

Are we water? Are we air? Are we fire? They’re asking the question. This is the heart of Western Civilization. We’re not racist. We are deeply universal. The whole Western project has been defined commonalities among human beings. And James, I know you didn’t ask this, but I’ll go off on a tangent for a second. Let’s go back. Let’s look at Horace. Let’s look at Cicero. Let’s look at Virgil. Let’s look at Livy. Let’s look at Homer. Is there ever once in any of the ancient texts a judgment about someone because of the color of their skin? No. The answer is no, you cannot find it. When they talk about the Ethiopians, they say, well, the Ethiopians are hilarious. Everybody wants to hang out with the Ethiopians. Even the gods want to drink with the Ethiopians, they’re a blast. Nobody says, “Oh my gosh, they’re dark-skinned and therefore inferior.” And to me, this is Western Civ.

(45:06):

And when I hear people, and I get really worked up about this, as you can probably tell James, but when someone says to me, Western Civ is racist and sexist and imperialist and colonialist, I think, who are you talking about? Yeah, that’s the modern West, but that’s not in the tradition of the West at all. It’s not rooted in Western Civilization. That’s a corruption of Western Civilization. And so one of the things I say in the book, and I mean this very seriously, though I’m throwing the gauntlet down. There are two truly great moments in humanity where we proclaim human dignity. One is Christianity. Nobody had proclaimed human dignity like Christianity. Think about St. Paul, neither Greek nor Jew, neither female nor male. It is absolutely universal all one in Christ. And then we get to Jefferson. We hold these truths to be self-evident. James, again, feel free to push back on this, but I would argue till I’m blue in the face that outside of Scripture, that sentence, “we hold these truths to be self-evident” is the most important sentence in human history, because I think it says something profound about who we are.

(46:32):

It says something deeply profound about what human nature is. And so you can have a great black man like Martin Luther King who loves Jefferson and loves the Declaration. He doesn’t see a contradiction there. What he says is the Declaration is a promissory note. Not everything’s perfect on July 5, but man, it’s going to be and it’s moving in that direction. And I’m no utopian. We’re all fallen. We love war. We love being discriminatory. It’s just the unfortunate side of who we are. But if you say something like all men are created equal, you can’t back down from that. You can only make it real. So all the direction is towards human progress in the best sense. And again, I’m not utopian. I’m not progressive by no means. I’m as conservative as they come, but that is an optimistic thing I think we can say about The American Project.

James Patterson (47:29):
Dr. Birzer, thank you so much for coming on the Law & Liberty Podcast.

Bradley Birzer (47:32):
James, it’s such an honor. And again, I’m so glad we connected with one another. What a treat!

James Patterson (47:37):
Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Conspiracy theories have always played a role in American politics, especially at the presidential level. In his new book, Stephen F. Knott explores the history of this phenomenon from the Jefferson administration to the present day. He joins Law & Liberty contributing editor James Patterson to discuss why presidents resort to conspiracy theorism so frequently.

Conspirator in Chief by Stephen F. Knoff
“Conspiracy in the White House” by David Head, Law & Liberty (book review)
Coming to Terms with John F. Kennedy by Stephen F. Knott
The Lost Soul of the American Presidency by Stephen F. Knott

James Patterson (00:00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name’s James Patterson, contributing editor to Law & Liberty and associate professor of public affairs in the Institute of American Civics at the University of Tennessee. With me today is my guest, Stephen F. Knott. He’s the Thomas and Mabel Guy Professor of American History and Government at Ashland University and Professor Emeritus of National Security Affairs at the United States Naval War College. He’s the author of many books, including The Lost Soul of the American Presidency and Coming to Terms with John F. Kennedy.

(00:01:17):

These are both from the University Press of Kansas. Today we’ll be talking about his most recent entry, Conspirator-in-Chief: The Long Tradition of Conspiracy Theories in the American Presidency. Professor Knott, welcome to the podcast.

Stephen Knott (00:01:31):

Well, thank you, James. It’s always a pleasure to reconnect with you. You’re still looking youthful and vibrant and I’m very impressed.

James Patterson (00:01:42):

Let’s just start from the beginning. Are you tired of the chemicals they’re putting in the waters that make the presidents crazy?

Stephen Knott (00:01:53):

Yeah. Well, it’s interesting you should mention that because of course, if we were talking about this subject in the 1960s, even into the ’70s, fluoridation of the water supply was a big issue. And folks …

James Patterson (00:02:06):

Right.

Stephen Knott (00:02:06):

… in the John Birch Society were convinced that that is precisely what was going on, that our precious bodily fluids were being contaminated by some communist serum that was being injected into our drinking water. So yeah, James,

James Patterson (00:02:19):

That’s it. We needed to listen to General Turgidson.

Stephen Knott (00:02:24):

That’s right. Yeah, Buck Turgidson. Yep.

James Patterson (00:02:29):

So this book is about conspiracy theories not against presidents but held by presidents. What an incredible subject, first of all, but also how alarming is it that there are so many cases?

Stephen Knott (00:02:42):

Yeah, I think it is alarming, James. And I’ll tell you, I first sort of stumbled upon this when I was writing the previous book, you mentioned The Lost Soul of the American Presidency, where I talked about presidential use of demagoguery. And it was amazing how often conspiracy theories came up, whether it was Jefferson’s minions circulating rumors that Hamilton was a British agent or Woodrow Wilson attempting to portray anti-war opponents in World War I as agents of the Kaiser or whatever. So that’s what got me onto it. And yes, I do find it a disturbing feature, but I try to end on a positive note. We’ll talk about this later, I’m sure, but not every president has succumbed to the conspiratorial rumor-mongering temptation.

James Patterson (00:03:34):

We see at the beginning of the book, one of the most high-highs and low-low figures is Thomas Jefferson in American history. So he writes the Declaration of Independence. He’s a pivotal figure in starting the defense of religious liberty in the United States. But there’s another side to him that really comes out when he’s in the Washington administration and really flowers once he becomes president. So what are we looking at with him and conspiracy theories?

Stephen Knott (00:04:07):

Yeah, Jefferson’s fascinating because he was such a complex man. I know that’s kind of a cliche thing to say about him, but he did have this incredible capability of compartmentalizing certain aspects of his light. And the Jefferson, who was the great rhetorician, the poet of the American Revolution and whose poetry I greatly admire. When it came to street politics, if you will, the guy was very capable of playing down and dirty. And I’ve often said that Jefferson is kind of the founding father of the politics of personal destruction. And I’m talking particularly about Jefferson’s take down of Alexander Hamilton and some of the other Federalists. Instead of attempting to deal with their arguments, Jefferson always assumed that Hamilton was a closet monarchist, if not, as I said, an outright British agent. And I think Jefferson believed that as well about some of Hamilton’s allies like Rufus King and John Jay and some of the others.

(00:05:15):

So this portrayal of the Federalists as monarchists, as people who had betrayed the spirit of 1776, that’s what I’m sort of getting at primarily with Jefferson, that he had a tendency to view anyone who disagreed with him as somehow corrupt and ultimately treasonous. And that’s an aspect of Jefferson’s life that I don’t think a lot of Americans are aware of. And while I hate to rain on our 250th birthday party, again, I certainly admire Jefferson’s language in the Declaration of Independence. As a political figure, he was frequently taking the low road.

James Patterson (00:05:59):

The targets for Jefferson were many. I mean, Hamilton as a person, Adams to some degree, also Washington, which is a shocking thing that I think people have in mind, but also were institutions. So he has the First Bank being one. What was his concern with the bank?

Stephen Knott (00:06:16):

So with the Bank of the United States, on one level, he was concerned that the subject of the bank had come up at the Constitutional Convention and it was not included in that list of enumerated powers that one sees in Article 1. So in Jefferson’s view, I think constitutionally speaking, there was no authority given to the federal government to create a bank. Beyond that, however, Jefferson was always fearful of any sort of public and private mixing. And the way Hamilton conceived of the Bank of the United States, there would be precisely that. There would be some …

James Patterson (00:06:55):

Right.

Stephen Knott (00:06:55):

… East Coast bankers mixing with public servants of sorts on the Bank’s board that was in Jefferson’s view, that’s corrupt and the public should remain sacrosanct, should remain completely separate from private interests. And I should add to that, James, I think there’s just both in Jefferson and his party and the party that still to some extent views him as a founder, the Democratic Party of today. There’s just a skepticism directed towards East Coast banking interests in terms of what they see as a kind of disregard for the common man.

James Patterson (00:07:36):

Yeah. The Bank and Hamilton are really not separated in the minds of Jefferson. And so he sends Gallatin after the records here. And what evidence of conspiracy does he find in the records of the Department of Treasury?

Stephen Knott (00:07:50):

He finds none, James. He finds nothing. Much to his despair.

James Patterson (00:07:55):

So conspiracy is solved, right? He clearly drops the conspiratorial thinking at that point, right?

Stephen Knott (00:08:01):

Absolutely not, James. He now is more convinced than ever that Hamilton is so adept as a conspirator that he has successfully hidden any record of his malfeasance.

James Patterson (00:08:13):

And this gets to the problem with all of these cases, which is evidence that the conspiracy is false becomes evidence that the conspiracy is true. What on earth is going on with people that make their way all the way to the top of political authority in the United States that they believe they’re powerless?

Stephen Knott (00:08:32):

Yeah. Well, it’s an interesting theme, I think, in the book, James, in that all of these men, and they are all men that I discuss in the book, are convinced to some degree or another, some more than others, that there is the kind of inside ring, as I think Andrew Johnson put it, or a deep state as the current president puts it. They all do share that view that somewhere there is this secretive cabal that’s truly pulling the strings behind the scenes, that’s untouchable by public authorities or certainly by the general public. That is one of the consistent threads that exists, I think, in the minds of these conspiratorial-inclined presidents. And by the way, that is a view, I think, shared widely by many Americans that what you see on the surface is not the truth. It’s always something hidden, always something behind the curtain that you and I are just not privy to.

James Patterson (00:09:32):

When you look at the conspiracy theory of Jefferson, it’s really focused, as you said, on the monarchists that are in our midst, even by the 1810s and 1820s, the idea of betraying the country to the UK during the War of 1812 comes up. But the part that I really enjoyed from the book was a greater historical detail on something from Jefferson’s actual presidency, which is the Embargo Act. And it points to how even as far back as then there’s this also not just concern about banks, but of trade. What is it that connects Jefferson’s conspiracy theory to trade?

Stephen Knott (00:10:13):

Yeah, I think in Jefferson’s view, he really hoped for a new nation, a new order for the ages where you and I and every American citizen would basically be living almost something of a subsistence existence where we’d grow our own food, make our own clothing, et cetera. The more one becomes entangled with others and the more commerce and trade becomes the sort of centerpiece of our lives at that point we begin to drift away from our adherence to liberty, to the enlightenment principles that Jefferson hoped for this country. So cities are seen as corrupt, banks which are always located in cities are seen as corrupt influences. Those common folk who work in cities or later in factories, they are not truly free. They are subject to the whims of their corporate owners. They’re the people who employ them. So you are not truly free unless you live a kind of subsistence existence or you happen to own a plantation on top of Monticello.

James Patterson (00:11:26):

And the great talent that he recruits in the spreading of these conspiracies is a man named James Callender, who I believe, I was looking for the quote he has about John Adams as a “hermaphroditical character, neither the force and firmness of a man or the sensibilities of a woman.” And of course gave us “bastard brat of a Scottish pedler” for Hamilton. So the final part of conspiracy theories is always that they find their way into the press and that’s where they connect to that audience you were saying where people are generally suspicious to kind of share in this conspiracy theory. So what was Callender doing with Jefferson?

Stephen Knott (00:12:04):

Yeah, he’s an interesting character and he is one of Jefferson’s journalistic hatchet men. It’s Callender who reveals to the general public that Alexander Hamilton had an extramarital affair with Maria Reynolds.

(00:12:19):

Callender prints that in 1797. That story had first come to the attention of Jefferson’s insiders in 1792 when Hamilton was Treasury Secretary. Those insiders thought they were on to a financial scandal, some sort of insider trading in the Treasury Department. Instead, they had stumbled upon an extramarital affair that Hamilton was having and he was paying hush money to Maria Reynolds’ husband. It seems to be now the two Reynoldses were extorting Hamilton, but that’s a whole separate issue for another show.

James Patterson (00:12:55):

That’s your conspiracy theory.

Stephen Knott (00:12:56):

That’s right. That’s my conspiracy. You’re absolutely right. None of us are immune to these things.

James Patterson (00:13:02):

No.

Stephen Knott (00:13:03):

But Callender’s the guy who makes this public. I’m fairly convinced that happens at Jefferson’s behest. He had a fairly tight control over his political machine. In 1797, Jefferson is looking at the election of 1800 and the one man he truly feared was Alexander Hamilton. And this story was an attempt, as I said earlier, to destroy or to engage in the politics of personal destruction and blunt any Hamiltonian desire to become chief executive.

James Patterson (00:13:34):

Did he ever compensate the Reynoldses for losing the hush money?

Stephen Knott (00:13:40):

Not that I’m aware of. Now, James, let me add, please, I can’t with this pass. No. It’s Callender who will turn on Jefferson. I know you know this. Jefferson wins the presidency in 1800. Callender wants to become the postmaster of Richmond, Virginia. Postmasterships were prized patronage jobs at that time. Jefferson says, no. What does Callender do? He publishes the story about Jefferson and Sally Hemings. So, there was some sort of justice I think there in Callender terms.

James Patterson (00:14:10):

Yeah, a parallel kind of story here. Yes. And I believe Callender, doesn’t he just end up dead in a river somewhere?

Stephen Knott (00:14:18):

Yes. He does. He does. He ends up dead in a fairly small body of water, which if Oliver Stone were around back then, it would’ve made for a great movie about how this guy was done in by some of Jefferson’s minions. That’s not the case. I’m not saying that, but-

James Patterson (00:14:36):

My stock joke is that if he hadn’t been found in that body of water, he would’ve been found leaning his gun shot in the back of the head.

Stephen Knott (00:14:46):

That’s correct.

James Patterson (00:14:48):

So this is early in the Republic where we’ve got sex, intrigue, rifling through old files to find money trails, and the Bank enriching an elite that’s so capable that they can avoid accountability even from the president. And all of this is laid at the feet of a cadre of monarchists. And then the next case is King Jackson. So it’s this odd flip where the Whig party emerges in opposition to Jackson who styles himself as the heir to Washington but really governs much more like a king. And his justifications for all of these things is a conspiracy theory that is, I would say, more comprehensive even than Jefferson. So let’s get into Jackson here.

Stephen Knott (00:15:39):

So Jackson in a sense builds on the foundation that Jefferson has built, particularly in regards to skepticism towards a national bank and East Coast commercial interests, New York, Philadelphia, Boston. The perception that was widely shared in the South and in the West and Tennessee–Jackson’s Tennessee at that time was something of the West–was that these East Coast interests were constantly tucking it

(00:16:08):

to the common man, whether it was a farmer in Tennessee or a small merchant in New York City. Jackson really gives voice to that view, that fear that somewhere there is this secretive cabal that’s really calling the shots. It’s not your elected representatives, it’s these East Coast commercial interests. And Nicholas Biddle, who happens to be the president of the Bank of the United States, and even that name conjures up kind of Dickensian horrors of this elite guy who has nothing but contempt for the little man. Jackson will use his war against the Bank of the United States and his war against Nicholas Biddle, who runs the bank, as a kind of crusade to cleanse the nation’s capital of this excessive influence that this commercial/banking elite has on the American polity.

James Patterson (00:17:06):

So this bank, the Second Bank now, is responsible for essentially the monetary policy in the United States, just like the Federal Reserve is today. One of the things that I’m sort of picking up when reading this book is that Jackson doesn’t really understand any of that, doesn’t know anything about this. It’s almost like growing up the way that he did as a Scotch Irishman in the West and owning a plantation, your relationship to money is very different, especially banks. And so maybe what is something here that people don’t know about plantation farming and their relationship to banks?

Stephen Knott (00:17:42):

Well, these guys, there are few linkages between Jefferson and Jackson, but they were both large plantation owners, the largest slave owners in their respective states, one of one of the largest. And of course their profitability, their ability to stay in business, if you will, was dependent upon the various crops that were yielded that particular year. And they were always subjected, of course, to weather issues and insect infestation or whatever. The banks back east in New York or even in London in some cases, they didn’t care anything at all, of course, about that. When their loans were due, they wanted them repaid. And so that cudgel that these banks were able to hold over the head, even of these wealthy, powerful individuals like a Jackson or Jefferson, again, is one of the threads that exist between the two and contributes to their animosity towards these distant financial interests.

(00:18:46):

Who, by the way, I should add, James, they never did a hard day’s work in their life. I’m talking about the bankers, not that Jefferson and Jackson necessarily did either, but their attitude towards these bankers was these are money lenders. These are sinful people. They’re making money off of something where they’re not really engaged in any toil whatsoever and that automatically makes them suspect.

James Patterson (00:19:12):

And of course we have with Jackson a stolen election, right? Someone stole his election when he should have won fair and square.

Stephen Knott (00:19:23):

And of course that myth resonates to this day. It’s frequently cited, particularly in some of our close elections that we’ve had recently, but there’s some pretty good work that’s been done out there as an author by the name of Donald Ratcliff, who’s written a terrific book about the election of 1824. He makes a very compelling case that John Quincy Adams actually won the popular vote in 1824 despite what our conventional history books say. They usually say Jackson won the popular vote. And the basis for that argument is that New York state at that time, there was obviously no direct election of the president. You voted for your state representatives who in turn would select the electors. And according to Ratcliffe, that popular vote for those various pro John Quincy Adams state reps in New York was overwhelming. And he says, we need to calculate that into our assessment of who actually won in 1824.

(00:20:26):

But let me add, James, the fact is, of course, the election is thrown into the House because nobody wins an electoral college majority. That is the way the system was and is supposed to work. And the fact is politics, political activity is going to occur. It did occur. There were negotiations, if you will, between Adams and Henry Clay. They struck a deal. Adams was selected as the president. That’s the system working. It’s not evidence of a corrupt conspiracy despite what Andrew Jackson alleged and despite what his defenders to this day and your beloved state of Tennessee continue to argue. Sorry, James.

James Patterson (00:21:11):

No, a friend of a friend that actually works in the historical preservation of Hermitage. I will not let him listen to this.

Stephen Knott (00:21:19):

Wise move.

James Patterson (00:21:21):

Yeah. Actually, the Tennesseans get to roughen this book now that they think about it because the next case is Johnson, but we can’t skip Jackson and yet another one of these sort of palace intrigues. We had Maria Reynolds. Now we have Mrs. Eaton and her dubious marriage. So how does this play at all a role in the conspiracy theory of Andrew Jackson?

Stephen Knott (00:21:46):

Well, again, Jackson approached every issue, every crisis through the lens of conspiracy theories. And what happened with Peggy Eaton was, her husband was a naval officer. He had been killed in action somewhere overseas. Actually, I don’t think it was combat. It was some type of a death, but he was serving in the Navy. She quickly remarries the secretary of war, named Eaton. And because she married so quickly, that offended a lot of the society women in Washington, DC, including spouses of Jackson’s own cabinet members and in particular Floride Calhoun, speaking of fluoride again, the wife and the vice president was very offended at the abrupt nature of Peggy Eaton’s wedding to the secretary of war. And so this just becomes an incredible gossip scandal that Peggy Eaton was a fallen woman. Peggy Eaton was somebody who had a tendency to, as we would say, today, sleep around.

(00:22:49):

And Jackson latches onto this, sees this as evidence of these kind of stuffy East Coast women with their noses up in the air looking down on poor Peggy Eaton. And he spends months on this thing trying to get to the bottom of this and really going to war in a sense with some members of his own cabinet telling them basically to get their wives under control. It’s a remarkably trivial thing that this president elevates to a crisis of state. And again, it’s a reflection of a kind of conspiratorial mindset on Jackson’s part.

James Patterson (00:23:28):

Of course, there’s a kind of weirdly correct view of Jackson being victim of a conspiracy, but that’s not really where his theory goes. And that’s like the machinations of John C. Calhoun, who you just mentioned, who’s constantly trying to guide Jackson in Calhoun’s own direction. How does that end up working out for him?

Stephen Knott (00:23:50):

It doesn’t end up very well, James. Calhoun ends up resigning or leaving the vice presidency, and things get so bad that when there’s an attempted assassination on President Jackson, which failed remarkably considering that the assassin had two pistols with him, both of which misfired–more grounds for another conspiracy theory. But anyway-

James Patterson (00:24:14):

Oh my gosh.

Stephen Knott (00:24:17):

Jackson accuses Calhoun of being behind this plot to kill him. That’s how crazy things got. So John C. Calhoun is going to go on to having a career and a big make a name for himself, but the relationship between Jackson and Calhoun, it’s friendly for a time, but not for long.

James Patterson (00:24:37):

No, we end up with the Nullification Crisis, the Enforcement Act. Oh my gosh. I have to admit that just a little part of me when I was reading about Floride Calhoun, I suspected that maybe she was kind of insufferable. She’s a South Carolina Steel Magnolia, right? I grew up—

Stephen Knott (00:25:01):

She probably was, James. She probably was. Somebody needs to write a book about Floride Calhoun.

James Patterson (00:25:08):

Oh my God. Is that your next project, Steve?

Stephen Knott (00:25:12):

That’ll be my next project.

James Patterson (00:25:14):

That’s right. No more sympathetic biography of a South Carolinian Steel Magnolia than by a Yankee from the Northeast, right?

Stephen Knott (00:25:22):

That’s exactly right. Yeah.

James Patterson (00:25:24):

All right. So for one unhinged Tennessean to another, we get to Andrew Johnson, and here it’s a nation divided and under occupation and in the midst of a reconstruction that we don’t really know how Lincoln was going to institute. So my standard joke about Johnson is that he was talented in no way except at metabolizing brown liquor. So what were his talents, at least for conspiracy theory?

Stephen Knott (00:26:00):

They were off the chart, James. It’s a fascinating case of what might have been. I mean, Lincoln’s first vice president was Hannibal Hamlin from Maine who was kind of a dyed-in-the-wool abolitionist. And I think we can safely say the whole course of reconstruction would’ve been different had Hamlin been left on the ticket in 1864, but the Republican Party leadership wanted to make sure they could carry some of the border states. So they went with the one lone senator from the South, from the slave holding South, who remained loyal to the Union. And that was Senator Andrew Johnson. And interestingly, when Johnson first becomes president, a lot of his future enemies, Thad Stevens, Charles Sumner, et cetera, they had high hopes for Johnson, but very quickly it becomes apparent. Johnson is not the least bit interested in enforcing both the Civil War Amendments, the 13th, 14th, and 15th Amendments and the various Civil Rights Act passed by the United States Congress.

(00:27:08):

He’s not interested in enforcing them. He wishes they never happened. In fact, he uses his office in a way to try to kill the 14th and 15th Amendments. But what you have here is a clash between someone who saw the Civil War as an effort to preserve the Union and the Constitution and a group of so-called Radical Republicans viewed the Civil War as a way to eradicate slavery and saw the Civil War as in a way a new birth of freedom, to borrow from Lincoln. And so you have this clash that ends up with the impeachment of Andrew Johnson, a failed impeachment, but the first serious impeachment. But the point is that for Johnson, over time, he begins to see those radical Republicans, Thad Stevens, Charles Sumner, some of the others as conspiring to not only overthrow him, but perhaps kill him and overthrow the Constitution and establish what Johnson referred to as Negro supremacy.

(00:28:13):

Johnson is going to issue some of the most blatantly racist documents in American presidential history. I don’t use that term lightly. I don’t throw that race card around easily, but in Johnson’s case, it definitely applies. And his rhetoric, his public rhetoric, and this is important, James, this is the first president to really go out and publicly speak directly to the American public and he’s pointing the finger at a traitorous Congress and he’s accusing that Congress wanting to create Negro supremacy. It’s a foul presidency.

James Patterson (00:28:51):

Of course, Johnson is transitioning his conspiracy about the planters trying to start a war to defend their economic interests. How is it that that conspiracy maps on to the elites in the North?

Stephen Knott (00:29:09):

Yeah, it’s a terrific question and it’s an aspect of Johnson’s loyalty to the Union that’s I don’t think greatly appreciated in that he saw the South’s decision to secede as one directed plotted by wealthy plantation owners of which he was not one in the least. So Johnson views the Civil War very much through a kind of class lens. His loyalty is to the Union because he sees this as kind of a conspiracy on the part of Jefferson Davis and wealthy plantation owners. And I think it fits in an odd way in that a lot of the folks when he becomes president are from the Northeast, many are Harvard graduates or Ivy League graduates. He sees them as elitists of a different stripe, a but elitists who are, as I’ve said, committed to establishing Negro supremacy. So there is a tie there and the tie is that Johnson was always aware of class distinctions, always viewed himself as coming from common stock, which was true, but that he was consistent in defending that common stock from the plots of various elites, whether south or north of the Mason-Dixon line.

James Patterson (00:30:29):

Yeah, that populism that he’s doing is kind of consistent with the populism of Jackson and Jefferson. It’s just that in this case, it doesn’t really fit easily into a contemporary understanding of American politics. And one of the things I often tell my students is that we overlook that there was a north and south, but there was also a West and that the West was really a formative experience that shocked people when they moved from the West to go practice politics in the East. So Henry Clay could adapt, but maybe a lesser figure like Johnson, not so much.

Stephen Knott (00:31:09):

That is a terrific point, James, that I wish I’d included in the book.

James Patterson (00:31:13):

Oh, well. Second edition.

Stephen Knott (00:31:16):

Okay. But seriously, yeah, he is in a way a Westerner in addition to a Southerner and that’s a terrific angle.

James Patterson (00:31:24):

Yeah. Johnson actually gets really, really bad towards the end and it’s not a coincidence that he’s impeached. This seems to be a direct response to his own behavior. But what’s weird is that the impeachment itself, even if he regards it conspiratorially, it’s not like they’re hiding their motivations in the impeachment. They actually pass a law to set them up for impeachment, the radical Republicans that is.

Stephen Knott (00:31:52):

Yeah, they absolutely do set Johnson up with that Tenure of Office Act, which is what you’re alluding to, which was attempting to prohibit the president from removing Secretary of War Edwin Stanton without senatorial approval. And of course, the argument from the Senate was, “Look, we had confirmed this guy. We should have a hand in firing him.” That removal debate, again, another topic beyond the scope of this is a discussion, but that removal debate in a way is still being hashed out.

(00:32:24):

I agree with their assessment that that aspect of the impeachment was a setup. Now there were other articles of impeachment, one of which was in a sense defaming Congress with these public speeches that he was giving in which he was naming members of Congress and accusing them as being as treasonous as Jefferson Davis, that type of thing. So that was another article of impeachment. I do think this is an important point, James. I might be one of the few, well, I’m not certain of this, but I actually think that Johnson should have been impeached and convicted and removed in that the president takes an oath to take care of that the laws be faithfully executed. And this was the president who was doing nothing but trying to undermine the law, including undermining those Civil War Amendments that I just mentioned to you. That’s pretty serious stuff and certainly seems to me grounds for impeachment, conviction, removal.

James Patterson (00:33:31):

Yeah. We’re glossing over what you’re … I say we, I have not asked a question about this, what laws he’s not enforcing, but his refusal to enforce civil rights laws and to promote public order in occupied states leads to thousands of dead black Americans as well as white political opponents of Johnson in the South. I mean, it is this kind of neglect that leads to, we’re talking generational violence and disorder in some of these areas, like certain towns that have a black middle class building up that just get burnt to the ground.

Stephen Knott (00:34:11):

Absolutely true, James. I mean, this is the time period where the Ku Klux Klan comes into being, founded by Nathan Bedford Forrest, a retired Confederate General composed primarily of former Confederate soldiers. And this is truly a terrorist campaign that’s going to take place throughout the South during reconstruction. As you mentioned, thousands of casualties, both some white northerners who are down in the south, the so- called carpetbaggers, teachers, et cetera, trying to help the newly freed slave and not to mention, of course, thousands of black victims as well. So this is a horrific time period in our nation’s history. Again, in my view, Johnson was completely derelict as commander-in-chief. His successor, Ulysses S. Grant, will actually for a time anyways use the full force of the Department of Justice and to some extent the United States Army to go after the Ku Klux Klan and meets with some great success, particularly in South Carolina where the Klan at least for time is for all practical purposes destroyed.

James Patterson (00:35:22):

And you end up with elections that actually elect black senators and members of Congress, but that all disintegrates pretty quickly. And I think you’re right to say that the fault really begins with Johnson and his undermining of, what was it called? The Freedmen’s Bureau. What does he do to that?

Stephen Knott (00:35:43):

He shuts it down. He kills it. And that was an entity created by the so-called Radical Republicans. I hate that term by the way. It makes them seem like they’re extremists. All they were trying to do was deliver on the promises of the Declaration of Independence and yet they’re the radicals. Now, I understand, I guess, radical, you know this better than I, means sort of returning to the root. So they were, they were trying to bring the country back to the root of our founding principles. But I think throughout much of our history, Stephens, Sumner and some of the others have been portrayed as zealots and they were not. And they helped to create this entity called the Freedmen’s Bureau, which again was a unique federal initiative to try to help four million newly freed slaves just get on their feet as autonomous individuals through agricultural assistance, educational assistance, telling them how one can use the ballot box to participate in the franchise.

(00:36:51):

The Freedmen’s Bureau was a terrific institution and President Johnson did everything he could to undermine it.

James Patterson (00:36:58):

So we’re looking at a pampered hypocrite, then we’re looking at a xenophobic general and then we’re looking at a common rabble. So clearly the solution to this is to find a man of learning and expertise, a man who trusts the science, a progressive like Woodrow Wilson. This is a man who would be totally immune to any kind of conspiracy theory because he’s a man of learning. He knows the truth and apprehends it in his daily life as president of no populist institution I know of Princeton University. So am I wrong?

Stephen Knott (00:37:45):

Well, I hate to always contradict the host, but yes, you’re wrong. Yeah. One would think that our first and only PhD president-

James Patterson (00:37:57):

May it always be only. Learn our lesson.

Stephen Knott (00:38:02):

I agree with that, my friend. One would think that having lived the life of the mind and worshiping at the altar of reason, that Woodrow Wilson would’ve been rejecting these types of rumors or conspiracies that we’ve been talking about. But in fact, he definitely earns his place in this list of conspiratorial presidents we’re talking about, whether it’s Americans who had the audacity to oppose American entry into World War I and Wilson was quick to label them as un-American and if not outright agents of the Kaiser, or Wilson shared the same view of Reconstruction, I would argue that Andrew Johnson did.

(00:38:43):

Now, of course, Wilson was a child of the South. One of his earliest memories was of seeing Confederate soldiers return home from the war. But Wilson’s take on Reconstruction as something of a historian or political scientist was that it was an absolute disaster. And it’s no accident that one of his friends from Princeton University, Thomas Dixon was the author’s name, will write a book called The Clansman, which will in turn become a film known as The Birth of a Nation. And that film will premiere at the White House. And that is a portrayal of the Ku Klux Klan as the saviors of Southern white civilization. So both on racial matters and on matters of civil liberties, Woodrow Wilson’s record is pretty disturbing to say the least. And as a practicing politician, he was, as I said, very quick to portray any opponents as un-American, one should not speak out against the president,

(00:39:51):

we should all be moving in the same direction. And if you dare to speak out about Woodrow Wilson, you had a tendency to be targeted by him frequently in public forums.

James Patterson (00:40:03):

Yeah. We have here an estimated, this is on page 87 of the book, 38 lynchings occurred during 1917, 64 in 1918, and 83 in 1919. African-American leaders, including Ida B. Wells, W. E. B. Du Bois, and the National Association for the Advancement of Color People pressed for federal anti-lynching legislation. Nevertheless, Wilson was primarily concerned that these acts of terrorism would disrupt the American war effort–here talking about the First World War. He offered no solace to the families of victims, eventually issuing a bland proclamation, condemning the lynching, but making no reference to the racial animus behind the act. He was fighting this war you mentioned. So not only were Black Americans being severely persecuted, there was a group of Americans we don’t normally think about as being different because Germans in the United States have integrated to the point where all you get is maybe a slight Midwestern accent, but in large parts of the Midwest, as well as in Texas, you have German immigrants. And how are they doing during the First World War?

Stephen Knott (00:41:12):

Not well, James. In fact, there’s going to be a lynching of a German-American in the Midwest. I believe Illinois, if my memory serves. But again, this starts at the top. The president is publicly putting American citizens on notice that they better stay loyal. And it actually reaches the point where Wilson’s Justice Department creates this voluntary organization that’s encouraging private citizens to turn in their neighbors as they suspect that they’re not loyally supporting the war effort. And some quarter of a million Americans join this organization and report to the Justice Department. If you had the audacity to stand on your local street corner in 1918 and say that this war, our entry into the war in Europe was unfounded, you’d be targeted and you’d likely hear from the FBI and in some cases you might even be arrested and in some cases you might even be deported.

(00:42:18):

So there was an atmosphere of fear that Wilson, I was going to say tapped into, that’s not even the correct … I would say an atmosphere of fear that emanates from the White House. And again, it’s disturbing from someone whom you think would have an understanding of history and would appreciate the fact that there have been so many instances throughout the history of this country and the Western world where as I think to sort of loosely, loosely borrow from Churchill, fear becomes the sort of overriding the first thing that most citizens experience when a country goes to war and it seems to be very irresponsible for a president to exploit that.

James Patterson (00:42:59):

There’s an institutionalization of the conspiracy theory here, that there’s a threat against Wilson and progress. But who are the conspirators that he’s really talking about here? I’ve gotten into just blanket hatred of Woodrow Wilson, which is a vice of mine that I think is shared. But what was the theory itself?

Stephen Knott (00:43:21):

Yeah, the main sources Wilson was convinced, as you mentioned, is German Americans. It was socialist leaders like Eugene Debs who urged young American men not to register for the draft. Debs will be put in prison under the newly Espionage Act signed into law by Wilson. And Debs was an opponent. He ran against Wilson in 1912 and here he is doing time in a federal prison for speaking out against the war. And then James, perhaps most importantly, one of the key targets of Wilson and his Justice Department were various journalists who had the audacity to exercise their First Amendment rights and to publish anti-war editorials. These people were labeled again as agents of the Kaiser. Their loyalty was questioned. They were often harassed. It wasn’t just a matter of being publicly shamed. They were frequently harassed by the … Well, it’s not the FBI at this point, but by justice department agents who were sent at the behest of Wilson’s Attorney General. So those are the main targets of Wilson’s crackdown.

James Patterson (00:44:37):

One of the central linchpins to the First Amendment is often overlooked and that’s the idea that we don’t license the press, where there’s not a licensing arrangement behind owning a newspaper. And Wilson uses the presidency to try to reverse engineer a kind of licensing arrangement for newspapers and printers, right?

Stephen Knott (00:45:01):

Yeah, that’s absolutely right. One of the papers he was particularly irate about was the Kansas City Star for some reason. Actually, you did find a lot of isolationist sentiment. The further one got away from the Atlantic Coast, the further one got into the Midwest and in particular the Rocky Mountain States. It was not an overwhelming support for the war. But yes, Wilson was urging his attorney general to use whatever means necessary to shut these voices down, these dissenting voices, and to criminally prosecute them. And I know in the case of the Kansas City Star, that is exactly what they attempted to do, prosecute these editors and these publishers for publishing this so- called treasonous material. It’s a very dark period in our nation’s history.

James Patterson (00:45:52):

And we rebound from that. Wilson has a stroke, sort of debilitated in his ability to do his office. This is why people often say that Edith Wilson’s really the first female president because she took over the White House in a way that wasn’t understood then. And now we get to the case that surprised me. I had no idea that FDR had this … When I think of FDR, I think of this worldly, consensus building, friendly, happy guy and maybe those are the chats. Maybe it’s the fireside chats getting to me. So what’s actually going on with him?

Stephen Knott (00:46:36):

Yeah, it’s an interesting point. And I shared that view, James, as well. And until one actually looks at the transcripts of many of those fireside chats that FDR delivered, we assumed they were folks … And the guy had a way of speaking that made people feel like he was in their living rooms with them, which was an impressive tool for the president to be able to use. But if you actually read what he was saying frequently, either when it came to the Supreme Court, when it came to the media, certainly when it came to the Republican Party, FDR was more than willing to suggest that these people were, and again, I don’t think this is an overstatement, that these people were evil, that they hated the common man in the case of the Republican Party. In the case of the Supreme Court, those guys were living in, as he put it, in horse and buggy days and that as the third branch of government, it was sort of a three horse wagon.

(00:47:35):

All three branches had to pull in the same direction and these old guys were preventing the government from doing that. But the attacks were frequently personal as World War II approached if you were somebody, again, who took an isolationist position, your patriotism was going to be questioned by this president and publicly questioned and the FBI, which is now in existence at this point, you probably get a visit from the FBI whether you’re a newspaper publisher or just a sort of street agitator, if you will, chances are you are going to hear from the Justice Department during Franklin Roosevelt’s tenure in office. And then the final point, and I’m sure we’re going to get to this, but of course FDR’s attitude towards Japanese Americans, it’s going to lead to some very awful decisions–the internment of 120,000 Japanese and various concentration camps throughout the West. That’s based in part, I believe, in FDR’s view of the Japanese and somewhat conspiratorial, if not outright racist terms.

James Patterson (00:48:44):

Yeah. There’s an analogy between the kind of vigilante violence that Wilson alternately ignores or encourages during the First World War and the state capacity that FDR demonstrates in his ability just to sew up every Japanese American into camps, what does he imagine is going on with those populations? Did he imagine there spies?

Stephen Knott (00:49:10):

He does, James. He’s getting a lot of rumors from various American citizens. FDR loved to receive information from outside your typical bureaucratic channels, which has its merits, but on occasion he would be picking up material that was just off the wall. In one instance, he was told by someone who had traveled in Mexico just after Pearl Harbor that the Japanese had built an air base in the Baja Peninsula for which they would use to launch attacks on the continental United States. He actually said that in a cabinet meeting. And so there’s a suspicion that the Japanese are not only at our doorstep in Mexico, but that out on the West Coast, whether it’s Hawaii or California, Oregon, Washington, the relatively large Japanese-American population out there simply cannot be trusted. And I have to point this out, James. There is no doubt in my mind that that internment policy was driven by FDR.

(00:50:14):

J. Edgar Hoover, the FBI director, was opposed to it, believe it or not, he’s hardly a civil libertarian.

James Patterson (00:50:21):

No, he’s not.

Stephen Knott (00:50:23):

He’s not. And Francis Biddle, FDR’s own attorney general, also felt that the internment was sitting too wide of a net. And yes, we need to be worried about sedition, espionage, sabotage, but this is just casting such a broad net. They both discouraged FDR from this. He went ahead and did it anyways.

James Patterson (00:50:46):

Genuinely shocking to read that one of the major contributors to this was a rumor about a base that didn’t exist. My mouth was kind of wide open reading this section and it did not stop with him after passing on Truman picks up to a fair amount, right?

Stephen Knott (00:51:08):

That’s correct. And let me make it clear, James, there are aspects of FDR and Truman’s presidency that I admire, particularly their conduct in terms of FDR’s conduct of the Second World War, assembling a first rate national security team, Truman having to make an endless series of decisions having not been briefed at all by President Roosevelt before FDR passed. So there’s a lot about these two men I admire, but Truman, when it comes time to run on his own in 1948 in that famous whistle stop campaign, Truman pulls out all of the stops. He accuses Thomas Dewey and the Republican Party of being fascist. He flat out says there are people around Dewey who if they have their way, we’re going to end up like Hitler’s Germany. This rhetoric is so over the top and it’s one of these cases in American history. We have this real romanticized view of that whistle stop campaign.

(00:52:08):

But again, James, if you actually sort of sit down, read what the President was saying, it’s pretty scurrilous stuff. I think we can safely say that Thomas Dewey, whatever faults he may have had, was not a closet Nazi.

James Patterson (00:52:23):

So there’s some elements of this in FDR, and Truman, which is funny because now we have a kind of founder of the Democratic Party, the sort of consolidator of the Democratic Party, establishment of the progressive aspect of the Democratic party, the resuscitator of progressivism and the victor of the Pacific part of the Second World War. So we finally get to a Republican and in a way, Richard Nixon out does them all.

Stephen Knott (00:52:54):

I try to make an important distinction here between Nixon and the rest, and this is important. A lot of Nixon’s sort of conspiratorial musings were he kept them under wraps. He’s not as publicly willing to share some of the stuff, the types of stuff that we’ve talked about. But the reason I included Nixon in the book is I do think these conspiratorial musings in the Oval Office, which many of which of course are now on tape, influenced his White House staff, influenced the policy coming out of the Nixon administration. And for that reason, I chose to include him. So with that disclaimer upfront, one thing that on sees very much during the Nixon presidency is this just rampant anti-Semitism. Now it’s ironic because Nixon surrounded himself with a number of American Jews, Henry Kissinger, Len Garment, William Sapphire, the speechwriter of his. So again, another complex situation here, but Nixon’s anti-Semitic, anti-Kennedy, anti-Harvard, anti-media, elite media, as you like to call it, was just constant.

(00:54:13):

And as I said, while a lot of that, not all of it, but a lot of that was kept under wraps, it did influence the way that White House functioned. And I would argue it ultimately leads to his destruction of sorts becoming the first president to resign from the presidency. Now in terms of the public conspiracy mongering, most of that was left to Vice President Spiro Agnew who was being fed by Nixon speechwriters, particularly Pat Buchanan. And there you see the sort of public condemnations of Harvard, of the American media, of Hollywood, of all the sort of modern institutions that any good conservative loves to hate.

James Patterson (00:54:54):

Yeah. What you have here as a section, “It is Time for Positive Polarization.” What is positive polarization?

Stephen Knott (00:55:07):

Well, it means that the good God-fearing taxpaying supporters of President Nixon who are part of the silent majority, it’s time to point out those folks who are not God-fearing, who are not patriotic, who are not supporting the American military. It’s time for us to separate and for people to see who these un-American folks are and what we’re going to do to them, I’m not quite sure, but I guess the first step on the road to health is to at least point out who it is that’s causing us this distress.

James Patterson (00:55:47):

Spiro Agnew really does have a gift. He’s the James Callender of his time. “American colleges were in Agnew’s view circus tents and psychiatric centers for overprivileged, undisciplined, irresponsible children of the well-to-do blasé permissivists, and for campus protestors, they took their tactics from Castro and their money from daddy.” Look, you got to respect the demagoguery there. It’s top tier.

Stephen Knott (00:56:15):

Yeah, you do. You do. And I’m sure it’s Pat Buchanan’s pen at work there. But—

James Patterson (00:56:19):

Yeah, no.

Stephen Knott (00:56:20):

It’s very entertaining.

James Patterson (00:56:21):

It screams Pat Buchanan. It does. So explain to me how on earth can Nixon be an anti-Semitic conspiracy theorist and also have a bunch of very loyal Jews on his staff.

Stephen Knott (00:56:38):

James, I wish I could figure that out. I wish I could give you an answer. I think we’d have to put Nixon on the couch, so to speak, for a week or two of therapy in order to pull all this together. I’m incapable of doing that. I have to confess. It’s inexplicable. I mean, he’d be saying these kinds of things to HR Haldeman and 20 minutes later, Henry Kissinger would come into the Oval Office. So I can’t put it together, James. Nixon was clearly a very torn individual, a scarred individual, somebody who never forgot a slight, and that’s not a good job qualification to be president of the United States.

James Patterson (00:57:19):

I will say, and we will leave it to the reader to purchase the book to read the one, two, three, four pages of high level literary criticism of Philip Roth’s Our Gang, which is the funniest thing I’ve ever read that you wrote because you’re just playing this totally verbatim quotations, everything with you is just straight. And I was laughing hysterically through this entire section, but we will leave it to the reader. They must buy it.

Stephen Knott (00:57:54):

Thanks for that tease.

James Patterson (00:57:58):

So another thing that is part of Richard Nixon aside from being scarred, is I think he has this same kind of common man kind of irateness. And this comes out in his displeasure with, of all people, Ted Kennedy, who’s, I know he went to Harvard, but I mean, he’s hardly a Winthrop.

Stephen Knott (00:58:20):

Well, look, anybody associated with the Kennedys or having that Kennedy name was immediately on the forefront of Nixon’s radar. And despite the incident of Chappaquiddick in 1969, there was still a lot of talk that Kennedy was going to run against Nixon in 72. Nixon was convinced that the Kennedys would stop at nothing to win the White House, that the election of 1960 had been stolen from him and he did not want to see a repeat of that. And the fact is that Ted Kennedy, while he wasn’t an intellectual, he surrounded himself with a lot of Harvard advisors. So that coupled with just this fear that the Kennedys would beat him again, that was enough for Nixon to put Ted Kennedy on his radar.

James Patterson (00:59:12):

All right. Well, we have one final case and that is the man in office now. Donald Trump has developed a few of his own. There’s the stolen election and the swamp that needs to be drained. So in a way, building up to Trump, what it illustrates is that in some respects, is that Trump is not novel, but part of a long history of American executives trying to explain the limits of their own influence. So what is it that we see in Trump?

Stephen Knott (00:59:46):

Yeah, I think we see in Trump the sheer volume of conspiracy mongering is off the charts. Now, in fairness to him, none of these presidents that we’ve looked at had access to it with something called an Internet. Television wasn’t even what it is then as it is today. Trump has a twenty-four-seven media access that these guys didn’t have, but he plays it to the hilt in terms of circulating conspiracy theories that are very popular on the street. He’s got people around him who are constantly measuring the temperature of his base and he knows how to fire up that base. And one of the ways to do it is to say that there still exists a deep state, a state beyond his control that’s trying to undermine everything he’s doing. So look, I wrote this book in part because Trump’s conspiracy mongering gets under my skin.

(01:00:55):

I’ll admit that. I tried to be as scholarly as I could in this book, but the fact is as much as I have trouble with a lot of what he puts into the public square, he did not start this practice. I think he’s taken it to new levels. As I said, the output is unparalleled with some of these other presidents, but it didn’t start with Trump.

James Patterson (01:01:23):

And the fact that almost none of the things that he has conspiracies about, really none of the things are original to him. Stolen elections, his fight with the Fed, his real skepticism over trade, all this stuff, his dislike of elites and the need to drain the swamp, his appeal to … Remember when he is like, “I love my low information voters.” This is a man who reads the stage directions and gets applause. It’s amazing. So really Trump is just part of a tendency and as a result of his electoral success, maybe also pathing more opportunities for future conspiracy mongers to run for office.

Stephen Knott (01:02:12):

That’s one of the things I fear, James. I’m old enough now. I actually turn 69 next week. I have three young grandchildren. One is five, one is three, one is one. I’m really fearful about the trajectory of American politics and government. I would like to think that those three young grandchildren will inherit a country similar to the one I grew up with. I knew at the time we weren’t perfect and I know we’re not perfect now, but I would still posit that the kind of liberal democracy that we live in is preferable to the sort of authoritarian type, the Viktor Orbán Hungary-type situations. And I fear we may be heading in that direction. I would love to be wrong. I try to remain optimistic, but part of the reason I wrote that book was for these grandchildren of mine, and I hope they inherit a political order, at least somewhat similar to the one I grew up in. But I have to say I have my doubts, James.

James Patterson (01:03:14):

You do end the book on an attempted positive note by looking at presidents who did the opposite of conspiracy mongering. So who are they?

Stephen Knott (01:03:25):

Yeah. So I talk about George Washington who maintained for eight years despite being beat up by the Jeffersonian press. Never really fired back, certainly not publicly. John Quincy Adams, vis-a-vis Andrew Jackson, I see a somewhat similar situation. Abraham Lincoln is perhaps the best example of all. If there was ever a president who could have used the bully pulpit to engage in a kind of politics of personal destruction against, let’s say, Jefferson Davis. It was Lincoln, but he never did it. He never once personally criticized Jefferson Davis or any of the folks who threw in the lot with the Confederacy. In fact, he repeatedly said they’re still our brothers and sisters. They’re still our fellow citizens. So Lincoln to me is something of a role model of both reason and magnanimity. I talk about William Howard Taft who avoided the rhetorical excesses and the rumor-mongering of Woodrow Wilson.

(01:04:26):

Talk about Dwight Eisenhower, who again did pretty much the same, had a great relationship with the opposition party, was close to Senate majority leader Lyndon Johnson. Eisenhower would reprimand his speechwriters if they ever questioned the motives of his opponents. I include JFK, and I’ve taken a little bit of heat on this one. JFK, of course, won the election of 1960, talking about a missile gap, suggesting perhaps a conspiracy at the highest levels of the government to conceal that. But I try to explain in that at the time, both Republicans and Democrats did believe there was such a thing as a missile gap. But Kennedy as president I think was a champion of reason. He went after groups like the John Birch Society and their whole anti-fluoride campaign. And the final president I include, and this is not going to go down well with some of my liberal friends, was George W.

(01:05:23):

Bush who resisted the temptation to go after Islamic Americans. In the wake of nine eleven, there were some calls on the right for some type of internment camps for American Muslims. Bush flat out rejected that within a week of nine eleven, he visited a mosque in Washington, DC, put his arm around the imam there and said, “These are our fellow citizens and we’re going to treat them with respect.” He avoided the type of actions that FDR engaged in and it cost him politically. So those are presidents I look at, James, who I think for the most part, not always, but for the most part, resisted the conspiratorial temptation.

James Patterson (01:06:07):

Three of course served two terms in office, two were assassinated, and two lost in their reelection bid. So mixed bag. Taking the high road. Very true. I really appreciated that conclusion because you can’t responsibly end a book with just that sad …

Stephen Knott (01:06:35):

Agree.

James Patterson (01:06:36):

But the other thing, of course, is we know this as political scientists is you don’t want to just select along the dependent variable. You don’t want to just select a … You have to select against the thesis too to show that there are alternatives. That’s right. So learned that from you, Steven. So the book is A Conspirator in Chief: The Long Tradition of Conspiracy Theories in the American Presidency, the author Steven Knott. Professor Knnot, thank you for coming back on the Law & Liberty Podcast.

Stephen Knott (01:07:06):

Thank you, James. Always a pleasure.

James Patterson (01:07:08):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Who was John Witherspoon? The only clergyman to sign the Declaration of Independence, Witherspoon was a well-known fixture of political and religious discourse. Today he is, in Dr. Jeffry Morrison’s words, “the most interesting Founder you’ve never heard of.” Morrison talks with host James Patterson about his 2003 book, John Witherspoon and the Founding of the American Republic, and more.

John Witherspoon and the Founding of the American Republic: Catholicism in American Culture by Jeffry H. Morrison
“The Dominion of Providence Over the Passions of Men” by John Witherspoon
Political Sermons of the American Founding Era: 1730-1805 by Ellis Sandoz

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. I’m James Patterson, contributing editor to Law & Liberty and Professor of Politics at the Institute of American Civics at the University of Tennessee. Today, my guest is Dr. Jeffry Morrison. He’s a professor of American studies at Christopher Newport University in Newport News, Virginia. And he’s also the Director of Academics at the Federal Government’s James Madison Foundation in Alexandria, Virginia. Usually when we have guests on our podcast, it is to discuss a new book, but in this case, we’re talking about one that’s a little older than 20 years and it’s Dr. Morrison’s John Witherspoon and the Founding of the American Republic.

(01:25):

It’s a great book to read, or if you’ve already read it, reread given that this is the 250th anniversary of the Declaration of Independence. Since Witherspoon was not only a signer, but also the only member of clergy to sign the Declaration. Dr. Morrison, welcome to the Law & Liberty Podcast.

Dr. Jeffry Morrison (01:42):

Well, Dr. Patterson, James, thank you very much. I am genuinely gratified to be joining you. I’m a big fan of Liberty Fund and its various institutional manifestations and have a long history with them and I’m a fan of this podcast and so very gratified to be joining you today and thank you for the interest in John Witherspoon. And I do actually have another book on Witherspoon that’s forthcoming with Cambridge University Press. And we’re hopeful to get that imprint in this semi-quincentennial year and it’s a volume of his political writings that’s a part of a relatively new series with Cambridge called “The Political Writings of American Statesmen.”

James Patterson (02:25):

Oh, that’s very exciting and very needed. If Witherspoon is so important, why is he so uncommon in the list of founders that people talk about? Why is he such a rare figure in the American imagination?

Dr. Jeffry Morrison (02:38):

Yes, it’s a great question and partly it’s his fault, actually. And we’ll begin with that. But in a sort of semi-jocular way, I like to say that he’s perhaps the most interesting founding father that you’ve never heard of. And if we were to ask persons of his generation, he’d have been noted as one of the most formidable of the founders and indeed members of the Transatlantic Enlightenment and he was seemingly everywhere and he was at the nexus of three of the most important avenues of political culture in the colonies and the new nation, namely education and religion and politics and was equally formidable in all three of those roles. Why don’t we know more about him? Well, I joke partly it’s his fault. He was maddeningly unconcerned about what our politicians call legacy. He just was not interested in the legacy question. So shortly before his death in 1794, he ordered all his correspondence burned.

(03:45):

Just terrible, terrible loss to biographers and historians and political theorists as you and I are. So in compiling this volume of his political writings, which I’ve done for Cambridge, I’ve had to go to various archival sources and other collections of the writings of founders. Alexander Hamilton, for example, with whom he corresponded when Hamilton was Secretary of the Treasury. Hamilton asked him for advice on public credit and Witherspoon wrote him a lengthy response, whose language Hamilton then incorporated into his statements on public credit, for example. So that’s maddening and we don’t quite understand why he did it, but he did. That’s the first reason. Second reason is that I think not to sound conspiratorial, but I think there certainly was at the time and there continues to this day to be a little skepticism about people who are overtly religious participating in politics, holding political office.

(04:49):

And so I think there’s been a slight bias in the academy over the decades and now over the centuries toward a man who by our lights, I think we would say was the most evangelical of the founders. So just to give a quick contemporary example, contemporary to his time, the new Georgia Constitution written as so many of those state constitutions were post-independence, 1776, forbade ministers from holding office in the Georgia legislature. That was not uncommon. So that’s just one example of a kind of bias. Jefferson, in fact, favored a similar prohibition in the new Virginia Constitution and Madison had to gently remind him that that was illiberal and that was actually punishing with a civil penalty someone for their religious beliefs and a violation of Jefferson’s wall of separation, though it’s anachronistic to use that phrase. And so anyway, that’s I think a second factor.

(05:55):

The first one is his own lack of interest in his own legacy and the burning of the correspondence. By the way, some of it also was burned and his papers were burned when the British sacked Nassau Hall at Princeton during the revolution. So we are lacking a lot of primary material and paper trail that the other more famous founders were so self-conscious in preserving. We’ve got roughly 20,000 letters of Jefferson’s and I know you’re a proud Cavalier yourself and UVA PhD and I had the privilege of being a visiting professor there last year myself in Jim Ceaser’s program on Constitutionalism and Democracy. But Jefferson left behind 20,000 and carefully preserved them with that letter press. Same with George Washington, roughly 20,000 letters in a quarter century shorter life than Jefferson’s. But Washington saves every scrap of paper he can. Witherspoon doesn’t. Some are burned by the British, he orders them burned.

(06:57):

So those are two, I think, principal reasons why. He’s understudied, I think, and somewhat forgotten. There does seem to be a kind of resurgence or renaissance in Witherspoon studies in recent decades and I’m very pleased to have a small part in helping to bring that about.

James Patterson (07:15):

The future statesmen that are listening to this podcast, please do not burn your letters or delete your emails.

Dr. Jeffry Morrison (07:23):

Or your texts or your truths or whatever that may be, tweets or Xs, whatever we have to call these things. James, maybe you share the same concern I do as a kind of political historian and political theorist. Future generations will not have the same kind of archives that you and I have had the privilege of working in because so much of this is ephemeral. Tweets, texts, and emails and things like that, we don’t tend to write physical letters anymore.

James Patterson (07:56):

Yeah. It’s a concern, especially when it comes to not even now but maybe like 10 or 15 years ago when it didn’t occur to people and there are entire inboxes that have just been deleted because somebody died and they wanted to use the identification. I first had this thought when I lost access to an email address and couldn’t find something I needed. And ever since then, I’ve been somewhat compulsively saving all my email in a more Washingtonian style than a Witherspoonian one. So I do like the idea of burning the hard drives though. It goes from just throwing them in the fireplace to like a chemical fire that needs to have a control burn. So who is John Witherspoon and where did he come from?

Dr. Jeffry Morrison (08:49):

He was a native Scotsman. So he was born and raised and educated in Scotland and was principally known as a pastor and was, again, to use a slightly anachronistic analogy: He was a pastor of a couple of mega churches in Scotland and he was prominent in the Scottish Kirk. He was the defender of the more conservative wing of the Scottish Church, conservative theologically and conservative in terms of, well, we might say what sort of public facing. His principal adversary was a man, I’m sure you know, Francis Hutcheson, right? One of the leaders of the Scottish Enlightenment, who himself was an ordained clergyman like Witherspoon, but Hutcheson was the head of the so-called moderate party who were slightly less conservative theologically and also more interested in the public appearance of the church. And so Witherspoon was the leader of the more conservative wing of the church.

(09:53):

And that frankly is one of the things that got him noticed in the colonies and particularly at the struggling little college of New Jersey, which is now Princeton University, who began whose trustees and alumni like Benjamin Rush, for example, began to court Witherspoon in the mid 1760s to come to Princeton and become the president of that struggling de facto Presbyterian college. So he’s a Scotsman, he’s a churchman. When he comes to America, he’s 45 years old, he becomes the sixth president of what’s now Princeton University and he completely reforms that college, revives it. And it’s not an exaggeration to say that he probably saved Princeton from going out of existence and helped to lay the foundation for the great university it has become and I had myself the privilege of teaching there for a year in the early 2000s as a visiting professor of politics.

(10:54):

And there’s a Witherspoon Street there in Princeton. There is a semi-heroic statue of him on the campus, which has been the subject of controversy. But in a nutshell, that’s who he is. But when he comes to America, he begins to wear more hats and a kind of latent genius for organization, for promotion, for fundraising, for education, for politics, comes out. He had never preached a genuinely political sermon in his life until he came to the colonies and very quickly became aligned with the Patriot Cause and then of course later so he serves in the New Jersey provincial assemblies, committees of correspondence, then preaches May 17 was the 250th anniversary of Witherspoon’s most famous sermon called “The Dominion of Providence Over the Passions of Men.” That is one of the, if not the most, one of the handful of most important political sermons of the entire revolutionary era.

(12:00):

It’s in Ellis Sandoz’ great collection, revolutionary sermons and the fame of that and it’s reprinted on both sides of the Atlantic and widely circulated, that catapults him into the Second Continental Congress and he arrives in late June in time 1776 to argue down the more conservative faction, conservative meaning people like John Dickinson, for example, who think it’s too early to be declaring independence. And Witherspoon takes part in those debates, argues down Dickinson, arrives in time to do that, and then sign the declaration. And in my view, it’s partly speculative, but I’m fairly convinced that it’s he who introduces the language of the protection of divine providence into the text, the final text of the declaration. And then he goes on in a 26-year career as the president of Princeton to, as I say, reform, revive that institution to make it the most truly national of the colonial colleges and then the early national colleges.

(13:07):

It is a factory of American patriots and then early national leaders at the state level as well state judges. I have a list in that book, which you may have seen in John Witherspoon and the Founding the American Republic. The list of his graduates and the influence that he had in politics in particular is it’s just astounding. Gary Wills has called him probably the most influential teacher in the entirety of American history. I would endorse that Pulitzer Prize winner in Gary Wills. So in very brief, that’s who he is. He’s a man at the nexus of these three most important avenues of political culture, education, religion and politics and they form a kind of seamless integrated whole in his life. In short, that’s who he is.

James Patterson (13:57):

One of the first things Witherspoon does when he gets to Princeton is he tries to shift a kind of metaphysical point of view that he sort of vigorously opposed Berkeley and idealism in favor of his own Scottish enlightenment, common sense philosophy. This is part of the influence that he has on this, as you call foundry of statesmen, right? That they learn something that’s a little less esoteric.

Dr. Jeffry Morrison (14:24):

Yes, you’re exactly right about that. And you’re right to bring up Bishop Berkeley, B-E-R-K-E-L-E-Y. That’s how the Brits say it. Bishop George Berkeley was an Anglican bishop, very Orthodox in his Christian theology, but held to idealism, which is to say that he believed as other European philosophers did as Jonathan Edwards actually seems to have believed, the American evangelist, that the external world is not independent of minds. And incidentally, University of California at Berkeley is named for Bishop Berkeley in the town of Berkeley, California, though we Americans say it Berkeley, is his legacy. Yeah, it’s his namesake, that town and that university.

James Patterson (15:15):

So we have him to blame.

Dr. Jeffry Morrison (15:20):

That’s right. He has sins to answer for. That’s right. But at any rate, you’re exactly right. One of the first things Witherspoon does is to root that out, go after that root and branch at Princeton. And he basically fires all of the tutors, including Jonathan Edwards Jr., who carry that philosophy and he replaces them and it—it being the idealism—with his own version, which is kind of an amalgam of Scottish sense, Scottish common sense philosophy and Scottish moral sense philosophy. And we needn’t get too far in the weeds and it’s easy for me to get out of my depth in that as well. But basically it is, as the name suggests, a belief, a philosophical belief that is held by people like Thomas Reid, R-E-I-D, in Scotland and others. It’s kind of a forerunner one might say of maybe American pragmatism, that the external world exists independent of our minds and perceptions, that what we perceive about the external world, everything from colors to secondary qualities and things are reliable.

(16:37):

It is a pushback against skepticism. The skepticism of that towering Scottish enlightenment philosopher, David Hume, H-U-M-E, who likewise called into question the existence, the independent existence of an external world and even things like cause and effect. So again, without getting too esoteric, this is a word you used rightly a few minutes ago, that’s Witherspoon’s contribution to bring Princeton back to a more common sensical view of the world and our perceptions and to root that out, that idealism and that stuck for a long, long time.

James Patterson (17:21):

As you say, Witherspoon’s training in the Scottish philosophy and moral sense, and especially in common sense epistemology, could hardly have been better preparation for his distinguished career in American politics. And then you quote him directly saying, this is a few pages later, this is him Witherspoon: “I do not refuse submission because the British are corrupt or profligate, although probably many of them are so, but because they are men and therefore liable to all the selfish bias inseparable from human nature, I call this claim unjust of making laws to bind us in all cases whatsoever because they are separated from us independent of us and have an interest in opposing us.

Dr. Jeffry Morrison (18:01):

My bigger point there is that this philosophical and epistemological, that’s just the philosopher’s fancy word for a theory of knowledge, it is literally commonsensical. That’s what the Scottish school is called and Americans are, I hope not painting with too broad a brush, but I’ve got Tocqueville that we can call into our ranks as proof of this or an argument for this Americans are, well, commonsensical. I mentioned pragmatism earlier. We Americans have come up with precisely one philosophical school and it’s pragmatism and reduced to one sentence, what is pragmatism? It’s the belief that if it works, it must be true. I mean, that’s as pragmatic as you can get. That’s as American as you can get. We Americans in general don’t go in for too much highfalutin esoteric, keep coming back to your good word there philosophy. We leave that to the French and the Germans.

(19:07):

Yes, even to Hume and others. Tocqueville has this great line somewhere in democracy in America where he says, “Americans are frightened by general ideas. They’re frightened by them.” He says, we’re much more interested in making money and the virtues that are associated with that sort of thing. And I think he’s right on the money as he is on so many things, Tocqueville. So as I say, it couldn’t have been better preparation for Witherspoon, but his mind is already formed. He’s 45 years old when he comes to the colonies. And so he is a mature intellect and just peaking in his powers. And so the next 26 years spent as president of that college are, I think some of the most dispositive in all of American history and it’s the perfect time, right? 1768 to 1794, those are the years of the American founding. The pot’s beginning to boil over in the sort of pre-revolutionary period there and he is involved. He’s right at the epicenter from Philadelphia to Princeton and you just draw a circle around that, that’s roughly 60 mile radius there.

(20:22):

He’s just at the right place at the right time and he has the right ideas and the right skills and they are latent and they come out as an educator, as a politician, as a preacher.

James Patterson (20:35):

One of the things that I learned from this book, I didn’t know this, was that … Well, I mean, we all should know that his greatest student was James Madison. That’s normally how people even know about Witherspoon is that he was Madison’s teacher. But what I did not know is that he was almost Alexander Hamilton’s teacher, which would’ve been insane.

Dr. Jeffry Morrison (20:54):

No kidding, no kidding. And it would’ve made a much better book, too, James. If I’d had two of the three primary authors of the Federalist as his star pupils. Yeah. And it’s an interesting story if you indulge me for a minute or two.

James Patterson (21:13):

Oh, sure. Yeah. I was about to ask you to tell that story.

Dr. Jeffry Morrison (21:15):

Yeah. Why Hamilton didn’t end up going there. So Hamilton comes his ship, he comes from the island of Nevis, I believe. So he’s born and raised in the Caribbean, comes, takes ship, lands in New York City and then spends some time in Elizabethtown, New Jersey, at a little college prep school. He has already manifested his brilliance and genius and he’s kind of in his late teens when he arrives. Hamilton didn’t know the year of his birth. We still don’t know for sure. You look him up on Wikipedia or some other scholarly website, you’ll see that there’s a range of dates for his births, but he’s in his late teens. And so having been in Elizabethtown, New Jersey, and having been sponsored by some Presbyterian elders in the Caribbean, he’s already predisposed to Presbyterianism. So he hears about the College of New Jersey. He’s interested in it.

(22:20):

He goes and has an audience with President Witherspoon. It’s a kind of informal application and Witherspoon examines him orally and concludes that he’s a brilliant young man already near total recall well educated for a youth, though he picked it up, Hamilton picked it up in the Caribbean then the short time at the academy. Witherspoon is inclined to recommend to the trustees of the college to admit Hamilton, but at the last moment, Hamilton says, “There’s just one condition. I want to be able to go through the curriculum as fast as I can.” And they had kind of a set curriculum and Witherspoon says in our lingo, “It’s a big ask. I’ll run it by the trustees, but I wouldn’t hold my breath on that.” So he does and the trustees reject that, that little rider that Hamilton puts on it. I had mentioned earlier that Witherspoon remade Princeton as the most national, the most patriotic during the revolutionary period, the most national and republican with a small “r” of the colonial and then early national colleges and Hamilton likes that.

(23:42):

He wants to go to a college that’s known for its small “r” republican virtues and orientation, but the trustees turn that little ask down. They say, “We’ll, admit him, but he has to go through the regular curriculum just like everybody else.” And so Hamilton decides to enroll at what was then King’s College, right? So it’s got that monarchical, it’s now Columbia University. And so it’s got that monarchical taint to it. He would have preferred to go to Princeton, but he just wants to tear through there as quick as his intellect will allow. And so that’s why he ends up Hamilton and ends up at Columbia, King’s College Columbia rather than at Princeton and makes my book not so weighty as it might have been. We would know. Maybe James, we would know more about what he’d be more famous than he is if he’d had that connection.

(24:34):

But I’ll quickly add, if you don’t mind, Hamilton and Witherspoon continued to stay in touch and Hamilton reached out to Witherspoon. I’ve already mentioned this when he was the new first Secretary of the Treasury in the first Washington administration. And he respected Witherspoon’s learning enough and especially his theories of political economy to reach out to Witherspoon to ask him for advice on the public credit, how to shore that up in this broke fledgling republic post revolution, post Articles of Confederation and Witherspoon wrote him back and Hamilton incorporated some of that language into his report on public credit. And the editors of the Hamilton papers note this in a footnote. So the association didn’t end, but sadly it was not as it was with Madison, a close relationship educationally. Madison readers may know or listeners may know, stayed on roughly an additional academic year following his graduation at Princeton to study under Witherspoon in a tutorial relationship.

(25:44):

So he took tutorials under Witherspoon’s guidance in at least two subjects. Law, that’s very important I think for the future of this country and Hebrew of all things, which tells us that Madison is thinking about the ministry as a vocation. So that’s the Hamilton story.

James Patterson (26:04):

So the thing with Madison is that he seems to carry a lot of Witherspoon’s political theology with him into his adult life. How much overlap is there really though between the two? Or maybe I’m seeing things.

Dr. Jeffry Morrison (26:21):

Oh, I think there’s quite a bit. So I think your eyesight’s accurate. It’s 2020 and that’s a good phrase, by the way, James, political theology. It’s political and it’s theological and they’re not necessarily contradictory. We Americans were very scrupulous about separating the two and especially today that most controversial of phrases, Christian nationalism. It’s a little mysterious to me. I’m not sure exactly what that thing is, but whatever it is, we sure seem to be scared of it. So we’re very scrupulous and my own view is rightly so in separating. We don’t ever want an established church. We don’t want there ever to be civil penalties or rewards for private religious beliefs and we want what the founders called freedom of conscience always to be guarded and protected. It’s a natural right. It’s an inalienable right, freedom of conscience. But political theology, it was almost its own sort of branch of study in the founding period.

(27:36):

Witherspoon is complex and nuanced and even though he is the lone clergyman to sign the Declaration of Independence, I believe he’s also the lone clergyman to sign the Articles of Confederation, what I consider to be our first national constitution. I know the doctors disagree about that, but it’s my own view that it is. And then on behalf of New Jersey, he ratifies the Constitution as part of the New Jersey Convention. So there’s three of those four organic laws of the United States right there in which he has a direct hand, but he always wore his clerical vocation literally on his sleeve. That’s called a Geneva collar. John Calvin would have worn and George Whitfield wore and Jonathan Edwards wore, but it also … So that’s the collar, but they also had cuffs, big cuffs that the clergy wore. Witherspoon intentionally wore that garb to the Continental Congress, to political gatherings in the New Jersey provincial and later state legislature to make a point, which was Georgia is wrong to forbid clergymen from serving in the legislature.

(28:57):

Virginia would be wrong to do it. Jefferson was wrong to support that separation. Madison, and since you mentioned it, Madison is kind of the recipient and carries much of Witherspoon’s political theology into his own career. I think you’re exactly right about that. That’s one of those articles of faith, if you will, of Witherspoon’s political theology, that religion has a seat at the table. It’s not forbidden, it’s not dangerous. As a matter of fact, he holds to an axiom, which I think every major and minor founder holds to from the most skeptical like Thomas Jefferson and Ben Franklin to the most Orthodox and evangelical like John Witherspoon, John Jay, for instance, very similar in his own deep Christian faith and everybody in between. They all agree about this, that there is an axiom that religion is necessary for healthy republican and small “r” government, democratic republican government.

(30:05):

Why? Because you can’t have a moral people without a religious people and you must have a moral people in order to have a healthy and stable republican government, democratic government. Because of all the forms of government, a democracy is supposed to have the lightest hand in the government. We don’t have a police state. We don’t have a cabinet position for theological orthodoxy like they do in some parts of our world today. So not having a police state, not having a real heavy government hand, we have to have citizens who are self-governing, who respect private property and who respect the natural and civil rights of their neighbors and fellow citizens. And that comes from inside since it doesn’t come from outside in a Republican government with a very heavy hand. So where does that come from? Comes from religion according to the founders. Now we might disagree with that today.

(31:13):

We might say that that’s been disproven today or something, but every one of them holds that and James Madison held it. So when Madison had his two terms as president, what does he do? He issues religious proclamations, which Thomas Jefferson had not done, right? His best friend and political colleague. Madison returned to the practice of George Washington in issuing those kinds of things because he carried John Witherspoon’s political theology into his own career. What was one of the articles of faith of that political theology, that civil society is best when there is a recognition of religion and when religion has a seat at the table, so to speak, when it is free from government penalties and rewards as well, but free to do its good work of producing moral self-governing citizens and how do you encourage that? Well, occasionally you can have a very kind of plain vanilla religious proclamation in which the country acknowledges its gratitude to the deity.

(32:24):

It’s not necessarily Christian, it’s not necessarily Judeo-Christian, but of course that’s the milieu of the time. But Madison, in fact, says that society has a duty, a duty to render a due reverence to the creator, to the deity without ever forcing that on people. We don’t force them to be Presbyterians or even Christians or Jews or any religion, but that there is a duty on the part of the government and civil society to acknowledge from time to time the benevolence of the creator and the deity. So those are the kinds of things that without, without establishment, Witherspoon was emphatic that no religion was to be established by the government, not New Jersey, not in the United States, not even his own religion of Presbyterianism. And so Madison carries some of those articles of faith, tenets of that political theology into his career. Now the interesting thing, James, if you’ll give me another minute or two on Madison is- It’s

James Patterson (33:32):

Your show, man. Of course.

Dr. Jeffry Morrison (33:34):

No, it’s your show. And I like to be it. Later in his life, Madison evidently repented of some of the things he did while president, like issuing religious proclamations and commissioning clergy who were chaplains in the armed forces. So there’s something that historians called the detached memoranda, which were undated, but we probably think were written in 1819. They’re detached in the sense that they weren’t part of any other document. They were never meant to be public. They’re probably just musings that Madison—kind of doodlings, almost that Madison wrote to himself—trying to work through some issues and looking back on his career as president, he had rather troubled two terms as president. And what does he write in there? That it was probably a mistake for him now, to looking back on it to have issued those religious proclamations and he questions whether he should have commissioned chaplains in the US armed forces.

(34:43):

He doesn’t have any qualms about states doing such things. So perhaps he did repent of that and sort of … But in the pressure of the moment, right during the war of 1812, he on behalf of the nation and encourages the nation to cry out to the Creator who had so signally, he thought, protected and guarded the United States in its infancy. So during this war, which, side note, Madison basically caused, kind of hectored the Congress into declaring. So he got the Capitol building burned to the ground, for example, and the White House on his watch. So yeah, maybe he did have some reason to repent of many things that he did during that presidency, but in the pressure of the moment, right, he reverts back to the practice of earlier presidents Washington and Adams and he reverses the course that had been taken by Thomas Jefferson, his close friend and co-founder of the Democratic Party.

(35:54):

And so I would agree with you that those are instances where Madison seems to, not only seems to, does in fact follow in Witherspoon’s footsteps and adopt Witherspoon’s again, good phrase of yours, political theology in his political career.

James Patterson (36:15):

So it’s been 23 years, maybe 24 years since the first publication of this book. So what’s changed? What have we learned maybe in the ensuing years that might show up in the forthcoming book, maybe in its introduction in our understanding of Witherspoon?

Dr. Jeffry Morrison (36:32):

Yeah. Well, there have been quite a few books that have come out that sort of a little cottage industry of Witherspoon studies and I think much-needed and some very good work has been done by historians, by … Well, just to take one quick example, the great Princeton historian, Sean Wilentz wrote a marvelous piece, journal article on the travail of John Witherspoon respecting slavery. So there is one aspect of Witherspoon’s life and career that has received more attention. It’s controversial. I alluded earlier to a controversy on the Princeton campus about whether the semi-heroic statue to him that was erected in the early 2000s should be torn down, should be moved to somewhere else, should have a plaque attached to it, which explains, qualifies Witherspoon’s place in Princeton history because he did own for a period of time first one and then two enslaved persons. But the story around that is very complex and Sean Wilentz has written, as I say, a marvelous piece, historical detective work, which I think was published in a journal called Theology Today.

(37:59):

I think that’s where that piece came out. In fact, I think there’s an entire edition of that number of that journal devoted to that very question, John Witherspoon and slavery, but book length studies, some by theologians, some by historians, some by political scientists and philosophers have come out. So the slavery issue, that’s one thing we’ve learned quite a bit about and turns out again, it’s very nuanced and complex. And one of the things I have tried to do in this forthcoming volume from Cambridge on Witherspoon’s political writings is to give a fuller sort of documentary record Witherspoon’s multifaceted career or careers plural. I have reconstructed a lot of his correspondence, which had to have been gathered from these various existing repositories and things and his political sermons and religious writings and his Princeton lectures. There’s another area that we’re learning more about. There’s an entire series of lectures that he gave lectures on chronology and history that have never been published.

(39:15):

And I’m working with a younger scholar who wrote his doctoral dissertation on and created an annotated edition of those lectures. And I sample some of them in the forthcoming volume. So there’s an entire little area of Witherspoon scholarship that’s being looked into now. His Princeton lectures, very influential. Some of them, his lectures on moral philosophy, for example, were the first of their kind ever given in an American university. So I think there’s still much to learn as David McCullough once said, the late David McCullough, we owe great debt to men of that generation and to quote McCullough directly, “We cannot learn too much about them.” So I think he was exactly right about that and Witherspoon, though not one of the famous six, one of the big six who left those enormous paper trails still has much to teach us, I think. And he literally is unique.

(40:14):

That’s a word that gets misused an awful lot, I think, because it means only one of a kind. You can’t modify the word unique. Can’t be sort of unique or very unique or kind of unique. Witherspoon was literally unique. There was only one of them. He’s the only one. He’s the only practicing clergyman to sign the Declaration, to sign the Articles of Confederation to help ratify the Constitution. And he wears all three of these hats with equal skill, college president, politician, preacher. I’m encouraged to see that there is, as I say, kind of a little cottage industry of Witherspoon Scholarship that’s grown up in the 23 years as you point out uncomfortably to me it’s been since that book came out.

James Patterson (40:59):

The book is John Witherspoon and the founding of the American Republic, the author, Dr. Jeffry H. Morrison. Thank you so much for coming onto the Law & Liberty Podcast.

Dr. Jeffry Morrison (41:09):

Well, Dr. Patterson, it’s been a real pleasure and a privilege for me. Thank you.

James Patterson (41:14):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Talking to guest host Pat Lynch, Virginia Postrel discusses her 1998 book, The Future and Its Enemies, and its relevance to today’s political landscape. They also discuss potential impacts of AI, the cultural significance of glamour, cheap clothes, and the Abundance movement. Lynch ends with the question: Will market liberals eventually find a home in America’s political landscape?

The Fabric of Civilization by Virginia Postrel
The Future and Its Enemies by Virginia Postrel
The Power of Glamour by Virginia Postrel
The Substance of Style by Virginia Postrel

James Patterson (00:06):
Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring series commentary on law, policy, books, and culture and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Pat Lynch (00:39):
Welcome to the Law & Liberty Podcast. I’m Pat Lynch, a senior fellow at Liberty Fund, sitting in today for James Patterson. Today we’re talking with Virginia Postrel. Virginia Postrel is a well-known journalist, public intellectual, and author who has written four major books, was a previous editor at Reason, worked for The Wall Street Journal, is now affiliated with worksinprogress.co and the Abundance Institute. And today we’re going to talk about some of her work and some of the influences that she has seen throughout the development of progress and the development of abundance and this new agenda that’s very interesting. You wrote about this topic, sort of, in 1998 with your book, The Future and Its Enemies, and you make this distinction between stasis and dynamism and you argued at that time that that was a good way of thinking about the way that public intellectuals and politicians approach these sorts of questions.

(01:31):

It seems very, very relevant today. Can you inform our listeners a little bit about the distinction that you made in that book and whether you still think it can be useful today?

Virginia Postrel (01:38):
Right. Actually, I do think it could be useful today. Surprise! And the basic distinction is between dynamism, which is open-ended discovery and progress that is driven by bottom-up problem solving, bottom-up problem defining, innovation, and feedback, also. So not every new idea is a good idea, not every idea of how to solve a problem actually solves the problem. And there is this constant process of discontent also, because whatever you have, you see what could be better about it. And that’s one reason that this progress is open-ended, but it’s very much an idea of discovery, sort of a liberalism that centers discovery and curiosity and learning. “Learning” is what I say in the book. On the other side, you have what I call stasis and I talk about two different forms. One, which is the easier to understand, is people who really center stability. Their ideal society is one that doesn’t change and often they have an ideal located somewhere in the past.

(03:02):

It could be the Middle Ages, it could be the 1950s, it could be before the agricultural revolution. There are many different forms of that type of stasis, which I call reactionary in the book. The other form of stasis is more subtle, and much more pervasive, which is the idea of, no, we like change, we like progress, we like discovery, but we want it to look exactly the way we want it to look. And this is what I call technocracy. So this is a form of stasis that is about control. So it’s not about “nothing changes,” it’s about very directed change. And since at least the beginning of the twentieth century, technocracy has dominated liberal democracies. There was a rise of thinking that, “Wow, look at all these great things that railroads and steel mills, all these corporations that have to plan these giant enterprises, we should plan the economy the same way.”

(04:09):

And obviously looking back on it and especially through the lens of some of Hayek’s work, this seems obviously wrong, especially in the forms that you find it in the early twentieth century or late nineteenth century where it really is like every single bit of the economy would be planned, but it wasn’t stupid. It wasn’t stupid people saying this. It was people drawing the wrong lessons from the world that they were living in. And so I see this continuing struggle between ideals of an open-ended discovery-oriented society that is very bottom up also. So no one is in charge, no one is in control. It doesn’t mean you have no rules. You need rules, but they need to be very general and you need to be able to have nested levels of rules so that McDonald’s can say every menu has to be the same, and somebody’s one-off restaurant can have different food every night depending on what’s fresh in the market.

(05:18):

Just take a trivial example. So that’s the idea. And so when I was writing this in the mid to late 1990s, I was looking out at the political and cultural environment and I was seeing arguments around technology. Those days it was this new thing called the Internet. You had people on the left and the right who were saying the Internet is great and we need to let it develop. And you had people on the left and the right who were saying, “Smash the Internet!” Around immigration, people have forgotten, but there was a huge fight over immigration in the mid ’90s around the evolution of the workforce, around environmental issues, whether you should allow housing to be built in Los Angeles where I was living. Guess what? The anti-growth people won and we’re living with the consequences. So, you had all these distinctions and I argued at that time that going forward this would be a better way … Oh, international trade was another one.

(06:31):

Going forward, this would be a better way of understanding the political and cultural world. It turned out not to be immediately true because what intervened was 9/11 and foreign policy became much more dominant. And this was really an argument about domestic … In so far, it was about politics as opposed to the theory of how progress happens, which is another big element of the book, that sort of interfered, but we are now living in the world predicted by The Future and Its Enemies very much so.

Pat Lynch (07:03):
The economics, I think we can all agree that the free market approach, the bottom-up approach, Hayek’s been proven correct as compared to the planners, but the political piece I think was unanticipated. We didn’t realize what the political reaction was going to be to this sort of unplanned growth and that we crave that structure, we crave that direction. You said that this has been going on for quite a while. I mean, it goes back to Adam Smith, the man of systems. And so there’s this desire to sort of structure things out and make it more predictable.

Virginia Postrel (07:30):
Right. I mean, I said the early twentieth century, and I’m thinking about the actual use of the word technocracy and the idea of engineering society, but Colbert is … I don’t mean the talk show. France is the ultimate, it’s been this way since Louis the XIV, ultimate technocratic society for good and ill. They do certain things very well that lend themselves to technocracy like building certain types of infrastructure, but they cripple their economy in other ways.

Pat Lynch (08:03):
So, if AI is now the latest manifestation of this technological advance, whether it’s a manufacturer and the Industrial Revolution, the Internet, how is AI different from these previous manifestations of it and does it pose a greater challenge to those of us who support growth and support free markets? Or is it something that’s going to be difficult to predict?

Virginia Postrel (08:22):
Well, it’s definitely difficult to predict exactly how AI will be used, what its effects will be. I mean, that’s why we’re having such fights over it to some degree. But I would say that AI, getting it right is really important. I wish I could tell you exactly how to get it right, but I can’t because AI has the potential to be the ultimate technocrat, to be very dictatorial if we allow it to be. So part of the thing, I think it’s very good that we have competing AI systems, AI companies or whatever, people doing different models. I think a lot of the concerns around AI are really concerns about human nature. People pretend it’s really about technology, but the truth is it’s about the fact that every new technology, whether it’s a stone spear or AI is one that can be used for good or ill and some people are really bad.

(09:34):

So I think when we think about the potential problems with AI in big pictures, somebody has written, informed by my work, but not my work on AI, which is very little, that what we need to figure out is how do you protect dynamism in a world of AI? And one thing people look at is open source models, at least as being part of the infrastructure, part of the ecosystem (which doesn’t necessarily mean it can be the only kind) preserving competition, preserving entry, not letting one AI system sort of take over everything, which I don’t think despite the fact that people talk about tech monopolies and stuff, I don’t think that the system left to its own devices leads to a single system taking over the world. But I think there’s certain things that governments could do to make that more likely. Although even there, the competition among governments, China versus the US in particular might lead to more than one.

(10:42):

So I definitely think that the concerns about AI and job destruction are exactly the same as they always are. And my most recent book is called The Fabric of Civilization. It’s a history of technology and science and trade through the lens of textiles. And one thing that’s really obvious and people don’t know… people know about the Luddites. They’ve heard of the Luddites. Nowadays it’s used as a term for people who are sort of ideologically opposed to technology. The original Luddites were just well-paid hand weavers who didn’t want to lose their jobs, but what people don’t know is that those well-paid hand weavers who didn’t want to lose their jobs were benefiting from a previous round of technology innovation about a generation earlier, which was the original Industrial Revolution, which was about the production of particularly cotton yarn, spinning machines. Because having enough yarn or thread to weave was the bottleneck in cloth production and spinning machines broke that bottleneck.

(11:50):

And as a result, the weavers enjoyed what one historian called a “golden heyday.” A software engineer recently told me that everybody he knows who’s a software person is giddy about the potential of AI, but he is way upper tail and he and I suspect all his friends will do fine. There are routine programmers who may see the end of their golden heyday, and that is the process of creative destruction. I mean, you get productivity jumps in general, but there are people particularly if they’re at certain point in their lives who get left behind and that is a problem with the process. But if you stop the process, you stagnate and your economy and your society kind of dies. And I can speak about this. When I wrote The Future and Its Enemies, my profession, which is journalism, was great and now it’s terrible. So I have some personal familiarity with this process and I would say that things that have made the world very, very difficult for journalists have on the whole been good for the world if not for our individual bottom lines.

Pat Lynch (13:11):

So you’d say long-term, you see it as a cycle. You see it as an economic cycle driving a political outcome. But also you would consider yourself a long-term optimist about all these changes?

Virginia Postrel (13:20):
Yes. Long-term, I would say. Well, I’m a long-term optimist in the sense that I believe that if you pursue this, if you protect the really … We’re talking about liberal institutions. If you protect the liberal institutions and the process of discovery and this decentralized process of discovery, it is long-term good for people in general as well as having intrinsic value. Hayek kind of talks about it having intrinsic value. Progress is movement for movement’s sake, he says, but then he says it’s the way in which man enjoys the gift of his intelligence, this problem solving. I think it has more than just intrinsic. I do think it has intrinsic value, but I think it also has practical value in the way that people like Deirdre McCloskey write about. We enjoy this enormous—

Pat Lynch (14:19):
So from a utilitarian perspective—

Virginia Postrel (14:20):
From a utilitarian—

Pat Lynch (14:21):
Overall, we are better off as a Pareto frontier out there.

Virginia Postrel (14:22):
Exactly.

Pat Lynch (14:25):
Let’s talk a little bit about fashion or let’s talk about glamour. Let’s start with glamour. I think that before we move on to fabric. So you’ve written about glamour and I think I remember when that book came out and I thought, oh my goodness, what can this possibly be? But I found the book to be really, really compelling. Can you tell us a little bit about your book on glamour and what your view on it is?

Virginia Postrel (14:47):
So my book, The Power of Glamour, came out in 2013. And I always say it’s my least successful book, even though I think intellectually it’s very successful. But the reason it’s my least successful book is that people have no idea what I mean by glamour, just looking at the book and it’s not fashion, it’s not celebrity. The subtitle of the book is Longing and the Art of Visual Persuasion. So what I do is I analyze glamour as a form of rhetoric, a form of persuasion, a form of communication and I analogize it to humor. How do you know if something is funny? It could be spontaneous or it could be written by a comedy writer. You know because of the way the audience reacts.

(15:38):

You can’t write rules that will guarantee that something will be funny, although people have analyzed humor, written tomes about it. But I believe glamour is a word we can use to describe a similar process where the audience reacts with a sense of projection and longing. And just as humor takes many different forms depending on the culture, depending on the individual, so does glamour. What do you long for? What is it that you long to be? If only, if only I had that house, my life would be perfect. If only I had that car, if only I had that job, if only I could sit in a library surrounded by books pursuing the contemplative life, which is one of my versions of glamour, which knowing my personality has a major illusion in it, which is another element of glamour. Glamour, the word was originally a Scottish word that meant a literal magic spell.

(16:41):

You cast a glamour on someone and they saw things that were not there and particularly it transformed things that were bad into looking good. And so when the word came into English, first through writers like Sir Walter Scott, it was used in that way and it gradually transformed. But it always preserved that sense of magic and illusion and fantasy, if you will. And so my analysis of glamour starts with the idea that it arouses a sense of projection and longing, which is based on your unarticulated longings, the things you don’t necessarily express to yourself, but then when you perceive a glamourous idea, it crystallizes it. But then I also analyze elements that all of these many different forms of glamour have in common. One is a promise of escape and transformation. Another is an illusion. Glamour hides flaws, it hides difficulties, it hides boring things. And the third is mystery and mystery encourages projection and it also helps to hide flaws.

(18:11):

So whether you’re talking about old movie glamour or you’re talking about the glamour of aviation… aviators were one of in the early twentieth century were described as glamour boys. That was one of the first uses of the word and the way we use it today. Glamour is not female coded despite what people think. It is a human phenomenon whether you use the word or not.

Pat Lynch (18:41):
So, but it could be material or it could be—

Virginia Postrel (18:43):
It could be material. It could be spiritual. I talk about the glamour of nuns, the glamour of the contemplative life, it can be political and often has been political. When I was writing the book, I talked about Barack Obama’s glamour in 2008. Glamour is unusual in a political candidate because usually you have too much information for glamour. You have charisma, which is a different thing. And the way I distinguish between charisma and glamour is: charisma is a personal quality that the person kind of owns and it draws people to that person, to follow them. And then there’s a whole literature on the original spiritual sense or religious sense of charisma. Glamour is in the audience. It’s the audience projecting their desires onto the person, which is why you can have a … And I’m not saying that Obama was not also charismatic. You can’t get to be president unless it’s a lucky accident without a certain degree of charisma.

(19:54):

But he was very unusual because he was also glamourous as opposed to say a Bill Clinton who was highly charismatic, but people were not necessarily projecting all their longings onto Bill Clinton. He was more like a guy you might want to have a beer with or you trust him. Yeah.

Pat Lynch (20:16):
So it’s difficult. It is kind of difficult to define. It sounds a little bit like, you know, it when you see it sort of thing with glamour then. I mean, because you’re reacting to it and you are reacting to the audience, right?

Virginia Postrel (20:25):
Yes, yes. So the book, as I say, this is very intellectual book, even though it’s full of pictures and very pretty. And I do define, I create a definition of glamour, but it’s like creating a definition of humor. In order to perceive glamour, you have to be affected by it.

Pat Lynch (20:51):
So thinking about the world today and what we find glamourous today, what are the changes that you are seeing in terms of how glamour is, how we are reacting to different things? So this is not really style, this is something more than that.

Virginia Postrel (21:08):
No, it’s not style. Yeah. I mean, if you desire to be stylish, it could be. Okay. So one thing that changed between the time I wrote the book and the time the book came out (so that’s a very short period of time) was how people talked about celebrity and glamour. So, when I was writing the book, people would ask me things like, how can there be glamour when celebrities make sex tapes? I would say, well, not all celebrities make sex tapes. There are glamourous celebrities who keep some mystery. But when the book came out, they asked a different question, which was very perceptive and is not in the book because of the timing, which is that, oh, this is like what Instagram is about. Instagram is like we’re all curating a glamourous vision of our lives. And the joke is 10 years later … well, first of all, this causes people to look at their friend’s feed and go, “My friend’s life is so much better than mine.” But of course it’s leaving out the boring parts, the difficulties. And also 10 years later you look back at your memories and it’s like, wow, my life was so much better then.

(22:22):

Well, it’s because it’s a glamourous kind of ideal. And so I think that that’s one thing that’s changed and what exactly that expresses depends on the person. But taking pictures of all your restaurant meals, these perfectly plated, beautiful things. I mean, there’ve been whole developments in the restaurant industry because of Instagram.

(22:52):

Everybody creating an image of their life as interesting and exciting and beautiful and of themselves similarly–that is a form of glamour. So one thing, if you want to talk about downsides of this. When people were watching movies about rich people in the 1930s, it was glamourous, but they didn’t think that huge numbers of people were living that way. What we have now is a situation where there’s been–and this isn’t just about glamour–but there’s been a vast expansion of the upper middle class. So it’s not that the richer are getting richer and the poor are getting poorer. The poor are richer, the middle class is richer, but the upper middle class is significantly richer and much larger. And so people’s sense of what’s normal and to be expected is distorted in a sense. People who are middle class think that middle class lifestyle involves a lot of European travel and granite countertops and an island kitchen and all of these things.

(24:15):

And those are really things that once upon a time were only available to quite affluent people, very affluent people. And so there’s been a kind of democratization of a lot of luxury, but that has led to a kind of discontent among people who don’t have access to that luxury because they’re just regular, in the sense that somebody from 50 years ago would recognize as normal.

Pat Lynch (24:44):
That’s interesting because I think it’s an underappreciated aspect of the populist reaction that recent politics has brought about. And I like that term democratizing, because you’ve not only democratized the material piece of it, you’ve democratized the glamour piece of it because everyone’s got an Instagram and everyone’s got a Facebook and everyone’s … So you can display this stuff and it’s common and people think, “Well, why am I not like that? ” But in your view, it is better if glamour is more widespread, right? Or does glamour lose something if it has less or if it’s more widespread? Does that make it less important?

Virginia Postrel (25:15):
No, I think glamour is important. I don’t think it’s good or bad.

Pat Lynch:
It’s just a fact of life.

Virginia Postrel:
I think it’s a phenomenon that exists and that shapes people’s behavior and it shapes people’s mental states. It can be used deliberately for good or used deliberately for bad, and it can also be accidentally used for good or accidentally used for bad. And my message to avoid the problems of glamour is to remember that it always has an element of illusion. It can be very inspiring and positive. You can be inspired. Why do I have the career I have? Because I was raptured with a glamourous idea of the public intellectual life. I’m the only person in the world who read Making It and thought it was glamourous because I was naive and it was much later… I forgot that I don’t like New York and I don’t like dinner parties and there’s a lot of stuff that … But I was enamored of this book and I had this and I wanted to be a magazine editor and I wanted to edit Reason, which I did eventually.

(26:29):

That was just sheer luck. But I now know all the things that were hidden. So it was good, but it was an illusion at the same time. But there are also cases where people get into really bad things. I mean, I write in the book about the glamour of terrorism, the glamour of being a jihadi. I’ve written, I think this was for my Bloomberg column, not in the book, but about the Boston bombers and people criticized Rolling Stone for running a photo and said it was glamourizing, but really the whole story is a story about glamour. They had this idea of being this kind of Islamic hero and it was terrible.

Pat Lynch (27:13):
When you think about major like assassinations, the healthcare CEO who was killed and that his killer is now a hero for many people, right? There’s glamour associated with that. So there is a downside to these sorts of events.

Virginia Postrel (27:24):
And those are extreme cases. There’s also, you have a glamourous vision of moving to the big city and you move to the big city and you hate it.

Pat Lynch (27:36):
Let’s try to focus on the positives.

Virginia Postrel (27:38):
Right, right, right.

Pat Lynch (27:39):
So let’s turn to fabric and I’ve heard your presentation of your book, read it. I think it’s an awesome book. And I guess one of the questions I wanted to ask you is like, what’s your view of fast fashion?

Virginia Postrel (27:52):
This is actually a question I get asked a lot by people who are more industry oriented.

Pat Lynch (27:56):
Well, and the reason I ask about this is that I think there is a tendency among people, of a more conservative bent, to view a lot of the materialism and a lot of things that are coming out of this economic progress that we’ve seen over the past 20, 30 years, and to view it as wasteful, not productive, sort of not focusing people on the right sorts of moral questions or the right sorts of social questions or personal questions. And that is an example… I see it in my life because my daughter consumes it a lot, and there’s some very pretty stuff that comes out of it. So what’s your view on that development?

Virginia Postrel (28:28):
So my quick view is that fast fashion proves that, contrary to everything you may read, young people don’t care about the environment, at least in the way that environmentalists would like them to care about the environment. They care about other things a lot more and that’s probably true. There’s good fast fashion and bad fast fashion. Originally, fast fashion was used to describe companies like Benetton this is a long time ago where they would come out with a sweater in a bunch of different colors and because of the way they organized their manufacturing, they could see which colors were selling and then they’d make more of those, quick turnaround. The notion of speeding up the fashion cycle goes back at least to the ’90s. But, of course, nowadays when people think about it, they’re thinking about things like Shein, which really a lot of the quality is terrible.

(29:34):

It is literally disposable clothes. And I don’t have a huge problem with that because my view is if you’re really concerned about having too much crappy poly … Excuse my French, bad, poorly made polyester blouses in the waste stream, you should do what the Swedes do and incinerate them and use that for cogeneration. And it’s hard to even argue that it’s a waste of money because it’s so cheap compared to— I remember being a teenager in the ’70s when clothes were quite expensive, and really longing for clothes and having three outfits. So I sympathize with the … I don’t think fast fashion is a very adult thing. I think it really is for young people because they don’t have a lot of money, and because they are in a social environment with all the social pressures that once you get to be an adult are still there, but less dominant.

(30:49):

Now that is the really super cheap stuff. And you can divide it up. There’s also things like Zara, that are just lower price point fashionable clothes and they’re a little better made and a little higher quality, et cetera, and very important in countries that are not as rich as the US. They have a market in the US, too, but if you go to Spain or you go to Brazil or someplace like that, that’s actually a higher end product than we perceive it to be. So my message about fast fashion is if you really care about quality and you care about the environment and all these things that people say they do, shop at thrift stores because we have amazing thrift stores nowadays. And my buddy Adam Minter has a great book called Secondhand, which is about the secondhand market and the amazing … It’s a very sort of dynamist book and the amazing ecologies and markets and ingenuity, these systems that have developed around the world to make use of things that Americans in particular dispose of.

(32:03):

Everything from clothes to furniture to cars. And electronic waste, also.

Pat Lynch (32:12):
I spent a lot of time in Guatemala a few years ago, now a number of years ago. And if you want to know where American school buses end up, they end up in Latin America, and they look a lot prettier. They dress them up very nicely.

Virginia Postrel (32:26):
And I’ve seen those buses that you’re talking about, but I never realized where they came from.

Pat Lynch (32:31):
And if you take a look at the cars that are quote unquote totaled, they are rebuilt and then usually sent down there as well because the safety is not really as much of a component for it, not much of a care. Let’s turn to abundance and the abundance agenda. We had a conference on this recently—

Virginia Postrel (32:44):
Right.

Pat Lynch (32:44):
Do you feel like the abundance agenda is … I guess my reaction to it was that it is a new idea to the extent that there are these technological frontiers out there that seem very attainable. And we talked about some of those things and I’d love to hear your thoughts on those, but that ultimately it seems like another project where someone is trying to manage a market outcome and control the market in a way that is just not possible and to take that and create more large government planning instead of accepting the dynamism of markets and just sort of living with that.

Virginia Postrel (33:17):
So one of the differences between the world we live in now and the world in which I wrote The Future and Its Enemies is what has happened to the alliances between dynamism and technocrats, or between reactionaries and technocrats. So right now we’re in a period where reactionary thought, which was pretty dormant in the ’90s… well, it existed. People like me knew about it, but it’s now aligned with sort of technocracy in a way that it wasn’t then. I don’t talk about the abundance agenda. I talk about the progress and abundance movement, which is an intellectual movement which involves super technocrats like Ezra Klein, who actually said to me, “I read your book and I’m a technocrat.” Who wants to make the world exactly how Ezra Klein wants to make the world. It involves a lot of people that you might call “soft dynamists” for some regulation, but they think more like economists and they understand some of the problems of regulation, and hardcore market liberals. And not just market liberals.

(34:46):

And so it is a kind of broad ideological alliance. People disagree about how things should be accomplished. What they share in common is the idea that you can have a good future built on positive sum exchange, that we don’t live in a world where in order for there to be winners, there have to be losers or it has to be one and one. I was thinking about this interview and I was thinking about Donald Trump and I was thinking, Donald Trump doesn’t believe in trade. I don’t mean he doesn’t believe in international trade, he doesn’t, but he really doesn’t believe in gains from trade. He believes one side loses and one side wins. And that’s a fundamental difference in mentality and how you think about market exchange. And so what we have in the sort of progress and abundance movement is yes, there are a lot of super technocrats, but they are at least technocrats who have learned that you need supply as well as demand.

(36:02):

And that’s the fundamental insight of the book Abundance, is that people to the left of center have emphasized subsidizing demand, but that only makes sense in a world in which supply can respond to the increased demand. If you choke off the supply of housing, it doesn’t matter. If nobody can build apartments, it doesn’t matter if you give people housing vouchers. If nobody can build solar arrays, it doesn’t matter if you subsidize solar energy. Also, and they don’t play this up as much because it’s a very political book. It has an agenda. It’s trying to influence the Democratic Party and the Democratic Coalition in a very specific way, but implicitly it’s also a critique of sort of the hair shirt left. The people who say that the aspirations of ordinary people to comfortable lives are icky, which is a great departure from the sort of traditional left, whether it’s the sort of US center left or whatever you want to call it, or it’s the Marxist’s left, which was: It’s about getting people more!

(37:33):

And so I think that insofar as it’s a technocratic reaction, it’s a technocratic reaction that’s badly needed within the technocratic coalition. And one thing that I would change if I were writing The Future and Its Enemies today is, I anticipated that the environmental movement would entirely be for stasis in a reactionary way, because those ideas are deeply embedded in sort of green philosophy. But it turns out confronted with the prospect of climate change, there are enough sort of problem solvers, people who see it as a problem to be solved as opposed to an excuse to go back to the Middle Ages or something, to ignite, if not a dynamist approach, a dynamist-friendly technocratic approach. Which is sort of contradictory. But I draw these stark distinctions in the book, but really it’s a continuum.

Pat Lynch (38:45):
It’s interesting because I’m increasingly frustrated with the use of left and right because I don’t know what they mean anymore, and it’s very difficult. I think we sort of in our heads have a vision of what this was like 20 years ago. But I wanted to end with a question that I think is sort of relevant to what you just pointed out, which was: Where will the political home, if there is one, be for market liberals in the future? Where do you think those of us who believe in markets and defend markets, where will we eventually find support and find comfort? Because right now it’s difficult to see it anywhere.

Virginia Postrel (39:18):
I think, either in complete exile, which could happen— We’re getting there. Yeah, we’re getting there. Or in an abundance faction within the Democratic Party.

Pat Lynch (39:27):
Are you optimistic that that could happen, that latter outcome?

Virginia Postrel (39:31):
I would give it, my optimistic estimate would be a 40 percent chance.

Pat Lynch (39:36):
That’s pretty optimistic.

Virginia Postrel (39:37):
But that’s my most optimistic estimate.

Pat Lynch (39:41):
And would it involve compromising on the extent to which you’d have to have significant redistribution of that wealth that’s going to be created through that?

Virginia Postrel (39:48):
Yes, yes. And one of the important things about the dynamist/stasist distinction is that it doesn’t say anything about redistribution other than: Don’t screw up the price signals.

Pat Lynch (40:05):
And that’s difficult to do.

Virginia Postrel (40:06):
Which is hard to do, or: Seek to be as undisruptive as possible to price signals.

Pat Lynch (40:13):
Is it because Klein and Thompson have a very different view on that matter, right?

Virginia Postrel (40:17):
Yeah.

Pat Lynch (40:18):
And as I read that book, they do not have the same kind of subtle concern about these sorts of things. They just think markets are like, we’ll flip a switch and all of a sudden there’s wealth everywhere, right?

Virginia Postrel (40:26):
Okay. So my view is that Thompson understands markets better than Klein, but it’s a co-authored book and I can’t prove that. I base that on their other writing. Klein is a very smart guy, but he really wants to run the world. But if you look at somebody like Matt Yglesias, who is very close to them politically… he understands markets. I mean, he doesn’t understand markets maybe the way we do, but he does have a sophisticated understanding of markets. And one reason that many people on the Democratic Coalition hate him is that he has an understanding of markets.

Pat Lynch (41:11):
Virginia, thanks a lot for taking the time to be with us today.

Virginia Postrel (41:13):
Thank you.

James Patterson (41:14):
Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

The originalist majority on the Supreme Court is perhaps more open than ever to overturning what it considers to be bad precedents. In his new book, Carson Holloway argues that the justices should train their crosshairs on New York Times v. Sullivan, the 1964 decision that means statements about public officials are rarely considered libelous. He joins James Patterson to discuss the book, the history of free speech, and the future of originalism.

“Malice Toward All, Defamation for None?” by Carson Holloway, Law & Liberty
No Liberty to Libel by Carson Hollway
“The Case Against New York Times v. Sullivan” by Carson Holloway, Law & Liberty
The Political Writings of Alexander Hamilton: Volume 1, eds. Carson Holloway and Bradford P. Wilson
The Political Writings of Alexander Hamilton: Volume 2, eds. Carson Holloway and Bradford P. Wilson
“Sullivan and the Right to Reputation” by Carson Holloway, Law & Liberty

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

(00:39)

Hello and welcome to the Law & Liberty Podcast. I am James Patterson, contributing editor to Law & Liberty and associate professor at the Institute of American Civics here at the University of Tennessee. With me today is Carson Holloway. Dr. Holloway is a professor of political science at the University of Nebraska, Omaha, where he has taught since 2002. Dr. Holloway is also a fellow in the Claremont Institute Center for the American Way of Life. Dr. Holloway has published and edited many books, including with Bradford P. Wilson, the two-volume collection of Political Writings of Alexander Hamilton.

(01:24):

That’s from Cambridge University Press. But today, we will be talking about his most recent book, No Liberty to Libel: The Constitutional Case Against New York Times v. Sullivan from Encounter Press. Dr. Holloway, welcome to the Law & Liberty Podcast.

Carson Holloway (01:39):

Thanks, James, for having me. It’s a great honor and privilege and pleasure to be on with you.

James Patterson (01:43):

Excellent. Well, I appreciate that. And this is a fun book, a book I never expected to read, really. The reason I say that is because what is the relevance of this book? People may not know about New York Times v. Sullivan. So what inspired you to write about this case and its effects?

Carson Holloway (02:04):

Well, yeah, it’s a great question. I can talk a little bit about how I got into it. I’m a proponent of originalism in constitutional jurisprudence. And so I’ve been thinking in recent years about the way the originalist majority on the Supreme Court has corrected what I regarded as some errors. And it got me thinking about other modern Supreme Court cases that I thought were erroneously decided in the first place that I wanted to write about and think about. Of course, there’s a difference between being a professor who’s a proponent of originalism versus being a judge or a justice on the Supreme Court because they have to move somewhat more pragmatically. And it’s not obvious to them anyway that they’ll undo every precedent that couldn’t be justified on originalist grounds. But I wanted to make my argument for more of a cleanup operation than has happened so far.

(02:59):

And so one of the cases I was aware of from my own teaching of, say, civil liberties courses was the Sullivan opinion from 1964. And having studied it somewhat, I didn’t think that it really passed muster in terms of the original meaning of the First Amendment. So I wrote a paper on this topic that was published by the Claremont Institute a few years ago in their “Provocations” series. And the more I thought about it and the more I studied some of the recent opinions, such as the Dobbs opinion in which the Court overturned a longstanding precedent on the basis of a renewed respect for the original and historical meaning of the Constitution, the more I thought about it, the more I thought it’d be possible to write a book length treatment of the question. So that’s how I got into it. You also asked me to talk a little bit about just what the opinion is and why it’s relevant now.

(03:51):

So should I go ahead and do that?

James Patterson (03:52):

Yeah. I mean, it’s a book not just against New York Times v. Sullivan, but also the standard of actual malice. I don’t think people necessarily know what a big break that is. So talk about the case.

Carson Holloway (04:03):

New York Times v. Sullivan was decided in 1964 as a result of a case, a libel case involving a public official in Alabama, L. B. Sullivan, and the court used it to revise the nation’s libel standards and to revise really the First Amendment standards of the country, I should say, the freedom of the press standards under the First Amendment. So the traditional approach to libel from basically the Founding up until this decision was issued, and I can talk about it in more detail later if we get into the older history, but the older standard was more along the lines of libel, which is defamatory publication, publication that injures a person’s reputation is just not protected by the First Amendment. It was thought to be outside the scope of the freedom of the press. Kind of a famous statement of that briefly is in the celebrated “fighting words” case, Chaplinski v. New Hampshire, in the early 1940s, where the justices said, “Well, there’s certain categories of thought or certain categories of expression rather that have traditionally been thought not to raise any constitutional problems when they’re regulated.” And these include fighting words or words that provoke a breach of the peace, obscenity, and libel.

(05:19):

So briefly, the older approach was that libel is just not protected by the freedom of the press. And so a libel case does not raise any First Amendment problems. And the court departed from that pretty seriously in the Sullivan opinion. First of all, by holding that they think a libel case does raise a First Amendment problem. So now they’re bringing defamatory false speech within the ambit of the First Amendment’s protection. And then they solve that problem by coming up with this actual malice standard, which you mentioned, James, which says that if you’re a public official, then later they apply this to public figures as well. If you’re a public official or a public figure, in order to prevail in a libel case, you’ll have to demonstrate not only that the publication was false and defamatory, which would’ve been enough under the old standards, and which is still enough under the modern standards if you’re not a public official or a public figure, just a regular person.

(06:22):

But if you fall into those categories, you’ll have to prove in addition that it was published with actual malice, which means, according to the court, either knowledge that it was false or with reckless disregard for its truth or falsity. It’s a very difficult standard to meet. And so that’s been the standard for the last couple of generations. This is, as I said before, now a longstanding precedent. But another reason that I wrote the book is because it has become a bit of a matter of public controversy. Some famous people have started calling the actual malice standard into question, both politicians and also jurists. So the politicians are President Trump who, to my knowledge, has not spoken explicitly about the Sullivan standard, but he said many times things like, “We need to open up our libel laws. The standards aren’t good enough.” So he’s gesturing at it there.

(07:17):

And then also Governor DeSantis of Florida has said some things that are more explicitly critical of the Sullivan opinion by name and the actual malice standard by name. And then on the side of jurists, two well-known people, justices of the Supreme Court, first, Justice Thomas, Clarence Thomas, who is well known as kind of a strict originalist in some of his concurring opinions in recent years, has called into question the legitimacy of the Sullivan standard and the original ruling, and then also Justice Gorsuch more recently, who’s written some things that were sympathetic to that, but also kind of pragmatically critical of the standard based upon newer developments. So I think part of the reason the book is timely is because even as recently as 10 years ago, I believe that from the standpoint of the general public discourse, most people would not even think about a challenge to New York Times v. Sullivan.

(08:16):

It would’ve been considered a landmark First Amendment ruling that’s settled, and no one really questions it. But in more recent years, it has become more controversial. It has its defenders, too, of course, but I really thought it was time to explore the originalist critique of it at length, and that’s what I tried to do in the book.

James Patterson (08:35):

Yeah. And as someone who’s taught a media and politics course for many years, this is one of the things that comes up. It’s just when I teach the course, never in my wildest dreams did I imagine someone would write an originalist critique of … It just seems so like it’s almost part of a kind of mythology of the American twentieth century. It’s emblematic of America opening itself up to greater civil liberties.

Carson Holloway (09:00):

That’s right. And certainly from my conversations with people with whom I’ve been on panels, the journalists and the free speech lawyers and First Amendment lawyers, they all really venerate this opinion. For them, it’s the fountainhead of modern First Amendment doctrine in the realm of freedom of speech and of the press, and it’s almost sacrosanct. And certainly if you’re a journalist, it makes your position safer and easier in some respects, but it’s not consistent with the older tradition, which I try to demonstrate through several chapters in the book. It is an innovation. I find that even the people who defend it will admit that it’s an innovation, that it does depart from the older standards. They think it’s a good thing and they think it’s part of the court’s job to update these standards according to more modern expectations of freedom of speech and of the press.

(09:53):

But the Founders also believed in freedom of speech and of the press and thought it was essential to self-government and to a free society, but they believed in certain limits, and libel was outside those limits.

James Patterson (10:04):

So let’s start with this work you’ve done, really just going as far back as English jurisprudence in common law. You talk about libel through figures like Blackstone, English jurisprudence really continues up until Sullivan.

Carson Holloway (10:23):

Yeah. And it’s very important to talk about these sources, both I think because they really did inform the way the Founders thought about freedom of speech and of the press or freedom of the press. We’re talking about libel. It’s publication. I should just leave it at freedom of the press.

James Patterson (10:39):

Not expression.

Carson Holloway (10:40):

Yeah. Not only the way the founders thought about it, but the way the modern Supreme Court has talked about it, because certainly if you consider the text of the First Amendment, it is not dispositive on this question. It doesn’t really tell you anything about libel, and it doesn’t tell you under what standards libel cases should be contested. So you really have to think about what is the background to the language of the First Amendment, what was informing it. And the modern court has said, and it’s almost, I think fair to say, common sense to conclude that it was informed by the common law background to the American Founding. The Founders did not just invent all of these rights that are protected in the Constitution; they had an experience of English liberty that shaped their thinking, and that thinking is summarized in Blackstone’s Commentaries on the Laws of England.

(11:33):

And I find that he was very influential with many of the early American jurists who I discuss, and maybe we’ll talk about them as well. They have a pretty close to a Blackstonian understanding of this question. So what does Blackstone say in the Commentaries on the Laws of England? He first of all affirms that freedom of the press is essential to a free society. So that’s always worth keeping in view because related to what we were saying a few minutes ago, modern people who find you criticizing New York Times v. Sullivan think that you are rejecting freedom of the press. We are not. It is an essential principle. The question is, what is the scope of it, and what are the proper limits? Because everybody admits that there are some limits. So I mean, Blackstone defends freedom of the press, says it’s necessary to a free state, but he also says that it’s primarily to be understood as a freedom from prior restraints.

(12:27):

You can’t be stopped from publishing what you want to if you’re a free person, but that’s not to say, he says, that you can’t be held accountable legally for publishing something that is mischievous or illegal in its tendency, including libels or publications that damage reputation. And so he famously says, where libels are punished under English law, there is no infringement upon liberty of the press. And he’s also essential, I think, and at least I lay a lot of reliance on him for this elementary moral, political, philosophical distinction between liberty and license or liberty and licentiousness. The liberty of the press is the freedom to publish what you wish within certain decent limits. And going beyond those limits is no longer liberty. It’s a form of license or licentiousness that is just not protected. And so that’s how he viewed libel. It’s outside the scope. It’s beyond the pale, so to speak. And so as he says, there is no infringement on liberty of the press where a libel is punished under law.

James Patterson (13:35):

We see this with a lot of treatments of liberty, that there’s the use and the abuse, and that there would be no constitutional protection of an abuse, given that there is no right to protect. An abuse would be something that is without right. But the thing that I find, and this is a question, I don’t mean to lead you too much. The problem that the abuse with the press comes to is the right to reputation. And does this concept of a right to reputation have any cachet any longer? Is this something people even think about?

Carson Holloway (14:07):

That’s a very good point. I’m glad you mentioned that, and I’m glad you’re leading me on that. Very important to talk about. And it comes later in my argument in the book, I come back to that at the end, but I do think that that is an important distortion in our thinking. And what I mean by that is our failure to consider seriously enough that reputation should be thought about as a right. I mean, some of the modern opinions do go there, but for the most part, I think it’s pretty common to speak about reputational interests in the legal materials we have. And that already sets up a kind of weighting of the scales that’s not favorable to reputation because many people start to think along these lines that, well, there’s a right to freedom of the press, but then there’s reputational interests. You don’t have to be an expert moral philosopher to kind of be drawn along by the vibe that rights are more important than interests.

(15:04):

They’re more morally weighted than interests. And so it is important to recover the original understanding that reputation is a right and even a natural right. Now that’s in Blackstone, too. Of course, one could think hypothetically they’d be wrong that this is just a social construct or a legal construct, reputation, but the founders didn’t think that way, and Blackstone didn’t either. And I don’t think any sensible person would. What Blackstone says in the Commentaries on the Laws of England is that it’s a matter of natural justice to be able to protect your reputation. That’s pretty much saying there’s a natural right. The early American commentators that I looked at carefully for the book include people like James Wilson, James Kent, Chancellor Kent of New York, and then also Joseph Story, author of the famous Commentaries on the Constitution of the United States. They don’t use the term natural right, but they come so close that it’s very clear that they think reputation is a natural right.

(16:08):

I think Wilson is critical of the common law heritage in some ways, but part of his criticism is that it almost doesn’t take seriously enough the idea that reputation deserves to be protected in its own right. And then say somebody like Kent in his Commentaries on American Law refers to reputation as part of the inviolable rights of the person, language like that. And I think as somebody who’s interested in political philosophy, it makes a lot of sense to think about reputation as a natural right because it is rooted in our human nature. I mean, it’s directly humiliating to have your reputation tarnished without any further injury. In other words, you could disaggregate. This is actually pretty helpful to think about this. You could be harmed in your reputation in such a way that there are economic costs that are calculable. If you lose all your business and you can’t keep the lights on anymore, that can be demonstrated to a court.

(17:07):

But it’s also the case that it just hurts you to have a false and defamatory story out about you. And that’s recognized, I think, in the tradition of American libel law. I mean, that’s why there are often damages accorded even without having to demonstrate economic harm. It’s the idea that there’s an intrinsic harm to the person from the damage to their reputation. By the way, also on the topic of political philosophy, I find this whole line of argument fascinating because I, like a lot of people who study what we study are very familiar with Locke and the rights to life, liberty and property, and we might be tempted to think of the founding as drifting along a kind of individualist or in an individualistic direction and not taking human beings seriously enough as sociable animals. But when you look at the libel jurisprudence, you see that that’s not really the case.

(17:59):

The Founders were aware that humans are sociable by nature and that injuries to their reputation are just injuries to them. It’s part of our nature not to want to be disgraced before the community, certainly not unjustly. And so that’s part of what libel law protects.

James Patterson (18:16):

Yeah. I was listening to the Commentary podcast earlier today, and Eliana Johnson and John Podhoretz were describing how there are a lot of people who just come up in the Epstein files who have nothing to do with any of those things. They’re just in there. And the fact that they’re in these files is already a problem for them reputationally. So that’s part of when I was preparing the questions for this, the reputational right crossed my mind because it’s like, “Oh, well, it’s not a dead issue. We’re not fighting duels anymore, but maybe we should consider why they were fighting them.”

Carson Holloway (18:53):

And actually, just as an aside on that, I’m not an expert on these kinds of things, but I will say that’s part of the reason that the executive branch or prosecutors generally don’t release these reports because there’s a lot of unconfirmed alleged information in them that’s never been tested in court that could damage someone’s reputation. And then also in relation to that, though, you did provoke me to remember that the older libel standards were so protective of reputation that the privilege, privilege is like a legal term for exceptions to the ordinary liable rules, and there are some of them in the tradition. One of them was to publish about legal proceedings, so court proceedings. The older rules were so protective of reputation that that privilege was understood very narrowly. In other words, it was understood that you have a right to publish about legal proceedings that are in process, that are ongoing, but without any extraneous commentary of your own.

(19:51):

So in other words, if you’re publishing a news story about some guy who’s on trial for murder and you then editorialize on the evidence and say something like, “Yeah, well, it seems to me that any idiot would see that that guy’s guilty,” you’re opening yourself up not supposed to comment beyond the proceedings themselves. I mean, it’s a way of protecting reputation even of people who are accused of serious crimes. And the older school thinking on this, too, was that when it’s something really disgraceful and harmful to reputation, the person who’s the target of that deserves a chance to contest it in a court setting where there are rules of evidence and a chance really to prevail, which is not really the case usually in newspapers. People read it and it’s out there and then it’s too late.

James Patterson (20:37):

Yeah. If that had been the standard during the O. J. Simpson trial, I think Norm Macdonald would’ve been in a supermax prison by the end.

Carson Holloway (20:44):

He would be in trouble. Yeah, that’s right.

James Patterson (20:48):

No, so not only is this book attacking New York Times v. Sullivan, it does something even more shocking. So it even shocked me, which is, you defend the Sedition Act of 1798. What is going on with this defense? What is it that makes you think that maybe it wasn’t so bad?

Carson Holloway (21:10):

Well, I would maybe clarify a little bit there. There is a paragraph at the end of that chapter where I say this is not necessarily to defend the Sedition Act because it is reasonable to think that abusive things were done under it. But what I’m objecting to is, and this is a really interesting part of the book, so I’m glad you brought it up. What I’m objecting to is the use of the Sedition Act by the court in New York Times v. Sullivan. Now, we haven’t mentioned it yet, but it’s worth mentioning in passing or maybe more than in passing. It will help me to refer to him more. Very famous and highly regarded person, at least in some ways, is the author of that opinion, William Brennan. I mean, certainly a highly consequential American and one of the great liberal justices of his era, not someone of whom I’m a fan in terms of the results of jurisprudence a lot of the time, but he’s a famous American and a consequential one.

(22:06):

So he does deal with the Sedition Act. Let me try to explain why it’s important to his argument and why I dispute that argument, and that’ll show what I’m doing with the Sedition Act. Brennan has a few steps in the court’s opinion in New York Times v. Sullivan, in which he tries to get to the point, which is, I think, a departure from the tradition, but a point at which he can say that just because something is false and defamatory doesn’t mean it’s not protected by the First Amendment. And he tries to say that this is the lesson of the Sedition Act controversy of 1798 and the years after that, that’s when the Sedition Act was enacted by the Federalist Congress, because the Sedition Act did include a truth defense, right? The Sedition Act punished as seditious libel any publication that tended to maliciously, falsely defame the government of the United States or its officers, but by using the term falsely, it implicitly includes a truth defense.

(23:13):

And then explicitly in a subsequent section of the act, it says, “Truth can be pleaded as a defense against a charge of seditious libel.” Now, that’s a liberalization of the English common law standards. So that’s why I said earlier that I thought the founders were in the ballpark with Blackstone or words to that effect. They’re not exactly like him and in a way that we would probably approve because according to Blackstone, criminal libel doesn’t even have to be false. A thing could be criminally libelous even if it were true because he says the criminal libel law contemplates the threat to the peace, not the truth or falsity, and not the individual reputation. The Americans, and especially Alexander Hamilton, and I can talk more about him if you want me to later on, come around to the idea that truth really should be a defense even against a criminal libel charge, and that’s reflected in the Sedition Act, and that’s why the ones who defended it, including some prominent Federalists, could regard it as not a problem and a liberalization of the prevailing standard because it does include that truth defense.

(24:22):

Now, however, going back to something that is true and something that Brennan makes a lot of in the Sullivan opinion, despite including the truth defense, the Sedition Act was highly controversial and hated by some highly important and much to be revered Americans, namely Thomas Jefferson and James Madison, who argued strenuously that it was unconstitutional despite that. So what Brennan does is to say that he thinks that this shows. I mean, he thinks basically that the Sedition Act controversy crystallizes the meaning of the First Amendment as it was understood at the time of the Founding. I think that’s what he’s trying to do there and provide a kind of originalist … He doesn’t talk about originalism in explicit terms, but I think this is his effort to find a kind of Founding-era anchor for what he’s doing.

(25:15):

So my response to that is to say in my chapter on the Sedition Act controversy that I don’t think it’s so obvious that the Sedition Act was unconstitutional, whether or not it was a good idea. And there were some people like Chief Justice Marshall who, judging from their letters, thought that it was constitutional, even though it was a bad idea. He was pretty clearly a political critic of it, but let me explain that just a little bit more. What Brennan says is that the Sedition Act was found unconstitutional in the court of history because of this movement against it that seems to have settled the public mind against it in the early nineteenth century. And what my chapter is basically saying, not so fast there, Brennan. First of all, it’s easy to say, or it’s helpful to say for him that it was found unconstitutional in the court of history because no real court found it unconstitutional.

(26:10):

I mean, there were prosecutions successfully under the Sedition Act precisely because some federal courts found it to be constitutional, including highly capable and reputable people who I cite like Justice Iredell, who was involved in one of the cases, the Fries case, and in his instructions to the grand jury in that case, took on the whole argument about the unconstitutionality of it and gave a defense of its constitutionality, both in terms of the unamended constitution, but also in terms of the First Amendment. I could talk a little bit more about that if you want me to, but I’ll wait until you seek further detail on that. But to come back to the big picture, all I want to say in that chapter is that whether the Sedition Act is unconstitutional according to an originalist understanding is really a murky question because the quality and kind of stature of the people defending it and the people attacking it are about equal.

(27:08):

And so I find that it’s not a sufficiently clear case for the Court to come along a century and a half later and say, “Well, this proves that this is the right way and the other way was wrong.” There’s no ruling from the time on which they can hang their hat. Brennan kind of relies on a practical construction argument, you might say by saying, “Well, as President Jefferson pardoned everybody and Congress later paid back the fines.” I go, “Well, that’s all true, but it’s also true that Adams signed it into law as president and Congress enacted it.” And the judiciary at the time imposed the fines because they thought it was constitutional. So it’s sort of a mixed record of argument at the time of the Founding. And whatever you think about it, I guess I’m implicitly operating from a standpoint of judicial restraint that I don’t think the Court should, in the 1960s, be inventing a new rule based upon a mixed record like that.

(28:09):

And of course, the rule itself doesn’t even come from the Sedition Act controversy. That’s something else entirely that they’re deriving from other sources.

James Patterson (28:18):

So you anticipated a question I had about how truth became a defense of libel cases. So maybe give a summary of case law prior to Sullivan you examine and maybe how these judges and justices conclude very differently from the way Brendan does in Sullivan.

Carson Holloway (28:33):

Yeah. Of course, just as an aside, Blackstone does say that truth should be a defense in a civil case. If it’s a criminal, he says, if the thing is true, there’s really no injury to your reputation that’s cognizable in the civil law. If it’s a criminal case, then it is a problem because they’re worried about breach of the peace.

James Patterson (28:51):

But seditious libel is a problem in the United States because it’s a republic and there needs to be some degree of criticism because in order for there to be public deliberation at all.

Carson Holloway (29:02):

That’s another argument too that’s interesting. And there’s division of opinion on that. I mean, what you just said is a great statement of the way somebody like Madison talks about it.

James Patterson (29:11):

I’m giving away my biases.

Carson Holloway (29:12):

Yeah, yeah. And that’s a very powerful argument, although I think it’s fascinating that there’s an argument on the other side. Justice Iredell in that instruction to the grand jury that I mentioned says just about the opposite. He says that in a republic, the government depends upon the good opinion of the people, and therefore, it’s okay to have a seditious libel law. Of course, this is abstracting from the other thing you asked me about, which is the truth defense. I think it does make a lot of sense to say that in a monarchy where they try to foster veneration for the government, then maybe you would have a … I mean, it’s intelligible within that kind of regime to have a law even against true libelous remarks. It would never make sense in a regime like ours where people need to know the truth to make judgments about whether the government’s doing its job.

James Patterson (29:59):

Yeah. So seditious libel makes sense in North Korea, but not in the United States.

Carson Holloway (30:03):

Yeah, yeah. Seditious libel is a specific … It’s a specific subcategory of criminal libel. And so let’s talk about how this changed. Well, it does involve a, well, not exactly a seditious libel case, but it involves a criminal libel case. The most famous one is People v. Croswell, which is a New York libel case in the early nineteenth century in which Alexander Hamilton was involved. And in the initial stages of it, it’s pretty murky too, but it ends up that Hamilton wins. So he argues strenuously in that case as the lawyer for the defendant that truth should be a defense against a libel charge in a criminal proceeding. And he argues that famous sentence, he says, “Truth is an essential ingredient in the moral order of things,” or something like that. I don’t remember exactly how it is, but he thinks that on general moral principles of justice, somebody who has published something that’s true and is in danger of being prosecuted for that ought to be able to plead the truth of it.

(31:11):

And another famous American who’s involved in that case, someone I’ve already mentioned, is James Kent. Kent was a judge in that case. So Kent agrees with Hamilton on that. And then there was another opinion by one of the judges who defends the older common law standard. So opinion’s mixed. What ends up happening? Here’s why I said it’s murky, but then it becomes clear. It’s a split decision, so they’re not able to overturn the original conviction. To that extent, no new ground is broken. However, later, New York passes a new law that adopts the Hamiltonian standard and then later changes its constitution to adopt the Hamiltonian standard. And then much later, in a not as well-known libel case from the nineteenth … Well, whether it’s a libel case or not, I’m not going to say, but it’s a Supreme Court case. Beauharnais v. Illinois, I think, deals with a kind of group libel law.

(32:06):

And in that, one of the concurrences in that case, Justice Robert Jackson says that Hamilton’s view in the Croswell case became the common sense of American criminal libel law. So the drift after that is in the direction of a truth defense, a qualified truth defense, but I think the Croswell case is the kind of turning point and Hamilton is credited for that. But as I wind up here, let me say why I said a qualified truth defense. What Hamilton says and what ends up being reflected in the law in many jurisdictions in these criminal libel cases is truth published with good motives and for justifiable ends. So on that kind of founding era, American understanding, there’s still some sense that a true publication could be libelous and injurious if it were just say purely malicious or purely for the sake of trashing somebody’s reputation. They still got, and this also is interesting because it shows how protective they were of reputation.

(33:08):

They think that there needs to be some good justification for dredging up something disgraceful about somebody, even if it is true. So that’s the Hamiltonian formulation, truth published with good motives and for justifiable ends.

James Patterson (33:24):

Yeah. And the thing about the development of American case law on this, as you demonstrate in the middle of the book, is that not only does the sort of American revised version of Blackstone on libel persist, the rationale that Brennan raises for his version is raised and dismissed. They don’t like the actual malice standard. They don’t think the burden of proof should be distributed that way. So maybe talk about some of those cases to sort of strengthen the position you’re in.

Carson Holloway (33:58):

Yeah, there’s two chapters on the history. And in a way, I mentioned the Dobbs ruling earlier, that ruling, that opinion by Justice Alito frames itself as an inquiry into the text, original understanding, and historical understanding. Justice Thomas does that, too, and some of the opinions on the Second Amendment. So I’m kind of taking that framework and there’s not a lot on the text because as I said, it’s not really dispositive. It’s underdetermined on this question. So then I turn to the original, what I think is the original public meaning as you can discern it from sources like Blackstone, Kent, Story, Wilson, and others. And then I turn to the history and there’s two chapters on history, one of which deals with Supreme Court cases, but the first one deals with state cases. And it doesn’t claim, and I’m not making any pretense that this is like an exhaustive survey of American state libel cases. That would be a really long book.

James Patterson (34:52):

This is the book, No Liberty to Libel, and it is a tight, what, 200 pages?

Carson Holloway (34:59):

It’s about 200 pages.

James Patterson (35:01):

No tome for sale at Encounter Books. People should buy this and bring it with them.

Carson Holloway (35:06):

Right. Yes. It’s easy to transport and hopefully easy to understand. So that chapter on state cases, like I say, is not meant to be exhaustive, but it’s illustrative. I wanted cases that illustrate the traditional standard. And again, even the defenders of New York Times v. Sullivan admit that it’s a departure from the traditional standard and that even Brennan admits, I believe in the opinion that the older majority rule in most of the states was a lot more restrictive. So that’s what I’m illustrating is what scholars have called the majority rule. Yeah, there’s a case in the early nineteenth century, a New York case, King v. Root, which involved a libelous publication about, I think the lieutenant governor or the attorney general. I’m not sure right now which one he was.

James Patterson (35:53):

And the lines from the journalistic story you provide are fun. The eyes are bloodshot. It’s like rum flex spittle, just like, oh, it’s like, why don’t we get yellow press stuff like this anymore? This is fantastic.

Carson Holloway (36:12):

I have to admit, I do quote some of that stuff for the entertainment value, pretty florid. That’s one that’s important. And then later in the nineteenth century, there’s Post Publishing Company v. Hallam, which involves an opinion by another great and important American, William Howard Taft, who of course went on to be president and then chief justice of the Supreme Court. But at this point, he was an appellate court judge, and he dealt with this case. And like you say, there’s something like a special privilege for the press that’s asserting itself in these cases, but is being repudiated by these judges. Now, it’s not exactly the actual malice doctrine because that’s sort of distinct, but it’s in that direction.

(36:57):

They’re saying things like, “Well, we’re newspapermen, and it’s part of our job to provide information to the public. And so we should be treated more leniently than other people who might’ve libeled somebody even if what we said was false.” And basically, the judges are not having any of that. Over and over again, they get these arguments made in defensive claims that are libelous and that seek to shelter the press from the kind of ordinary scrutiny that you would get under the standards at that time. And the judges just push back and say, “Well, those are not the legal standards that exist in the United States. And you don’t get any special protection. And basically, if what you said was false and defamatory, you’re going to lose. And there’s nothing like any kind of actual malice extra step for you to justify what you’re doing and to protect you.: So yeah, that happens. And I try to show that in that part of the book.

James Patterson (37:52):

Another feature of these historical decisions, and it comes up at the end in the afterword, is that there are harms to the actual malice standard. And the one that I kept seeing coming up and that you later referred to in the afterword is that allowing for the actual malice standard actually creates incentives for people not to want to run for office, right? Because they’re going to be smeared. And the people who will run for office are people who don’t care about being smeared, who aren’t necessarily who you want.

Carson Holloway (38:28):

Yeah, that’s a great point. And I thought of that when I first started thinking through criticisms of New York Times v. Sullivan. In other words, that, if you think kind of pragmatically, which is a distinct kind of argument from the originalist argument, which is concerned with what was the original public meaning of the First Amendment? How did that relate to libel? But you start thinking about what would be the reasons for a stricter standard? What would be the reasons for finding fault with the consequences of the actual malice standard? This would be one of them, that you’re going to have to surrender the protections to your reputation that you would have if you remained a private person. And so yeah, one consequence of that is that people who are particularly sensitive to their reputation may be deterred from public service, and people like that may be highly honorable people and it’s not good for your political community.

(39:23):

So I thought of that argument when I wrote the article that was the first basis for my argument. But the other thing I want to emphasize here, James, is that I was pleased to see that I am far from the first person to have thought of that consequence because just along the lines of what we were just talking about a minute ago, those older judges who defend the stricter libel standards in the early nineteenth century, in the later nineteenth century, even into the twentieth century will point this out. They’ll say that if you don’t protect the reputation of public men, then the best men are not going to want to go into public life. And the people who will go in won’t be as good. I think the appellate judges in that King versus Rip case that I mentioned make that very point that no honest man could go into public life if this were the standard because the newspapers could just trash your reputation and you’d have really no effective remedy for that.

(40:18):

And Taft says it, too. So I think it’s worth thinking about that. And it’s just part of what the modern court has done. They’ve done it quite consciously. Yeah, my book talks a lot about New York Times v. Sullivan, but it also talks a bit about the follow-up case, Gertz v. Welch, in the middle part of the 1970s, 1974, which is a case that kind of solidifies the status of the doctrine. And in that case, Justice Powell wrote the opinion, and he flat out says that the court doesn’t think that the reputations of public people deserve as much protection because they’ve kind of tacitly consented to these higher risks to their reputation. And it’s not a great deal as far as I’m concerned, at least to be rethought. And certainly my other point would be whatever you think about the substance of that kind of normative judgment, it is a normative judgment that the court came up with in 1974 to further prop up the actual malice doctrine. It’s not a normative judgment that you find being made by the Founders to justify that standard because they didn’t defend that standard.

James Patterson (41:26):

Do you think a lot of the details behind Sullivan and its passage have to do with the case itself? I mean, of a racist Alabama sheriff and the civil rights organization that publishes an ad in the New York Times is on the side of the light. It makes some mistakes and some overstatements. So this is a case of maybe weighing the scales a little bit to protect the civil rights movement.

Carson Holloway (41:56):

It is a case arising out of the civil rights movement. It is a civil liberties case because it has to do with freedom of the press, but it clearly arises out of the civil rights movement for the reasons you mentioned that the occasion for the case is the ad in the New York Times, “Heed Their Rising Voices,” which was a defense of Martin Luther King and a criticism of the officials of Alabama. Sullivan was the city commissioner in charge of the Montgomery Police, and he felt like his reputation was tarnished by that ad because of its criticisms of the police department, some of which were erroneous, as you said, and that was the opening for the case. And so yeah, I think the court at the time was worried about some other considerations besides just getting the case right according to traditional legal standards. Now, it might have been the case that they could have ruled against Sullivan anyway. Justice Thomas says that in his criticism that he thought that it wasn’t even clear from the factual record that the publication was of and concerning L. B. Sullivan because he wasn’t even mentioned by name. And other people have made the point, too, that being presented as a kind of strenuous segregationist wouldn’t even have hurt his reputation in Alabama at the time. And also in the record—

James Patterson (43:14):

That’s my favorite one. It’s like, oh no, this is what they want. They want you to be like this.

Carson Holloway (43:20):

It’d help to get reelected probably. It’s also the case that I think in the original trial when they asked some of his witnesses, “Did you believe this stuff?” They said, “No, we didn’t believe that. We knew that stuff wasn’t correct.” So it’s not really a great—

James Patterson (43:34):

Right.

Carson Holloway (43:34):

Case of injury to his reputation, certainly to justify the large value of the damages that were awarded. So I think the justices were concerned about that. And not only that, but there were a number of other libel cases coming out of the state that were similar in its character that perhaps that would’ve come out much differently unless you change the standards to actual malice. I think that’s part of what they’re thinking. They’re worried about abusive state-level libel cases being used to shut down coverage of the civil rights movement, some of the most important things going on in the country at the time. So they had a kind of political, I think a high-level, serious prudential political reason for wanting this to go the way it did. And I don’t entirely fault them for that, but I stand by my argument that they’ve revised … You may see one of … Another good part of the book, which is not me, is the quotations at the very, very beginning, one of which is from Justice Scalia in an interview where he says they were revising the Constitution. That’s my contention, too. They might’ve had a good reason in their own minds to think it was necessary, but they were revising, not interpreting.

James Patterson (44:53):

Do you think that Sullivan as a case is also a bit of a relic of its times? And I mean this, especially in the sense that it’s coming out at a time when mass media, right? Print, paperbacks, radio, movies, television, this is a kind of media environment that’s very different from today. And so a revision is also necessary that even if it was wrong then, it feels even wrong-er now in a world of cancel culture and searchable PDFs with Epstein files. And it seems like it’s even more difficult to sustain.

Carson Holloway (45:29):

Yeah. I mean, certainly things have changed a great deal since then. The media … Well, first of all, yeah, everybody can publish who wants to now because of social—

James Patterson (45:39):

Right.

Carson Holloway (45:39):

media, things like that. And so there’s a lot of … Well, it’s the case that the First Amendment protects everybody, not just the credentialed press. And at that time, the credentialed press was pretty much the whole ballgame as far as communicating with the whole country, and that’s not the case anymore. So there’s just all kinds of defamatory stuff going on uncontrolled because as long as it’s said about public figures or public officials, very hard to do anything about it. That’s one important change. I think it’s also a relic of its time going back to the whole originalist argument because to me, and I know there are people who would maybe want to contend with me on this, but I’m telling you what I think. It seems to me that if you—

James Patterson (46:22):

It’s your podcast, Carson. You do that. All right. We can interview other people if they want to come on in.

Carson Holloway (46:29):

Okay. Yeah. Thank you.

(46:31):

Obviously, there’s been a kind of restoration of originalism as a method of constitutional interpretation. I think from reading the early efforts of the court and what some of the founders said that they expected an originalist interpretation of the Constitution. But with that mid-twentieth-century court, they just are almost completely untethered. I mean, they don’t care. It’s pretty shocking actually. And it’s even more true, I think, of the court as it moves forward, like the Gertz v. Welch Court. I mean, there’s a couple of references to Jefferson for window dressing, but other than that, Justice Powell is not rooting his opinion in the original understanding of the First Amendment. So this kind of generation of constitutional lawyers at the time just was not interested and they had a whole other approach. And you can tell that from Brennan’s opinion and everybody else’s opinion in the case for that matter, because Times v. Sullivan was a unanimous verdict.

(47:28):

Not everybody agreed on the reasoning. Some of them were more radical than Brennan, like Black and Douglas who thought that there just should be no libel cases at all under the First Amendment. But there’s not a lot of careful principle attention to the original meaning. And I think that’s been recovered, and that’s part of the reason why I’m trying to make this argument at this time. If you really believe in that, I think you have to rethink this case as well as the others.

James Patterson (47:53):

The Roberts Court seems to be going through a kind of great repealing of cases that the justices regard as just simply wrongly decided. And it’s not just the Dobbs decision. It’s also Kennedy v. Bremerton. We’re just seeing this. And is there some irony to conservatives on the court jettisoning stare decisis?

Carson Holloway (48:18):

Well, I mean, it is an obvious kind of facial tension. There’s a justification you can give for it, which is if the precedent in question was a departure from the original meaning, then if you really believe in that as the proper approach, then you would feel duty-bound to reverse and to go back and rethink these things. Now, I said at the beginning that they’re more pragmatic than that, and that’s why I have a whole chapter at the end arguing that even if you want … Well, the chapter at the end is saying, I understand that the originalist deficiencies of the Sullivan opinion are not enough for practicing justices to necessarily overturn it. They also need to be shown that it’s harmful in its tendencies and that its reasoning is so poor that it deserves to be junked the way these other ones have.

(49:09):

And so I tried to spend some 20 or more pages on that in that last or second to last chapter, trying to show that. I think it’s just an act of judicial policymaking untethered from any kind of objective source of law. It’s basically the standard they wanted, and they created that standard because they wanted it and thought that it was the best balancing of the interests without trying to figure out what was the balancing of the interests or principles or rights that would’ve informed the way the founders thought about it. But yeah, there are limits to what you expect them to do. And overturning every erroneous precedent is a lot to expect, and I don’t know if they’ll do that. And I don’t know if they’ll do it in this case even, but I thought it was worth making the argument.

James Patterson (49:53):

So I’ve got five questions I’m just not going to be able to ask because we’re running out of time. So I’m going to ask the most important one that I have left, which is, what hope is there that Sullivan will be overturned?

Carson Holloway (50:07):

I don’t know. I couldn’t assign a percentage, but I wouldn’t have spent the time I did on the book if I thought there was no hope at all.

James Patterson (50:15):

I guess that’s true.

Carson Holloway (50:15):

I would say, however, that I’ve given some talks on the book, and I feel like even if there were no hope at all, it’s still an instructive exercise because for purposes of civic education and even philosophic education, if you want to call it that, it is very interesting to think through the older standards and the moral principles that informed the older standards, including a strict protection for reputation and the sense that every man or woman is presumed to have a good reputation and the burden of proof falls upon the people attacking the reputation to show that what they’re saying is true if they get hauled into court. That’s all been jettisoned in modern culture. And the prejudice today is to think that if it’s true, you definitely have a right to say it, or even if you happen to think it’s probably true, you have a right to say it without confirming it.

(51:07):

So it’s a very interesting exercise and helpful, I think, to recover the older standards regardless of what the Court does. However, I would say that I don’t think it’s a zero chance that they would return or revisit this question because there’s clearly a majority that thinks that originalism is the correct approach. And if you think that, then I believe you have to rethink this case as well. And that’s the reason I wrote the book.

James Patterson (51:37):

Yeah.

Carson Holloway (51:37):

If we try to go into numbers, we know there are two who have said that they’re willing to think this through. One is Justice Thomas, the other is Justice Gorsuch. We don’t know much beyond that. You would need three more votes. I tend to think that Justice Alito is somebody who might rethink it because of his dissent in Snyder v. Phelps, the Westboro Baptist Church case, which showed a certain independence of mind and unwillingness to go with the crowd there. It’s a tough case though or a tough question because on the one hand, there is a majority that seems to be interested in a principled approach to originalism. On the other hand, it is also the case, and you still see evidence of this, that for the last two generations, almost all of the justices on the Supreme Court, conservative and liberal, have bought into something leaning in the direction of free speech absolutism, which is just not what the First Amendment stood for because there were understood to be limits to what was permissible, intelligible limits that still maintained a robust realm for public discourse, but protected the rights of individuals, and interests of the community.

(52:48):

So it would be a big change for them and they would think hard about whether they’re going to do that. So I don’t know, we’ll see. A lot hangs on if anybody pays attention to my book.

James Patterson (52:59):

Yeah. Well, first of all, obviously everyone’s going to pay attention to No Liberty to Libel by Carson Holloway, available on Encounter Books. But also, I mean, think about the reputation of the press in the ’60s and ’70s versus today. I mean, there’s considerably less, I think, good feelings, right? There’s less trust in their ability to exercise this great charge than there used to be.

Carson Holloway (53:25):

That’s true. Their reputation is not as good as it used to be, which suggests that they’re not living up to the proper standards.

James Patterson (53:32):

Yeah. So you’re just doing them a favor and restoring a standard so that they can get their reputation up, too.

Carson Holloway (53:40):

I’d like to think of it that way. Yeah.

James Patterson (53:42):

Dr. Carson Holloway, thank you for coming on to the Law & Liberty Podcast.

Carson Holloway (53:47):

Well, thanks for having me.

James Patterson (53:49):

Thanks for listening to this episode of Law & Liberty. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts, and visit us online at www.lawliberty.org.

There is enormous pressure today for traditional conservatives (or anyone critical of progressivism) to write their names in the black book of the New Right and acquiesce to a politics of populist rage and federal overreach. Elizabeth Corey explains to James Patterson why she will instead engage in the quieter, more respectable task of cultural transmission and tending to her little platoon.

“A Quiet Refusal to Compromise,” by Elizabeth Corey, Law & Liberty
“Beautiful Losers,” by Elizabeth Corey, Public Discourse
“Interpreting the New Right,” by John Grove, Law & Liberty

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring series commentary on law, policy, books, and culture, informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. Today, my guest is Elizabeth Corey. She is a professor of political science at Baylor University, where she’s also the director of their honors program. Her area of specialization is conservative political philosophy, especially the work of Michael Oakeshott. She has published widely, and today we will be talking about two of her more recent essays. The first is “A Quiet Refusal to Compromise,” for us here at Law & Liberty that she published this past February, and more recently a piece named “Beautiful Losers” for Public Discourse.

(01:18):

Dr. Corey, welcome to the Law & Liberty Podcast.

Elizabeth Corey (01:21):

Thank you, James. It’s great to be here.

James Patterson (01:23):

So let’s start with the slightly older essay, “A Quiet Refusal to Compromise.” You describe in its opening paragraph a sense of amazement and dismay when beholding the changes of American conservatism this past decade. And you also describe how you had a particular point of view or a privileged vantage point. So tell me about this experience and why amazement and dismay.

Elizabeth Corey (01:50):

Well, I think let me start with the other part of your question, which is the privileged vantage point, which is that I’ve been around this world for a really long time, more and less engaged. My dad has been involved in intellectual conservatism since the 1950s. And so it’s been in the water really for me for these last 50 years. And so I would go to Philadelphia Society meetings and work at Heritage. And so I’ve had a lot of experience in these institutions and understood them to be more or less a kind of unified front. And what I’ve seen in the last 10 years or so is a real change there from a kind of intellectually focused conservatism toward a much more activist conservatism, which as an Oakeshottian, as I proudly claim to be, is not at all what I understand conservatism as consisting in.

(02:44):

So there was this turn, obviously in the Trump years, you will know this very well. And the first Trump term and then the rise of these new institutions. And I just thought this is a very different vision of conservatism than the one I’ve grown up with. And it is, in a way, I think a certain kind of betrayal of the essence of what conservatism was prior to say about 2015.

James Patterson (03:07):

You mentioned at the beginning of the essay, a book I don’t think we’ve talked about on the podcast, but we reviewed, John Grove wrote the review of Furious Minds by Laura Field. I wrote a review for Civitas. I think I was more favorably inclined. What is it that you noted about what Field described? What is it that she observed? And maybe what were your disagreements or agreements with her?

Elizabeth Corey (03:31):

Field’s book is interesting. I actually didn’t read it. I listened to her read it on an Audible.

James Patterson (03:36):

Wow. She did the audio?

Elizabeth Corey (03:38):

She did do the audio.

James Patterson (03:39):

Oh, that’s a lot of work.

Elizabeth Corey (03:40):

It’s a lot of work. But it was interesting to me because what was conveyed in the Audible book was a lot of tone that didn’t maybe necessarily come through in the book itself. I mean, it was very clear to me that she was disdainful toward the people she was talking about. She had a lot of sort of political differences with them from the very beginning. She’s quite progressive. She thought the conservatives … She was interested in the conservative world. Obviously, she went to UT Austin and was around the Straussian conservative world. So she had a privileged place to look at that world, but nevertheless, it was clear to me that she was critical from the outset. So I was interested in that, and I noticed the tone, but it didn’t make me think everything she was saying was wrong. So took it with a grain of salt.

(04:31):

I mean, a lot of the things she described were things that did happen over the past 10 years. And so it was a kind of report with an agenda. And John Grove did a great job of laying that out in a much more careful way than I can here. But it was a way of bringing to the fore, okay, here’s what’s happened over these past 10 years. And that’s what got me thinking, okay, well, most of what she reported did happen. And it’s why I and many other traditional conservatives feel ourselves a bit alienated from the contemporary conservative movement.

James Patterson (05:07):

Yeah. I suppose I appreciated it just for the creation of a sense of network and bringing together different groups that people maybe didn’t understand to be so affiliated, but it definitely has a point of view. That is definitely true. There’s a passage in the essay that I was not prepared for. And it is a passage you quote from William Hazlitt’s “On the Pleasure of Hating.” So you already know from that it’s going to be good. And this is the passage: “There is a secret affinity, a hankering after evil in the human mind,” he writes. “Which takes a perverse, but a fortunate delight in mischief since it is a never failing source of satisfaction. Life would turn to a stagnant pool where it not ruffled by the jarring interests, the unruly passions of men, the white streak and our own fortunes is brightened or just rendered visible by making all around it as dark as possible.” How do you see this passage playing a role in understanding contemporary conservative changes?

Elizabeth Corey (06:16):

That passage spoke to me because it seems to me what I often read in contemporary conservatives now is a kind of anger, a kind of willingness to call out enemies, really just an adversarial posture that Hazlitt names. And let’s be clear, there’s something absolutely right about what he says. It’s wonderful to be on the right side of something with a tribe who agrees with you. And so to have somebody or to have a set of institutions that you can say, “Well, these are worthy of hate or worthy of disdain,” is a kind of bonding in a strange way for the people who are on the right side. So when I especially read things written by a lot of people from Claremont, I just think there is such a vitriol there. And that was what got me thinking about the Hazlitt essay, that there’s a kind of energy that this vitriol gives, this being on the right side of the culture wars.

(07:18):

And I think that does explain some of the energy on the right, that it’s not so much about this constructive vision of conservatism, which I would like to put forward, but it’s hating the right people in the right way. And I get that. I mean, I understand there are things that we ought to oppose and to resist for sure, but I don’t think that is the essence or the core of a conservative disposition. Or if it is, that’s not a conservatism that I want to be part of.

James Patterson (07:45):

A friend of mine who is admittedly on the left summed it up as “To own the libs shall be the whole of the law.”

Elizabeth Corey (07:52):

Exactly.

James Patterson (07:53):

Yeah. So what is this participating in the permanent and stable, intrinsic goods you described? This is the conservatism you believe in. So what does that look like?

Elizabeth Corey (08:02):

Well, for me as a university professor, it’s pretty clear. It is a kind of cultural transmission of all that’s good to the young. I mean, in a way, I know that sounds a little bit idealistic, but there’s a wonderful book I’ve recently read by Roger Scruton. It’s called Culture Counts. And he’s essentially making an argument that our job as conservatives is to preserve and to share a cultural tradition that consists in things like literature, art, poetry, philosophy, music. I mean, all of these things which are in danger of being overlooked by contemporary culture. And that to me is the essence of this conservative disposition. I mean, I could say more about that with respect to Oakeshott, who’s also very good on these things, but this kind of Scruton-Oakeshott vision of culture is at the center of conservatism is really a vision I think needs to be expressed and also put into practice.

James Patterson (09:02):

You actually make reference also to the great Josef Pieper on the idea of leisure. So actually, please do go into detail about what you think this looks like. What is it that’s outside of the world of friends and enemies that we can engage in a form of a leisurely development of traditions or even of the perfection of the human intellect?

Elizabeth Corey (09:26):

Yeah. I mean, it’s absolutely outside the world of friends and enemies, but it’s also outside the world of work and practical achievement. I mean, this is perhaps the Oakeshottian in me, but there’s this notion, especially with people like Oakeshott and Scruton, that there’s a realm of experience that doesn’t fall into the friends and enemies dichotomy, that it is somehow outside of all the practical things we ordinarily do. I mean, Oakeshott’s great on this in particular in so far as he has this idea that experience takes place in certain modes. So most of the time we’re involved in the practical mode of getting things done, doing things that need to be taken care of, doing politics—politics falls into practice. But I think Pieper, Oakeshott, and Scruton would all say, well, there’s this other realm of, as Pieper would call it, leisure, which is where culture takes place, which is where reading and philosophy and thinking and conversation and friendship and all these intrinsically good activities take place.

(10:27):

And that is not the world of friends and enemies, and that’s also not the world of total work. So these men are sort of charting out an area of life that escapes the practical and the political. And that’s actually, I think, the job of the university to preserve, although even the universities are dragged into this in all kinds of ways that we’ve seen over the past 20 years.

James Patterson (10:50):

Yeah. The conservatism that was regnant before this kind of fighting, bristling, frothing kind of conservatism was the conservatism of Mitt Romney firing people, everyone an entrepreneur, and a lot of green eyeshade talk. And that was as much of a problem as the kind that we’re dealing with now because leisure looks like a waste, no?

Elizabeth Corey (11:18):

Exactly. Yeah. I mean, there are lots of ways I think conservatism can go wrong. I mean, one is focusing solely on economics, although we can never ignore economics, but the other is focusing solely on war and friends and enemies and culture war. Part of this, James, comes from my own family experience of realizing that if I am to go forward in life as a happy person, I’m going to have to deal with people who are very different from me and have very different visions of a flourishing life. And as conservative as I may be, I’ve got to be frankly pluralist in understanding that not everyone is like me. And that’s where I think a lot of contemporary conservatism goes wrong, that you need to be like me and know if you’re not, I will also force you to be. So that’s where, I mean, Laura Field takes that to an extreme vision, but I think she’s not wrong in saying there’s a lack of understanding of what pluralism means in this new conservatism.

James Patterson (12:21):

Yeah. In fact, your account of amazement and dismay has been pretty much my own. That’s actually how I opened my review of her book was that what made me so sympathetic to the voice in which she gave the book was my own feeling over the last 10 years of what is going on. I can’t believe this is happening. But for me, and this is an interview of Elizabeth Corey, not of me, so I will not carry on about post-liberalism too much. But for me, that strikes me as not even really conservativism anymore. It’s a kind of like right-wing social engineering to quote … What was that? Who said that in the presidential nomination? Was that a …

Elizabeth Corey (13:02):

I can’t remember, but …

James Patterson (13:03):

It was Newt Gingrich.

Elizabeth Corey (13:04):

Yeah.

James Patterson (13:05):

And so can we even call some of this conservatism anymore?

Elizabeth Corey (13:10):

Well, it seems to me to be something more like … I mean, it has new names now. I mean, it is post-liberalism. It is national conservatism. And I’ll be completely straight with you, James. I don’t follow the details and the intricacies of all those movements. I do to some extent, but I couldn’t have an interview with you about them. I assure you know them much better than I do, but I do know …

James Patterson (13:34):

It’s good for your mental health that you preoccupy yourself with the better things in life.

Elizabeth Corey (13:39):

Well, I mean, I think again, that the essence of … And then this is where the piece ends up in the “Quiet Refusal to Compromise” peace ends up, which is to say that the truly important things in life are these kind of conservative activities of love and friendship and family and civic institutions. And that’s something I think that’s being overlooked in the contemporary talk about conservatives. Everything is national. Everything is about President Trump and do we like what he’s doing or do we not like what he’s doing? But I mean, I would turn our eyes back to the local and to say, look, there’s a ton of stuff to be done here in our own little platoon, I mean, to use a familiar phrase. I mean, there are church vestries and civic institutions and school boards, all this sort of thing that if we get caught up in the national vision of politics as the most important, then we’re not going to be thinking about those things and those things need attending to.

James Patterson (14:34):

A big part of, I think what contributes to the demand for the national is to direct attention constantly to the content that these people are generating. So it’s like and subscribe, hit the bell icon, here’s a link to my Patreon, please purchase my Patriot merch. It’s elements to all of this that I think a lot of people overlook that there’s a certain degree of mercenary quality to this where it’s a business too.

Elizabeth Corey (15:04):

Absolutely. It’s interesting to me because that has infiltrated not only the political realm, but also the academic realm. There’s this sense, and I’ve talked about this a little bit before, that what our job is now as university professors is to make a name for ourselves and to put ourselves out there and to brand ourselves in a certain way, which to me is really repellent. I mean, not that you don’t want to be out saying things and doing things and writing things, but this notion that you yourself are the focus is a kind of weird perversion of the academic life. It’s like if you imagine a priest doing that, you would think that’s not the nature of the priesthood to do this kind of self-promotion and this branding. But increasingly, it does look to me like that’s what we’re supposed to be doing or that somehow the social media ecosystem pushes us toward that.

James Patterson (15:56):

I’ve actually not thought of that, but it is true, right? The development of a personal brand in academia and it really runs crosswise with the calling to form students and civic virtue and intellectual virtue. What has it done to education that we have to live that way?

Elizabeth Corey (16:16):

Well, I think it’s a terrible tragedy in a certain way. I mean, in so far as university incentives now are to, as I’ve just been saying, to brand yourself, make a name for yourself, put yourself out there when actually, what are we supposed to be doing? We’re supposed to be teaching students. I mean, yes, we are supposed to be publishing and doing our own writing, but really the enterprise is about the care and nurture and development of these young people. And increasingly, it seems like that is almost a side activity of a lot of universities. I mean, when you hear about professors coming in and saying, “Well, I want to teach one-one,” or, “I don’t want to have a teaching load. I just want to do my research.” And I just think that’s, “why did you get into this?”

James Patterson (17:00):

It’s a shame. And one of the funny developments that I’ve seen, especially people who do more quantitative work, is that the potential for artificial intelligence to do that work much more effectively might mean that their research value goes down because the rate of research goes up. And so now they’re going to be stuck with all these students to teach, and that’s not why they got into this business.

Elizabeth Corey (17:24):

I know. I mean, I’ve actually heard people say all this AI stuff could be really, really good for the humanities, because that’s the one thing that AI can’t do, which is to read, to think, and to speak in a seminar. You can write a paper with AI for sure in the humanities, but if I’m sitting around with a classroom of young people and we’re talking about a text, it’s very clear to me whether they’ve read and whether they have anything to say, and AI can’t help them there.

James Patterson (17:53):

Yeah. And even when it comes to research, AI can’t go into the archives, right?

Elizabeth Corey (17:59):

Yeah, absolutely not.

James Patterson (18:01):

We need to upload it to one of those scary robots, but even then, I’m not sure if they know what to look for.

Elizabeth Corey (18:05):

Yes.

James Patterson (18:07):

Let’s turn to your piece in Public Discourse, which very provocatively titled “Beautiful Losers.” So this raises the first question, which is what makes a beautiful loser beautiful and what makes them a loser?

Elizabeth Corey (18:20):

Yeah. Well, you can thank RJ Snell for pointing me to this because I actually didn’t know, as I say in the first line, I didn’t know what that meant. And he said, “Well, I was accused the other day, RJ said, of being a beautiful loser.” And I said, “Well, I don’t know what that means.” And he explained it to me. And of course, what is meant by it is somebody who is not interested in fighting the culture wars and nevertheless has a kind of beautiful vision of what human life can be. You can imagine the philosopher who is interested in just in pure philosophy or the literature scholar who’s interested in expounding Shakespeare. Those people are not necessarily engaged in political battles and hopefully they’re not actually. And so from the perspective of the culture warrior, they’re losing or they’re not even engaging. And there’s something from the … I use this other ideal type, the scrappy warrior perspective that says, “Well, you’re not doing what is responsible and necessary in our age.”

(19:18):

You’re just opting out and you’re teaching your philosophy or your literature or whatever it is you’re doing that’s not political. And it’s seen as a kind of abdication of responsibility. And I want to say no, actually those people I think are doing what is most necessary, which is to rejuvenate and preserve culture and to share it with students. And now for me, I always talk about students because I’m in a university, but there are other ways of doing it. I think a lot of the priesthood could be a kind of beautiful losing. I think parents who are taking care of children in a sense would be seen as this simply because they’re not engaged in battle. And that to me is better placed to be than the warriors. Not to say that there aren’t fights to be fought, but I think we overestimate the times in which we need to be engaged in battle.

James Patterson (20:07):

Yeah. You say warrior, the term that you use for the critics of beautiful losers such as, I suppose us, is the scrappy warrior. There’s just a kind of respect in the word scrappy, and you say that his or almost always his vision is so dark. So why is it so dark and why is it so often his and very rarely a her?

Elizabeth Corey (20:34):

Well, I don’t know. I don’t have an answer for the question of sex. I mean, why is it more male to be this way? Except that in my experience of men and women, that men are often more spirited. They want to get out there and do something, especially young men. It’s interesting. I have some young men students who say they’re involved in a world of sort of political activism that just valorizes a kind of doing things and doing things and even fighting. And so women aren’t inclined to fight usually, or if we do, it’s not the kind of fighting men do. It’s much more insidious. I feel like there is a gender difference here, and I’m not sure quite what it is. I mean, there are a few women I can think of who like to be out there battling. Helen Andrews is one.

(21:24):

She doesn’t pull her punches. Maybe somebody like a Candace Owens is willing to do this, but most women are involved in other things and not the kind of scrappy warriors that say Christopher Rufo is.

James Patterson (21:38):

So despite the emphasis on action or fighting, I guess I said action, I thought of the distinction that Hannah Arendt makes between the active life and the contemplative life and the human condition. I mean, it’s not her originating it, but I think her discussion here is really useful, but we can leave that to the side. This isn’t an Arendt question. There is something very weak about the scrappy warrior. They’re very regularly victims and they’re always being wronged by others and events. So does that not make them beautiful losers?

Elizabeth Corey (22:13):

Well, maybe, except that I think they think they’re in a righteous crusade. I mean, certainly the Chris Rufo stuff with DEI, I mean, I have to admit that there are aspects of that, of his anti-DEI crusade that I’m grateful he succeeded in. I mean, these last few years in a university have been utterly different in terms of DEI than they were say in the late teens. I mean, even at a place that is as conservative as Baylor, we were regularly given trainings and told about diversity and this sort of thing. That stuff is gone. That is absolutely gone. So was it necessary for him to stamp it out in this kind of activist really loud way? I’m not sure. I mean, to be fair to him, it may be that that was the only way forward, which was to try to ruin it. I mean, what I guess I would say is on the DEI stuff, I mean, there was a middle position.

(23:13):

I mean, that’s one nobody really, really takes up. I mean, it’s either you’re pro-diversity, equity, and inclusion, or you’re against it. And I actually want to say there’s some good in that movement, and that’s what the warriors don’t seem to understand, that there was a reason that that movement became so prominent and that it was so much supported by so many people. Did it go too far? A hundred percent it did. But now in saying we can’t even really use the word diversity in a university, that seems to me to be too far in the other direction. So there’s this tendency, I think, to kind of ricochet from one extreme to the other. It’s either you’re a leftist activist or you’re a new right activist. And as a professor, and you are one too, you cannot be in that position. You have to be in some kind of position where you’re taking the full measure of possible opinions into account.

James Patterson (24:04):

And that’s perhaps what makes a sort of non-political conservatism so hard for someone on the new right to comprehend where occasionally you need to hang up the arms and think about why you’re doing what you’re doing and maybe consider how best to talk to the people across from you about that subject matter. And what’s so important about the teaching element is that it breaks down these assumptions people have about each other, especially I’m sort of known as a conservative being at the University of Tennessee, but I make it a point not to fight the students in the classroom. I mean, the last thing that I think would be useful for bringing these students the education they deserve.

Elizabeth Corey (25:00):

I quite agree. And it’s not just students. It’s also, I think what offends me about the strident tone of somebody like Rufo is that I guess I wonder, have you ever known people who are not like you that you must work with anyway? If you’re in a university, it’s very likely as a conservative that you’re in the minority. And so you have to learn to get along with people who have very different political views from yours. I was talking a little bit earlier about this notion of pluralism. The world is not like you. And if you’re going to be at an institution that is not strictly speaking conservative, then you’ve got to be able to understand these other perspectives. And I think that’s where a lot of the new right tends to go wrong. They are surrounded by people who think the way they do, certainly in a think tank, that’s easy to have happen, but they never need to encounter the very different visions of the world that other people hold.

(25:52):

And I can’t afford to do that because my colleagues are not all conservative. In fact, a lot of them are not at all. So I think it’s a sort of, how to put it, constrained, constricted view of what the world really is.

James Patterson (26:07):

It’s partly a technological story too, right? Where it’s become easier for people to close off from their immediate physical community and concentrate on developing a kind of ideological community that then engages in endless forms of purification. And just recently, there’s been a dust up among what we would consider Christian nationalists. Stephen Wolfe, of all people, is now considered insufficiently Christian nationalist because of a rejection of Hitler, which is an odd, not exactly the best proponent of any version of Christianity, Hitler. And so that’s one thing to watch, but then there’s an entire other world on Blue Sky where the distinctions that people on the left are making boggle the mind of most like Bernie Sanders voters. So is this perhaps that people are dedicating too much time to a way of life that drives them crazy?

Elizabeth Corey (27:12):

Yeah. It’s funny that you bring up this problem because I’m teaching a small Witherspoon class through the Witherspoon Institute at Princeton of high school students. And the topic of our conversation is what does it mean to be part of a community? How does community and civil society contribute to a kind of authentic conservatism? And we’re reading Robert Nisbet who wrote The Quest for Community in 1953, as you will know, and he lamented the loss of community back then. And I asked my students, I said, “Well, why do you think it is that it is so hard to find community now?” And they said, “Well, it’s because we look for community on the Internet and we look for people who have views that are like ours.” But what our conversation went on to reveal was that when you find community of that sort, you’re only finding a tiny little slice of the person.

(28:04):

I mean, you’re showing your face on a screen and then you’re sharing certain views that have to do with things that other people are interested in that forum, but it has nothing to do with you as a whole person. And that’s a real contraction of human life to imagine that our so-called friends who ideologically agree with us on the Internet are real community. That’s just the barest sort of most scanty vision of what community can be.

James Patterson (28:33):

You said prior to us recording that one thing that’s contributed to you sort of disengaging from the minutia of these online fights, which are now half my research area now, is that you were writing a book. So this is the first I’ve heard of a new Elizabeth Corey book. So why don’t you tell the listeners what it is that you’ve been up to?

Elizabeth Corey (28:57):

Well, I, in a way, retreated from the world for a little while to write a book. It was nice. About 12 years ago, I wrote something for First Things and it was a little essay called “Learning in Love,” which was more or less my explanation of how I got into academia and what it was to learn that the intellectual life wasn’t simply this kind of thing you did and took tests and were graded on, but it was actually this kind of intense conversation with mentors and peers. And I said that had been absolutely formative for me in terms of why I’m in a university now. And I wrote that 12 years ago and I just kind of thought about it ever since. And I decided that I wanted to write a book about the sort of effective aspect of education by which I mean affections and care and love and friendship.

(29:52):

And so I wrote a book about what it was to pursue an intellectual life with other people and the importance of that. I mean, I think there are a lot of ways you could criticize contemporary academia, but one thing that hasn’t been said is that what students are looking for, I think, is a kind of knowing each other and being known in classes where you talk about serious and important things together, and it’s almost a kind of intellectual friendship. So the book is about that. It’s also about a lot more than that. It’s about the educational philosophy of Oakeshott. I used Gabriel Marcel and some other sort of interesting philosophers to talk about my vision of education, but basically it’s about why do we do this and why do we do it not alone?

James Patterson (30:40):

Yeah. And so I guess some of the targets here would be the things that we mentioned a little earlier, like the over-professionalization of curriculum, but also these sort of ideological tests to ensure that curriculum or faculty match a kind of vision of the administration and diversity, equity, and inclusion. So does this mean no more 500-person gen ed courses?

Elizabeth Corey (31:10):

Well, ideally it would. I mean, I’ve been fortunate to teach for the last 20 years in an honors college, which I’d explain it to parents as a small liberal arts college within a big university, which is essentially what it is. We’re about 1,400- and a 20,000-person university. And so what that allows us to do is to have small classes, small seminars where we know those students and they know us and they know each other and we get to know them as people. And we have intense conversations about not just the texts we’re reading, but about their lives. And that to me is a very small, it’s almost a boutique understanding of education, but it is the best model for liberal education that I know of. And there’s really no other. I mean, and especially with respect to teaching students how to write, how can you teach them in large classes?

(32:03):

You have to read their work and talk through it with them and talk to them about their ideas. I mean, it is a deeply personal endeavor which can’t be accomplished on the Internet or in a 500-person class. So yes, is it my ideal? Is it always possible? No, but it is what I think we ought to try to aim for.

James Patterson (32:25):

Well, the trouble with teaching students like this is of course that sometimes the students don’t know how to learn. They’ve been sort of squeezed through a lot of institutional testing or they’ve had stressed to them a sense of “if you don’t take a certain curricular path, then you’re going to end up poor.” And I always tell the students that if you want to get a job after college, show up sober and on time.

Elizabeth Corey (32:59):

That’s very good.

James Patterson (33:02):

So one thing that I think really helps the students is to learn what it is to even be at leisure. They’ve never been allowed to experience it.

Elizabeth Corey (33:11):

They haven’t. And there’s so much that’s corrupting, such that by the time they arrive in college, it’s almost as if you have to rescue them from the habits they’ve acquired. And so much of it has to do with this compulsive focus on achievement. I mean, I can’t tell you how many—in the book, I talk about this—how many students said that “I used to love reading. I would read for pleasure. I would read multiple novels. Nobody had to ask me to read. And around middle school, it became something that I just didn’t enjoy anymore because I was always asked to regurgitate on a worksheet what I had just read.” I mean, it took all the joy out of reading. My own 11-year-old is in a class where she’s reading a novel, but she said, “I love the novel, but the problem is the worksheet is asking me for all these stupid little niggly details and I can’t even enjoy the reading of it anymore because I have to report some answer to a question on a worksheet.” And I don’t know how to get around that.

(34:13):

I mean, it’s sort of like you have to have quizzes, you have to have objective tests of are the students doing the work, but there’s something about that that also squeezes the enjoyment out of the reading and the thinking and the talking. And then students just sort of are doing it to please the teachers and to do well and get into the next phase of life, whether that’s college or graduate school or the internship or the job.

James Patterson (34:38):

Another problem with the way that we want to do this, and because I very much sign on to the way that you’re describing this kind of education, is that whereas the worksheet has what you might consider an ROI, like a return on investment. The student has produced evidence of learning. And so you can put that as a metric for assessment on the accreditation file. And if you don’t know what we’re talking about listening to this, believe me, you don’t want to know. It’s the behind the scenes work that so many faculty have to do. But what is actually the thing that you’re shooting for teaching this way is that in 10 years, that student will also still be reading and you will never see that and that will never be on the accreditation file.

Elizabeth Corey (35:29):

That’s right. No, I mean, the kinds of things that I think a real liberal education aims at are not quantifiable. I mean, I can’t tell you how many times I’ve been in rooms where people say, “Well, we’ve got to get our learning objectives set out here.” And I just think I don’t even know what you mean there. I mean, I do, of course, know what they mean, but to engage a class so that you can get them to this place where the proper learning objectives have been achieved is to me to really reduce the experience. I mean, we have no idea what the learning objectives are for reading Dante or for Plato. We hope that we’re giving them … I mean, now here I’ll sound like Scruton, we’re passing on this culture to them such that it becomes theirs and they can enjoy it. It’s a kind of practice in feeling and thinking.

(36:16):

And I’m sad if university education overlooks that or often overlooks that. And I know it does because there’s the enormous pressure of getting students through and out and then into well-paying jobs.

James Patterson (36:30):

And it’s a criteria that you don’t see the humanities criteria exported from economics and to economics and sciences where it’s like, did you transcend subjectivity in your chemistry labs?

Elizabeth Corey (36:47):

I know. I know.

James Patterson (36:49):

Well, this has been a delight and I cannot wait to have you on again, but unfortunately we need to end here. The guest is Dr. Elizabeth Corey. The essays are “Beautiful Losers” at Public Discourse and “A Quiet Refusal to Compromise” at Law & Liberty. Dr. Corey, thank you so much for coming onto the Law & Liberty Podcast.

Elizabeth Corey (37:12):

Thanks, James. I really enjoyed it.

James Patterson (37:14):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.

Why do presidents have the power to pardon, and how is it typically used and abused? Sai Prakash and James Patterson discuss the pardon power’s origins in British law, its usefulness in ending rebellions, and the unfortunate tendency of more recent presidents to use the pardon power to reward friends and donors, protect underlings, or generate political support.

The Presidential Pardon by Sai Prakash
“The Personal Pardon Power” by Philip Hamburger, Law & Liberty
“Is It Too Late to Recover the Founders’ Presidency?” by Gary L. Gregg II, Law & Liberty

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello, and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty. With me today is Sai Prakash. He is the James Monroe Distinguished Professor of Law at the University of Virginia, where he teaches Constitutional law, foreign relations law, and presidential powers. Today, we will be talking about The Presidential Pardon: The Short Clause with a Long Troubled History. It’s a recent publication on Harvard University Press, just came out. And when I was speaking to John Grove about possible subjects, this is the one that reached right to the top for me.

(01:21):

So Professor Prakash, welcome to the Law & Liberty Podcast.

Sai Prakash (01:24):

It’s great to be here with you and your listeners, James.

James Patterson (01:28):

All right. Well, where did the pardoning power for the president come from? What’s its origins for presidential use?

Sai Prakash (01:38):

James, every society has some method of mitigating punishments, either by forgiving the punishment or commuting the sentence. And so, you know, this goes back to Israel and India and Islam, but the immediate precursor is obviously Great Britain. The Crown and Great Britain had a pardon power that had exercised quite vigorously in response to many different stimuli. And then the colonial governors had it in America and then state executives had some authority in Revolutionary America. And so this was just something that they expected to be part of the system, either to be exercised by the executive or the legislature or the executive subject to some check.

James Patterson (02:23):

So is the pardoning power as unconstrained as it appears to be in the Constitution? There’s no advised consent constraint. There’s no judicial review of it. It’s really just out and out an executive prerogative, isn’t it?

Sai Prakash (02:39):

Yes. The Constitution does implicitly limit the pardon power in several respects. It can’t be for state offenses. It’s got to be an offense against the United States, and that’s always been understood to be a federal offense passed by Congress. It doesn’t cover impeachment, so the president can’t protect people from being impeached by the House or removed by the Senate. It doesn’t permit the president to pardon people in advance of the offense. That is to say, the president can’t say to you, James, “I’m giving you a pardon and it means that you can’t be prosecuted for any offense that you commit going forward after the pardon.” That’s a constraint. And it can’t be used for continuing offenses. If you are continually polluting contrary to federal law, the president can’t give you a right to continually pollute by virtue of the pardon power. So those are constraints, but within the pardon power, as you said, it’s very broad.

(03:30):

It covers all federal offenses and there’s no Senate check, there’s no House check, there’s no court check, and it’s all within the discretion of the president. And so unlike some of the other important powers, it is unchecked in that sense.

James Patterson (03:46):

You mentioned, and one of the ways that the pardon can’t function is that you can’t give someone a pardon for an ongoing offense. So at what point does a pardon become the refusal to enforce a law?

Sai Prakash (04:00):

Well, I think this is a deeply interesting question. I think there’s a sense in which, unless you’re pardoning people that you think are actually innocent, there is a sense in which a pardon always undoes a law, at least as applied to the person. So suppose I’m the president and I pardon someone who’s facing a 10-year sentence and I give them a two-month sentence. Well, the law provides a punishment. The judge has imposed the punishment. I am changing the punishment. It might well be that the statute that Congress wrote provided an 8 to 10-year punishment, I’m now making it two months. That is, in a sense, not carrying out the law. So unless you think the pardon is only there for innocent people, which no one thinks, the pardon is essentially undoing what the statute provides in some sense. So I think it’s one of the interesting questions about the pardon power.

(04:54):

How does it fit with the Take Care Clause obligation? The president has a power to issue reprieves and pardons against offenses against United States. That’s the pardon clause. And then it also says later in the Constitution that the president shall take care that the laws be faithfully executed. How do you square those two clauses? And the way we do for the most part is to say, well, the president doesn’t have to faithfully execute the law when he issues a pardon. The person has been convicted of a crime and has been sentenced to a punishment and the president doesn’t have to execute the punishment, even if the president admits that the person’s guilty. So there’s a fundamental tension there that the Constitution doesn’t resolve, but it’s a fundamental tension that goes back to Great Britain, that the Crown had a duty to execute the law, but it also had this pardon power.

James Patterson (05:40):

This might be a little historical, more than legal or constitutional, but were there Anti-Federalist critics of the pardoning power during the debate over ratification?

Sai Prakash (05:50):

Of course. The pardon power was contested at the Philadelphia Convention. The Philadelphia Convention is the convention of delegates from the states that drafts the Constitution. And there were people there saying we shouldn’t be giving this broad power to the president. They’re not Anti-Federalists at this stage, they’re just people who don’t like this particular feature of it. There are even proponents of a strong president that want to limit it. Alexander Hamilton does not want the pardon power to cover treason, but the clause that makes its way into the Constitution is not restrained in these ways because I think the majority of the convention believes that it’s more useful to have a broad pardon power, one not constrained by the Senate or by other limitations because they think it’s sometimes necessary for there to be quick, broad pardons and only the president they think is structurally capable of doing that.

(06:39):

Congress can’t issue broad pardons quickly. It’s not always in session and it’s a big ponderous and lumbering body. It’s just hard for them to act quickly. The president is constituted to do that. So they decide not to put constraints on it. When it gets sent to the states, plenty of Anti-Federalists say there’s a problem with this. They say that there’s no constraint on the pardon power. The president might try to subvert the Constitution, might get people to help him. He then might pardon them, and we might not ever know that he was involved in this conspiracy. So they have dark ideas of what a president might do with the pardon power, and they voice these over and over again. And the Federalists, the folks who support the Constitution, don’t say that this is all nonsense and we have nothing to worry about. They know that a pardon power can be abused because they have a sense that all powers can be abused.

(07:28):

But their view is that on balance, it’s better the way it is than with restraints. And so that they’re not denying that there are issues with it. They’re just denying that they should be corrected because the pluses outweigh the minuses, so to speak, of a pardon power. And because the Constitution, as your readers, your listeners know, is an all or nothing proposition, it’s treated that way by conventions. States aren’t allowed to say, “We’ll adopt the Constitution only if you change the pardon power.” They adopt the Constitution and just propose amendments, many states propose amendments, but their ratification of the Constitution is not premised on the adoption of those amendments. And so there are some amendments proposed, but they never make it into our Constitution. Neither James Madison nor the Congress proposes amendments limiting the pardon power in the Bill of Rights that go to the states.

James Patterson (08:20):

So early in the history of the United States, we find use of the pardon power pretty liberally by George Washington, who essentially, like so many other things that he does while president sets up a kind of expectation or a custom. And so what was this major event that led him to use the pardon power so liberally?

Sai Prakash (08:40):

So he’s president for eight years. He’s issued pardons for some of those years, and he’s very careful and very deliberate about using it. He always seeks the advice of many people. And he always publicly declares what his reasons are for the pardon. And he means for the public to know that it’s not just arbitrary power. There’s always a reason behind it. The event that you’re talking about is the Whiskey Rebellion in Western Pennsylvania, where Congress has enacted an excise tax on whiskey. Western farmers are rather upset about it. They don’t want to pay the tax. Obviously, it’s going to make it more difficult to sell the whiskey if there’s an excise tax on it. And so they start obstructing the enforcement of the whiskey excise tax and they kind of interfere with the marshal and they interfere with the tax collector. And the administration decides to send the militia to quell this incipient rebellion or this rebellion.

(09:37):

And Washington heads out with the militia to a certain point in Pennsylvania, and then he hands over a command to Henry Lee, the governor of Virginia, who’s been summoned, and he tells Henry Lee the issue to make promises of pardons as a means of conciliating those rebels. Every government faces rebellions from time to time, and one way to quell them is to offer them a pardon if they lay down their arms. And so this is commonly done in England. It was done in Shays’ Rebellion, and it’s done now in the Whiskey Rebellion, of course, will be done in the Civil War as well. So he offers pardons, Lee grants pardons, Washington grants further pardons. And it’s all … The idea is, look, let’s make up with each other. You reconcile yourself to federal authority. We don’t prosecute you, and we go back to a peaceable, loving relationship with you.

(10:30):

And we know that if we don’t do that, your option is all or nothing. You’re just going to fight to the death because if we don’t give you a pardon, you might well be executed if we catch you. So the pardon is a powerful tool meant in part to end rebellions, and it serves something like that function in the Whiskey Rebellion. And it is a broad pardon to all those people who participated in those tumults and disturbances.

James Patterson (10:55):

And then on a scale that’s really even beyond the Whiskey Rebellion or the conditional amnesties of Abraham Lincoln. I mean, this is the kind of thing that was in the nightmares with the most paranoid Anti-Federalist, right?

Sai Prakash (11:07):

It’s hard to figure out how many people were benefited by the pardon because no one at the time is going around to people asking them, “Did you do this? And therefore, did you benefit from the pardon?” It’s possible that some people are benefiting from the pardon whom the authorities don’t know participated in these activities, but if you’re not prosecuted, you don’t even need the pardon, right? It’s only if you’re about to be prosecutor, you’ve been convicted that you need to pull out the pardon. But it’s certainly a broad thing and it sets the stage for the pardons that follow. I think probably the pardons by Lincoln and Johnson are broader because there’s more people by the time of the Civil War. And there’s certainly lots of officers who are participating in the Civil War, both civil and military in the South, and obviously some people involved in rebellion who are in the military who are involved. So I don’t know what the largest amnesty was, but I would suspect it’s the combined effects of the Lincoln and Johnson pardons.

James Patterson (12:04):

But I mean, what other choice did they have? As you point out in the case of Washington, otherwise you would’ve been forced to have to deal with maybe guerrilla war or mass executions. As bad as it seems, this is really the least bad option.

Sai Prakash (12:19):

I agree with that completely, James. I will say that during the next rebellion in the Adams administration, the Fries’s Rebellion, which is another rebellion over tax. Americans don’t like taxes, right? There’s the Tea Party and then there’s these two rebellions about taxes. John Adams says that George Washington shouldn’t have pardoned those people. And his thought at the time is, “Well, if you keep on pardoning rebels, there’ll be more rebellions because they win either way. If they prevail in the rebellion, they get what they want. And if they fail, they get pardoned.” So there are people who are saying that you can’t pardon everybody in a rebellion. It’s a function of whether you think you can militarily subdue them and whether you want to. So I think in the context of the Whiskey Rebellion, Washington could have militarily subdued the folks who were engaged in it, but he thought it was better not to. He had some mercy in him, and that’s why he did it.

(13:16):

But from the perspective of John Adams four years later, he’s thinking not of that moment. He’s thinking, well, what signal does this send to rebels that they always might think they would get a pardon and therefore they’re more willing to engage in a rebellion because they expect a pardon. And I’m not saying he’s right, but you could see why there would be critics of a mass pardon. There were a lot of critics of Lincoln and Johnson in the Civil War because some people wanted the rebels to be hanged and they weren’t going to be hanged if they got a pardon from the president.

James Patterson (13:49):

Yeah. It’s hard to read newspapers with fatalities in them and then want to give the people that caused these fatalities clemency.

Sai Prakash (13:57):

Oh, of course. Yes. And so many Americans died in that conflict. And if you’re from the North, you might think it’s because these guys were traitors to the Constitution and they should be punished, not merely legislatively, but criminally in some way.

James Patterson (14:12):

At the end of Chapter Five titled “A Tale of Two Clemencies,” you refer to the, I think it’s the Biden and Trump pardons. You say that one set of pardons would block future prosecutions, the other set overturned existing convictions. Each side pointed a finger at the other. Truth be told, both sides had a point. What point is that?

Sai Prakash (14:32):

Maybe it’s too subtle because you’re asking the question, but I do think that both sides are weaponizing prosecutions and are being perceived as doing so. So I think the Biden folks think that they prevented Trump from prosecuting these folks because they were fearful that Trump would weaponize prosecutions. I think that there’s some reason to think that is what’s going on. It’s a bad look for the president to talk about going after your enemies and I am your retribution and I am your vengeance. It sounds more like Batman than it does a president. It just sounds kind of dark and I think sends the wrong signal to people. So I think they were worried about those prosecutions. I think those have come to fruition in many respects. I think that some of the prosecutions against the presidents, many people think that they reflected some kind of politicization of the prosecution process, both at the state and federal level.

(15:30):

And obviously people will disagree about the perception that the other side has, but I think they both are right in the sense that I think both parties are indulging in prosecutions that reflect partisanship or personal advancement more than they reflect the dispassionate analysis of the law and facts.

James Patterson (15:50):

And this really does point to a broader change in the perception that people have of executive power, that it’s more discretionary. I mean, here we are speaking today. The Court has ruled against emergency measure tariffs, right? And in this respect, kind of running contrary to, I think, a lot of the feelings of dedicated partisans for Donald Trump, is perhaps the pardon power sort of latched up to this notion of a more prerogatively driven presidency.

Sai Prakash (16:20):

Yeah. I mean, as I discussed in the book, James, I think we’re entering into something called pardon dystopia where pardons are used primarily as instruments of partisan or personal politics and not instruments of mercy. Of course, pardons could still be issued for mercy, but more often people are going to view the pardon as a measure designed to advance the partisan interest of the president or the president’s personal interest in some way. And that’s very corrosive, but unfortunately I think it’s true. Why do I think it’s true? I think there are four elements to this pardon dystopia. First, presidents are now running for office promising pardons, and they’re doing so for electoral purposes. Why does Joe Biden promise pardons for marijuana users? He believes it’s electorally useful to get the youth vote. He waits two years to issue the pardon after making the promise. It’s right before the midterm election on the same day he issues student debt relief.

(17:17):

It’s just designed to get the youth vote because he could have issued that pardon much earlier. But the point is he’s making this promise to get votes. I think Donald Trump makes a similar sort of promise with respect to January 6 folks, and I think he’s appealing to his base to show you, I’m going to fight fire with fire by pardoning these people. I think it’s bad for presidents to run on a promise of pardons. I don’t think that’s a political thing that you should be wielding and promising to your base because I could see it having all kinds of issues. Vote for me and I will pardon your uncle, vote for me and I’ll pardon your cousin or your friend. And I think the president has the authority, but I think it’s misuse of authority to do so for political purposes. The second thing is what I call policy pardons, where there’s no promise of a pardon, but the president just doesn’t like the statute.

(18:09):

Joe Biden evidently doesn’t like the death penalty. He commuted lots of sentences from death to life. And that’s fine that Joe Biden has that policy or has that view, he’s entitled to it, but the statutes of the United States have a death penalty. And I don’t think it’s the president’s place to just change the punishment to a different punishment because he doesn’t like the penalty. So imagine that you have a president, say, John Smith, who thinks that the tax fines are too high. He thinks people shouldn’t pay penalties if they don’t file their taxes. And he just says, anybody who doesn’t file their taxes should pay them, but I don’t think any of them should be fined. I’m going to pardon all those things. He’s just basically changing the law as to the fines that accompany taxes. And presidents have lots of policy views about the appropriate sanctions that ought to attach for violating the law, but I don’t think the pardon power is an instrument of just changing all those statutes to reflect their wisdom in a downward way.

(19:09):

That’s the second element. The third element is shielding your political allies—your allies from the consequences of their actions. And so the pardon by Joe Biden on January 19 of January 6 committee members and Mark Milley and the former head of the CDC, Anthony Fauci, and others, was obviously designed to protect them from Trump prosecutions. And of course, you could tell a story that was needful in some way. On the other hand, you could see why a president might want to pardon all his ideological allies as he goes out the door because he wants to prevent the next administration from prosecuting them when they’ve done something wrong. And I do fear that we’re going to have situations where presidents tell people, “Do what I tell you to do, and I will pardon you at the end, and you will not be prosecuted for doing what I tell you to do.

(20:00):

Now, what I’m telling you to do is legal, right?” The president will say that, but they won’t necessarily think so, and that’s why I’m going to pardon you. That’s corrosive, I think, and it creates bad incentives. And then the final thing I think is the presidents are now … I think the doors opened now to pardon the folks who contribute or do business with the president, and I think that’s problematic. There was a severe adverse reaction to the pardons by Bill Clinton of Marc Rich and people who would be helpful to Hillary Clinton’s Senate campaign. And I think the reaction was a healthy one. It’s wrong for the president to try to help either himself or his spouse secure election or reelection through issuing pardons. That’s what was going on. These people are in New York, right? There’s a New York Hasidic Jew vote.

(20:51):

There’s a New York Puerto Rican vote. It’s all about her campaign. And the Marc Rich pardon is about rewarding a donor. And now Trump’s doing similar things, and I think it’s corrosive of public trust and institutions to think that people who donate are more likely to get a pardon. And of course, if you are someone who seeks a pardon and you have means, why wouldn’t you donate? You do think, I think correctly, that donating will get the attention of the president, it may not get you a pardon, but you can’t get a pardon from the president unless he sees your application and donating or doing business with the president makes it infinitely more likely that the president will think about whether to give you a pardon than if you don’t. You or me, Joe Schmoes, who don’t have millions of dollars, if we’ve committed an offense, it’s going to be much harder for us to get the president’s attention.

(21:45):

Because as we all know, the president’s got a very busy agenda and pardons are only one tiny part of that. They just don’t have the time to consider all the pardon applications that are sent to them.

James Patterson (21:58):

Yeah. You actually have a whole chapter on the pardoning industry. Of the things that I read, it was the one that I knew the least about, right down to the fact that I didn’t know it existed. And then as I started to read, it’s like, “Oh, of course this exists. Why wouldn’t this exist?” And so what is this 2-tiered pardoning system that you describe?

Sai Prakash (22:19):

Sure, James, that’s a great question. So there’s an ordinary process of applying for a pardon from the Department of Justice, and they have all kinds of restrictions on who can apply. And they’re actually quite restrictive. You usually have to serve a couple of years before you apply, which technically means you can’t apply if you’re innocent according to their rules. You can apply, but it’s like you need special circumstances. And that’s a very arduous and laborious process because the Department of Justice, the Office of Pardon Attorney, then seeks the opinion of the prosecuting attorney and other people about whether they should grant the pardon. Eventually, a decision is made after a long and laborious process, careful process. That recommendation is made to the Deputy Attorney General. The Deputy Attorney General then reviews all the recommendations by the pardon attorney. They make their own recommendations to the White House, and then the White House somehow structures these applications and gives them to the president because they don’t give them all to the president.

(23:17):

And then the president makes a decision. That’s a process that takes years, right? Ordinarily, it takes years. That’s one process. The other process is you know someone in the White House, you know the president, you have connections to the White House, you know someone who knows someone in the White House, you apply directly to the White House, right? You pay a lobbyist who has connections to the White House. They give the application to someone who’s their connection in the White House and that person hopefully sees it to the president’s desk. And you short circuit that entire process at DOJ and you make it more likely you’re going to get a pardon because you have some advocate in the White House who’s connected to your lobbyist. And so that’s the 2-tiered process, right? And it’s not unlike other things in life, if you have connections, it’s just going to be easier for you to get a pardon.

(24:08):

And lobbyists, as you know, have connections. That’s what they’re selling to their clients. And so the book describes lobbyists charging millions of dollars to help secure a pardon. And sometimes there’s a payment just for lobbying. Other times there’s a payment for lobbying and a success fee. So maybe you pay someone a million dollars and if they succeed, you pay them two million more. But in all events, you pay them a million dollars. We don’t know what people are being paid, but newspaper accounts are quoting a million or two or more. Someone asked for $30 million, they didn’t get it. The other thing that you have to realize is that people are avoiding fines of hundreds of millions of dollars. So suppose, James, you’re looking at a hundred million dollar fine. It might make a lot of sense to hire a lobbyist for 20 million to avoid that fine.

(25:00):

Because if you get a pardon and you’ve only paid $20 million, that’s a bargain compared to a hundred million. And so given some of the fines that people are facing, and the jail time, they’re happy to spend four or five million dollars. It’s a sound investment given the expected value of the pardon process. They may not get it, but it’s still worth the chance. So $20 million, if you owe $500 million is totally worth it, if there’s a good enough chance of you succeeding. So that’s why there’s eye popping figures being thrown about. Obviously you and I would never pay that much because we don’t have it, but we’re not facing $100 million fines and we don’t have a wealth of $200 or $300 or $400 million. I’m assuming you don’t. I know I don’t.

James Patterson (25:48):

No, I definitely do not. It doubles the injustice, right? Because on the one hand, you have the person who should be prosecuted and isn’t. And then you have the nation increasingly responding to wealth as a source for justice rather than to law.

Sai Prakash (26:07):

It does. And you’re right that the wealth matters on the front end for whether you’re indicted or whether… Your lawyer, if you’re wealthy enough, can try to convince the prosecutor not to go forward. If you’re wealthy, you hire a good lawyer who then defends you and then increases the chances you’re not convicted. And if you’re wealthy, you hire a lobbyist who then tries to get you a pardon. So wealth does matter across all these things. And this lobbying for pardons makes the situation worse. I will say this lobbying for pardons goes back to Great Britain. It’s not an American phenomenon. People close to the king often sold access to the king. And so it’s not just an American phenomenon. It existed in Great Britain. And there are stories of pardons or lobbyists for pardons going back to the Lincoln administration. I don’t know if there were earlier stories, but they definitely go back to the Lincoln administration in this country.

James Patterson (26:59):

Yeah. Now that you say that, I have a question for later, but I’ll ask it now. Do other nations employ the same kind of pardoning power like France or Poland in modern constitutional states? Or you mentioned at the beginning, that there are these multitude of traditions from Indian to Islamic to Jewish to Christian. Do contemporary nations have similar ones or is that something you’re not really working on?

Sai Prakash (27:22):

I didn’t really look at that too much, but there’s going to be variation across nations and across the United States, right? Every state has some kind of pardon authority, but sometimes it’s given to the governor, constrained by the legislature. Sometimes it’s given to a pardon board where the governor may appoint but doesn’t actually make the decision. And so I think the federal constitution is fairly unique and different in giving the president rather broad authority, unilateral authority. I think the states fracture the pardon power and limit it far more than the federal level. And I’m just not as familiar with what states are doing, but as many of your listeners may know, obviously other states have pardon powers. President Trump asked the president of Israel to pardon Benjamin Netanyahu, which I took to mean that the president of Israel has a pardon power and can exercise it to benefit Netanyahu.

(28:17):

I don’t know if there are criteria that he has to satisfy first, but people get clemency elsewhere. It’s a feature of the system that nations and substate units believe that there has to be some way to eliminate or mitigate the punishment, eliminated if the person’s innocent, eliminated if it’s necessary to reconcile them to the nation, mitigate it if it just proves that this person doesn’t merit the punishment that we thought they merited upon reflection because they’ve been exemplary in prison or otherwise.

James Patterson (28:50):

So you mentioned the officer of pardoning attorney and the Department of Justice. So what is the size of that office? How many people work there? I ask because you also mentioned that, of course, pardoning is a very small part of a president’s day. So I must imagine budget outlays for such an office are relatively small, right?

Sai Prakash (29:09):

I don’t know the number. I think the number is far lower than it was before because a lot of the … So I think today, the locus of pardoning authority, it’s fair to say is in the White House under this administration. There still is a pardon attorney, but there’s also something called a pardon czar in the White House, and that’s because President Trump is acutely interested in issuing pardons, and so he wants to have a greater control over it and less control in the bureaucracy. And so more pardoning decisions are just being run through the White House rather than the Department of Justice. As a result, I think the Department of Pardon Attorney is far smaller now than it was a year and a half ago when President Biden was in office because some of those people don’t want to work for the president and that just reflects their views, but I think there’s just a sense that the pardon attorney has less of a say in who gets pardoned if more people are directly lobbying the White House and they’re issuing more pardons.

(30:08):

To make another point, I don’t think a portion of the day is spent reviewing pardons. For most presidencies, they’re not thinking about pardons at all. It’s episodic. Occasionally they think about pardons. In the past, it was, “Let’s issue pardons on days of thanks like Thanksgiving or days of celebration like Christmas.” And that would require them to think about who to pardon before those days. But it wasn’t as if there’s an hour every day devoted to pardons. I don’t think there’s anything like that. It takes a very small part of the president’s day. A presidency, very little of it is spent on clemency decisions by the president, I would venture to say. Some amount of time is being spent, but a lot of it’s tied to these holidays, a lot of it’s episodic. And then quite frankly, a lot of it’s at the end of the administration.

(30:55):

Before they leave, they often act on a backlog of pardons and they make the more controversial decisions that they didn’t want to make earlier because they didn’t want to be criticized about it. It’s easier to pardon someone as you’re leaving the door or leaving the White House because now the attention’s all on the new president and not on what you did.

James Patterson (31:14):

There’s a Nicaraguan president who was pardoned on December 1, 2025. I thought that was remarkably early because it was a pretty controversial one, too. This was a person we actually sought after to place in jail. And now we’re just letting them go?

Sai Prakash (31:38):

Yeah. I don’t understand why the president did that. One of the interesting features, James, of some of the people who’ve been pardoned by President Trump is a claim that they were persecuted by prosecutors and persecuted by the Biden Justice Department. And so a lot of pardon applications to the president now claim that the person was persecuted in some way because I think they think that will resonate with the president. And of course, if you believe some injustice has been visited upon you, you’re more likely to sympathize with other people who claim the same injustice. And my recollection is this ex- leader claimed to be persecuted, and I guess that resonated with the president. I don’t otherwise know why the president did it.

James Patterson (32:17):

What are some possible reforms, if any, possible for the pardon power? I mean, certainly such reforms would require a constitutional amendment, right?

Sai Prakash (32:26):

Yeah. The court has said that Congress can’t regulate the effect of a pardon. I think it follows that they think that Congress can’t limit the pardon to certain offenses, like say, exclude out murder or treason from the pardon power, which means Congress can’t pass the statute saying the president can no longer pardon murder or treason. So, they’ve kind of said, I think for good reasons, that Congress just can’t regulate how the president issues a pardon, which means that if you want to constrain the presidential pardon power, you kind of have to pass an amendment to the Constitution. I propose several amendments. I think you could imagine that a pardon doesn’t take effect until both chambers agree to the pardon. That would have the effect of making it very hard to get a pardon because it’s very hard to get Congress to agree on anything, especially given the Senate filibuster.

(33:17):

So I think that would mean that the pardon power is radically circumscribed if you required the president to get the consent of Congress first. Maybe a better approach would be to say the president can provisionally pardon someone. If neither chamber disapproves of the pardon within 60 days, it takes effect, which is effectively giving each chamber a veto over the pardon that’s exercisable within 60 days. I think that’s a way of getting at the sense that maybe particular pardons are inappropriate in some way and giving one House the ability to stop them. I think that’s a useful restriction because if one chamber disagrees, that perhaps suggests that it is inappropriate what the president did. Now, of course, it might reflect partisan considerations. And so this power could be abused, but of course we’re also talking about a power that could itself be abused by the president.

(34:11):

And so we’re not going to escape from politics by having the House or Senate check these things, but I think it still might be useful to say we know that Congress can be partisan just like the president, but it’s meaningful when one chamber says that this pardon shouldn’t stand and then it wouldn’t stand.

James Patterson (34:30):

The book, The Presidential Pardon: The Short Clause with a Long, Troubled History, the author, Sai Prakash, thank you so much for coming onto the Law & Liberty Podcast.

Sai Prakash:

Thank you, James. Thank you to all your listeners, too.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts, and visit us online at www.lawliberty.org.

Law & Liberty senior writer John O. McGinnis joins the podcast this week to discuss his new book, Why Democracy Needs the Rich. Although they may be the focus of populist ire from the left and right alike, McGinnis contends that wealthy Americans play a vital role in counterbalancing majoritarian excess and serving as entrepreneurial “social prospectors” who can revitalize civil society.

Why Democracy Needs the Rich by John O. McGinnis
“Blessed Are the Rich,” book review by James E. Hartley, Law & Liberty
“Liquidate the Rich?” by John O. McGinnis
“Mother’s Milk of the Revolution” by John O. McGinnis

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund. Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, senior editor to Law & Liberty. With me today is John O. McGinnis. He is the George C. Dix professor in Constitutional Law at the Pritzker School of Law at Northwestern University, also a contributing editor to Law & Liberty. And we will be discussing his book, Why Democracy Needs the Rich, recently published at Encounter Books. Professor McGinnis, welcome to the Law & Liberty Podcast.

John O. McGinnis (01:10):

Delighted to be here with you again.

James Patterson (01:14):

This is quite a provocative title and the title is also the book’s thesis. So tell me, why does democracy need the rich?

John O. McGinnis (01:22):

The argument is that the rich play a very important sort of Madisonian counterbalance role. That’s the first important role they play in democracy. So the complaint, you have to understand the premise of attacks on the rich in democracy have been that they have more influence than the average citizen. And I can see that, but note that there are a lot of groups that have more influence than the average citizen, the media, entertainers, academics, bureaucrats. They all are very important in shaping our public policy much more than the average citizen. And this was recognized from very early on. In fact, the name was given by Samuel Coleridge to this group called “the clerisy.” And their views all move in essentially one direction today. For reasons we can explain to the left, the rich have a much wider range of views. And so they actually act as a kind of counterbalance in a representative democracy.

(02:27):

It’s hopeless in a representative democracy to think that everyone’s going to have equal influence because many people aren’t interested and representatives have the opportunity to choose whose views they’re going to take seriously between elections. So we’re going to have differential influence, and what’s important is to have a plurality of views, and the rich really contribute to that. So that’s one of their important roles in democracy. There are others, but maybe we should begin with that one.

James Patterson (02:57):

Yeah. So you do talk about the clerisy at the beginning of the book, and they’re really like a combination, as you say, of bureaucrats, journalists, and academics. They have a major advantage in an American democracy that the rich don’t have. So why don’t you tell me about what you just assessed that advantage to be and how the rich counteract?

John O. McGinnis (03:17):

Well, their advantage is it’s their job to influence public opinion. That’s what they do. And that’s not what the rich do. What the rich have that the average citizen does not, they have both the resources and the independence to have some influence. So the independence is that many of them, most of them really aren’t very dependent on anyone else for their next dollar, except maybe consumers who aren’t that interested in their views, so long as they’re getting something for their money. And they also then have the resources and networks to shape views. And we see that in a variety of ways, both in their spending at election time, but also they’re setting up counter-infrastructures at universities through groups like the Federalist Society that inject a greater plurality of opinion because anyone like me who’s within a university recognizes how very strikingly homogeneous are the views.

(04:24):

And they’re all to the left. And in the law school world, which is what I know best, that actually leads to a lot of distortion. I mean, we want to have all views represented to get the best public policy. And organizations like the Federalist Society funded almost entirely by wealthy foundations and wealthy individuals are essential to ensuring the plurality of opinions that’s necessary for a democratically functioning society. So the rich turn out not to distort democracy as so much to correct distortions because it’s always been understood. The clerisy was thought to be a group that was necessary to lead democracy, but it’s always been understood by well-informed observers of democracy, that there are going to be some people who are going to have more power to shape it because the average citizen isn’t going to participate at least and think deeply about the issues before society.

(05:26):

They may vote and that will have an influence as well, but they’re not going to come up with the infrastructure of policy. And that’s one of the things that the rich help do by funding alternative centers of power.

James Patterson (05:40):

So not only do the chattering classes have a disproportionate influence on American democracy, so do interest groups. And the reason is that these organizations are especially mobilized to secure advantages from the government, such as subsidies or regulatory carve-outs. Are these not bastions of the rich? And if not, how do the rich differ from them in trying to pursue these efforts?

John O. McGinnis (06:05):

Well, the rich do. So I’m clear in the book that there are corporate interests that are special interests. So let me begin with the proposition that you began with, which I think is one of the most accepted propositions of political scientists that concentrated interest groups like unions, corporations, have differential power in the political process because they’re very focused on a few issues. They can raise money to get representatives interested in these issues and bring information to the fore. And the diffuse people, consumers, taxpayers, they have a collective action problem in combating these issues because often the special interests are against the interest of the diffuse interests. They like subsidies, they like regulations that will harm taxpayers and consumers. So the rich are able to counteract that again by their independence. They are not dependent on these interest groups. Moreover, they have the resources and then they have a kind of ideological interest.

(07:14):

They have perspectives on the world that are against some of the perspectives that the interest groups come up with. And we see that today. You might say the most important issue always for democracy is educating the next generation. And there, there are interest groups, the bureaucracies within K-12 education, the teachers, unions. I’m not saying that they don’t have some public spiritedness, but they obviously are shaped by their own interests. And that what the rich do is they offer a broad range of opportunities and perspectives, and they put their money behind it. So they’ve been behind charter schools, school vouchers. But interestingly, they’ve also, some of the more liberal-leaning rich people have tried to improve public schools from within. So they’re given a menu of options that we don’t see coming out of the interest group world, and that’s the way democracy can improve.

(08:14):

One point I make is that democracy improves by trial and error. Special interest groups are not actually so interested in trial and error because, of course, sometimes the trials are going to lead to results that aren’t congruent with their interest. They can’t predict exactly what’s going to happen, but the rich are able to do that. And one other thing they do, I think that comes from their entrepreneurial background today, is they’re very interested in funding professors and other social scientists to evaluate the results of these experiments, to see what happens with vouchers or extra money for smaller class size at public schools. And we have some results from them. And that’s again, the way democracy improves. And it wouldn’t improve as quickly if we just had the menus served up by, or at least shaped very heavily by the special interests in an area like education.

James Patterson (09:08):

Yeah. I just was flipping through trying to find, but I couldn’t, but, the section where you talk about Mark Zuckerberg donating a just eye-popping amount of money to a public school system with the impact being the sort of rearing back of declining test scores. And in this way, he’s operating kind of contrary to the instincts of, say, the teacher’s union, which is more about protecting teacher benefits.

John O. McGinnis (09:36):

Right. He’s doing that and he does it through public schools. And it does seem to help with math a bit. It just doesn’t seem to help that much with reading. And you then can compare it with other ideas of creating charter schools. He did it within New Jersey. I think it was like $200 million. It was a very large amount. I’m not sure how successful that turned out to be. I think it had some success, but one of the points I make in the book is not every intervention by the rich in public policy will be wise or will be successful, but that’s not the real point. The real point is they give a greater variety of interventions. And then particularly in our more empirically oriented world, and often funded by the rich themselves, we can evaluate the results of the experiments. And that’s one way democracy moves forward.

(10:28):

So even if Mark Zuckerberg didn’t completely succeed, the idea of putting different ideas on the table is an important one, and the rich are able to do that.

James Patterson (10:39):

So you describe in Why Democracy Needs the Rich the United States as a commercial republic, both in its founding and its operation after the founding. So how did the founders incorporate the rich into the regime and what role do you think they play in preserving a commercial republic?

John O. McGinnis (10:56):

Well, the rich were important. And one of the points I make, which I really hadn’t thought about is they’re important to the existence of the United States. I don’t think it’s sufficiently understood how the American Revolution depended in many ways on the wealthy John Hancock. We know, of course, from a signature on the Declaration…

James Patterson (11:17):

Haym Salomon. Yeah, there were tons of them.

John O. McGinnis (11:19):

They were crucial. We didn’t really have a Navy. It was really the rich people who actually created vessels as essentially entrepreneurship trying to capture British ships. So they’ve been very important since the beginning of the Republic. And moreover, it was the thought at the time, commerce was understood to have wide advantages over just actually creating wealth, which was also thought to be obviously advantageous in shaping the manners and making the manners of people better when they don’t have to worry putting about food on the table every day. That was thought to be an important way of improving society. But also by creating commerce, people are put in relations with one another of markets, so they really realize they have to do things for one another. And that’s a unifying aspect of society. And then even there was thought that we have commercial relations with other nations that created opportunities for peace and lessen the opportunity for war.

(12:28):

So commerce was thought to be an extremely valuable aspect of any society. And if you look at the US Constitution, a lot of it is about making a commercial Republic. Of course, the Commerce Clause allows Congress to get rid of state restrictions on commerce. And that’s really the concern. One of the greatest concerns about the Constitution was to do that. So at the very beginning, commerce was thought to be an ideal, was actually thought to promote some of the virtues of democracy, the manners of the people, the connections of the people in democracy, and the Constitution was structured to promote Congress. So very early on, commerce has been important. And it remains, I think, a mainstay of America today. It’s why America continues to be the innovator in the world. If you look, for instance, at issues of AI or the internet, it’s been essentially the United States that has created all of these essential enterprises that other nations in some sense free ride on our innovations.

(13:46):

It’s also true that in healthcare, the United States through its biomedical infrastructure is by far the leader in innovation and other countries help themselves to our discovery. So the idea of commerce was important to the Early Republic, and it continues to have benefits not only to the United States, but to the world as a whole. And so that’s the essential aspect of the United States as a commercial republic.

James Patterson (14:15):

I find that students are often unaware of some of those passages in the Constitution because they’re just so routinely followed. And one of them being the free trade among the states. This is something that was maybe not as obvious at the time of framing the Constitution, and we sort of reaped those benefits without thinking much about them.

John O. McGinnis (14:36):

That’s right. There’s no doubt that that was one of the motivations for the Constitution. And sometimes we don’t think that it’s the non-controversial aspects of the Constitution that really are our foundation. It’s not what we’re debating about the hard issues in the Constitution, but the consensus that everyone accepts on which our society is founded and is prospered. And the Commerce Clause is certainly, I think, foremost among those provisions.

James Patterson (15:08):

So the common view, this is maybe not the prevailing view, but it is a common view that the rich primarily used their wealth to engage in elaborate forms of consumption, like enormous yachts docked at Monaco or flying private jets to avoid a traffic jam. It’s sort of like the Taylor Swift, sort of … she takes a 20-minute flight to Burbank instead of driving. What do the rich do in markets that do not only satisfy their own needs, but improve the lives of everyone? We sort of already touched on this a little bit.

John O. McGinnis (15:41):

Well, it’s no doubt that some rich people spend a lot of money on conspicuous consumption. There’s absolutely no doubt about that, but there are two points I would make about that. First of all, it’s a very small proportion of the benefits they give every one of us. I mean, Jeff Bezos has a big yacht, but almost everyone today has the benefit of his daily deliveries that he experimented with. He created this economy that allowed people to get all sorts of goods delivered to their door, and that’s a huge benefit to people. So that’s one point I would make. Another one I would make is as well, the long-term trend of the rich, even despite their continuous conspicuous consumption, I think has been to equalize the actual living experience of middle-class people and the rich. Now, I leave the poor out of it for a moment.

(16:40):

We can come back to that, who I think is a problem of lack of skills and participation in the economy. But I compare myself, for instance, a professor to Peter Thiel and compare the closeness of experience, our relative closeness of experience to some duke in the seventeenth century and some don at Oxford. The world that Thiel and I inhabit is a much more similar world. We do many more of the same things. One reason is that one of the things that rich have done with their innovations and entrepreneurship, they’ve kind of dematerialized the world. I have access to the same information that Thiel does. I can get essentially a chauffeur by my phone to get me to wherever I want to go. These are innovations that have come from people who are now wealthy, and they actually, I think, mean that our experience is much more similar.

(17:42):

And I think this is going to continue, actually. I think we’re going to see a dematerialization in a way that people, well, I can imagine 20, 30 years from now, have almost the experience of being on a huge yacht that isn’t all that different from Jeff Bezos’. So I certainly acknowledge there’s conspicuous consumption as there always has been with the rich, but I think it’s less actually different than the middle class than it once was and that they give tremendous benefits. Another thing they do, which I talk about in the book is that they kind of are prospectors. They go out and do things that no one else would imagine doing. This one fellow who tries to optimize his health with all sorts of resources that he has and then publishes all the data on that. That’s something that an ordinary individual of ordinary wealth could not do, and yet that’s a benefit.

(18:44):

So some ways to think about rich people are kind of prospectors. Some of their ideas turn out to be crazy and maybe actually make their lives shorter and less pleasant, but other ideas redound to our benefit. So I think you have to think of the whole ecosystem of the rich and not just focus on their conspicuous consumption, which is a shiny thing that maybe get people excited. Of course, envy is a fact of life. It’s a part of the human condition. But I think when you think through things, there’s less reason to be envious than ever before, even a very rich people.

James Patterson (19:24):

So in Why Democracy Needs the Rich You explain how the rich are central to the formation of associations that Alexis de Tocqueville thought was vital to the preservation of political liberty and modern democracies. So this is not a function that people normally assume the rich really participate in. So why don’t you explain to the listener how they do that?

John O. McGinnis (19:44):

Well, the rich people, again, so setting up an association is itself a risky enterprise, and the rich people bring their social capital and their real capital to that. And throughout American history, they’ve been important to setting up associations, the YMCA or organizations like that, which the rich still contribute. We go from rich people in the nineteenth century to doing that, to Bezos’ divorced wife contributing to enterprises like that. And so they’re always important in that respect to get the seed capital, to sometimes bring in capital to refurbish these organizations when some of them fall on hard times. And then we also have a real problem in the modern world is actually affluence has made it harder to get other people to volunteer for organizations. And the reason I think basically for that is there’s just a lot more opportunities. You can look at cable TV, you can do all sorts of entertainment activities.

(20:54):

And that means that sometimes associations are not as attractive to people, and the rich actually make them more attractive by actually not paying people, but paying people in kind to associate. So if you join some environmental organizations, you get a big payoff from

(21:16):

organized trips, which sometimes the organization helps fund, funded by wealthy people. So those are ways that they actually use their money to substitute or to encourage more associations than would happen in our rather individualistic world, in our world where people have so many opportunities today to do other things than Tocqueville saw on the frontier, when of course, reading groups and groups of self-improvement associations of the kind that are talked about in the Little House on the Prairie by Laura Ingalls Wilder  that dominated towns in the nineteenth century have fallen into harder times. The rich provide some substitutes for that in the modern world.

James Patterson (22:08):

Yeah. And they also, in that same chapter you talk about how … And this was kind of counterintuitive for me, so I wanted to ask you about it. They also buck a kind of conformity that democracies fall into. What do you think accounts for that?

John O. McGinnis (22:26):

Well, Tocqueville was really worried about conformity. So one thing I’m honest about in this book is democracy has its virtues. It certainly is the worst system but for all the others, which Churchill praised it with, but it has weaknesses. And Tocqueville, who is our greatest theorist of democracy, saw those. And one thing he worried about was conformity. That what democracy does is it gives the majority the opportunity to sort of worship itself. What their preferences are, are really God’s preferences. And it turns out obviously enough that some of their preferences turn out, at least in retrospect, to be sort of terrible. And the rich have a kind of independence because one reason that even you don’t want to be too far from the majority is that curtails your opportunities and gets the majority angry at you, particularly if it’s something that’s kind of the core of their beliefs.

(23:29):

But the rich, again, have independence, networks, and resources that make them less likely to be conformist. And we’ve seen that. I think one of the greatest examples of that is, well, the Founding itself was an example as I noted of that, but one of the greatest examples is the abolitionist movement. That is funded very heavily by the rich. I talk about the Tappan Brothers at that time who paid a great deal of price. They were burned in effigy. Some of their houses were burned down. That’s something that they could endure because they had a lot of resources. Of course, some people just wanted to continue to associate with them because they themselves gave opportunities, and they were very important voices in that. And that’s true in the women’s rights movement as well, even to some extent in the civil rights movement. Now, I don’t want to say that one of the things I want to be careful of is saying that the rich are the only group that’s necessary to democracy.

(24:36):

They were catalysts to other movements. They were catalysts to other people. It was crucial that politicians, that African Americans themselves, played very important roles. So I don’t want to be understood as saying that the rich themselves created were the abolitionist movement, but they were important catalysts for it and other movements for justice that went against majority views because abolitionism, even if slavery was not very popular, abolitionism wasn’t very popular either for a long time in the United States. And so these abolitionist societies were catalysts of a movement that, of course, ultimately resulted in the Thirteenth and Fourteenth and Fifteenth Amendments to the Constitution. Of course, amendments that I think are correctly understood to be a new birth of freedom in the United States. And people like the Tappan Brothers played a very important role, and it’s hard to believe they would’ve played that role, but for their independence and wealth.

James Patterson (25:41):

So we are both academics, and so I think we see up close a little bit more the work that rich people do in philanthropy, and I don’t think it gets a lot of popular attention. So why don’t you speak a little bit about philanthropy and the way that it influences the lives of so many people?

John O. McGinnis (26:03):

Well, so philanthropy happens at a variety of levels. Some happens again at the level of experimenting with ways of trying to help poor individuals. So Gates Foundation has been very, had a lot of efforts to help homeless people in a different way from most governments, in a way that tries to follow them and I think tries to get them up on their feet in a way they hope is going to be much more effective. So there is a lot of what I would call social welfare spending by the rich. I think even more important is the way that they create different centers within universities because we see, I think, firsthand, and this goes back again to the homogeneous views problem of universities, that we’re educating the next generation and of course the elite of the next generation in universities. And yet, unfortunately at many, if not most elite universities, there’s really not a diversity of views on social matters.

(27:17):

And it’s the rich who are really very important in creating that diversity with their philanthropy. So it’s a remarkable to look at the Federalist Society at law schools, but let’s take a look at what I would call the civic center movement in the United States.

James Patterson (27:38):

Tread carefully, John, that’s my job!

John O. McGinnis (27:41):

No, I’m delighted to give a plug for it. But let’s think about how I think one of the crucial ways, again, the catalyst to that movement.

(27:52):

Many of the current civic institutes within universities that have create different and more diverse and diverse perspectives even within them are funded by the states. But I think it is fair to say that the original civic center was a private center and that became in some ways the model. And that is Robbie George’s Madison Institute at Princeton University, and that did not depend on any state money. It depended on foundations, wealthy foundations, nationals like the Bradley Foundations. And because of that and because of Robbie’s great entrepreneurial skills, this became a model that, again, had influenced throughout the country. And so what’s one of the most interesting aspects of the wealthy is not focusing just on their general philanthropy, but again, the way that they offer a lot of different kinds of philanthropic enterprises. And some of the enterprises don’t really catch fire, but what’s important, and that’s true, a lot of companies don’t catch fire.

(29:07):

There are a lot of bankruptcies, there are a lot of things that are unproductive, but the ones that do catch fire, those change society, and it’s worth having the rich being these prospectors. And I think the civic education movement within universities is a very important one, and I do not think would’ve come to its certainly the same kind of fruition without, again, the catalyst of wealthy philanthropy in the form of the Madison Institute.

James Patterson (29:41):

Between me being a James Madison postdoc and the civic center I work for here at the Institute of American Civics at University of Tennessee, I basically owe my entire career to Robbie George.

John O. McGinnis (29:53):

And Robbie, I think I would acknowledge that he couldn’t have done it without the resources of wealthy foundations. I’m sure he would acknowledge that. I mean, he’s, again, I think an amazing academic entrepreneur, but unless he was individually wealthy, he could not have set up the infrastructure that he has without help.

James Patterson (30:14):

Exactly right. So the argument against the influence of the rich in politics, less true today, but it’s primarily from the left. But what’s strange is that there are a lot of wealthy people on the left who fund foundations to propagate this view. So is the argument really that the wrong rich people have a voice and that really only the rich on the left should be the ones influencing democracy? Is that what’s really going on here?

John O. McGinnis (30:43):

Well, sometimes I think that’s what’s going on, but another time I think there may be a more insidious and yet an argument that’s more likely to actually help the left more, which is if you get rid of the rich influence entirely, whose influence are you left with? You’re left with the clerisy’s influence. And so it’s not that the rich, and this is some arguments I get as an attack on my perspective from the right is, well, they point out there are a lot of left wing rich people. And that’s absolutely true and that they spend money on politics, Soros, Tom Steyer, high school classmate of mine as it happened.

James Patterson (31:31):

No way. Really?

John O. McGinnis (31:32):

But a lot of rich people spend money on that. That’s absolutely true. And they have philanthropic enterprises that conservatives don’t like. All absolutely true. But the question is, in the absence of that, we actually see academics as heterogeneous as has happened because of the resources the conservatives have put in. And this is a basic economic point. At the margin, the dollars of rich conservatives make a lot more difference than the dollars of rich left-wing people because the left-wing people already have the infrastructure of the clerisy. And if you believe, as I do, that one of the great virtues of democracy is that once ideas are able to circulate, even ordinary people get the idea, well, maybe this idea is better than the other idea. So the real danger to the right is to have their ideas not substantially participate in the public sphere.

(32:41):

The wealthy conservatives are much more important in assuring that that doesn’t happen. The wealthy liberals, they’re not necessary for that to be assured. And so that’s the basic difference between the role that … So I might’ve been able, at least at our time, to entitle the book, Why the Conservative Wealthy Are Needed to Democracy, but you can’t choose. You can’t choose. The government can’t make ideological distinctions like that. It’s the entire class of wealthy despite their, and maybe because of their heterogeneous views, help democracy because they make sure that views that aren’t what the clerisy are interested in have a voice.

James Patterson (33:33):

So at the end of the book, you actually take aim at some of the New Right critics of democracy. You describe Patrick Deneen’s conception of aristo-populism, kind of creation of a political class that’s supposed to be aligned with ordinary Americans’ interests. So is the problem with aristo-populist in your view that the rich can’t be them, or is Deneen simply wrong about what kind of people should serve in office?

John O. McGinnis (33:56):

Well, I think the problem with Deneen is he has no idea of who this group is going to be. So I don’t think it’s going to be the clerisy, right? I don’t think that’s where he’s going to get his shock troop for his regime change. So the point I just make in the book is if his vision succeeds, and I’m not necessarily a great fan of it, he needs the wealthy as well. And there are actually wealthy individuals, the founder of Dominio’s Pizza, for instance, who’ve tried to create worlds like his around Ava Maria and a town that is sympathetic to, I would call very traditional conservative values. They’re going to depend on the wealthy as well. So my argument is that they really shouldn’t be as down on the wealthy as some of them are because they really don’t have another group. So many of them, I think, are hoping that they’re in a different world.

(34:59):

The first attack on liberalism was from people like Joseph de Maistre who thought, well, we can revive the throne and altar. And that was a potential. You could imagine maybe at that time that is an elite group that would counter liberalism with a small-L, but that’s completely implausible today. And so I think they’re dependent for any hopes they have, even on the wealthy. Now, whether they succeed or not, I don’t know. And again, I’m not tremendously enthusiastic about their movement, but I think my point is they depend on the wealthy as well. There’s no other elite for them, and they’ve got some members of that who are going to put forward some of their ideas, and that’s fine with me.

James Patterson (35:50):

So just to conclude, something that I found to be a surprise in the book, something I didn’t expect in the least, was the attention that you pay to the potential for technological change, especially in the form of AI. So lingering in the background is this issue of AI. What does this have to do with the relationship between rich democracy?

John O. McGinnis (36:13):

Well, I ended this on the idea was, I thought I should not just talk about the past, but the future. And I think that for better or for worse, AI is going to be our future. We could maybe have another podcast on that. And I don’t think it’s possible for the United States to give up the leadership in AI because AI is so close to military and national security power. So it’s absolutely essential that the United States be the leader in AI. And again, I think the rich play a very important role in keeping us as the leader with their entrepreneurship or entrepreneurial culture, investing in risky matters. So they do that. But I also think AI is risky. I think AI does pose risk to maybe humanity. I’m not sure about that, but I think there’s some possibility of that. And I don’t think it’s going to be the government is going to figure out a way to get around these risks.

(37:20):

They don’t have the information, the talent. And one of the things I’m impressed by is how many of the wealthy are setting up institutes that are just devoted to thinking about how are we going to align AI with human flourishing? How are we going to keep it safe? And they played an essential role in that as well. And again, almost all of these institutes are coming from American, very wealthy Americans in the United States. So it’s both that they push ahead AI, which is the alternative is not to have AI, but they have AI developed by the Chinese or even worse actors on the international scene, but they’re also aware of some of the risks and they’re with their philanthropy trying to meet them. Whether they’ll be successful, I’m not sure. I think AI is by far the most important issue when we’re talking about things like affordability.

(38:22):

My prediction is by 2032, at least, maybe even before, the biggest issue in politics will be AI.

James Patterson (38:31):

The book is Why Democracy Needs the Rich. The guest John O. McGinnis. Thank you so much for appearing on the Law & Liberty Podcast.

John O. McGinnis (38:40):

Delighted to be here. Thanks so much.

James Patterson (38:43):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts and visit us online at www.lawliberty.org.