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.

Young Americans, and especially young men, are feeling economically disenchanted. As the national debt soars and interest rates remain high, the prospect of providing for a family (let alone buying a home) seems impossibly far off. Russ Greene explains part of the problem: “Total Boomer Luxury Communism,” or a host of policies at all levels of government that generously provide for senior citizens while leaving the youth to pick up the tab. Greene talks about how we got here, what’s needed to give Millennials and Gen Z a chance, and why there’s reason to be optimistic.

“What Is Total Boomer Luxury Communism?” by Russ Greene (The American Mind)
“Debt Politics” with Mitch Daniels (Law & Liberty Podcast)
“What Social Security Should Do—and What It Shouldn’t” by Sita Slavov (Law & Liberty)
“Slashing Tax Rates and Cutting Loopholes” by Adam N. Michel (Cato Institute)

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. I’m contributing editor to Law & Liberty, as well as associate professor of Public Affairs at the Institute for American Civics at the University of Tennessee. With us today as a guest is Russ Greene. He is the executive director of the Prime Mover Institute and the author of “What Is Total Boomer Luxury Communism?” I guess Russ, we should start with the answer to your question, so go ahead and hit us with it. Welcome to the Law & Liberty Podcast.

Russ Greene (01:16):

Yes, thank you, James. I’m glad to be here. “Total boomer luxury communism” refers to a suite of government policies at the local, state, and federal level that has the effect of transferring wealth at a massive multi-trillion dollar scale each year from younger people to older people. And I can break down each word in that phrase. It has a particular meaning. The luxury part though is probably the one that’s most important because Boomer, that’s pretty obvious. We’re mainly talking about senior citizens. That’s Baby Boomers right now for the most part. The luxury part though, really denotes how these programs are not just about keeping seniors out of poverty. They’re often justified that way, but if you actually look at how they work, they far exceed that level. So Social Security benefits reach past $60,000 a year per individual. So for a couple maxing them out. You could be looking at up to $125,000 a year.

(02:28):

That’s pretty significant. And then Medicare Advantage programs, at least as of last year, some of them were covering greens fees at golf courses, golf balls, tennis lessons, horseback riding lessons, ski trips, et cetera. Again, all funded by the taxpayer. So total boomer luxury communism is just a way to sort of label this massive wealth transfer scheme from younger people to older people, which also, as I mentioned, has local and state policy elements, which really is mainly about how a lot of taxation schemes are designed to lower the tax burden on older people and concentrate more of it on younger people.

James Patterson (03:15):

How did we get here? Originally, the idea was to provide retirement and medical benefits to seniors when they may not even have the resources to stay in the homes they already own. How do you move from the Social Security of the New Deal to paying one’s golf course fees?

Russ Greene (03:37):

Yeah, many different things happened at once. Obviously America changed a lot during that time period in about 90 years. One is life expectancy. So even though life expectancy actually declined for several consecutive years over the past decade, it’s still much higher now. I think it’s around 80, right? I mean, when Social Security was passed into law, it was around 64. The other thing is just demographics. So the dependency ratio, so the ratio of people working and therefore contributing payroll taxes to fund these programs relative to the beneficiaries, it’s just plummeted, right? So in 1950 it was about 16 workers for every beneficiary, every one beneficiary, 16.5 to one. Now it’s below three to one. It’s heading towards 2.3 to one by 2035. So in other words, we have way fewer workers to support every retiree. And the other significant change is these benefits, due to actions, first actions by Congress and then due to inaction by Congress, have just become much more generous over time.

(04:54):

Initially, for example, Social Security benefits had to be adjusted directly by Congress in the 1970s through a series of laws. They basically put them on autopilot. As a result, Social Security benefits, especially for high income people have rapidly risen since then. So the median benefit that she’ll get in 2025 is about 30 to 35% more than it would’ve been in the year 2000, for example. And then on the Medicare side, in the healthcare side, there’s a series of changes. One of them is there’s just an epidemic of overpayments in the Medicare Advantage Program, which these are the privately administered programs, so that’s Medicare part C, and that is what enables all these excesses like Medicare Advantage covering meals and transportation and country clubs and such. And then also Medicaid also has been so means testing for Medicaid programs such as the long-term care, it often overlooks the major assets that seniors do have, such as overlooking up to nearly 1.1 million in home equity. So you can be impoverished as a senior and be a millionaire in the government’s eyes.

James Patterson (06:18):

So when I lived in South Florida, I had this experience of getting a haircut at a joint barber salon sort of thing, and the woman across business was getting her hair done and was talking about taking her Social Security check to the casino and gambling it away. And I told the story—somewhat scandalized—to my parents, and one of my parents said, well, it’s her money, right? She paid into Social Security when she worked. Is that true? Is that how Social Security works? You pay in and then you receive benefits that match what you paid in?

Russ Greene (06:58):

No. Was this a setup question? So a lot of times when I propose reforming Social Security, someone will say, you just want to turn it into a welfare program. And the response to that is, “It already is a welfare program.” Social Security beneficiaries in the bottom four quintiles get back from Social Security benefits far more than they contributed through payroll taxes into the program over their lifetimes. It’s true that for the top quintile, they generally get matching benefits in part because they paid in so much more. So there is a progressive benefit formula already. It’s 90%, 32%, and then 15%. So essentially what that means is you get 90% back of the first chunk of your average income over your lifetime, but then past that threshold—I think it’s about $2,000, I forget where exactly it is—you only get 32% back and then past another threshold, you only get 15% back. So there already is a progressive formula for this, but in Medicare, it’s even worse. People are getting back in terms of Medicare benefits many times what they ever contributed in the form of payroll taxes.

James Patterson (08:22):

So does this have a distortion effect on the American budget in terms of mandatory versus discretionary spending? I, of course, had to teach this class to my students, and I mentioned that I was interviewing you and brought you up in class, so hopefully if they’re listening, they’ll get to hear you tell me how right I was. I’m guessing that these expenditures, they eat up most of the budget.

Russ Greene (08:45):

Yeah. So-called mandatory programs, or I prefer the term autopilot, because they’re not mandatory. Congress if it chose to could change them at any time.

James Patterson (08:57):

Mandatory for them for reasons we might talk about …

Russ Greene (09:00):

Right. I think the preferred framing, like the technical language, is direct versus indirect expenditures. I prefer colloquially to call it autopilot spending. So that’s basically the major entitlement programs, Social Security, Medicare, Medicaid, plus interest payments on the debt because that’s not really optional, that is kind of mandatory. You got to pay that. You add all that together, the entitlement programs and the interest payments, that’s 74% of the federal budget.

James Patterson (09:29):

Not good.

Russ Greene (09:30):

So if you look at recent CBO projections, that’s just going up, up, up, up and up. For example, Medicare is going to double over the next 10 years. Just think about that. Social Security, according to the latest CBO projections, it’s looking like 74% increase during that time. Social Security already costs us about 1.6 trillion a year. It’s the largest single category of expenditures. And there’s also sort of a more political or constitutional issue with this, which is that pretty simple. What is Congress’s job? Why does it have authority? It has the power of the purse, right? It’s supposed to review and approve spending and revenue, right? It doesn’t do that mainly because of these autopilot entitlement spending programs. So if once something becomes an autopilot program, Congress doesn’t review and approve it every year the way it does, for example, for defense spending, that has to be negotiated and approved by Congress every single year.

(10:38):

And that’s a good thing. If we are going to spend a trillion dollars on something like we do on defense, there should be a robust debate and discussion about it in Congress. That does not happen for these entitlement programs. And I think that that’s really distorted our politics at the national level, but also there’s a downstream consequence of it, which is the lack of political debate in DC means that the general public has no idea what’s going on with these programs. There are a few politicians who are brave enough to talk about it like Representative David Schweikert, but no one really knows some very salient facts about these programs. One is very few Americans, according to polling from Cato, are able to identify how high Social Security benefits can go. They don’t realize that they can exceed for single individual $60,000 a year. And another thing is there’s almost no discussion, or at least at the popular level about the fact that the trust funds for these programs, the Medicare Hospital Insurance Trust Fund and the Social Security Trust Fund, they’re running out in six to seven years. So people don’t know that. And as a result, there’s no real public awareness of the need to reform these programs.

James Patterson (12:03):

The populist insurgency we’ve seen both on the left and the right often would complain about the uniparty, right? The uniparty about, say, interventions abroad or open borders when it comes to immigration, but these were their targets. But in the process of targeting these ideas, they formed their own uniparty, and it appears to be on these benefits that the Republicans used to have a lot more people that talked about this. And the outcome was Paul Ryan running as vice president under Mitt Romney, the depiction of him hurling an old woman off of a cliff from a wheelchair in a campaign ad. And the lesson that a lot of Republicans learn from that is accept total boomer luxury communism and even campaign to preserve it. So isn’t this partly a response to the pressures that the elderly put on elected officials given they vote in their interests, and the last time the Republicans tried to run against this, they got their clocks clean?

Russ Greene (13:13):

Yes, all that. I mean, Matt Yglesias has a fairly provocative take on Donald Trump, which I think has some truth to it, which is that he’s the great moderator. He forced the Republican party establishment to move closer to the median voter. The issues where it was furthest away from them, one of them would be normal social conservative issues like abortion, for example. Obviously, yes, he appointed the Supreme Court justices that overturn Roe to his credit, in my opinion. But also if you look since then on IVF or on funding of Planned Parenthood or on FDA approval of abortion drugs, the Republican or on gay marriage for that matter, the Republican party is really moderated on traditional social conservative issues under Donald Trump. For better or for worse, it’s gained politically due to that, but it’s also had to make some sacrifices on issues that were very important to traditional social conservatives.

(14:17):

A similar change happened on federal spending and on entitlement programs where the party has really moved to the center unfortunately on spending and on Social Security and Medicare, where you’re right, Romney and Ryan really wanted to do something about these programs. I think they were going about it kind of in the wrong way, both rhetorically and practically, but nonetheless, it was something that they were talking about and planning to act on and George W. Bush before them, but now that’s almost completely gone, but not for long because these trust funds are running out. I will say to Donald Trump’s credit, and I’m really excited about this, it does look like they’re going to do something about Medicare Advantage, which is the program that I identified in my piece in December, just these egregious examples of horseback riding lessons and tennis and golf, all due to over a trillion dollars in Medicare Advantage overpayments by taxpayers.

(15:17):

Over 10 years, the CMS has put out a proposal to really tackle this issue, and as a result in January, I was very happy to see that stocks of major insurance companies, such as UnitedHealth Group, plummeted on the news. So that was very encouraging because a lot of people will say what you said, that they’ll be doomers about this because we’ll say you can’t do anything. Seniors are too powerful. And I’m not sure that’s true for a number of reasons. One is that things are happening right now. That was a politically bold move by the Trump administration to do, but they were willing to do it. I’m not sure exactly what the calculus was there, but it was the right decision. And the other thing is that this is really about cost and benefits. It’s absolutely true that there’s a political cost to doing anything about an entitlement program that will cut the amount of money that taxpayers are sending out every month.

(16:13):

On the other hand, the costs of inaction are high as well. So the cost of inaction are a higher risk of inflation. The national debt goes up, higher risk of a debt crisis, higher interest payments, and ultimately, most likely pretty significant tax hikes, which are both politically unpopular and economically harmful. So at some point, my prediction is that basically the cost of inaction are going to significantly outweigh the cost of action on these programs. The other thing I’d say, and this is one of the things that I’m most excited about with this total boomer luxury communism stuff, is that the younger generation of MAGA people actually cares about these issues, at least when I’ve been able to speak to them about this. In part because I’m not explaining it using the normal libertarian talking points. I’m speaking to it in terms of like, this is bad for workers, it’s bad for families, it’s unjust, it harms the common good using that language, all of which is true by the way, and not purely economic or financial or quantitative language that speaks to them. And it also sort of addresses the issues they care about most, which is why is living a dignified life in America, why is starting a family as a younger person in America, why is that so difficult? Apparently more difficult now than it would’ve been 20, 30, or 40 years ago? Total boomer luxury communism might not be the only reason, but it’s certainly a very significant reason for lot of the problems that the new right sees in America, and in my opinion correctly.

James Patterson (17:54):

One of the sort of memes or slogans used by younger people on the new right is “this is what they took from you.” And normally it’ll have an image of a kind of fifties style family with a two car garage and all that, and in a way that’s kind of melodramatic, but what are the distortionary, if that’s the word or distortionate, it effects on the economy that harms young people with total boomer luxury communism? What is it that it does to them?

Russ Greene (18:29):

Yeah, first and foremost, it displaces the family and weakens ties between people. So very often conservatives talk about how this happens with welfare programs like Thomas Sowell and others have talked about how you’re basically breaking up nuclear families because the woman now can depend on the government instead of on her husband, which has negative impacts both for the family itself and for their children. A similar thing happens across generations with total boomer luxury communism where parents, instead of maintaining tighter bonds, both in terms of where they live, but even emotionally with their children, they’re encouraged more to depend on the government and their old age, and they live under this delusion of independence where they think, “oh, I’m not dependent. I live off of Social Security and I paid into that. Therefore I am an atomic individual.”

(19:36):

And it’s really, we always talk about welfare harming the morality of younger people like in their twenties, thirties, and forties. In a very similar way, total boomer luxury communism has harmed the morals of the baby boomer generation because they’ve grown up under its assumptions, they’ve become dependent on the government for their lifestyle, and they’re committing grave injustices to younger generations, but they’re not able to see it because their judgment is clouded by self-interest. So that’s very harmful. So there’s a familial and moral dimension to this that it can’t be emphasized enough. Economically, though, there’s very concrete harms that are undeniable. I mentioned earlier that Romney-Ryan somewhat misunderstood this issue. Chris Pope has written about this in City Journal for the Manhattan Institute. He gets into better detail, more detail than I can hear, but one of the biggest ways that Romney and Ryan misunderstood what’s going on with the federal government is they really focused on income taxes, which it’s true are basically almost entirely born by higher-income people.

(20:43):

What they missed is payroll taxes as opposed to income taxes are a disproportionate burden on working and middle class people, and they’re funding benefits for a generation that is on average much wealthier than they are. So this is actually a very populist-friendly issue because when you think about payroll taxes, funding benefits for retired millionaires, that’s profoundly, socially unjust. There is no philosophical or moral justification for that. That also means that we are making life more unaffordable for younger people in a very concrete way because they have to pay, it’s several steps here, they have to pay the taxes that fund these programs, but those taxes don’t fully fund these programs, so the government has to borrow. That borrowing then leads to inflation, so the cost of the grocery store at the gas pump or higher, it also leads eventually to higher interest rates. So it’s harder to get a car loan, it’s harder to buy a house.

(21:44):

It eventually slows economic growth because when the debt to GDP ratio surpasses 80%, that’s a drag on economic growth. We’re way above that already. We’re going to be about double the economy if we stay on our current trajectory by 2050. And then also they’re going to be paying for this their entire lives in the sense of they’re the ones who are going to have to pay, or we are really, are the ones who are going to have to pay interest on this debt forever. So these programs that seniors are benefiting from now are going to be paid for by us our entire lives, and because they’re financially unsustainable, it’s not like, oh, just be patient, right? You’ll get it one day. It’s like, no, these programs can’t go on in their current form. So boomers are benefiting from things that we know cannot continue while at the same time making younger generations pay for all of the burden.

James Patterson (22:44):

So younger people are poorer than they should be, and when they’re old, they will not get Social Security or Medicare as it exists today under any circumstances.

Russ Greene (22:55):

I don’t want to be an absolutist about this because look, if some of the more optimistic AI scenarios happen, who knows what can happen, but I think the most likely situation, if you look at the Congressional Budget Office projections and any of the credible projections from think tanks on the right or left around DC, I mean there’s just no way that these programs can continue in their current format. So what does that mean? There’s going to have to be most likely, this is not what I want, but just projecting empirically, most likely there’s going to be some combination of benefit cuts and tax hikes. I would like to see more benefit cuts relative to tax hikes, and I would also like to see benefit cuts concentrated on higher income and higher net worth people. That would be my preference, but functionally what that means, less benefits in the future, higher taxes is the ratio of benefits to taxes paid that boomers enjoyed, cannot keep going. There’s going to have to be higher taxes and lower benefits, and that fundamentally means oftentimes people will say, if you adjust these programs, you’re breaking the social contract. Social contract was broken a long time ago when they decided to put these programs on an unsustainable fiscal footing.

James Patterson (24:22):

The politics of this sounds really hard and I can’t imagine what they’ll look like. I mean, you’ve mentioned a few leaders on these issues. Do you think that they might be able to forge a path that doesn’t lead to almost a generational civil war, meaning younger voters will attack older voters and older voters will attack younger voters? How do you solve this?

Russ Greene (24:54):

I do think there actually does need to be more generational conflict. And I say that because Gen X, Millennials, and Gen Z, our current strategy has been unilateral disarmament. The booomers are organized, they know what their interests are, and they’re fighting to defend them at our expense. Who’s representing us? So you project that forward. What does that look like? That looks like if it continues to be true that seniors are mobilized and no one else is to defend their interests, then in 2032 and 2033, when these Social Security and Medicare trust funds run out, who’s going to foot the bill? The burden is going to be entirely placed on younger generations, unless that is, there is a broader political awakening among younger generations, and really at this point, gen X will be so close to retirement that might be hopeless. So really it’s going to have to be Gen Z and Millennials. There’s going to have to be some sort of political awakening among them, and they’re going to have to have some equivalent of an AARP or something. It’s going to have to be organized and funded to advocate for their interests in the new settlement that’s going to have to occur at least by the early 2030s.

James Patterson (26:22):

Last year, we had Governor Mitch Daniels on the Law & Liberty Podcast, and we talked about this use of debt to finance peacetime, social programs and how this is historically the craziest thing, right? Historically, debt financed wars and people got very worried about this because it meant that there would be this hangover from a war you might possibly lose, and now we’re largely at peace. I mean, even when we’re at war, it doesn’t feel like it if you lived through the occupations of Afghanistan and Iraq. So why did we resort to this degree of debt for peacetime social welfare benefits?

Russ Greene (27:10):

Yeah, due to two illusions. One is the illusion that debt was free. It was a ZIRP phenomenon, right? The zero interest rate phenomenon.

James Patterson (27:18):

Oh, yeah. Say a little bit more about ZIRP. That’s really important I think.

Russ Greene (27:22):

Yeah, I mean just that’s actually, I was just looking at some economics research indicating that’s actually part of total boomer luxury communism, but from 1983 to 1984 over the next 40 or so years, interest rates were historically low for the most part, and that led a lot of politicians, it should be said on the right and the left (the Republicans weren’t much better than this on this than the Democrats) to basically decide that deficits and debt didn’t matter because they weren’t paying an immediate price for it. They sort of assumed also that inflation was not going to be a serious problem, and that was sort of part of the illusion. The other illusion was that, it was the illusion of inaction or the illusion of passivity, like, oh, we’re not actually choosing to do this because Congress isn’t debating it. It’s just sort of set on autopilot.

(28:17):

So it didn’t register as a decision that we were even making, I don’t think. And also there’s a third illusion, which is that if you ask the average American right or left, what’s driving the debt? Why do we have such high deficit spending? Nobody can identify the right target, right? They’ll pick something like foreign aid or defense spending or tax cuts or something else that they want to blame, something convenient to scapegoat, but almost no one is going to accurately identify, oh, no, it’s Social Security and Medicare. That’s the primary reason, and I want to be clear too, we can have discussions about foreign aid and a lot of the USAID stuff was really appalling to me, and I’m glad it’s under scrutiny. A lot of military spending doesn’t seem to be getting what we’re paying for, so let’s have a discussion about that. But let’s be clear, what’s driving the deficit spending and debt problem is Social Security, Medicare and Medicaid, and that’s largely been overlooked due to the end of ZIRP. Interest rates are first inflation happened. Then March, 2022 was the first rate hike by the Federal Reserve. Even if the Federal Reserve tries to lower rates now as soon as inflation comes back, they’re going to have to raise ’em again. So the era of really zero interest rates, but also zero inflation that is over in addition due to the trust funds about to be depleted. The era of just ignoring Medicare and Social Security is coming to an end as well.

James Patterson (29:53):

When I was teaching the class the other day, I talked about there’s this kind of defying of gravity or the laws of physics that you feel when you’re falling and it all comes to an end when you hit the ground. What’s a parachute we could pull open? What does that look like? You mentioned earlier some of the things that you wanted a sort of tax hike and rate decreases. What would the tax policy be?

Russ Greene (30:23):

To be clear, I was not saying I advocate for tax hikes. I was saying that I think the most likely way this is going to resolve if you just project current trends forward is there will be tax hikes. Cato put out a really good piece on all of the ways that you could actually cut tax loopholes because the tax code has become incredibly complicated, and there’s all sorts of special tax breaks that you can only get under certain conditions. Even if you’re a strict libertarian, you should object to that because that is a form of central planning. It is a form of tax expenditure. It’s really more akin to a subsidy than a tax cut. One of the things that total boomer luxury communism has sort of been activated against recently was in the One Big Beautiful Bill Act under the headline of the working family’s tax cut.

(31:16):

There was a large increase in the standardized deduction for senior citizens and only for senior citizens. I think it was an increase of about $6,000. So things like that, let’s just get rid of ’em. I would say the same for most if not all forms of tax credits for green energy, for example, which have been partially repealed, thankfully, by President Trump and the One Big Beautiful Bill Act, but should be totally repealed. Yeah, the Cato article I found it is it’s by Adam Michelle. It’s called “Slashing Tax Rates and Cutting Loopholes.” They found hundreds of billions of dollars in savings each year just from closing these tax loopholes. That’s at the federal level. I would do a similar thing at the local and state level where most states have either an explicit or implicit as in California lower tax rate, especially on property taxes for senior citizens. I think every case that’s unjustifiable, senior citizens should pay the same tax rates as everyone else. If that means they have to sell their homes, oh, well.

James Patterson (32:29):

That’s kind of what they should do. Why do they live in a five bedroom home?

Russ Greene (32:34):

Right, exactly. On the housing discussion, we don’t talk enough about how housing is inefficiently distributed. So it’s not just about the sheer quantity of housing, but there’s specific locations and types of homes that should be inhabited by working families, and they are in instead inhabited by non-working retirees, empty nesters. And that’s economically inefficient, and it happens because of total boomer luxury communism. So because these people are getting so many thousands of dollars a month from the government and because they pay lower tax rates than everyone else, they’re incentivized to stay in homes that are closer to major metropolitan areas, more expensive, and have more bedrooms, three, four, five bedrooms, than they really need. They disproportionately own the larger homes in America. Senior citizens do. It should not be like that. Right? That is crazy.

James Patterson (33:30):

Well, at the same time, the average age of a first mortgage is in the forties now, which is crazy.

Russ Greene (33:39):

Yes. Connor O’Brien, who’s an economist I respect, has somewhat question that statistic, but even if it’s wrong, it’s more like 35 than 40. Yeah, I mean, there’s no question that senior citizens of the highest ownership rates, they have the highest rate of paid off homes and they get their home equity exempted from means testing frequently. So they’re favored in all sorts of ways. So mostly what we’ve been talking about is revenue side. On the spending side, you just have to cut benefits for however we make this happen, and there’s a variety of proposals of how to do it. Andrew Biggs at AEI has proposed something, Mark Warshawsky, I think is his name, also at AEI, put out a competing proposal, but we have to give less money away to retired millionaires, period. So you could do that. What Biggs says is let’s just flatten Social Security benefits.

(34:41):

So in 2032, when there have to be, by law, when there has to be, by law, 24% cut to Social Security, instead of making lower income people bear the same amount of burden as higher income people, let’s just concentrate most of that pain on the top quintile. Currently right now, you can get Social Security benefits in the United States that are three to four times what you would get in other comparable nations like Australia, New Zealand, Canada, or the UK, right? Again, over $60,000. Other countries, you’re looking at $20,000 at the most, right? So we need to flatten max benefits for higher income people and Warshawsky’s proposed doing that through means testing as opposed through just based on what your lifetime income was. That has some advantages, also some disadvantages. But however we get there, what we need to do is cut government spending on the wealthiest retirees.

James Patterson (35:43):

It is incredible how many times I’m seeing people on social media. The Senate, for example, actually sort of touted this savings for seniors on housing that was in the One Big Beautiful Bill, and I knew that there was something happening because I saw that first of all, they experienced it for people who aren’t on social media, good for you, you shouldn’t be. But second of all, they got what’s called ratio, which means that the number of replies exceeded the number of likes. And if you went to the replies to this announcement on Twitter, you were constantly being referred to. It was about how, what are you doing giving these rich people money? And it has ballooned, this term. It’s really taken on as a brand, and it’s coming into the faces of the communications teams that these politicians are using to sort of tell people how they’re helping seniors. So maybe this isn’t a winning message anymore.

Russ Greene (36:43):

Yeah, no, I want to destroy these people. I want to be very clear. There needs to be a higher political price if you’re going to give a special tax break or any sort of special new benefit or even continue an existing one to senior citizens. And I don’t just mean that for Republicans. We did the same thing to Gretchen Whitmer. I don’t know if you saw that.

James Patterson (37:03):

Oh, yes. 355,000 seniors saving households average. This was a tax relief, right, on property taxes. Yeah, I’m seeing that right now.

Russ Greene (37:13):

Yeah, yeah, exactly. So governor of Michigan, Democrat, and I’m pretty sure I got this going. I think I was the first major account to quote tweet her, and I forget exactly what I said, but it was something about total boomer luxury communism and she got totally ratioed, right? And it was pretty, these are significant numbers. I think it was over a million views. Rightly or wrongly, comms teams and policy teams are going to respond to stuff like that. That doesn’t feel good, right? It’s hard to say at what point it becomes an electoral problem for them, but it’s already a comms problem for them. You also had Dan Patrick in Texas, he was proposing an additional special property tax break for I think it was people, I think there was one for 65 and up another for 55 and up. He’s lieutenant governor in Texas. He got ratioed as well for the same reason. And what’s interesting about it too is the people who are pushing back against this stuff, they run the gamut. They’re not just libertarians. They’re not just on the right. You’ve got NatCon, New Right people. You’ve more free market oriented people, but you’ve also got progressives and pretty far left people all coming together saying, this is unjustifiable because it really doesn’t, if you’re a younger person, it really doesn’t matter what your political priors are. You should be upset about people selling you out. It doesn’t matter what your ideology is. There’s no ideology that justifies our current system.

James Patterson (38:56):

And that’s the thing about social media is that even if it’s a kind of subset of a lot of things, it’s where more young people are than older people and things don’t stay in containment on Twitter, they escape to people who are less online, and then they’ll become more cognizant of these sorts of issues. So it seems to me that you’ve really started pushing something that’s gained its own momentum. And I have to say that I’m pretty excited about it as a person who has really had to come to grips with what I was dealing with myself, I think we’re roughly the same age, and I didn’t understand why things were so difficult, and it was financially for so many people I knew, and for me, and I think this is a kind of political awakening that people need, but I’m just concerned that this is going to become a source for overcorrection and genuinely needy seniors might get harmed in the process. Is that something that bothers you?

Russ Greene (39:54):

Well, as I was saying earlier, I don’t want to see that outcome, but I actually think without this mobilization, it would’ve been more likely because if you have the money’s running out in these programs, default setting is going to be just cut across the board everyone, which means that’s going to harm the most, the lower quintiles of socioeconomic status. What I’m advocating for is to protect poor seniors as much as possible. Ideally, we could even raise benefits for them while focusing most of the cuts in tax equalization on the higher quintile. That’s what I want to see, that I’ve been very clear about that and all my messaging around this. The other thing I would say is I wouldn’t have been successful if I had been trying to persuade younger people to get mad. I’m not the reason they’re mad at older people. They just didn’t know why.

(41:01):

And I actually think it’s healthier politically to not just have vague anger, but to have specific anger that leads to action, that leads to deliberation, that leads to policy change as opposed to people just young men mostly sitting in their basements being mad about America, but not knowing exactly what went wrong. So maybe it was the Jews, maybe it was the capitalists, I don’t know. So people have a sense something’s gone wrong, and I think too often people like you and me who are more on the side of pro-American founding on net, pro Constitutionally limited government, our response to this youthful anger was basically line goes up, like per capita, GDP has gone up. What the hell are you complaining about? More appreciative of the fact that you have a smartphone in your pocket and TVs are a lot cheaper than they used to be. There’re some truths to that argument, and people should listen to the economists who are trying to correct them or at least take them seriously. On the other hand, man does not live by bread alone, A, and then, B, is, there are significant economic grievances that younger people do have, and I think total boomer luxury communism is part of explaining to them what’s gone wrong and what to do about it.

James Patterson (42:31):

Yeah, TVs and phones getting cheaper, but mortgages and college debt being a very significant amount of monthly paycheck for people like our age and younger, that’s going to put a pretty significant damper on the enthusiasm. One other thing is, like, if you ever say to students that are now in college, well, you’ve got this supercomputer in your pocket, they’re going to not necessarily be happy about that. Right? There’s something that I think is really interesting, is that that pitch really weak now because of how much these younger students have an ambivalent relationship to social media, and they see phones as a source for surveillance as much as for communication.

Russ Greene (43:15):

Yeah, absolutely. And now there’s concerns about AI. I’m pretty pro-AI. Obviously, people have some concerns around protecting children and pornography and all that, and that’s all legitimate. But on net, I’m pretty pro-AI, I think it’s very important that we find ways to make labor more productive, especially given our demographic challenges. In other words, if we’re going to have fewer and fewer workers for each retiree, our workers had better be really empowered by technology if we want to make that economically work, but that also means there’s going to be a lot of technologically driven disruption in the lives of people who are in their twenties right now or in their teens, and that’s going to be difficult. There are probably some things that government can do to make it a little easier for them to deal with, but on the other hand, for them to have to go through what we all know is going to happen over the next painful transition period we know is going to happen over the next five or 10 years will be even more difficult and more gut-wrenching if it happens. While we also maintain a commitment insulating the people 65 and older who are most responsible for these problems from any consequences, that just compounds the injustice and it’s going to compound the anger.

James Patterson (44:44):

Again, the article is “What Is Total Boomer Luxury Communism”? I believe at the beginning, I forgot to mention that. This is at the American Mind website put up by Claremont, so everyone please go read it. I imagine that we might get some pushback from older listeners, but that’s part of the fun of all of this. Russ Greene, thank you so much for joining us here at the Law & Liberty Podcast.

Russ Greene:

Thanks for having me on.

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 is pleased to welcome our newest contributing editor, Luke C. Sheahan. To mark the occasion, Sheahan joined L&L editor John Grove to talk about the central theme of his work: the freedom of association. They discuss the thought of Robert Nisbet, the relationship between civil society and the state, and the way the Supreme Court has treated association over the years.

“The West’s Quest,” Law & Liberty Podcast with Luke Sheahan
“The Failure of Political Community” by Luke Sheahan
Twilight of Authority by Robert Nisbet
The University Bookman
Why Associations Matter by Luke Sheahan
Freedom of Association, Vol. I: In Theory, ed. by Luke C. Sheahan and Kenneth B. McIntyre
Freedom of Association, Vol . II: Applied, ed. by Luke C. Sheahan and Kenneth B. McIntyre

James M. 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.

John Grove (00:39):

Hello and welcome to the Law & Liberty Podcast. I’m John Grove, the editor of Law & Liberty. I’m filling in this episode for our regular host, James Patterson. I’m pleased today to be joined by a familiar guest, Professor Luke Sheahan. Professor Sheahan is an associate professor of political science at Duquesne University. He’s a senior affiliate in the program for research on religion and urban civil society at the University of Pennsylvania, and he is the editor of the University Bookman, published by the Russell Kirk Center. He’s also the author and editor of several books, including Why Associations Matter, and recently edited a new edition of Robert Nisbet, The Social Philosophers, which we had the pleasure of speaking about six months ago here on the Law & Liberty Podcast. And I am particularly excited to have Luke on today because we are going to be welcoming him as a new contributing editor to Law & Liberty. So we look forward to being able to hear more from Luke on a regular basis over the next coming months and years. So Luke, thanks for joining us.

Luke Sheahan (01:40):

Thank you for having me.

John Grove (01:42):

Well, we spoke a few months ago about Robert Nisbet. That episode is called “The West’s Quest,” if anybody wants to look that up, where we talked about the social philosophers and that book in particular. But I thought we might start with Nisbet again for this episode because Nisbet has been an important influence for you, an inspiration for you, and also an inspiration for me. And Nisbet is a sort of distinct voice in American conservatism, and particularly for the moment we find ourselves in right now, I think what Nisbet has to say is getting lost in the mayhem of political conservatism in America. So why don’t you say a little bit about how Nisbet has inspired your work, what you find valuable in him and maybe what he has to say to the present moment in American conservatives.

Luke Sheahan (02:31):

My introduction to Nisbet was through one of those lists where you’re supposed to … [a] list of conservative books you’re supposed to read. So I read Quest for Community and it was great, but it didn’t quite resonate with me what Nisbet was actually getting at. So I read it again while reading Supreme Court case law on freedom of association, and I wondered why freedom of association had risen the way that it did and Supreme Court case law and then been sidelined in recent decades. And I thought Nisbet was the key there. So Nisbet’s thesis and quest is that the decline of intermediate associations is caused by the rise of the political state. He says this is the most significant thing in recent centuries in terms of understanding economic and social change and development. And I thought, well, in the microcosm that might be true and Supreme Court case law and wrote a book about it.

(03:34):

And I think Nisbet gave this incredible insight of when you look at civil society associations construed broadly, their struggle, their existence, their rise and fall might have to do with the interactions with political power in important ways. And so Nisbet really hones in on that and gives us tools to identify that. And he does so in a way that very few others do with his clarity and historical breadth and theoretical penetration. And so reading Nisbet gives this perspective on the social realm that is distinct from what Libertarians contribute with their focus on the individual and their concern over state power and more conventional conservatives who might be a little more prone to recognize the legitimacy of some exercise of political power, but not recognizing that even when political power seems to be working at the behest of or on behalf of social institutions, they in fact undermine them. So there’s something unique about the exercise of political power that might work always in everywhere to the detriment of these social groups.

John Grove (04:52):

You and I were talking about this a few days ago as we were discussing this podcast and we talked about how nobody really knows how to categorize Nisbet today if they go back and read him. And it’s sort of interesting, I was thinking about this later, that today, right now, the fault line of conservatism seems to be presented as national conservatism versus fusion Reagan’s conservatism. And when you go back and read Nisbet in the eighties about fusion Reagan conservatism, his critiques basically sound like the critiques that they make against national conservatism today. So it struck me that Nisbet would be sort of surprised to hear that however many years after his death now that fusionist Reagan conservatism is being pitted against something called national conservatism, because he thought they were already pretty nationalist at that time. So what is it about nationalism and national populism, I guess that Nisbet saw as uniquely dangerous, especially in the United States context, where sort of nationalist sentiments is this sort of centralizing force over and against localities and state governments and constitutional limits? What was so dangerous for him about that when it comes its relationship to civil society, relationship between government and civil society.

Luke Sheahan (06:16):

So he saw nationalism as dangerous because had been fused with the nation-state. So the idea being that the real locus where the action’s at is at the national state level. So your local affiliations and loyalties and relationships are simply unimportant in comparison to national politics. The problem is, is that it’s impossible to have the sort of relationships and affinities and loyalties that are concrete and even limited by in the local sense. So at the national level, it really is an abstraction and there’s a lot to defend. We will get into it of the place of the nation-state and all the and Nisbet’s conception, and I think he has a place for it and an important one, but to place your primary loyalty there or to make it the overriding force in society and politics is dangerous because it inherently undermines those more local authorities.

(07:13):

And the problem is individuals need those local authorities just in terms of fundamental identity and relationships. And so one of his big insights is that when you see a growth of political power at the national level and the decrease of local authorities and civil society authorities, individuals don’t just shift allegiances and loyalties and kind of finds the meaning in their life from the nation-state in front of the local instead of the local community or religion or whatever else it had before. Rather the individual becomes alienated. So you’ll see a rise of ideological fanaticism, for example. If you don’t have a local loyalty that grounds you end up leaping into the individual leaps into abstractions, into ideological fanaticism. He’s explaining the rise of right wing and left wing fanaticism, mostly fanaticism coming out of that alienation. So he said it’s dangerous because you end up alienating your whole populace and it lays the groundwork for a rise of even ever stronger, more authoritarian or even totalitarian political state. And the trajectory is one that’s hard to reverse. Once you undermine those local authorities and affiliations, it’s really hard to get ’em back. So he’s worried about kind of a one-way ratchet and that the political state isn’t just an exchange. We’re not Pennsylvanians and Virginians anymore and Somerset, that’s okay, we’re just Americans and that’s what we are. Well, the problem is that doesn’t really work in the same way.

John Grove (08:52):

What do you see as his understanding of the legitimate purpose and the legitimate function of the nation-state? Because you brought that up a minute ago there, and sometimes when you read him, it does kind of come across as almost heavy, especially when he’s talking about the centralized state. It comes across as very libertarian sounding, just this is just something, it comes out of military society, it comes from domination, it’s all force and power. But he is in this tradition of conservatism of people who see a legitimate role for the state. But that also warn you to be highly skeptical about the stories that the state tells about itself and don’t buy into the sort of mythologies of the state. But what do you see as his, or I should say, what did Nisbet see as the legitimate role of the nation-state?

Luke Sheahan (09:49):

Yeah, so the way to understand it, he’s highly critical of the nation-state and what he’s getting at is exactly what you said, the story the state is told about itself. It is the great liberator and the great protector. And so it came in and freed all of the individuals from the terrible oppressions of society and offered them all sorts of rights that he never would’ve had otherwise. We can talk about the expansion of rights and that sort of thing. What you should be suspicious of is that it was, that’s actually how it played out. So he has this dichotomy between monism and pluralism and a monistic understanding of politics and a pluralistic understanding of politics. So a monist nation-state would be one that sees itself as precisely as the center of authority and patriotism in all of that. And so it’s there to undermine and suppress local authorities, whether it’s the states, towns, religious parishes, all these sorts of things, or to be undermined and suppressed on behalf of the primary identity of the nation-state.

(10:47):

But there’s a conception of the nation-state, and one could argue this is precisely what the American conception is, that it is the overall complete community, an Aristotle sense. So it’s the complete community. So it’s going to cover national security and most economic exchange and kind of contain all the other communities within it. But precisely in the very nature and conception of his existence is those other associations. So if there’s to be a utilitarian understanding of any of these communities, it’s the political state that’s the utilitarian one. So the monist conception even sometimes is drawn by some conservatives is that why do we need the family? Well, the family does a very good job of making productive economic actors who are good citizens, and it does, but is that all the family exists for or is it the other way around? The state takes as the plural state takes as its core to its existence that the families exist, that they are at the core and foundation of it, not that we’ll let them exist insofar as they produce good citizens.

(11:46):

For us, the state says we exist insofar as we make the complete community possible. So these families and local communities and states and religious associations can thrive. So the very core, when he’s listing off the values of the plural community, the very first value or the very first element of it is plurality. It’s based precisely on their being plural, a plurality of communities. So our constitutional order, for example, our constitution mentioned states something like 50 times. But the idea there are states, there are real things and those legislatures are there, they’re not going away. We have provisions that say the states cannot lose their senators, the states will sit as equals in the Senate, and that is a given. They will not lose their territory either by being combined with other states or being split up. That is core to the foundation. It’s in the document, the nation-state, the United States only exists insofar as the states exist.

(12:37):

And I take that a little further, and I say in my work, I’m trying to kind of delineate how it goes further than that. It’s not just the states that’s focused on because of the very nature of the United States Constitution is a document, but the First Amendment is getting at this plural community and extending it or insinuating that it extends out just what we call civil society. Now that language doesn’t really get going and really differentiated into the nineteenth century, but that it’s implicit and sometimes maybe even more than implicit and much of what is said in the Bill of Rights and taken for granted among the founders when they’re thinking about the state constitutional order and the federal constitutional order and what religion is and what families are. And in some ways they’re not articulating it fully, that full articulation comes later. But you get John Quincy Adams, for example, giving us as famous Lyceum address on the family in the Constitution of Massachusetts. But he says, we never said anything about the family, but that’s what we meant. In fact, nothing we did even made sense unless you realize that we were thinking in terms of the family’s legal unit.

John Grove (13:46):

So that transitions as well to, I think the next topic we want to talk about, which is how the freedom of association has fit in the American constitutional order and free association is an important, and it’s kind of a difficult concept too, if you’re following you, and I did a conference a few years ago where we were looking at some eighteenth, nineteenth century writings that Nisbet was influenced by. And one of the themes that I continue to recall from that conference was Nisbet, he liked the medieval world, he liked certain elements of the medieval world because you had this sort of social pluralism, but he also seemed to recognize that that was gone for what it was. And he also at times acknowledges too, there were severe limits to that where you have these guilds and other powers that exercised extreme amount of authority over people maybe too much.

(14:45):

So as you mentioned, the nation-state rises in part as sort of the liberator from all those things, but then it goes too far. And so one of the themes I remember thinking about a lot from that conference was how in this modern world where those authorities are still around, but they’re certainly not the same type of authority as they were in the medieval world. Things like church and family and things like that. And is that in the modern world, the sort of pluralism that Nisbet has in mind is coming about through free association. Right? So Tocqueville, what Tocqueville is describing isn’t exactly the medieval world, but it’s sort of the closest thing that the modern world has to offer. And so that makes the freedom of association essential to this vision in the sort of modern constitutional state. And so in the United States, we don’t have the phrase freedom of association in the Constitution. Exactly. But you were hinting at I think the ways in which our entire political order maybe just takes for granted the freedom of association. I know you have at least one thesis on the idea that the people sort of means associations in a certain way. Why don’t you elaborate on that idea?

Luke Sheahan (16:04):

Yeah. So I published a paper in American Political Thought 2024, and I argue there that the term, “the people,” as it’s used in the Bill of Rights seems to be in reference to the people as distinct from the states and distinct from the federal government, of course, but especially in reference to our institutions. So what I mean by that is we have, well, it appears five times in the Bill of Rights. The first time is in the First Amendment and it’s in reference to the Assembly Clause. So “the right of the people peaceably to assemble.” Now there’s a little debate over this Akhil Lamar says, well, this, when you hear the people, it means everyone. And so this must be a reference to a constitutional convention. The people can assemble a constitutional convention and redo the Constitution if we want to. The problem is it seems like the Assembly Clause was a reference to basically civil society groups.

(16:59):

That seems to be what they were after there. So the people and the singular is used as a reference to basically free associations. That’s what it’s whether Quaker groups, and there’s an interesting exchange and the first congress over the wording of the Assembly Clause, and it seems like there’s a reference made to Quaker groups, which would be non-political. So it wasn’t even a political advocacy group of any sort, but people who are assembling as a civil society group, they’re going to do something different and in their particularity. So yes, it’s all of us, but it’s all of us in our particularity. And then it appears in the Second Amendment, “the right of the people to keep in bear arms.” So maybe this is reference to all individuals being able to bear arms, but then it quickly moves into reference to militias, which were local institutions.

(17:45):

They were attached to townships in the northeast. So then it seems like, so the people we’ve got to reference to local community, people are referenced to voluntary associations, and then the Fourth Amendment, it’s the right of the people to be secure in their house’s, papers, and effects from unreasonable searches and seizures. So that is a reference to households. So we get “the people” appearing three times prior to the Ninth Amendment each time. One could argue, and I certainly point out in reference to households, our existence ensconced as we all are in households, ensconced as we all are in voluntary associations and ensconced as we all are in local communities. And so it doesn’t say that explicitly, but it’s the context in which that term arises. And then I point out in that paper, even when you think about the ratification of the constitution, it was by state convention, so the people ratified it, but they do it through state conventions, not state legislature, state conventions.

(18:33):

And the representatives, the delegates arriving at those conventions come from localities, depending on your state, how it was organized, but it was either county or town. So when the people voted to ratify the constitution, they do so by locality. Each locality gets a vote and then the majority in each state. But it’s an interesting dynamic there that we say the people ratified through these special conventions, not legislatures. When the people do something, it’s through their kind of special constitutional moments. But they were organized by locality to do so. And some of these localities were explicitly their own communities, especially in northeast the townships with the option of binding their vote so they could vote for the delegate and then they could further vote as a locality to bind the vote. I don’t know how common this was. I’m not sure. Any of us anybody knows, we do know eight towns in Connecticut bounds their vote to vote no.

(19:26):

So when we use the people instead of thinking it purely in terms of a collection of an aggregate of individuals or a majority of individuals, we might think of it as civil society. It seems to be that’s what they’re intimating at. Civil society is the real core of our existence that then can create governments both at the state and federal level and be a check on them. And my hook in that paper as I talk about the Tenth Amendment. So the Tenth Amendment use a negative conjunction between the reserve powers to the states and the people, so distinguishing between them. So federal government with powers, states with reserved powers and people with reserved powers. That’s why I say, well, if we think of the people as voluntary associations, local communities and households, it implies reserved powers in those institutions. Now, I don’t think that’s a slam dunk in terms of litigating in federal court, but it does contribute, I think to our understanding of constitutional theory and what role civil society plays in our constitutional theory.

John Grove (20:30):

Yeah, that’s interesting. Sometimes you’ll hear about, people will note that the ratification, it took place by state, by state rather than by national majority, but you don’t often hear it broken down even further. But that’s a good point that at those state conventions, the representation was coming from localities and not necessarily equal population representation across the whole state. That’s interesting. I’m also interested in that Second Amendment interpretation too, going down a little bit of a rabbit hole here, but because in DC v. Heller, so of course you had the big distinction, is it an individual, right, or is it a government? Right. Because the people who focused on militia were saying, oh, see, this is when the government is in control. But that’s interesting. You picked up this middle ground that militia doesn’t for them didn’t mean government control, it meant local association. Did anybody even remotely consider that in the big gun control cases?

Luke Sheahan (21:28):

Yeah, it doesn’t seem like, it doesn’t seem like that was really coming up. They were thinking. Yeah, exactly. You said in terms of as Nisbet would be the first to note that dichotomy, and I think one point about the gun control cases, it seems to me that what they were getting at, admittedly it’s a little vague in the language, but you have an individual right to carry a gun and defend yourself, but you have then a communal right to join with your neighbors and defend your community. I mean that’s what militias were. And then of course the state could call it the militias and defend itself. So this is why I think Nisbet’s plural community applies so well to the American order is they were conceiving of all these different levels that were interlocking. They weren’t necessarily virtually exclusive. So where does this right reside well in multiple levels?

(22:14):

I mean, how could it not? We aren’t just individuals, but we are individuals and we aren’t just members of local communities, but we are members of local communities. And so it seems to me that while not fully articulating and distinguishing between these things, it seems to me that the language and the bill of rights is kind of taking it for granted. And it will be later that you get Tocqueville and people really kind of laying out what they see as these contours. And we get a lot of the great work on civil society in the nineteenth century, but that it’s implicit earlier while not being fully articulated. And maybe another way to kind of get at that is through the idea of George Carey and Willmoore Kendall’s idea of the basic symbols of the American political orders. They talk about differentiation. The symbol comes first and then differentiation comes later as you really start to understand what’s going on. And it seems to me that we got a lot of that going on even in the 1600s, but it’s nineteenth century that we start to really lay it out and make these theoretical distinctions.

John Grove (23:12):

So I mentioned earlier that the constitution doesn’t say the freedom of association, but it does say the freedom of assembly. It doesn’t say that exactly either, but it says the right of the people too to freely assemble. How has the Supreme Court understood that, right? I know you would certainly argue that the freedom of association is implicit in that, right? But how has the court understood that and how has the court done when it comes to protecting freedom of assembly or freedom of association?

Luke Sheahan (23:42):

So the court has been mixed on this, so it’s not done a particularly good job. So for one thing in the nineteenth century, it links the Assembly Clause to the petition clause. So your right under the federal Constitution, according to the Supreme Court in the nineteenth century to assemble is if you’re petitioning the government, apparently you don’t have a federal right to assembly outside of that. That’s a highly dubious reading of that clause. The reason they do it is they look at the commas and the semicolons and I think make way too big of a deal. If you look at the drafts of the First Amendment and the first Congress, they’re swapping things in and out and it doesn’t seem like they’re really paying attention to the punctuation. I think that regularization of semicolons and colons, it just comes later. It’s just not what they’re thinking about.

(24:24):

So when they’re linking, as some people think they do, the Assembly Clause and the petition clause, they were swapping in a bunch of other phrases in and out. They just didn’t seem to think they were linked. You could only assemble if you’re petitioning. They seemed to think you could assemble for any reason. And also we better put in the petition clause because that’s something important that you’d be able to petition. And the history of the right to petition, of course is very, very important. And it’s why it shows up so much. And it continues to be important up until at least the 1840s. But the court in the twentieth century ends up dropping it. It doesn’t do a lot with it. It kind of gets it wrong In the nineteenth century, I’d say in the twentieth century, it just starts ignoring it. And I don’t think a majority opinion has even mentioned it since in any substantive way since like 1983 or something like that.

(25:12):

We get Justice Thomas in 2021 in a concurrence saying, we really need to bring it back because it’s in the text and we need to start dealing with it. But it was a concurrence in the Bonta case in 2021, which is good. I mean, that might be how it’s wiggling its way back in. But the Supreme Court instead lands on a nontextual right, the right of association problem with its origin is it ends up being really ambiguous. So 1958, it defends the NAACP (9-0) the right of the NAACP, but it says, well, they have a right to associate and it links it to democratic government, it locates it in the Fourteenth Amendment, the liberty of the Fourteenth Amendment, not the First Amendment in 1961, it does say that it’s in the First Amendment. Of course the wording isn’t there, but it says it’s implied because how can you speak unless you can assemble with others?

(25:59):

That’s usually the case. In fact, that was actually part of the debates and the first Congress was assembly must be applied because you can’t speak to somebody unless you can assemble with them. You can’t worship as you can assemble it. So it’s implied and we don’t even need to include it, and then they decide they better include it or else you could undermine all the rights without including it. But anyways, the court focuses on association and ends up linking it to speech. So it says the NAACP has the right because of democratic government. How do you bring about democratic change unless you can assemble or associate to do so? Eventually in 1984, it calls this expressive association you can associate to express views. And then it says, of course the makeup of your group matters because that’s part of your expression. But it very much hones in on linking it to expression. You have a right to associate if you’re expressing a view and implies that you must be participating in democratic government in some broad sense. And then 2010 and the infamous CLS v. Martinez case, the court says, well actually this Christian group can’t discriminate in membership based upon its religious purpose because hey, look, everyone has free speech, so you can still engage in free speech. You can do all the things you can do. Why would you need to only associate with others that agree with your group?

John Grove (27:23):

So that’s a very, just going back to Nisbet very briefly, that’s a very political centric understanding, right? It’s only valuable, it’s only protected if you are participating in the activity of the centralized nation-state. That’s an interesting connection. You mentioned Clarence Thomas’s concurrence. Do you see a path towards a broader recovery of the freedom of association through the Assembly Clause, or do you think it’s pretty entrenched in that thinking about it in terms of First Amendment?

Luke Sheahan (27:58):

Yeah, so I think it could be through the Assembly Clause. So I think we could, it’s in the text. You have originalists on the Court. So they very well could say, we’ve got this right. And John Inazu, it’s Washington University in St. Louis Law school. It’s pointed out, if we sue under the Assembly Clause, the court can just sidestep all its expressive association jurisprudence. So it won’t have to make say, well, this group is fraternal, it’s not expressive and try to, well, it’s expressing a fraternal view that doesn’t have to play those language games. It just says we haven’t textual, we haven’t referenced it. But that means we started got to start unpacking it. And so he was on the panel, we’re on a panel together for the Notre Dame law Review. And kind of part of the premise of what we’re approaching is we have a textual and we can kind of sidestep and start doing an historical analysis. The court right now is very interested in text and tradition. So what is the historical background of the Assembly Clause? So this might open a way on which we can think about the Assembly Clause. So the court’s jus prudentially open to that approach. And then we have it in the text so we don’t have to necessarily lock ourselves into some kind of narrow doctrines. The courts developed.

John Grove (29:13):

So I know you’re working on that, right? The text and history and tradition of the Assembly Clause. So can you sort of limb the outlines of that for us? How do you understand the basic trajectory of that tradition and history?

Luke Sheahan (29:24):

The Assembly Clause is there in the text. So that’s it. And if you think about what the text means, so we can look at some dictionary definitions at the time Johnson’s dictionary and Webster’s dictionary, it just means people associating for a purpose could be spontaneous. So this can of it in terms of protests or something like that. But it also can be referenced to organizations. And it says that in those dictionary definitions, you can’t make too much of dictionary definitions. Of course, constitutional principles can go beyond them naturally, but it’s a good place to start. And so in my article, I start there, so look at the dictionary definitions, at least gives us a place to start. And it looks like it protects organizations, associations as we would call them. So we got the text down, I think that’s fair. And then the history and tradition, the right to assemble has clearly been very important.

(30:13):

So Tocqueville, he observing, man, these Americans, they assemble all of the time, they assemble all the time, they do all sorts of things through these associations freely, voluntarily. So that is free assemblies, free associations. And the other wrinkle here is Kevin Butterfield’s 2015 published a great book on the rise of associations in the legal sense. So what are these things that Tocqueville is looking at in the 1830s, but how did they come about and what were the debates about? And there was a big debate, should we actually have official associations or are they kind of dangerous to undermining our republic? So you can think of the whole fiasco over the Society of Cincinnati, but as the debate plays out and as the legal recognition plays out clearly the idea that we should have associations that are legally recognized and that that’s a completely legitimate way to go about having friendships, think of all the fraternal organizations that are formed and all these sorts of things, that’s what wins out.

(31:12):

That’s our tradition. That’s what we do. And so I say we have a long tradition of having these, and it goes back actually much deeper than you’d think into the eighteenth century. And so I actually link the rise of the free assemblies and free associations that really start to come about throughout the eighteenth century and the really in the nineteenth century into the townships. So you have all these almost geographic free associations is what’s kind of what they are. So why did these new towns spring up all over Massachusetts and Connecticut? Because people started them. They just went out and started a new town. Usually they had a theological disagreement with their pastor in their old town, but it kind of looks like a voluntary association. There’d be, I don’t know, 120, 150 people in each of these towns. But then as you get into the eighteenth century, they start to grow.

(32:02):

These towns get bigger, especially as you get into the 1790s and early 1800s. And then you see crop up all of these voluntary associations. So I say, well, listen, town’s really important. They each had a covenant and then they were bound up connected to the state or to the colonial order in this complicated way. I say the plural constitutional community, that’s my term for what the United States Constitutional order is. You see it back in the 1600s. So you see these colonies that are a compact among compacts. So think of the fundamental orders of Connecticut. There’s these towns with their compacts. Then there’s this colonial compact, and there would be colonial compacts would arise as well. And they were interlocking in complicated ways, and they recognized the legitimacy of each level of the compact. Each of those compacts at the town level, they were legitimate.

(32:50):

The colonial level compacts were legitimate. And then the pan colonial compacts were legitimate and they just saw them as interlocking. They’d have kind of multiple meetings to try to sort things out when they didn’t quite get it right the first time, but they just saw that this is what you do. You meet and you form a compact and it’s limited to certain matters. And there’s another compact that’s bigger limited to other matters. And I say, and that’s what each of these, Butterfield makes this point, that’s what all of these early nineteenth century associations do. They start, they form a constitution, a compact, and they talk about what they’re going to do. They’re just like the towns. That’s what the towns did. They’re just like the churches have been doing for hundreds of years by that point for 200 years by that point, just what the towns have been doing for 200 years, just what the colonies have been doing, just what the states did, what their constitution, this is the form. And they take the same constitutional form that we see elsewhere. And what we recognize is our constitutional tradition. So I say the court has said, when we talk about constitutional issues in terms of history and tradition, we’re looking for does it fit into our system of ordered liberty? I say, this is our system of ordered liberty is having these interlocking compacts. And you see it all the way we recognize it in terms of state and federal constitutions. We need to take seriously the constitutional status of free associations under the Assembly Clause.

John Grove (34:07):

So that links back to what you were saying earlier about the constitution’s meaning of the people you think of, think two of the Tenth Amendment two and it says reserved to the states or to the people. A lot of times we see that as read that as individuals, but it could also just be the people as associating people, right? People who are forming all sorts of associations. It could mean localities and so forth. You’ve also been hard at work editing a two volume collection of essays on this theme, freedom of association in Theory and freedom of association applied. This is with Kenneth McIntyre. Tell us a little bit about those two volumes and how they’re advancing this sort of work.

Luke Sheahan (34:44):

So freedom of association has not been treated particularly well in academic work. So the last time we had a volume on freedom of association I think was Amy Gutmann’s from 1997. And that volume is good in certain ways. She has an all-star lineup of scholars, but many of them are not particularly sympathetic to freedom of association with a few notable exceptions. So we wanted to put together some edited volumes from the perspective of really appreciating what freedom of association brings to the table and seeing that we can kind of suss out from various thinkers. Adam Smith, Michael Polanyi, I write on Tocqueville and Nisbet treatments of freedom of association and its variety and how really important it’s in theory thinking through what it means. And we have various thinkers who have done that, but they don’t seem to have really made a splash in the wider world, or at least they don’t continue to today.

(35:35):

So von Gierke, for example, thinking about the corporate personhood and very seriously, what would that would mean? He makes a splash with Maitland. And I’m not sure though that anyone quite appreciates the profundity of what he was saying, even though I quibble over certainly some of what he’s saying. But I don’t think it’s necessarily the best way to describe associations. But he’s understanding them is something that’s important and that we have to somehow figure out how to appropriately legally recognize. And he’s trying to wrestle with that, their reality. And so we wanted to put together these volumes that could explore a number of thinkers who have treated associations either good or bad. So we have a chapter on Rousseau in there who did, not associations at all, but thinking seriously about what it means and how we can bring it back into our understanding of well, constitutional order and political order.

John Grove (36:29):

Well, that’s great. And on that note, then, hopefully all this work you’re doing on bringing back this and reviving our understanding of this essential but often overlooked and forgotten right. You will be featured in the pages of Law & Liberty a little bit more regularly. You’ve been here plenty of times and on the podcast a couple of times, but welcoming you as a contributing editor at Law & Liberty and in large part because we are all about this sort of thing, right? All about this sort of liberty in community regulated by law, and I think it’s a great fit for our pages. So those of you who are intrigued by this conversation, hopefully we’ll be seeing a lot more of these themes from Luke over the next few months and years. So welcome officially to the team.

Luke Sheahan (37:16):

Thank you. I’m glad to be here.

John Grove (37:18):

Alright, well thanks a lot. Make sure to check out those two edited volumes with Kenneth B. McIntyre on the Freedom of Association and Luke’s previous book, one of his other books, Why Associations Matter. And keep an eye out for the new work he’s going to be doing here at Law & Liberty. Thanks for joining us.

Luke Sheahan (37:33):

Thank you.

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.

Frank Meyer was the father of fusionism and one of the key builders of the conservative movement in the mid-twentieth century. That’s despite spending his early years as a serious communist agitator. James Patterson and Daniel Flynn discuss the evolution of Meyer’s thought and the impact of his legacy. Flynn’s book synthesizes a large quantity of recently-uncovered material on Meyer, offering a more complete and nuanced picture than has been available heretofore. What lessons does Meyer’s life and career offer for the conservative movement today?

The Man Who Invented Conservatism by Daniel J. Flynn
“A Soldier for Synthesis” by Rachel Lu (Law & Liberty book review)
“Fusionism: The Only Game in Town” by Alexander William Salter
“Conservative Fusion,” a Law & Liberty Podcast episode featuring Charles C. W. Cooke, Samuel Goldman, and Stephanie Slade, hosted by James Patterson

James Patterson:

Hello and welcome to the Law and 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. Today with me is our guest, Daniel J. Flynn. He’s an author and columnist, Senior Editor at the American Spectator, and he’s written for the Los Angeles Times, Chicago Tribune, Boston Globe, New York Post, City Journal, and National Review. He lives in Massachusetts and is a former US Marine Reservist, and has recently launched a new YouTube channel called Right-Wing Wilderness. So once you have completely listened to this podcast, go subscribe to his YouTube channel and like all of the videos that are up there. So Mr. Flynn, thank you for coming onto the Law & Liberty Podcast.

Daniel J. Flynn:

Appreciate you having me.

James Patterson:

Okay, so this is about your book, The Man Who Invented Conservatism, and that man is Frank Meyer. Mr. Flynn, why is it not Edmund Burke?

Daniel J. Flynn:

Well, I don’t think anyone invented conservatism, and the title is sort of a joke. I think a lot of the reviewers sort of miss that “don’t judge a book by its cover” admonition. And I guess I’m to blame for that because I did put that on the cover, so I can’t complain too much. What I explained in the book is that Frank Meyer was coming over from communism, being sort of a heavy hitter in the Communist Party. When he came over to conservatism, he thought, well, it takes a system to beat a system. Why don’t these people on the right have their act together, and why don’t they have a system? And that missed the point, sort of a category mistake. Conservatism is sort of an anti-system. It’s something that developed organically; it didn’t spin out of some theorist’s mind.

And so, when there are reviewers and others saying, “Well, he’s wrong. It wasn’t Meyer who invented conservatism, it was Edmund Burke or Bill Buckley.” I think all those people miss something, and that conservatism is not something that was invented. It’s something that develops. And I think that’s what Meyer figured out over the course of the last 20 or so years of his life in pursuing what he’s known for, which is fusionism. In pursuing fusionism, rooting that in the American tradition, in the American founding, he realized that conservatism wasn’t a system. It was something had to be rooted to something. And in America, the natural place to root conservatism would be the American founding

James Patterson:

Yeah, the Law & Liberty audience is probably more familiar with the Frank Meyer of the second half of the book. So before we get to that, let’s talk about the first half of the book. So what was Frank Meyer’s childhood like, and what accounts for this rather dramatic shift once he becomes a young man and becomes interested in Marxism?

Daniel J. Flynn:

Frank Meyer was born in 1909 in Newark, New Jersey to a very wealthy family. The father was an industrialist. The mother was sort of a Jewish do-gooder. So he had these two poles on him, one was the temple and the other was his father’s capitalism. He goes to the Newark Academy, and the earliest writing I have of him was when he’s 14. And it’s a real spirited defense of Judaism and saying, how does anyone say that Judaism is sort of losing its followers? Come into the temple on the holy days. You’ll see for yourself there’s a lot of enthusiasm there. Well, that was when he was 14, and that’s for the temple newspaper. And when he’s 16, he’s writing an article, an award-winning article, for the Newark Academy, defending Bolsheviks and toying with atheism. Something happens to him in his early years, like I think a lot of things happen to people in those years.

When he goes to Princeton, initially, he’s denied entry to Princeton, and I have the letters from the director of admissions there. He says, Frank Meyer doesn’t strike me even as a Hebrew of the better type. Can’t we steer him to some other college? There are plenty of fine, clean-cut Christians that we should have a place for, and Frank Meyer will just take a place from one of those people away. Now Frank didn’t see that, he stayed at it, he wins admission to Princeton in his next year, and when he is at Princeton, he encounters a student body of those fine clean-cut Christian Americans that the director of admissions was talking about, and he’s left out. Psychologically, he’s in a bad spot and he finds an attraction to Milton’s Satan. He starts writing poems about Satan, poems about young women. There was a woman in Newark, Dorothy Canning Miller, who later becomes a huge figure in American art, the curator at the Museum of Modern Art. When Frank is about 20 years old, he loses his virginity to Dorothy Canning Miller, an older woman.

And here goes a pattern. Frank is pursuing these pleasurable aspects of life, particularly women. He starts writing poetry about women. He starts writing poetry about Satan. And it’s not too much of a jump in the alphabet from Satan to Stalin, and I don’t think it’s too much of a jump otherwise. And so Frank starts toying with the idea of communism. By the time he gets to Oxford (he drops out of Princeton and he goes to Oxford), in his later time at Oxford where it’s a much more welcoming environment than Princeton was for him, he found something called the October Club, which is still around, which is a Marxist, explicitly Marxist, organization. And he marches his friends to the Communist Party of Great Britain’s headquarters in London, with a guy named Prince Mirsky (who in a few years dies in the Gulag) and they all join the Communist Party of Great Britain. Frank becomes a board member of the party. He’s the leader of the student bureau. And in fact, if you look at the MI five and MI six files of Frank Meyer, they call him the founder of the Student Communist Movement in Great Britain. So it’s unlikely that you’d have an American be the founder of something like this, but that’s what Frank Meyer found himself in the early 1930s.

James Patterson:

It’s an incredible story because on the one hand, it really does speak to the time where the Ivy Leagues are very concerned about preserving a very specific identity for admissions, when they would place caps on admissions to Jews for example. But on the other hand, it’s a familiar story even now, where you have well-to-do Americans sort of almost rejecting the lives that they’d lived before in favor of some kind of imagined superior alternative. It’s almost like a rejection of his Jewish upper-middle-class upbringing, which is repeated endlessly in not just Jewish but other religious backgrounds. But the young vigor that typifies Frank Meyer is not exclusively limited to Dorothy Canon Miller, is it?

Daniel J. Flynn:

No, it’s not. And when he’s in Great Britain, he is getting a lot of attention from MI5 in MI6 when he goes abroad and they’re taking notes on him, they take 160 pages of notes, they talk about what tweed he wears, whether he shaved that day, what bars he drinks at. They do a black bag job on his apartment. They put a mail cover on his correspondence. So they note all sorts of very obscure things about him, which is very helpful to a biographer. They leave out, and for reasons that you could probably imagine why they left it out, but they leave out the one glaring aspect of Frank Meyer’s time in Great Britain, and that is this. All that time, he’s calling for the violent overthrow of the government of Prime Minister Ramsey McDonald. And during that time, he is surreptitiously dating Ramsey McDonald’s youngest daughter.

I have a letter from Sheila McDonald to Frank Meyer saying, come on over to 10 Downing. The coast is clear. My dad’s gone. We’ll have dinner. Seven o’clock sound good for you? So you pick the person in the history of communism, the romantic figure, Che Guevara, Jack Reed, whoever you want to pick—none of them had the guts to pull off a caper like that. And it shows you Frank Meyer’s confidence, his charisma, but it also shows you his recklessness. The idea that he would be out there, such an upfront figure saying we need to overthrow the government of Great Britain, and at the same time he was secretly dating the Prime Minister’s daughter. I mean that to me, that’s just a wild story and one that I think until this book came out was completely overlooked.

James Patterson:

So Frank Meyer was a true believer in this stuff, not just a cynical agent, right? Both when he came here, went to Britain, and then came back.

Daniel J. Flynn:

Correct. He’s an ideologue, he’s a Marxist fanatic, he’s a firebrand. And his dating of Sheila McDonald leads rather predictably to deportation hearings against him. And at that point, he becomes a cause celeb. And even though he’s a Marxist, I think he really liked being sort of the first amongst equals, if you will. All the attention that he was getting in Great Britain, you had Bertrand Russell, the philosopher, and E.M. Forster, who wrote A Passage to India and Howard’s End, signing a petition saying, keep Frank Meyer in the country. Clement Attlee, who would later become the Prime Minister of England, defends Meyer on the floor of the House of Commons. Michael Straight, who later was the publisher of the New Republic, got caught up in Meyer’s charisma and joined the Communist Party, became an agent. Meyer was never an agent, but he became a Soviet agent. He remembers at the time marching around London with the whole mobs of students chanting, “Free Frank Meyer, free Frank Meyer.”

So he became really like one of these “free Angela Davis,” “free Mumia” figures in Great Britain. But you know, you can date the Prime Minister’s daughter, or you can call for the Prime Minister’s overthrow. If you do both, you’re not going to last there if you’re not an Englishman. And so he gets deported on June 1st, 1934. And in keeping with the ironies and paradoxes of his life, he immediately goes to work in Paris for a guy named Walter Ulbricht. And Ulbricht was the guy who constructed the Berlin Wall later. At that point, he was sort of an unknown Marxist on the run from Germany because he had killed two policemen. Meyer goes to work for him as a peace activist. They’re engaging in peace activism for Stalin. So here’s a guy like Ulbrich, who is a very stern, rigid figure. I mean, he later becomes the longest-serving dictator of that short-lived country known as East Germany. And there’s Meyer working for him in the summer of 1934, gets kicked back to the United States, and it takes him about 10 years, but he finally regains his spot. He’s at the highest levels of the British Communist Party, and in the American Party, he’s more like a mid-level manager. He’s the director of the Chicago Workers School, but it takes him about 10 years to get back to that level that he was at in Great Britain. And for his final year or so in the party, he’s at that highest level of the party.

James Patterson:

And probably not dating a member of the Roosevelt family.

Daniel J. Flynn:

No, he married one of his students at the Chicago Worker School, Elsie Meyer. And when they met, she was married to some other communist, but with the communist morality being what it was, they weren’t going to let that get in the way of the red-hot attraction that they had. And so she dumped him and same week she gets a divorce, she marries Frank Meyer, and they lived happily ever after for the rest of their lives.

James Patterson:

You have this true believer. And you know what? With true believers, you go one of two ways. Either they self-destruct within their own ideologies, or something about communism starts to bother them, right? Especially when it’s managed by Soviet influence, which is very calculating, very non-ideological in its approach. And this has something to do with Meyer’s experience with the Second World War.

Daniel J. Flynn:

A lot of it does, definitely. He had a friend in England, his understudy, who was a guy by the name of John Cornford. Meyer later names his son “John Cornford Meyer”; he had that much of an influence on Meyer’s life. Cornford was the great grandson of Charles Darwin, and Meyer ropes him into communism as a teenager, as like a 16, 17-year-old kid. And when Meyer leaves, Cornford takes Meyer’s spot over there. He’s the head of the student bureau. He goes over to Spain and he dies the day after his 21st birthday. And I have to think that Meyer felt great guilt for this. Meyer had also sent men to their deaths as a recruiter for the Spanish Civil War in the United States. So Meyer tries to join up to fight Hitler in World War II. And the Communist Party says, no, I’m sorry, we need you here.

And he thinks, this is odd. They’re exhorting everyone else to go and join the fight against Nazism, but they won’t let me go. This goes on for about eight months. And finally in frustration they say, okay, you want to go? Go. He goes, and it’s revelatory. In the squad bay that he’s in, he finally meets the proletariat that he’s been talking about all these years. And they’re not the same people that Marx had described. These are not people that are itching to overthrow the government. They’re just looking to make their lives better. And he’s stunned by this because he had lived a very socially insulated life. He grew up in a hotel, he went to Oxford and Princeton, his family was wealthy. So this is revelatory. He gets injured in Officer Candidate School in Fort Benning, Georgia and it takes him over a year to recoup. He gets surgeries on both of his feet.

James Patterson:

Yeah, he had some sort of problem with his feet, they had very high arches? I was trying to understand what this is. It was pretty bad-sounding.

Daniel J. Flynn:

Yeah, something like that. And he’s 33 when he joins the military, so he’s …

James Patterson:

He’s in trouble.

Daniel J. Flynn:

Yeah. You’re breaking down. And so he doesn’t go and fight, but he sort of washes out of the military. But that year of recuperation, he’s thinking, and he’s questioning, and questioning and communism do not go together. And in desperation, him and a guy named Louis Budenz, they’re talking in Chicago. Budenz was the editor of a communist paper out there; Meyer had been the head of the Chicago Worker School. And they think, back in the thirties, the heyday of communism, was when they were touting these slogans, like “Communism is 20th century Americanism.” We need to get back to that. And so he writes this letter to Earl Browder that has a dramatic effect, not just on communism but on conservatism. And Meyer couldn’t have foreseen this when he tells Browder that the Communist Party needs to fuse Marxism with the American tradition, and that they need to do this not just on the 4th of July, but every day of the year.

And he repeatedly uses a variant of this word “fusion.” So that comes much later. But that idea—Meyer comes to realize, well, Marxism doesn’t fit with the American tradition. He’s a fanatic, but he’s not such a fanatic as to lose his sense or his intelligence. And so that eats away at him. But the question remains, what does fuse with the American tradition? And in the long run, after Meyer leaves the party, what he comes to recognize is that the American tradition means the founding. And what does the founding mean? It means freedom. So if you’re an American, that’s what you’re conserving. If you’re a British conservative, maybe you’re conserving the monarchy, the aristocracy. If you’re an Italian conservative, maybe it’s the Catholic church. But the thing that’s significant about us, that’s important about the United States of America, is our founding. And so that is what Meyer set out on the last half of his life to preserve: the ideas of the American founding. And to Frank Meyer, that meant freedom.

James Patterson:

A lot of the people around Meyer during the latter days of his American communism are people who are peeling away too. I mean, you mentioned Louis Budenz, whose name I first learned when I was in graduate school during research on Fulton Sheen.

Daniel J. Flynn:

Sure, yeah.

James Patterson:

Fulton Sheen converts them to Catholicism.

Daniel J. Flynn:

That’s one of the most amazing stories, and I’m sure you’re probably familiar with it, but Meyer uncharacteristically leaves the Communist Party in a whimper. He just sort of sneaks away.

And people kind of shun him because he had spoken out about things. He had given a positive review of Hayek’s The Road to Serfdom. So he was already sort of cracking up. Budenz went in a more Meyerite way. And so in October of 1945, and I have some letters from Budenz to Meyer covering this in real time, really fascinating stuff. And so, on this particular morning, whatever it was, October 13th or something like that, 1945, Budenz is the managing editor of the Daily Worker. He’s the guy, I think the editor at that point’s Earl Browder. So Earl Browder is not editing the paper, Budenz is the editor of the paper. That morning he’s the editor of the paper; that night he is converted in St. Patrick’s Cathedral in New York to Catholicism. He renounces communism. So you have probably the most flamboyant, high-profile charismatic priest in American history, converting the editor of the Daily Worker in the most famous cathedral in the United States, St. Patrick’s Cathedral, and all of the newspapers cover it, and the communists are just sort of dumbstruck at this. How did this happen? Meyer, around the same tim,e kind of worms away, but Meyer and Budenz’s paths continue to intersect, but it’s with Budenz that Meyer comes up with this idea of fusionism.

James Patterson:

The intellectual ferment that communism loses as a result of its hard line is actually to the gain of the United States, with people like Budenz. He dies shortly after that, I think?

Daniel J. Flynn:

No, he dies the same year as Meyer. He might’ve died the same month, month as Meyer. He died the same month as Meyer. He was quite older than Meyer. Whereas Meyer went into conservatism, Budenz became more of a Catholic. They both became witnesses, Budenz a bit of a professional witness. So Meyer gets convinced by Budenz to testify against his former comrades. And in 1947, he gets a visit which he dreads from the FBI, and they visit every month or so, and Budenz is encouraging him to testify against his former comrades. And he said, it was at that moment that I first understood what grace was, because there was no good decision I could make. There was no decision I could make without sinning. I would either have to turn on my old friends, my comrades, or I’d have to turn on my country.

There was no good decision. There was no decision I could make without committing a sin. He ultimately decides that he’s going to go the Budenz route and he’s going to testify against his former comrades. And in 1949, he testifies as a mystery witness, as a surprise witness, in the longest, most expensive trial in US history. That’s the Smith Act trial of 1949 and it lasts a couple of years. And Meyer is one of five witnesses along with Budenz who were actually members of the Communist Party. A lot of the other witnesses who were, well, remember the program, “I Was a Communist for the FBI”? There were a lot of people back then who were FBI agents who had infiltrated the Communist Party. They had testified against the party, naturally, but Meyer was one of a few people who were actually earnest members of the party who said, this is what happened. And he sends 11 of his former comrades, including Eugene Dennis and Gus Hall, to jail. They go to jail for five years or so.

James Patterson:

Yeah, I am forgetting who it is. I’m frantically trying to look this up, who some of these converts were. He converts Fritz Chrysler and Clare Boothe Lewis, but they are not the ones who I was thinking of. But yeah, there are a lot of high-profile conversions that Sheen makes, and Budenz is certainly one of them. So I’m sorry for misremembering. So how do we go from the sort of heretical communism of Meyer to the National Review? There’s this period of you call Woodstock, and it’s not the fun one. He’s already had all that.

Daniel J. Flynn:

Yes. Meyer in 1944 moves to Woodstock, New York. When he was convalescing, he went up there for awhile, and he has a son, John Cornford Meyer. And during his period there, his income is essentially passive income from money that he had inherited. They own a building in Newark, New Jersey, and he’s really making no income. So he’s married, he has a kid, but he has no really no means of supporting them. He starts speaking with his best friend, who’s Eugene O’Neill Jr. That story is probably too intricate to get into here, but Eugene O’Neill is his other dead friend that he names a son after. After drinking Frank Meyer’s whiskey (and to me this is sort of the seminal point of Meyer’s Life), O’Neill commits suicide, finishing that bottle of whiskey, saying: never let it be said of an O’Neill that he couldn’t finish a bottle.

And that next morning or that afternoon, Elsie Meyer finds his body. He slit his wrists and his ankles—he was a classicist—so in Seneca style. So this period, it’s not a great period for Frank. He’s shunned by a lot of the folks in Woodstock because it’s an artist colony, there’s a lot of left-wingers up there. And he starts writing for The Freeman. He starts writing for American Mercury. So people kind of start to know him within conservative circles. By 1950, his language in these debates he has with Eugene O’Neill are characteristically the language of a right-winger. You would know this sort of language. So after 45, he’s sort of a Truman Democrat. By 1950, he’s a right-winger. Within a few years, he’s too pure for Eisenhower. And at 1955, he’s present at the creation of National Review.

And this is sort of like the biggest little magazine of the twentieth century. Bill Buckley’s the prime mover, he’s the main founder, and there’s another guy who comes up with the idea named Willi Schlamm. So Schlamm is a founder. Schlamm said when he founded it, he wanted to start a veritable conspiracy of friendship where the outs could finally take on the ins. And Schlamm thought of himself as the out, and he knew himself in that way. He was sort of the consummate out. Unfortunately, Schlamm was ill-equipped to be the master of ceremonies of his conspiracy of friendship. He annoys Buckley; he annoys Jim Burnham. He gets sort of kicked out. And immediately, three things happen upon Schlamm’s defenestration to Vermont. The first thing is that Frank Meyer is sort of elevated to the leader of the anti-James Burnham faction with the National Review.

Meyer is sort of the purest. Meyer is the right wing. Burnham is more moderate, more pragmatic, we could say within that continuum of National Review. He’s the more moderate end of things. So Meyer carries on a 17-year battle for the soul of National Review with James Burnham. I think Meyer probably loses that battle on a lot of fronts, but he wins the larger battle for the soul of the conservative movement. We can get into that a little later. The second thing that happens is that Meyer becomes the editor of Books, Arts & Manners. He’s the literary editor of National Review. He takes over from Willi Schlamm, and this is really where he shines in the magazine. Although he’s the purist in his column, Principles and Heresies, he’s sort of this strange ideologue when it comes to being the literary editor because someone’s politics don’t matter to him, what matters is: Can they write a good book review? Which is probably what should matter if you’re running a book review section. People miss that.

And so he’s the editor who runs the first freelance article by Joan Didion in the United States, and Didion credit him with that. He takes Gary Wills under his wing, and Gary Wills is later a Pulitzer Prize winner, writing in history. Wills said that he spent more time with Meyer than he did with anyone outside of his family in the late fifties, early sixties. He has a neighbor in Woodstock, Theodore Sturgeon, who’s a science fiction writer. And Meyer was unlike a lot of people at the time who thought of science fiction as culturally maybe a step above professional wrestling, but a step below cowboy fiction. He said, no, there’s some great stuff going on. And there really was a lot of great stuff going on in the fifties and sixties.

He has this guy Sturgeon review over about a hundred science fiction titles for National Review. And during that time, Sturgeon is writing scripts for Star Trek. He comes up with “Live Long and Prosper,” probably the most famous line in the history of Star Trek. He comes up with the prime directive. He writes that episode in which Spock (Leonard Nimoy) comes up with that Vulcan hand salute. I can’t do it but some people can, where you split the fingers down the middle. So Meyer had a lot of very interesting and eclectic people writing book reviews that made National Review the place to be in the 1960s. If you wanted literary criticism, there was nowhere better in the 1960s, and Frank Meyer is the guy running that show. The third thing that happens, this cascading effect from Schlamm leaving, is that Meyer becomes the master of ceremonies of this veritable conspiracy of friendship.

He does this in part by staying connected through the telephone. He spent more on his phone bills in the mid 1960s; in fact, it was double the amount that he spent on his son’s Yale education. That’s how much he was spending on phone bills. So people were getting calls from Frank Meyer, longer calls than they might want. The other thing he does is he turns his Woodstock farmhouse into this unlikely agora of the postwar right, where people like Didion and Wills would come up and spend the weekend. Or I just wrote a piece in the Boston Globe about David Brudnoy, the great talk show host in Massachusetts, who died about 20 years ago. Brudnoy said, I never spent a more mentally taxing, yet relaxing weekend as I did with you. And what they would do is they would drink, and they would smoke, and they would debate.

And if Gary Wills was there, they might go back and forth proclaiming a Shakespeare play in full. They would debate about Goldwater, they would sit by the fire if it were cold, and they would have dinner, they’d just have a great weekend and they would keep Meyer’s hours. After Meyer leaves the Communist Party he basically goes to sleep at seven in the morning and wakes up in the afternoon. And if you were going up for that weekend to debate and talk with Frank Meyer, you would keep Frank Meyer’s hours or something close to it. And so in the 1960s this became a passage rite. If you said in the sixties you were going to Woodstock, it meant something very different for conservatives than it meant for everyone else. And of course, Woodstock for Meyer, the last few years of his life, he’s living next door to Bob Dylan.

So there’s all of these figures that, almost like in Forrest Gump or Zelig-like Fashion, Meyer ends up with Eugene O’Neill, TS Elliot, in Britain he confronts HG Wells and has this big sort of standoff with him at a public lecture that gets a lot of attention. Gertrude Stein, obviously Joan Didion, J Edgar Hoover, Barry Goldwater, Henry Kissinger, it’s almost like a Who’s Who of the twentieth century that Meyer is weaving in and out, of course, having this next-door neighbor, Bob Dylan. And he meets him, and he says, the guy had reasonably good sense. He was surprised. Dylan had reasonably good sense. And if you read Dylan’s autobiography, you can see that he hated hippies more than Meyer did. As strange as that sounds, he said, I wanted to set fire to these people.

James Patterson:

The guy I was trying to remember was Heywood Broun, by the way. And he dies of pneumonia at I think 39. But this is an incredible array of people you’re describing, and one of perhaps the most insane relationships that he has is with a man named L. Brent Bozell. So who was that, and in what way is he kind of like the creative opposition to Meyer? I feel like I’m kind of skipping over Kendall here, but we’ll maybe get into that in a second.

Daniel J. Flynn:

Kendall, Meyer, and Bozell were kind of like the Three Musketeers at National Review, and to one degree or another they generally stood against James Burnham with Meyer being kind of the captain of that ship, and Meyer sort of having more, I don’t know if venom’s the right word, but he certainly disliked Burnham. And Burnham I think had contempt for Meyer as well. It softens over the years. But Bozell, in the United States, he is kind of a Meyerite, he’s a fusionist. Meyer’s idea of fusionism is essentially that for people who love freedom, the libertarians and the traditionalists are not in conflict. They’re in cooperation. For a freedom to prosper, it rests on thousands of years of tradition, of Western heritage, you take away that heritage and freedom’s going to collapse. For the traditionalist people, something like virtue is important to them.

You can’t have virtue without freedom. You can’t have coerced virtue, at least for adults. And so he said, you guys shouldn’t be fighting, you should be together. And initially Bozell is all for that. But Bozell is one of these guys, like a lot of people in the sixties, who had a long strange trip. In the forties, he was a world federalist, he was a McCarthyite in the fifties, and he’s sort of a fusionist at the end of the fifties, early sixties. And then he goes to Spain, and Spain takes away another of Frank Meyer’s friends. In Spain, Bozell becomes, I gues,s kind of what you would call a Theo Con or someone for whom religion is sort of infusing all of their politics. Prior to going to Spain, he didn’t write about religion at all in National Review, or not much at all. And afterwards, almost everything that he was writing, or most of what he was writing, had some connection to Catholicism.

And so he changes overnight, and they have this debate in National Review, which I think is really the height of the magazine. And this is in 1962 where Bozell in the seven page article kind of mocks Meyer’s idea of fusionism and his idea of the Holy Trinity of government. Meyer, he thought the federal government (and you get this more in Defense of Freedom, which Meyer wrote that year, that’s sort of his magnum opus) but Meyer says in that book: there are basically three functions of the federal government. It’s for the common defense, to adjudicate disputes through courts, and to police crime and things like that within the country. Everything else beyond that is mission creep. And Bozell wanted a bigger, more robust government to push his moral ideas. And Meyer thought that politics was not something where you pushed morality. In other words, that his libertarianism, his fusionism, was a philosophy for government.

It wasn’t a philosophy for how you conduct yourself in your life. You need other stuff for that. But what Bozell was saying, Meyer would say that that’s an overreach, putting government into functions which it’s ill-equipped to partake in. And so they had this big debate in National Review, and both of them scored points. I will say that, unlike some of the other people that Meyer debated, Bozell and Meyer remained friends. I mean I have found the correspondence between Bozell and Meyer and they’re laughing about this. They’re saying, “if Bill Buckley doesn’t let us put this in the magazine I’m going to resign” or “let’s do it when he is over in Switzerland, we’ll sneak it in.” And they do that and they’re still friends. But Bozell has gone in a very different direction ideologically and philosophically. And I don’t think people noticed it at the time, but the real tragedy of all this is that over time people come to see that Bozell had developed a mental illness. And so a lot of the people that Meyer surrounded himself with at National Review didn’t ultimately last there. Meyer did. He was sort of the hero or the last of the Mohicans. He was sort of the guy that was keeping up that fight, the good fight against James Burnham. But all of his soldiers in battle, or his lieutenants, they all sort of wash out of the magazine, and Bozell starts washing out of the magazine around that time.

James Patterson:

And you end up with a choice between a kind of fusionism of Barry Goldwater, a West State, Jewish Episcopalian and libertarian, or Francisco Franco, right? These are like: Which way, conservative man?

Daniel J. Flynn:

There’s a point at which Bozell, in these letters that I have, there’s a point at which Bozell writes Meyer and says, I no longer want to be president of the United States. I want to be caudillo of Spain. And it’s tough to see whether he’s being serious. You know, Bozell had a bit of a sense of humor. So maybe he’s sort of tongue in cheek, but at the same time he’s urging Meyer to come to visit him or maybe even emigrate to Spain. And he says to Meyer, the United States is no longer the country that’s going to save the West. It’s not suited to save the West. Why keep working on an ungrateful people? Come to Spain! Spain is the country that’s going to save the West. Meyer regards this as kind of a dubious proposition, does not go to Spain. He’s sort of open to visiting, but he doesn’t go over there and he is not caught up in Spain the way Bozell is or their other component of the Three Musketeers, Willmore Kendall is. And so these guys, Bozell and Meyer, remain friends. Kendall and Meyer are friends for about 10 years. And then that tempestuous relationship really kind of goes off the rails.

James Patterson:

And that’s what’s so interesting about National Review is that as a reader, reading the article, reading this great stuff, you would have no idea that what you’re reading is the outcome of these incredibly tempestuous personalities fighting each other tooth and nail behind the scenes.

Daniel J. Flynn:

What a credit to Bill Buckley to keep all that together. I mean, you’re telling me the idea that Buckley has to run a magazine with all of these guys and a lot of them at each other’s throats, and they’re all incredibly talented, and he’s got to squeeze product out of them. He’s got to squeeze the talent out of them and not have them strangle each other. They all, including Meyer, Bozell, certainly Kendall, they all had aspects of their personality that made them sort of ill-suited for a group enterprise. When Jim Burnham, who I think could do no wrong in Buckley’s eyes, when he was a Trotskyite, people would say, “Jim Burnham, he was one of us, but he wasn’t of us.” If that makes any sense. His is a guy who went to the opera, one of his fellow Trotskyites said. In other words, they thought of him as a snob.

And at National Review, a lot of the people there thought of him as a snob. There were certainly people who liked him and admired him. And I think for Buckley, because he was in the office, he was an actual editor who was editing things and getting magazines out, Buckley appreciated him. Not just because he was a person who influenced Trotsky and Orwell, he was a massive intellect, but he was also a person who in the practical function of putting on a magazine was more valuable than those other guys were. So Buckley loved the guy, but Burnham had a snobbishness about him, had a condescension that would really upset Meyer and others in that National Review circle. So a lot of these guys didn’t really like each other all that much, but yet Bill Buckley’s talent, as Neal Freeman told me, was as the band leader, getting all these guys to sort of play their instruments, not always in harmony, but getting them all to play their instruments. And Bill Buckley had a lot of talents, but that may be one of his most overlooked talents.

James Patterson:

Just thinking about it gives me the hives. I can’t imagine having to keep Burnham, Meyer, Kendall, and Bozell from killing each other. It just sounds like an impossible task. No wonder he smoked so much. So let’s talk a little bit bigger picture now and Meyer’s contribution to conservatism. The book almost claims this in the title, but you’ve explained what’s actually going on there. He kind of gives us what we consider conservatism.

Daniel J. Flynn:

He has kind of the default outlook of the American right in fusionism, let’s say between from the 1960s, and you can pick your date when it sort of started to wane. I mean, I think fusionism is certainly not the default outlook of conservatives now. When that started to die down, whether that was the nineties or sometime later, I don’t know. But people like Barry Goldwater and William F. Buckley and Ronald Reagan, whether they called themselves fusionists or not, they were certainly fusionists. And so Meyer’s idea won the day within the conservative movement, and partly it wins the day because whereas Burnham has Buckley’s ear at National Review, Meyer is doing all sorts of stuff outside of the magazine. He’s a founder of the American Conservative Union along with people like Bob Bauman and Buckley and others. He’s a founder of the Conservative Party of New York. He’s at the founding meeting in Queens, New York of that organization.

He’s a founder of the Philadelphia Society. He’s present at the creation of Young Americans of Freedom. And if you read the Sharon statement, a lot of that is Frank Meyer distilled through the pen of maybe his greatest acolyte, M. Stanton Evans. And so Meyer had his fingerprints all over the conservative movement in part because he had such an interest in mentoring young people, in getting young people involved. And I think a guy like Burnham didn’t have time for that. And I heard some kind of bad stories about Burnham sort of ignoring young people and sort of treating them poorly. I also heard some great stories. David Franke, the late David Franke, said Burnham took him aside at National Review and said, you remind me of me when I was your age. And Frankie thought that was the biggest compliment he had ever received in his life and in his eighties, shortly before his death, he told me that.

And so Burnham could have different effect on different people. Meyer was much more aggressive and evangelistic and I think took some of those ideas that he learned in the Communist Party and applied them within the conservative movement. He of course wrote a book called The Molding of Communists. People don’t read The Molding of Communists now, and I’m not advising them that they should. It’s sort of part training manual, part anthropological study of the Communist Party. It doesn’t have a lot of application for 2026. In Defense of Freedom, I think, certainly does. But in that book, you get a sense of where Meyer got some of his ideas to put his influence not only on the movement, but on future generations of the conservative movement.

James Patterson:

And it doesn’t sell. That was the thing when I was reading that section, I was like, it didn’t sell? I was shocked.

Daniel J. Flynn:

Yeah, In Defense of Freedom didn’t sell very well. It sold well later, and the Liberty Fund is a big reason why it sold well later. So in 1972, Frank dies, he had lung cancer, and dies in April of 1972, converts to Catholicism six hours before his death. His wife, Elsie Meyer, is so disgusted with Regnery Publishing that when they send her a measly check of under a dollar of the royalties that he’s getting, she rips it up, sends it back to them, and says, why don’t you just send me a stamp next time? It would’ve saved me the trouble. And so she’s upset at them. It sold a little over 3000 copies, In Defense of Freedom, which is a respectable number, but not what you would say is a success.

I mean, everyone says if you sell 5,000 copies, you’re a success. I think now it’s changed because people don’t really read books anymore. But Frank’s book did poorly and then Regnery came out with kind of a Gateway Edition, and it started to sell, and started to sell pretty well. In the nineties, the Liberty Fund came out with this beautiful blue and yellow edition, that’s the one I have, of In Defense of Freedom. And I think those, I don’t know what the numbers are. I know the numbers up until about Frank’s death, which were about 3,100. After that, I don’t have the numbers, but it’s a safe bet that the book sold many more copies after Frank’s death than he did during his life. And some reviewers took me to task for this, but at least for me coming up in the conservative movement, it was one of a dozen or so books that let’s say you’d have to read eight of them to gain entry to serious conversations with other conservatives, other books being The Road to Serfdom by Hayek or The Conservative Mind by Kirk, or maybe Ideas Have Consequences by Weaver. Pick whatever 12.

Meyer’s was in that camp, and I think people had forgotten him to such a degree that when I made that statement that this was a book that serious conservatives, I think I make the comparison in the book that it was a lot like The Velvet Underground & Nico, where Brian Eno said, well, it may have only sold 30,000 copies, but everyone who listened to that album started a band. And I think everyone who read In Defense of Freedom, they may have launched a magazine, my editor, R. Emmett Tyrrell, he launched The American Spectator. He had Frank Meyer speak in Indiana. He went up to make that obligatory pilgrimage up to Woodstock with Bill Kristol. So a lot of the people that Meyer was influencing, they might’ve started a political club or a magazine, they might’ve run for office. A number of federal judges went to visit him.

Of course, they weren’t federal judges then, but they are now. And so he had an impact that the numbers kind of hide. And Liberty Fund is a reason for that, and the Regnery Gateway Edition. But I do think Meyer, he was forgotten. Two things happened. In the 1940s, when he testified against the Communist Party, the communists are caught on a wiretap saying, we have to erase this guy from our history. We’re rewriting the history, going to rewrite the history of the student movement in Great Britain. So Meyer is completely erased from that history. There’s a different censorship that happens on the right, and maybe the censorship’s too strong a word, but he becomes erased on the right, too. Because if you are going to write a book about Bill Buckley, where do you go? You go to Sterling Library at Yale, look at his papers.

You write a book about James Burnham, you go to the Hoover Institution and look at his papers there. Where would you go for Frank Meyer? There was no place to go. Where were his papers? And so I went on a journey to find where his papers were, and it took me two years, but I finally found the couple that had bought his property in Woodstock and they bought all the contents. They insisted initially that they had donated it to the Hoover Institution. And I said, no, you kept some of it. And they said, no, no, no, we donated. I said, no, you kept some of it. You may not know it, but you have some of it. And finally, they said, well, we have a warehouse. And in the summer of 2022, I go to this warehouse in Altoona, Pennsylvania, and there’s 663 boxes. I go through all of them.

And in those boxes, 15 of them have the life’s work of Frank Meyer, probably a hundred thousand of his letters or something like that. And I couldn’t have written this book without that desperation because at the time, COVID had closed everything. The federal government essentially told me there’d be a 10 year wait for my Freedom of Information Act request. I made that in 2021. Here we are in 2026, still nothing from the federal government, but I was able through persistence to find this warehouse in Altoona, Pennsylvania. And in that warehouse, I don’t know, I probably have a quarter million pieces of paper in my house. I have homemade Christmas cards from Joan Didion, a thousand letters between Meyer and Willmoore Kendall that nobody’s ever seen, hundreds of letters from Buckley that nobody’s ever seen. Probably a thousand letters involving Brent Bozell.

There’s one-off letters from C. S. Lewis, Tolkien, Evelyn Waugh, and all sorts of people. So it’s a quite valuable, in a historical sense, in a scholarly sense, a quite valuable collection. And for readers, there’s a lot of conservative books out there for you to read. The reason I would say “read mine” is because it’s not recycled. It’s not incestuous. It’s not borrowing from some other book. It is a book that—well, one of the reviewers counted and said, 43 percent of the source citations stem from this warehouse in Altoona. So nobody’s ever seen this stuff before. So it gives you a fresh look at some old stuff. And then on top of that, there’s about 54 archives of archival collections both in the UK, Canada, the United States that I got material from, and there’s about 80 people I interviewed.

So it’s a lot of fresh stuff, not just on Meyer, but you get a sense of the conservative movement, the personalities involved. A lot of these books on conservatives, if I were to criticize them, a lot of the times it’s sort of hagiography, it’s a kind of biography of the saints. And I wanted to get into the personality of these guys. A lot of these books are intellectual biographies. I didn’t want to write an intellectual biography. I wanted to write a biography about a guy’s life. And if you want to write about a guy’s life, you got to write about his loves. You got to write about his vices. You got to write about his friends, his rivalries, all the good things he did. And that’s what I try to do. This is a very human story, and it’s also a story that if you want to understand the conservative movement, I would say you have to read this book.

James Patterson:

I got to say, I’m an academic. I don’t do quantitative stuff that much. I do a lot of stuff that’s in archives, and I am so grateful that you pushed on this to find this archive because it’s so easy for stuff like that just to vanish, and then people not to know it vanished.

Daniel J. Flynn:

Correct. I mean, this would’ve ended up in a landfill or an incinerator within a few years. The couple was getting on in age. They’re pretty healthy people, I think. But what would’ve happened to that material? I don’t know. I got to think probably no one’s going to go through 663 boxes and say, is there anything valuable here if that couple had passed on or if something had happened to them. So I’m grateful that I found this, and I’m grateful it’s all going to go to the Hoover Institution very shortly. So there’s going to be other scholars that are going to be able to look at it. And I’m already sending some stuff out to some other scholars that’s a little bit too much of a task, but when it gets to Hoover, they can all look at it.

James Patterson:

Yeah. Well, thank you so much for that service just to the discipline as it were.

Daniel J. Flynn:

Desperation. Desperation.

James Patterson:

That’s one of the other mothers of invention. Just to close, does Frank Meyer really have any bearing today? You mentioned that fusionism is in decline, but the funny thing is that when I was reading the Goldwater section, Bozell kind of has a point, right? Like everyone’s losing, but then you get Reagan in a few years. So this despair that besets the conservative movement after Goldwater. Do you think sort of conservatives unhappy with the state of the right today might just simply need to keep plugging away the way Meyer did?

Daniel J. Flynn:

I think so. Meyer was indefatigable in 1960. He wrote a memo urging National Review, successfully urging them not to endorse Richard Nixon, who he thought it was the prime opportunist of the twentieth century. And he said, we have to support local candidates, congressional candidates, and it may take until 1980 until our movement is able to elect one of our own presidents. Of course, that’s what happened. Meyer was an early adopter of Ronald Reagan. Almost the moment that Goldwater loses, he reorients, and says, this is the guy. This is the guy that we should have nominated or we should nominate in the future. I think right now where there is a personality, and Meyer warned about this too, about a big personality. Both Meyer and Bozell worried about a big personality co-opting the conservative movement and taking it in their own direction.

I think Donald Trump’s done a lot of really great things. I admire a lot of things that he’s done, but there’s no rhyme or reason to a lot of it. And he certainly hasn’t read the same books that we’ve read. He’s coming at it instinctually, and some of his instincts are good. Some of his instincts are bad. I think until he leaves the scene—and I don’t know that he’s going to leave the scene when he leaves the scene, he’ll probably stick around, hover around—but I think until 2028, conservatism for most conservatives is whatever Donald Trump says it is. And so when there is this soul searching, and I think the soul searching is already happening, you can see the sort of fights between Ben Shapiro and Tucker Carlson. These are the people that Matthew Continetti calls the very online right, so I don’t know if a lot of people are looking to them for intellectual guidance, but a lot of people do look for them, look to them.

And these fights that are going on now, even Marjorie Taylor Greene sort of stepping out and saying, I disagree with all this. It’s showing little cracks in the armor. And I think when people start to reevaluate and say, what is conservatism? It’s going to be very difficult to avoid fusionism because we are Americans, and what is it that Americans are conserving? There’s a big obvious answer. And the fact that it’s 2026, the 250th anniversary of the Declaration of Independence, gives us that obvious answer. It shouts out to us that the American founding is the big thing that conservatives should conserve. And I think Meyer was right that the founding meant freedom. And so I do think American conservatism will always have something to do with freedom because that’s the significant thing about the American founding. There are all sorts of people that set up governments at all different times in the history of the world. But what was unique about our founding was the freedoms that it unleashed and that it recognized that we had. And so I think that is something that moving forward, when people are not as hypnotized as they are now, inevitably fusionism is going to be part of that conversation.

James Patterson:

The book is The Man Who Invented Conservatism, the Unlikely Life of Frank Meyer. The author Daniel J. Flynn. The YouTube channel is …

Daniel J. Flynn:

Oh, RightWingWilderness, all but you have to do it all compressed, like capital, right, capital wing, capital wilderness. And it’s just me talking about conservative stuff and the wilderness, and feeling a little bit like I’m out and alone in the wilderness, because the world has changed so dramatically. We always feel like we’re out in the wilderness as conservatives vis-à-vis the regular society. But I think a lot of people who are on the right now feel like they’re alone. Everything’s changed. It’s sort of a wild world. And that’s kind of why I titled it that way. But I post something up every week and, hey, just because now I’m a YouTuber, I have to say it. Please like and subscribe.

James Patterson:

That’s right. The irritants needed one errand in the wilderness. Daniel’s given himself so many, he can follow a YouTube channel. Alright, well, thank you so much for coming on our podcast.

Daniel J. Flynn:

I appreciate it. Thank you so much.

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.