The English-speaking world has long enjoyed free speech rights unheard of in other parts of the world. But where did this legal regime come from? And as partisan strife becomes more heated on both sides of the Atlantic, what does free speech’s future hold? In his new book, Law & Liberty contributing editor Adam Tomkins argues that understanding the history of our rights is essential to maintaining a free constitution. He joins James Patterson on the podcast to discuss his book, On the Law of Speaking Freely, as well as several pressing current free speech cases in the United Kingdom.

On the Law of Speaking Freely by Adam Tomkins
“The UK’s Speech Problem,” by Adam Tomkins
“From Heresy to Hate Speech,” a book review by Helen Dale
Cato’s Letters by John Trenchard and Thomas Gordon
Areopagitica by John Milton
Adam Tomkins’s Law & Liberty author page
GB News v. OfCom

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 and associate professor of public affairs at the Institute of American Civics at the University of Tennessee. Today with me is Professor Adam Tomkins, who is the John Miller Professor of Public Law at the University of Glasgow. Today we’ll be talking about his book On the Law of Speaking Freely. Dr. Tomkins, welcome to the Law & Liberty Podcast.

Adam Tomkins (01:08):

Thank you so much for having me, James. It’s great to be here.

James Patterson (01:10):

So we have reviewed your book very favorably on our website, and now we are getting to talk to you about it. I’m very excited about this. As I said before we were recording, this is a book that I wish I’d had to assign to students because so much of the history you cover is a common history with the United States and with the UK. So why don’t we start there? There’s a kind of nexus of rights that appear at the dawn of the Reformation. There’s rights of conscience, rights of assembly, rights of publication or press, and rights of speech. How are these all interrelated?

Adam Tomkins (01:51):

Yeah, so I think that’s absolutely right. I write, I’m a law professor and I write about the constitutional law of a country that does not have a codified constitution. So there is no equivalent in the United Kingdom Constitution of the US First Amendment. So I can’t start a book on free speech by quoting what it says about freedom of speech in the text that everybody agrees is the Constitution. I have to work my way towards that. And of course, freedom of expression is protected in British constitutional law. I was going to say just like it’s protected in American constitutional law, but it’s not just the same actually, but of course freedom of expression is protected in British constitutional law. But because we don’t have a codified text, we don’t have any equivalent of the US Constitution in the UK, we need to do the work of showing, of demonstrating where that idea comes from.

(02:48):

And there’s a trend at the moment in British constitutional scholarship to do as if the fundamental principles of the constitution can be taken for granted. And I just don’t think, I think they need to be argued for, contended for and the only place that we can go, I think in order to establish what those principles are, the principles on which the British constitution is based, the only place we can go is history. So unless and until you understand something of the history and the making of the constitution, you really don’t understand anything of the contemporary law of the constitution. I would say that that’s true whatever constitution anywhere in the world you’re looking at, because I think it’s also the case in the United States that the more you understand of the history and making of the US Constitution, the more you’ll understand of the US Constitution.

(03:35):

So even where you have a codified text, you need to have some sense of where these things came from and who was talking about them and why they were talking about them and all of that kind of stuff. So the first question I asked myself in the argument in this book is, well, where does the idea of free speech come from? We know why we think it’s important. That’s quite well received information even in the twenty-first century. We know that there’s a sort of argument about truth, and we know that there’s a sort of argument about participating in a democracy and that freedom of speech is a necessary ingredient of these kinds of things. But where did it actually come from? And when you look back, when you peel away the various layers of the onion and you look to what the starting point is of the story of free speech, you learn two things.

(04:21):

The first thing that you learn is that at least in European terms, it’s a very recent story. And the second thing that you learn is that it doesn’t start off in the domain of politics. It starts off in the domain of theology. And the first battles for free speech were fought only about 500 years ago. Now, perhaps in some of the New World, 500 years feels like an awfully long time ago, but trust me, in a constitutional order that goes all the way back to Magna Carta, which is more than 800 years old, 500 years is nothing, right? So it’s a relatively recent idea. So it’s much more recent than the idea of democracy, which goes back two and a half thousand years. It’s much more recent than the idea of citizenship, which goes back at least two millennia, right? It’s much more recent than the idea of a balanced constitution or even the separation of powers, which are ideas which you can trace all the way back to ancient Rome, if not ancient Greece.

(05:16):

There is no equivalent of freedom of speech in the ancient world. It comes to Europe at the same time as the printing press comes to Europe. Because until the printing press the purpose of writing, very few people of course could write marginally, more people could read, but very few people could write. And the purpose of writing was not to say anything new. The purpose of writing was to try and inscribe what we already knew, principally, of course, it would be biblical texts, it would be the Bible, and monks would sit and for hours and hours and hours and try not to say anything new. What they would try to do is to write down and preserve knowledge. And anything which challenged that knowledge was regarded as heresy and heresy was a capital offense, not just in Britain, but across Europe. And of course the first advocates of free speech are the first proponents of free speech or what became free speech were Protestants in the Reformation in the middle of the sixteenth century who were seeking to break away from the rule of the Catholic church.

(06:24):

Now, Martin Luther was not exactly your conventional twentieth century free speech proponent. Martin Luther burned books himself. It is true that his books were burnt by the Pope, but he also burnt books. So he wasn’t particularly in favor of interpretations of the Bible that he disagreed with, and particularly in interpretations of St. Paul that he disagreed with. But that the struggle for free speech emerged out of the struggle for freedom of conscience, which really starts to come to a head in Europe in the sixteenth century in what we now call the Protestant Reformation. So the first claim I make in the book, James, is to say that you can’t understand anything about the history of free speech unless you accept and understand that it’s deeply entwined in the history of freedom of conscience.

James Patterson (07:10):

That’s right. And the first fights are between Protestants and Catholics. And of course the kingdom of England becomes Anglican, breaks away from the Catholic church, and then there are fights with the Scottish, the nature of the ecclesial order, right? There’s the wars over reformed interpretations of the ecclesial order with bishops not necessarily being allowed, which then means that because the church belongs to the crown, dissent is now a crown issue as much as it is a religious issue. So this brings us to all kinds of different restrictions on the press in the form of licensing. And I find that students often don’t appreciate that when there’s a discussion of freedom of the press, what’s often going on here is the idea of a licensing arrangement and how is this linked to the idea of freedom of speech?

Adam Tomkins (08:03):

Yeah, absolutely. So when the printing press came to Europe, the legal position in English law was simply that the crown assumed the right to license the press right from the very beginning. So there was never a free or an unlicensed press in English history because as soon as printing became a technology which was available, the crown simply assumed the right to license it. And it did that for two reasons. It did that partly because it was terrified of its potentially revolutionary potential, even in a largely illiterate country of what that might mean and what that might become. But also, of course, it was a revenue raising measure, right? As soon as you license something,

James Patterson (08:53):

Yeah, that’s right.

Adam Tomkins (08:54):

Right, you can charge a fee for a license, and printing was a source of revenue for the crown and was a source of revenue for a crown that was always desperately short of money and looking for new ways of being able to tax subjects of the crown without having to ask Parliament for permission. I mean, no taxation without representation was a great mantra of the American Revolution, but with all due respect to the great American revolutionaries, they didn’t invent it.

James Patterson (09:22):

Yeah, we got it from somewhere.

Adam Tomkins (09:23):

They got it from somewhere, they got it from us. And so here was a means whereby the crown could tax its subjects in an extra parliamentary way and also at the same time control the flow of information. And so there was never such a thing as a golden age of a free press. This had to be fought for, it had to be struggled for, it had to be fought for. One of the greatest proponents of an unlicensed press in the English seventeenth century was the great poet, John Milton. And Milton was up to his eyes in what was then revolutionary politics. He was an ally of Cromwell’s. He was a fierce and passionate and extraordinarily brave republican or commonwealth man, to use the seventeenth century expression. He wrote a pamphlet before the King was executed in 1649, arguing that regicide was a constitutional way to proceed.

(10:23):

He argued immediately before the crown was restored in 1660, that it shouldn’t be. So Milton was extraordinarily brave, but he didn’t always agree with Cromwell. And, Cromwell, well, licensing collapsed in the English Civil War. Quite a lot of things collapsed in the English Civil War. Wars can do that to governments. It can be quite hard to hold a government together when the country’s fighting itself. And licensing was one of many things about English government that collapsed in the early 1640s. And when it became clear that Cromwell was winning the Civil War, he sought to reimpose it. And Milton didn’t like licensing even when it was in Cromwell’s hands any more than he liked licensing in the days when it had been in the king’s hands. And he wrote this remarkable pamphlet in 1644, very famous pamphlet called “Areopagitica,” in which Milton argues for an unlicensed press.

(11:20):

And that’s really the first time in our language that there is an argument constructed for what becomes freedom of speech. Now, the freedom of speech that Milton was asking for, was arguing for, was far from complete, and it was also very partial, but nonetheless, it planted seeds which in subsequent generations were allowed to flourish and grow and Areopagitica is an extremely important stepping stone on the way to an unlicensed press. Milton’s argument was unsuccessful. Cromwell did reintroduce licensing, and it wasn’t until the end of the seventeenth century that the licensing act lapsed, and it lapsed under the influence much more of John Locke’s arguments than it did of John Milton’s arguments, and Locke’s arguments were really very different from Milton’s arguments. Milton’s arguments were about the Christian duty that all God-fearing Christians have to struggle towards their own truth, to struggle towards God’s truth. And the only way in which you can do that is by reading works which are bad, wrong, evil, and figuring out for yourself why they’re bad, wrong, or evil.

(12:33):

Milton makes this great distinction between eating poisonous meat that can really do you serious physical damage and reading poisonous words. And he says that the government may very well have the duty to keep its citizens safe from poisonous food, but it does not have a duty to keep its citizens safe from poisonous or bad ideas. That’s Milton’s contribution. And as I say, that argument failed in the 1640s, and licensing was reestablished by Cromwell and sustained thereafter in the restored monarchy of the 1660s and ‘70s. It collapsed eventually in 1695 for an altogether different reason. And the reason that might appeal to a lot of our listeners, it was a reason about trade. John Locke had spent quite a lot of his time in Amsterdam in the Netherlands where there was an unlicensed press, and he liked the fact that books were produced to a very high standard in the Netherlands.

(13:33):

They were well printed on paper that wouldn’t immediately rot and corrode as soon as you tried to turn it. Good quality printing, good quality books. And what Locke hated about the licensed press in England was that because it was a monopoly, it wasn’t a very good product. And he was a writer who wanted his works to be read, and he wanted his works to be read in books, which were a pleasure to read, a pleasure to hold, and wouldn’t fall apart as soon as you started to try and work your way through them. And so his argument against licensing was that licensing was in restraint of trade, and that argument was successful in the 1690s, and the House of Commons voted not to renew the licensing legislation, and it lapsed from 1695. So it’s been the case that from 1695 onwards, the press in the United Kingdom, what later became the United Kingdom, what was then England, has been unlicensed. And that’s what freedom of speech meant even a hundred years later.

(14:35):

So when Madison writes the Bill of Rights, when the third amendment in Madison’s Bill of Rights becomes the First Amendment to the United States Constitution in 1791, what Madison has in mind when he writes those famous words, “Congress shall make the law bridging the freedom of speech,” is we shall have an unlicensed press. That’s what those words meant to start with. Of course, that’s not what they mean anymore. They mean much more than that. But the original meaning of the First Amendment was to put into US constitutional law what had by that point been the position in English common law for a century that the press must be unlicensed.

James Patterson (15:15):

Speaking of Madison, the founding generation was very influenced by Cato’s Letters, and these are kind of like the next generation of defenders after Milton and Locke, right?

Adam Tomkins (15:29):

Yes, that’s right. So Cato’s Letters is not very widely known outside of the academy, right? I mean, that’s right. A lot of people have heard of Milton and not just because of the poetry. A lot of people have heard of Locke and not just because of what he said about licensing, but not many people have heard of Cato’s Letters. Cato’s Letters were written by relatively obscure Commonwealth Whigs, quite radical Whigs in the early eighteenth century, in the 1720s, in the early 1720s to be exact. And most of the Catos, there are about 130 of them, I think. And they were published weekly over the space of a couple of years, 1720, 1722, that kind of period that we’re talking about. And most of the arguments in Cato’s Letterss haven’t got anything to do with free speech at all. Most of them are about corruption. English government, or by now British government, was seriously corrupt in the early 1720s.

(16:24):

The most famous example of it was the collapse or the bursting of the South Sea bubble in which a lot of people lost a lot of money. It’s one of the things that Jonathan Swift, who writes, Gulliver’s Travels later on in that decade in 1726 parodies in Gulliver’s Travels. So the big theme of Cato’s Letters is the striving for a government that is free of corruption. But along the way, the authors of Cato’s Letters, John Trenchard and Thomas Gordon, write four letters in particular scattered throughout the series that are focused on freedom of speech. And the reason why they’re important, James, is because they are so far as we can see the first avowedly secular argument for freedom of speech in the English language. So Milton’s argument in the 1640s is a very Christian argument is a deeply rooted in his own sense of Christian faith and destiny.

(17:22):

Locke’s arguments are likewise imbued with his commitment to religious belief and to Protestantism of course. And Cato’s Letters are written not very long after Locke dies. I think Locke dies in 1704. Cato’s Letters written less than 20 years later than that are the first avowedly secular argument that we know of in our language in favor of freedom of speech. And that’s interesting because it marks a moment when advocates of freedom of speech start worrying a lot less about the power of the church, and they start worrying a lot more about the power of the state. So the way in which I phrase it in the book is to say that we move from the age of heresy into the age of sedition. Okay? So heresy is a crime that you can commit simply by your words. You can also commit it by act, but you can commit the crime of heresy by speaking against the received doctrine of the church.

(18:20):

And it’s recognized as a crime not only in Catholic countries, but also in Protestant countries. And Catholics were burnt at the stake in England and Scotland for their anti-Protestant or anti-Anglican heresy. Sedition is different from heresy because it is a crime that is committed against the government, against the administration, against the ministry of the day, and it is also punished differently. Heretics were burnt at the stake, as I said, burnt alive at the stake, absolutely barbaric, a brutal treatment. Those who were convicted of sedition were sentenced to be pilloried, and that’s a word we still use metaphorically. But the pillory was like the stocks, your hands and your neck would be put into stocks and you would stand in the pillory. Typically, if you were sentenced to stand in the pillory, you’d be sentenced to do that three times in three different places in London.

(19:20):

And the idea behind that punishment was that you would be publicly ridiculed. And that’s, that’s sort of the way we still use the idea of being pilloried. Now you say somebody is pilloried, then they are publicly ridiculed for what they’ve said. The pillory was not a capital sentence. You wouldn’t be killed by the criminal justice system, but you could suffer serious bodily injury in the pillory if the crowds didn’t like you because you’re defenseless. So people could have mud stuffed into their mouths and unable to breathe. People could lose in extreme cases and eye, your eye could be gouged out, your ear could be cut off, your fingers could be broken. So it wasn’t altogether safe to be pilloried. And people did try and avoid it, but it wasn’t …

James Patterson:

I can imagine!

Adam Tomkins:

… it wasn’t the capital offense in the same way that heresy was.

(20:12):

And Trenchard and Gordon and the Cato’s Letters that are focused on free speech are arguing specifically about the law of sedition, and they’re arguing that a sedition needs to be treated with great care. And again, the thing that’s interesting about that is that you cannot commit the offense of sedition until after you have published. So their argument is not an argument simply against pre-publication censorship like Milton’s was, and Locke’s was. Their argument is going much further. Their argument is saying that even after you have used and exercised your right to speech, there are things that the state should not be doing to you because you have the right to use your words in such a way as criticizes the government of the day. You might not have the right to use words so far as to seek to bring down the government of the day or ferment revolution. But at this point in the early eighteenth century, we’re beginning to learn how to distinguish between arguments which are arguments against the constitutional order itself from arguments which are simply opposed to the government of the day. And so long as you’re on that side of the line, you are opposing the government rather than trying to bring down the constitutional order itself. Then the argument in Cato’s Letters is that that is something which ought to be protected by an emergent idea of freedom of speech.

James Patterson (21:36):

Now, the pillory dons the cover of the book On the Law of Speaking Freely, and it looks like they’re being subject to some pretty nasty vegetables or fruit being hurled at them, but I don’t see any broken fingers, so thank you for not putting that on the cover. But “pillory” is one word that we use still to this day. And another one of these terms that we use for restrictions is the star chamber. And so what was the Star Chamber and what does it have to do with the free speech tradition of the Anglo-American variety?

Adam Tomkins (22:16):

The Star Chamber was what we would call a prerogative court. So the prerogative is the power of the crown and what has happened, the story of the British constitution, I mean the classic wig story of the British constitution is that over the course of the last nine centuries or so, the power of the crown has gradually come under control. And that control comes partly from the courts and partly from Parliament. So we have a government that is required to enjoy the confidence of the House of Commons, as soon as the government loses the confidence of the House of Commons, that government has to resign. That’s what happened to Prime Minister Boris Johnson a few years ago. But also we have this idea that the powers of the executive, the powers of the Crown and the powers of the Crown’s ministers are held to legal account.

(23:10):

And it is the common law that has done that work. And from time to time, the monarchs, kings and queens who didn’t really like the idea that their counselors of state should be held to legal account would find ways of bypassing the common law by having different sorts of courts that would uphold different sorts of law. And that Star Chamber was one of those. So Star Chamber was a court that was used by the early Stuart Monarchs, that’s really James I and Charles I in the early seventeenth century to bypass the common law rules that you find in documents like Magna Carta that say that the Crown and its ministers are accountable to law. And there were certainly, I suppose you’d call them dissidents. Now, there were certainly dissidents in the early seventeenth century who were sentenced to be pilloried by star chamber because they were saying things that the Crown didn’t like, and the judges in the star Chamber would do the crown’s bidding for it in ways that the common law courts were beginning to learn not to do. So I think Star Chamber plays a role in the seventeenth century, but Star Chamber’s abolished by Act of Parliament in 1641, and doesn’t really feature in the story after the English Civil War.

James Patterson (24:26):

Yeah, I got things a little out of order, but I want to make sure we got the Star Chamber in there because I find that people say it, but they don’t know what it was. These things all have a very important role, and it kind of speaks to the salience of your book that even though we’re dealing with things that aren’t that long ago by British standards for American standards, of course this is all ancient history, and it’s important that we know what these words mean. So we can move things up a bit closer to the present. Seditious libel, as you said, is not a question of whether what you say about the government is bad, but true, but whether what you said about the government is just bad. So how is it that we move from a standard of saying anything about the government is bad to defenses by truth against government prosecution?

Adam Tomkins (25:18):

So we brought the story up to about, well, we were in the eighteenth century, so beginning of the eighteenth century, you find the first secular argument for free speech, and you also find that argument being made in a climate where people are beginning to distinguish genuinely seditious speech, which is designed to bring down the regime, bring down the entire constitution.

(25:42):

On the one hand, and having that distinguished from just oppositional speech. This is the beginning of the “rage of party” as one recently published book puts it, right? So we have Whigs in one corner and we have Tories in the other corner, and they disagree with each other, but they’re all loyal to the regime. I mean, some Tories actually weren’t loyal to the regime. Some were Jacobites and some wanted the Hanoverian succession to fail. But putting that to one side for the moment, what you had, certainly by the time Blackston is writing in the 1760s, certainly well before the American Revolution or the Declaration of Independence in 1776, it’s well established by then, very well established by then. That political disagreement is part of our political experience. It’s part of it is what we expect. And we very quickly forget by the middle or the middle third of the eighteenth century, we very quickly forget that we somehow used to manage without it.

(26:43):

And then what happens is that the government starts to relax much more than it ever has done before about what people say, and it starts to get much more agitated, or it starts to perhaps continue to be as agitated as it always has been about what people do. And sedition by the early nineteenth century is understood not in terms of speech anymore, but in terms of action. So seditious libel begins to wane very considerably in significance. And instead, things like unlawful assembly start to matter. So it’s when crowds gather physically in town squares or city squares and then start rioting that the government starts to act. And that’s in the very late eighteenth century, very early nineteenth century, we start having this kind of speech act distinction really beginning to crystallize. Now, we know of course that it’s more complicated than that because we know that there’s such a thing as expressive conduct.

(27:45):

We know that even if we aren’t familiar with all of the kind of contours of free speech law or public order law, we know that philosophically there are these things called speech acts, right? So we know that action and speech can’t always be cleanly or crisply distinguished from one another. And yet that is precisely the distinction that the idea of free speech rests on. I mean, imagine for a moment that the First Amendment said that Congress shall make no law abridging freedom of action. Now, there might be some radical libertarians or anarchists who would quite like that, but it would mean that Congress couldn’t make any law at all, right? Because all law abridges freedom of action, Congress wouldn’t be able to make any criminal law at all if the Constitution provided that Congress shall make no law abridging freedom of action. So we must, at some level, be able to distinguish speech from action.

(28:38):

And that distinction starts to work its way through the legal order on my side of the Atlantic in the early nineteenth century. And the government just stops worrying quite so much about what people say about it and starts worrying much, much more about the folk who throw bricks at soldiers or shoot soldiers or start burning down the houses of corn dealers because they think the price of bread is too high. And it’s that kind of public disorder that begins to be understood to be seditious or troubling or riot or whatever you want to call it.

James Patterson (29:13):

There was not that long ago, maybe like six or seven years ago, a short film that someone made where a man is sitting out in the middle of a heath or a bog with a television that mysteriously can turn on, and he’s like, “Finally, I can watch some television without the BBC taking notice.” And he turns it on and out from the water comes a bobby and says, “Oi, you got a license for that, bruv?” So this is one of my favorite things to show, and when I teach a class on medium politics, we have roaring back with the rise of broadcast, a return to licensing that seemed dead in the nineteenth century, as you said, but what is the new impetus for licensing broadcasts?

Adam Tomkins (30:00):

Yeah, absolutely. My book is divided into two parts. So the first part of the book tries to tell a story about where speech comes from, and then how the idea of a right positive to freedom of speech becomes embedded in our law on both sides of the Atlantic, both in the United States and here in the UK and elsewhere in Europe. And then the second part of the book tries to analyze three contemporary free speech problems through the prism of that historical story that I tell in part one. And so the three contemporary problems that I talk about in the second part of the book are media freedom and in particular broadcast licensing. And then I say a few things about hate speech, which we might want to get onto. And then I say a few things about regulating the internet, which also we might want to get onto, if you like James, later on in the conversation, the media freedom chapter is actually the one that interests me most, right.

(30:56):

Because the justification for licensing broadcast was, I think, absolutely compelling. When broadcast was invented, when broadcast was invented, the spectrum was limited, and there was a real problem with interference. I mean, I grew up in the 1970s in a very rural part of England with very bad radio signal. I remember what it was like listening to the radio with lots of interference on it. It was lots of static. You couldn’t hear anything, right? All you could hear was static or it is no good. Nobody can listen to two radio programs at the same time, right? Because you can’t focus on either of them. And so there needed to be some regulation of the spectrum to ensure that radio and then television worked at all. Because if everybody’s trying to broadcast on the same frequency, nobody can hear anything. It’s just static. It’s just interference. And so the purpose of bringing licensing back to regulate speech when broadcast was invented in the early to mid-twentieth century was to enable listeners to be able to listen to anything at all. So it facilitated speech. It didn’t try to limit speech. The purpose of the licensing was not to limit speech. The purpose of the licensing was to enable us to be able to hear anything at all on the airwaves, and at the same time to safeguard those bits of the airwaves, shortwave, and so on and so forth that the emergency services needed, which is also manifestly in the public interest, right? I mean, if you make a 911 call and you can’t get through or whatever it is, then that’s clearly contrary to the public interest,

James Patterson (32:32):

And there’s naval vessels that are trying to navigate, and if they end up with people on their broadband or bandwidth rather than they might crash, right? This is a very serious business.

Adam Tomkins (32:42):

Absolutely. So the purpose of the regulation was not to try and suppress or control or restrict speech at all. It was to enable us to be able to speak to each other over the airwaves at all. Now, that was the technology of the 1930s, if we’re talking about radio. 1950s, if we’re talking about television, that technology plainly doesn’t still exist. I mean, it exists, but it’s not how we use radio and television services anymore. First of all, we had cable or satellite, and then we have digital TV, and there is now no restriction on the number of all of these restrictions are historic. And in the United States, both the Federal Communications Commission and the Supreme Court realized by the 1980s, if not the very early 1990s, that the old justification for limiting and regulating broadcast had gone because the technology had changed. Unfortunately, on this side of the Atlantic, on my side of the Atlantic, we haven’t made that realization yet. We’re 40 years behind you. We’re 40 years behind where the United States is in terms of thinking about how we should understand the relationship between the public interest and the need for regulating speech and the technology that underpins broadcast. And that image that you have of the television emerging out of nowhere in the middle of some heath and then some Big Brother

(34:09):

agent saying, hang on a minute, you can’t watch that because you haven’t paid your license is all too true. That rings absolutely true to the kind of experience that we have. And the European Court of Human Rights has been lousy on this. The UK Supreme Court has been lousy on this. The UK Parliament has been lousy on this. We still have a huge, I mean, it is unbelievable, a huge body of legislative restriction that does now act as a censor on broadcasters. So there are all kinds of things, all kinds of rules that apply to broadcast speech in the Kingdom, but do not apply to the press, and also of course, don’t apply online. And so it’s very difficult to, this is a podcast. I mean, in the United Kingdom, this podcast will be available in the United Kingdom, and it’s not subject to broadcast regulations at all.

(35:02):

But if we were on a radio show rather than talking to each other over the Internet, then we would be subject to all kinds of restrictions on our speech. But it seems to me are now manifestly disproportionate and unarguable, and yet they haven’t been overturned or limited in any way. There is a glimmer of hope because there are now TV channels which seem to have quite deep pockets that are beginning to challenge some of these presumptions in the UK courts. There was one case actually decided after my book went to press, so it’s not in my book, but a book. It’s a case brought by a TV channel called GB News against the UK’s broadcasting regulator, the UK’s equivalent of the FCC, which is a regulator called Ofcom. And the case is interesting because it’s the first time in Ofcom’s history that a broadcasting decision that it has made has been overturned by a court.

(36:04):

So this is a rule that said that politicians may not present the news, right? Politicians may present current affairs programs, but there’s a rule in Ofcom’s code of conduct that says that politicians, elected politicians may not present news programs on the regulated broadcast media. GB News have news magazines, news magazine programs that are partly current affairs and partly news. And when there is breaking news, if you’re in a current affairs part of the show, rather than the presenter having to switch himself off and go to some other presenter who isn’t a politician, the presenter reads the breaking news. This happened. Ofcom fined GB News, a pretty substantial sum of money because there were several of these breaches. And GB News took the matter to the court, and the court held in favor of GB News’s arguments and against Ofcom’s arguments. And that’s the first time, as I say, that’s the first time that this kind of decision by Ofcom has been overturned by a court. But it’s also, even though I’m quite excited about it, it’s a very limited ruling because what the case challenges is not the rule itself, but the application of the rule in this particular case. So the rule is still there. It’s still the case that politicians are somehow unable, somehow unlawful. It’s unlawful because it violates principles of due impartiality.

(37:43):

It seems to me that these are rules which might have made sense in the day when there were only literally a handful of TV channels that you could choose from. But now there are, again, literally hundreds of TV channels that you can choose from. If I want to come home from work and I want to find out what a particular political party or a particular movement in politics is thinking about a story, then surely I ought to have the right as a viewer to choose a news channel that is not duly impartial because I’m not interested in finding out what the received wisdom is. I want to find out what this party thinks or that party thinks. I have a spectrum of newspapers to choose on. I can read communist newspapers, I could read far right newspapers, I could read anything in between, and that’s all unlicensed.

(38:30):

Why can’t I do the same as a television viewer? And actually, the person who made that argument most clearly is good old John Milton, because when you go back to “Areopagitica” and that great trapped against licensing, quite a lot of what he says in “Areopagitica” is an argument in favor of allowing readers to choose for themselves what to read. And I want to be able to choose for myself what to view on television. And if I want to watch on television something which I know is not impartial, but my point of viewing it is simply to find out what that group of people, what that political party is saying about a particular issue. I ought to have that right as a viewer. It seems to me, and we have been extraordinarily slow to see that, at least on this side of the Atlantic.

James Patterson (39:21):

So conservative or right-leaning coverage of Britain here in the United States has stressed the problem of hate speech as a kind of cooling, a chilling effect on coverage of certain issues. In the UK, you don’t have to talk about those issues, but in case that’s not something you want to drift into.

Adam Tomkins (39:41):

No, no, I’m happy to go there.

James Patterson (39:42):

Okay, then is there really a licensed media fear of covering specific issues because they’re afraid of running afoul of hate speech? Or does that cover for some kind cowardice in the face of what their coverage might… Oh, go for it.

Adam Tomkins (40:01):

In my mind, both. So I’ve just talked about the power of the administrative state. I’ve just talked about the regulatory reach of agencies. We call it Ofcom, you call it the FCC. It demands to the same thing, government agencies that are paid by the taxpayer to monitor what is broadcast. That’s the power of the regulatory state. And my view, is that that’s the real threat to free speech right now in Britain. But it’s not the threat to free speech in Britain right now that has caught the attention of some in the American media. And indeed, it’s not the threat to free speech that’s caught the attention of the Vice President. JD Vance has said quite a few things about this during the course of the year, and their focus tends to be much more on criminal law than on administrative law. And I can understand why, because criminal cases get people’s juices flowing and much more interesting to write about a kind of prominent hate speech case than the mundane quotidian administrative overreach of the regulatory state.

(41:09):

But actually, it’s that mundane quotidian overreach of the regulatory state that really matters, not the occasional criminal justice problem. But let me talk about the criminal stuff, right? Because in addition to the regulatory overreach that I’ve just been talking about, we also have a bewildering, dazzling array of criminal offenses, a number of which capture different sorts of speech. So it is, for example, an offense in the United Kingdom to send by email or any other form of electronic communications, a message which is grossly offensive. It is, for example, in the United Kingdom, an offense to stir up racial hatred by using an epithet which is perceived to be insulting. So there are some cases in the UK even now where you can be criminalized for saying something or tweeting something or writing something, not because you’ve said something which is threatening, not even because said something which is abusive.

(42:12):

But because you said something which somebody thinks is either grossly offensive or insulting. And in my view, and the argument I make in the book is that that is drawing the line of criminal liability in the wrong place. A lot of Americans will disagree with what I’m about to say, but my view is that it’s perfectly appropriate to criminalize threatening words. I can’t use my fists in a threatening way. So why should I be able to use my words in a threatening way? I have an argument in the book that defends hate crime when hate crime is understood to be a threat or even an abusive communication. But I absolutely draw the line at insulting or offensive speech, the answer, if you’re offended by what I have to say, the answer is not to silence me or to censor me or to cancel me, or to write to my employer saying that I have brought my place of employment into disrepute or whatever it might be.

(43:09):

The answer to my words, if my words are offending you or upsetting you or insulting you, is to use your own words to explain why I am being offensive and to urge that I should stop being offensive. You don’t meet and capture and deal with and defeat the problem of bigotry or prejudice in society by silencing it. You defeat it by exposing it, and you can only expose it if you’re prepared to engage with it and call it out and defeat it with words of your own. So the argument, this is the classic American position, right? That the argument against offensive speech is not to cancel the speaker, but more speech, right? Your speech showing me or showing everybody, showing my audience why I’m wrong to say what I’ve said. And I absolutely adhere to that view, and I think that the Vice President is right to draw attention to this issue. I think the American media are right to draw attention to the fact that in the United Kingdom, there are far too many instances of the criminal justice system being used to tackle speech, which somebody else is upset about, which somebody else is offended by or somebody else is finding,

(44:27):

claims to be insulting in some way. Now, the picture is not uniformly bleak. There is all sorts of pushback going on in all sorts of places in the media, in public discourse and in the courts. There was a recent case, for example, which gave a lot of us a lot of hope. A man had been convicted of a relatively minor public order offense for burning a copy of the Quran outside the Turkish embassy in London or Turkish consulate in London. And that conviction was overturned on quite strong terms on appeal. And the court gave its reasons and the reasons were very robustly articulated in the context of free speech. And it doesn’t follow from that case that we all have the right to burn a copy of the Quran wherever we see fit. If we were to do that in a way which is deliberately provocative, it could very well be fighting words.

(45:22):

It could very well be expressive conduct that would trigger all kinds of public order liability. But it does follow from that important breakthrough judgment that it will not always be a criminal offense to burn a copy of the Quran, even if there will always be Muslims who find that deeply offensive. And that it seems to me is drawing the line in the right place. So actually, I’m always being accused, James, of being too optimistic, but I am actually quite optimistic that there’s an increasing number of voices in UK society and UK politics, and also now an increasing number of cases being decided by the UK courts in which freedom of speech is being much more robustly defended again than it has been perhaps for some years. And if the Vice President’s contributions to that have been part of it and have helped, then I welcome them.

James Patterson (46:23):

On page 234, you open a section that says, “When the Online Safety Act was passed in 2023, after unusually long and protracted parliamentary passage, the UK government claimed legislation would make the UK the safest place in the world to be online.” What’s the score on that one? Professor Tomkins, are you safe?

Adam Tomkins (46:48):

The Online Safety Act is a nightmare.

James Patterson (46:52):

Sorry to bring you down from your optimism by bringing up your own laws…

Adam Tomkins (46:55):

Words, but this is going to be the cutting edge of free speech going forward. So we need to talk about it, right? Because the students I teach, I’m sure it’s the same for the students that you teach in Tennessee. James, the students I teach don’t obtain their news from any source other than online. They don’t read newspapers, they certainly don’t read books. They don’t read newspapers. They barely watch television. They sometimes do listen to podcasts, but they overwhelmingly, overwhelmingly receive all of their news and current affairs information online. And so we need to think really, really hard about what that means in terms of freedom of speech. And I think that there are, so if you take a Millian approach to this, right? J. S. Mill who wrote this wonderful essay “On Liberty” in the middle of the nineteenth century said that your speech and mind should not be curtailed at all unless it causes demonstrable harm to somebody else.

(47:59):

So if we think about a harm based approach to speech, and this is kind of classic classical liberalism, right? If we think about a harm based approach to speech, then I would go back to my example about threats. It can cause harm to threaten somebody with words in the same way that it can cause harm. To use Oliver Wendell Holmes’s world famous example to falsely to shout fire in a crowded theater, the reason why those sorts of words are not protected by even the world’s amplest protection of free speech is because they cause demonstrable harm to others. So if we use that as our way into this, as our way into thinking about this, then it is, I’m afraid, the case that online speech can be more harmful than offline speech. There is more anonymity online than there is offline. People can hide behind that anonymity in all kinds of ways that are dangerous for people. People also feel that they are able to say things, particularly on certain social media platforms that they wouldn’t say to each other face-to face perhaps because there aren’t any faces online. It’s very difficult. I have teenage kids. It’s very difficult to know what they’re looking at online. It’s very difficult to police that. I know that there are apps available. I know that I can restrict their, I know all of that, but I’m also kind of a liberal, so I don’t really enjoy doing those things.

James Patterson (49:24):

Also, a lot of work to conduct surveillance on teenagers

Adam Tomkins (49:27):

All day. Absolutely. And they’re always going to be more tech savvy than I am, and they’re always going to be quicker to work out their way around it than I can. So it’s kind of futile, right? Again, that’s something that Milton said about censorship. It’s like the farmer who puts a fence around his field to keep the crows out. You’re not realizing that the crows can just fly in. So it’s absurd. It’s futile. So what I’m saying is that I think there is a very good argument for thinking about online speech differently from the way in which we think about offline speech, because I think that the harms that speech can cause online might be different from, and might even be greater than the harms that can be caused offline. But… And you knew there was a “but” coming…

Adam Tomkins (50:10):

We also need to think about freedom of speech online and getting that line, getting that line right between what is permitted and or licensed or criminalized, and what is not is going to be, I think, a work in progress. I’m going to say two things, which I think are unfortunate about the Online Safety Act. First is just complexity. So the legislation itself is fiendishly difficult to understand. I’ve tried to teach it to very advanced law students a couple of times now, and more or less completely failed. It’s very difficult to understand. But that is a problem, which is massively compounded. When you look at the regulatory verbiage that is spewing from Ofcom. We’ve talked about Ofcom already, and it’s the same regulator who are empowered under the Online Safety Act. Within the first year of the Online Safety Act coming into force, Ofcom had published more than 2000 pages of regulatory guidance.

(51:14):

Now, whenever you’ve got 2000 pages of regulatory guidance, you haven’t got much freedom. So this is all stuff that is designed to restrict freedom of speech, and it’s all happening in real time. It’s happening right now. It’s happening without any real democratic accountability because Ofcom are a government agency. The courts, the cases have not yet really started to filter up into the courts. There are very few cases on the Online, so there are one or two, but there’s very few cases on the Online Safety Act. And of course, parliament is not interested because Parliament’s done its work and has enacted the, except for the fact that Parliament is interested insofar as it thinks that the Online Safety Act doesn’t go far enough. So the Online Safety Act is designed to focus on specific harms, but it is not designed to focus on the alleged harm of disinformation.

(52:07):

And there was a parliamentary committee that reported very recently, just the last few months in the House of Commons in Westminster that was focused on the problem of the perceived problem of disinformation online. And it recommended as an all party committee that unanimously recommended that the Online Safety Act already needs to be amended to increase its reach into online speech to begin to capture this problem or a perceived problem of disinformation. So I’m afraid that on this score, notwithstanding my optimism five minutes ago, I’m much less optimistic that the United Kingdom is moving in the right direction or is indeed even facing the right direction. It seems to me at the moment, we’re terrified of what’s happening online. We don’t understand what’s happening online. We dislike what we think we see online, and we are increasingly reaching. The impulse is there in our politics. I’m afraid that lawmakers are reaching for the regulatory tools that are familiar to them from the broadcasting world, copying and pasting, applying them to the online world. And even if that one day makes the Internet a safer place, it’s going to make the Internet a lot less free. And that is a conversation that we need to be having upfront and in public and not under the cover of a thousand pages of regulatory garbage from Ofcom. It’s really, really troubling.

James Patterson (53:38):

Well, I can’t do better than that to close us out, Professor Tomkins. Thank you so much for appearing on the Law & Liberty Podcast.

Adam Tomkins:

You’re welcome.

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.

For most of the twentieth century, conservatives argued for a strong Congress whose closer connection to voters could check the grand delusions of presidential administrations. Now, however, everyone seems to have opted for Wilsonian, top-down executive leadership. Philip Wallach explains how we got here, why Congress remains indispensable for republican self-government, and what sort of structural reforms could help it reclaim its place in our constitutional system.

Philip Wallach, Why Congress (2023)
Philip Wallach, “Choosing Congressional Irrelevance,” Law & Liberty
Yuval Levin, “Congress Is Weak Because Its Members Want It to Be Weak,” Commentary (2018)

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 in this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor and associate professor of public affairs at the Institute of American Civics at the University of Tennessee. I’m here in person—this is a rare treat for me—with Phil Wallach, who’s his senior fellow at the American Enterprise Institute. We’re going to be talking about his latest book, Why Congress, which is published in 2023 with Oxford University Press. Dr. Wallach, welcome to the Law & Liberty podcast.

Philip Wallach (01:13):

So good to be with you.

James Patterson (01:14):

So the great thing about your book is that it gave me my first question, which is “why Congress?” But of course, the thing about Congress is that it hasn’t gotten a lot of conservative attention, and this is strange. Conservatives are very interested in the Supreme Court and federal courts and interpretation in the judiciary and we’ve had a very strong interest in the presidency and things like maybe the limitation of the imperial presidency, but also the unitary executive theory. There are these really big ideas there. So is Congress sort of the left out branch here for the right?

Philip Wallach (01:53):

I think if you go back to the time of Franklin Roosevelt, conservatives were very interested in Congress and very pro-Congress. They believed Congress was a kind of earthy bulwark that really was connected to the public, to the people close to the ground. And the classic statement of this is Wilmore Kendall’s essay that he is still writing at the end of the 1950s, talking about the two majorities. But he really portrays the congressional majority as embodying this sort of home-spun wisdom as opposed to the utopian, quixotic tendencies of the presidency, which tends to appeal to people’s grand aspirations and engage in world changing projects. And that’s also representing a real tendency that Americans had. But the way of representing the other thing in Congress was he thought as a very important counterpoint. And so there was that time when conservatives and you saw James Burnham write a book around the same time really appreciating the same sort of thing about Congress, but then you see Democrats control the majorities in the House of Representatives from 1955 until 1995—four solid decades.

(03:18):

Of course the Republicans do control the Senate from 1981 to 1986, but Congress just comes to be thought of as a democratic institution first. Of course, Democrats were half a conservative party at the beginning of that period, but by the end of that period, Democrats are a liberal party and they’re very much in control of the Congress. And so the modern conservative movement of the 1970s and eighties defines itself in opposition to Congress. They think of Congress as a corrupt liberal place and the emblematic figure of that is Newt Gingrich, who comes in, from the very first time he starts campaigning, talking about how awful and corrupt Congress is and how we can’t work with this congressional majority—we Republicans need to find ways of throwing it out. They eventually do, they succeed at that, but in that course of those decades, they’ve really sort of lost the sense of what it is a Congress is supposed to be for.

(04:17):

I would argue that conservatives came to adopt a much more leader-centric, Wilsonian model of what politics looks like, including Newt himself. And so in some ways, Congress is sort of without its ideological support from the right for many decades now. And you saw maybe a little bit of efforts to rediscover it around the Tea Party time and when people thought Hillary Clinton was going to be a president, but that’s not what happened. And so conservatives have mostly gone off in a very different direction and don’t genuinely have a lot of use for Congress these days.

James Patterson (04:57):

So there’s been a kind of great forgetting among conservatives and, to a lesser extent, among Republicans about the operations of Congress. Is there also maybe also a kind of change to the institution of Congress itself? Centralization under leaders, for example; it’s not as deliberative as it used to be. That’s led Congress to become less of an object of study.

Philip Wallach (05:24):

Well, it goes along together for sure. If you think of members of Congress, first and foremost, the most important thing they can be is members of the team, good foot soldiers for the party, then you don’t have a whole lot of use for deliberation. The deliberations should sort of happen elsewhere, and then Congress should put through the conservative agenda. I argue in the book that not deliberating well actually handicaps the Republican Revolution to some extent in the mid-nineties, that they sort of don’t actually have a good sense of where they can succeed and where they can’t. And so they make some real missteps because of that. But yeah, generally I’d say this comfort, including amongst members themselves, with the idea that the institution should reorganize itself on a purely partisan basis and that the main thing is teamsmanship in that environment. And of course, if you’re setting things up in that way, then leaders at the top and organizing sort of discipline followership is what matters.

James Patterson (06:37):

I’m remembering one of my favorite sketches in the history of SNL was on Newt Gingrich becoming Speaker. Do you remember this? It is actually kind of hard to find. I’m not sure why, but I had wanted to find it so I could use it in class and I only found an edited version of it, but it’s Chris Farley as Newt Gingrich and he’s becoming increasingly frantic as he’s gaveling in all of these Contract with America ambitions and by the end of it he’s just screaming and hammering on the dais. And that does sort of point to, I thin,k the way that Republicans understood their position in Congress when they finally attained a majority. What do members of Congress do? Do they legislate? Do they fundraise? Do they go on to television shows? It’s sometimes hard for people to pin down because it isn’t abundantly clear that Congress does anything.

Philip Wallach (07:34):

It’s definitely possible to overstate the point, and I think if you literally imagine members of Congress as a bunch of lazy bums, you are seriously deceiving yourself. They are very hustling people. They’re going from one thing to another all the time. A lot of that is to try to maintain organic connections with their constituents. They spend a lot of time trying to be at events in their home district, get out, shake hands, listen to people—that hasn’t gone away. It’s hard to represent a congressional district of 750,000 people, which is around the average today, or most senators, of course, have states considerably bigger than that.

(08:21):

And so they do spend a lot of time on that. And of course, the fundraising part of it also does create connections with the district, but it also creates connections with all kinds of elements of the donor class that might be sympathetic to them, which is not always so geographically oriented, but they spend a lot of time cultivating connections with donors. And legislating is really a reduced part of the portfolio. It hasn’t gone away. There are still quite a few earnest legislators on Capitol Hill. But yeah, I’d say it used to be the case that if you wanted to have a chance to exercise legislative power, there was more of a clear sense that you put in your time over the years on your committee, you prove your worth by making yourself an expert in these matters and showing your colleagues that you know what you’re talking about.

(09:13):

And after a while, once you’ve proved your bona fides there, you get to write the legislation, and the legislation will then get considered and given its chance to become actual on the law books. I think people are much less confident in that path these days. They think if they put in all that time investing and making themselves an expert, it’s likely to go nowhere, that it’s likely to just be a waste of their time. And so I do think a lot of the more ambitious members have reacted to what they see as the incentives showing them. They think actually the way I’m going to get ahead and become a powerful person is by cultivating my national public profile by attending to the new media in all the different forms that takes

James Patterson (09:59):

The way Alexandria Ocasio-Cortez does Instagram live?

Philip Wallach (10:02):

Yes. She’s obviously one of the most successful at sort of taking her position in Congress and turning it into a platform for her to become a major political celebrity who people talk about becoming the president, and it is funny in how many members that is the goal that’s animating them. Maybe that’s not such a new feature of today, but the sort of clarity that the path to getting there is through media celebrity rather than legislative accomplishment is distinctive to our moment.

James Patterson (10:37):

So no doubt. We’ve talked a little bit about the things in your book, Why Congress, but why don’t you give us the elevator pitch, the summary statement that we have so far missed?

Philip Wallach (10:50):

Well, the title of the book is Why Congress, no punctuation. It’s meant to imply that there is an answer, and so the book is an apology for having a strong Congress as the center of our constitutional order because, the way I see it, having this body which is defined by its multiplicity is actually more capable of representing the diverse interests that make up America than a system in which we let everything collapse into this sort of Manichean war between one side and the other. And when we sort of collapse everything into presidential politics, that becomes the natural tendency of our system is to just make every single presidential election seem like this existential conflict. You get people putting their great hopes in their leader as somehow going to redeem the American soul one way or the other.

James Patterson (11:50):

I don’t think that’s in the enumerated authority of the president in the Constitution.

Philip Wallach (11:55):

Fair. It’s really not, but that’s sort of so Why Congress is trying to explain, well, when we had a functioning pluralistic Congress back in the day, what did that get us? My contention is that it better legitimized the federal government than what we’ve got today. What we’ve got today is a lot of people imagining that whenever they lose, it’s the end of the world almost literally in those words, people are willing to make the argument and they’re taken seriously and that’s not healthy. That’s not a way—its’ not been working. We haven’t seen Trump or Biden become a wildly popular figure with the majority of the country. They sort of do their shtick and find it difficult to tread water even. So I don’t think that we have a successful alternative to Congress. We’ve let Congress atrophy and that’s in my view, a much larger part of the story of why our politics are so deranged in the 2020s than people realize. I think people don’t even bother thinking about Congress much anymore.

James Patterson (13:08):

Another figure who really has done a lot to return our attention to Congress is Yuval Levin. He wrote the very important essay in Commentary magazine. I think it’s “Congress is Weak Because Its Members Want It to Be Weak” or something like that. Is there something you would add to the argument that he makes, and what is the argument that he makes?

Philip Wallach (13:28):

Well, that metaphor of using Congress as a platform that I already spoke out before comes directly from that piece from Yuval. It’s, it’s a very powerful metaphor that he develops in his book, A Time to Build. Also, we have a whole lot of institutions without institutional loyalties and without a sense that institutions are supposed to shape people. Instead, we have people who come to sort of inhabit the institutions but use them as a platform again to launch themselves as personal brands in the larger sort of media ecosystem. And you see that not just in Congress, but in a number of walks of life, and Yuval is a real believer in sort of the integrity of institution-specific ethics, role moralities, right? If you’re a judge, you’re supposed to act like a judge. You’re not supposed to act like an op-ed writer. If you’re doing that, you’ve lost the plot in some very important way, and he looks around at a lot of different institutions in American life and sees people having basically disregarded the idea of that sort of role specific morality and instead just sort of throwing themselves into the big culture war that preoccupies so much of us in so many ways, and for Congress specifically, again, that makes Congress a less interesting place.

(14:59):

It means that really Republicans and Democrats feel like they can’t have anything interesting to say to each other, or sympathies to build across the aisle because well, “if you’re on the other side of all that stuff, we must be enemies. Our leadership tells us don’t work with those people because you might give them comfort, you might give the enemy comfort and we don’t want that.” So Congress becomes less interesting. It sort of desiccates our politics, and Yuval and I would like to see some people pushing against that. It’s a hard thing to turn it around. We’re kind of in an equilibrium now. It’s not easy for one person to just break out of it because it’s a coordination problem, but we have to sort of at least start to build the awareness that something has really gone wrong here and that Congress can be a big part of the answer if its members are willing to try to take this leap. Our pitch is, “this isn’t pie in the sky because we have seen this institution operate in this way before. It really is a choice of the members should they decide that they want to take it.”

James Patterson (16:12):

How much of this is structural? How much of this is the result of changes to congressional authority, especially in the way they’ve delegated it either to the bureaucracy or to directly to the president?

Philip Wallach (16:32):

I think that a lot of what makes the teamsmanship work as opposed to having to reconcile with the other side and figure out how to do bipartisan lawmaking, is our willingness to circumvent Congress and to make policy through the executive branch. And you’ve seen this in case after case in the last 20 years, where first the president says, “Oh, I can’t do this all by myself. I need to go through Congress.” And then he gets frustrated with Congress not doing what he wants, and they said, “Oh, actually, it turns out I can do this.”

James Patterson (17:08):

Everyone discovers their pen and their phone.

Philip Wallach (17:10):

Yes, so I mean certainly thinking back to Obama and the DACA program, the immigration program that he fashioned for people who were brought to America illegally as children, and that’s a very sympathetic class of people. There was a legislative push to do something about them. It didn’t pass, and then Obama cut it off. He said, “Okay, never mind. I’m not going to work with Congress to pass this law. I’m going to create this program through a massive use of my prosecutorial discretion not to bring actions against these people and actually because I’m not going to bring actions, I’m going to create this weird permitting program that doesn’t really have any legal basis.” That’s DACA. And Democrats in Congress did not say, “Oh my gosh, why are you cutting us out of this process?”

(18:01):

They said, “Good for you, Mr. President. You’ve reacted to Republican obstructionism and the only way that’s really reasonable by making progress for the American people, bravo.” And that’s the story of our politics today is members of Congress sort of wanting to be cut in, but if they don’t get what they want right away, then saying actually maybe cut us out. And I’m afraid that’s a bipartisan story. By now, we’ve sort of lost our will to really struggle through the hardest problems in the legislature. As soon as we see they’re really hard, we say, “Okay, never mind. This isn’t a legislative agenda item anymore. This is something that the big people over in the White House and the Supreme Court building are going to go figure out.”

James Patterson (18:53):

Another structural problem, one that’s not really the result of anything the members have done, I get from a book by Morris P. Fiorina called Unstable Majorities, and he talks about how the way that parties have now sorted so ideologically—that was once the objective, and I think it was in the 1954 American Political Science Review, they wanted more ideological parties. They thought the Democratic Party was too internally incoherent. So now here we are with a case of be careful what you wish for. We have very ideologically sorted parties, but they also don’t have a single majority. The old political science term for this was a “sun party” and then the minority party, we called the “moon party” and there would be this effort of the minority party to kind of figure out a way to pivot into a majority position. Instead, it’s a 50-50 country, and so members of Congress are always waiting until they can clear a large enough majority in Congress. I think what’s the majority in Congress now for the Republicans, like three, two?

Philip Wallach (19:54):

Oh, in the Senate?

James Patterson (19:55):

In the house.

Philip Wallach (19:56):

It’s gotten real slim.

James Patterson (19:58):

So the problem is that you’re not going to be able to legislate that much with that, and you can always wait until the next two years, when maybe you’ll have a larger margin, and then you can really go for it.

Philip Wallach (20:08):

Yeah, I think to be fair, we haven’t stopped seeing legislation. We had a really big important enactment this summer that we shouldn’t pretend didn’t happen. So that was a case of all the Republicans except for very few getting together such so they could pass an all Republican giant spending law.

James Patterson (20:29):

Right. Yeah. This is the one big beautiful bill?

Philip Wallach (20:30):

That’s it.

James Patterson (20:35):

One of the greatest names of a piece of legislation. It is exactly what it says.

Philip Wallach (20:39):

Well, the keyword is one. They really put everything they could put in there, subject partially to the whims of the Senate parliamentarian adjudicating the details of the bird rule, which is what exactly is allowed in a reconciliation.

James Patterson (20:57):

So maybe not beautiful.

Philip Wallach (20:58):

They put an awful lot of stuff in there. It’s a substantively very important law. People shouldn’t lose sight of that. They don’t have much of a legislative agenda after it passed, to be clear. There are exceptions you can find, but it’s kind of striking how little of the president’s ambitions run through Congress now. He has a lot of stuff he wants to do, and pretty much none of it depends on convincing congressional majorities. I think you going back to the Fiorina book, political scientist Francis Lee has a lot of similar discussions, they’re very convincing. There is something structurally about being on the knife-edge where every election is decisive. We really don’t know who’s going to control Congress after the next election, and that does change the way things look quite a bit. So yeah, that’s part of why it’s so hard to get, there are an awful lot of features of this equilibrium that are rational and so are we stuck in it until the structural features change? Maybe I would say there are a lot of margins that members could push at, and we have seen them pushing at some, right? We ejected a Speaker of the House in the middle of a term just a couple of years ago, and we’ve seen an increase in the use of the discharge petition in the House of Representatives.

James Patterson (22:20):

What’s the discharge petition?

Philip Wallach (22:22):

Basically, when leadership or committee chairman are bottling something up, not letting it come to a vote, a majority of the members in the chamber can sign a discharge petition, file it with the clerk, and then they have a right to call up that bill whether the leaders want it or not. So we’ve seen a lot more use of the discharge petition all of a sudden in the last couple of years. We’re seeing a very high-profile fight with it right now about the Epstein, some kind of legislation to force the government to release more of the Epstein materials.

James Patterson (22:54):

For those who don’t know, there’s the Epstein list is what, I’ll let you handle that question.

Philip Wallach (23:01):

No, let’s go on.

James Patterson (23:01):

The issue with Congress is then not as, sometimes people portray it where members go to their offices, take calls from donors and then go on to cable news. They’re actually working and in many cases are pushed in a lot of different directions, as you said. What are some of the things that members of Congress do that we don’t see?

Philip Wallach (23:21):

Well, I don’t want to dispute some basic correctness to what you just said. I think members really do spend a lot of time sitting on the phone calling donors, and that’s really unfortunate.

James Patterson (23:35):

They have quotas, right, don’t they?

Philip Wallach (23:36):

Yeah. Basically getting ahead in committee placements these days is just very sort of straightforwardly connected to your fundraising prowess,

(23:48):

Your ability to kick dollars up into the team, not just your own bank account, and yeah, I think that’s not great and it’s not great just as a time use problem actually. It really is something that legislators half a century ago would’ve been horrified by because it has become much more of a chase. So that is a big thing. I think the whole connection with constituency is still more important than people realize, and legislators do hustle to try to know their constituents, to try to perform constituency service. That’s an old Fiorina standby. The bureaucracy creates lots of problems. One of the ways people try to deal with these problems is by contacting their member of Congress’s office. A good portion of the staff on Capitol Hill spends their time trying to do constituency service, make things right that have gone wrong for people and members involve themselves in that at some level, that’s part of how they learn about what’s going wrong in the federal government, so that’s constructive.

(24:55):

It’s a perfectly respectable use. I think that it can sometimes crowd out bigger thinking. If you keep tending to the symptoms of a problem, but you never fix the problem, there’s something going wrong there. I think members do spend a lot of time trying to figure out some angle that they can take into the fight of the day. They’re always looking for certain way that they could hold that hearing that’s going to get on the news, that they could be the member who makes themselves the main character of a news cycle. That takes a fair amount of craftiness and scheming and a lot of trying without succeeding.

James Patterson (25:36):

One of the more startling examples of that really having a major effect was when former, she’s not a representative, Elise Stefanik. She, I’ve blanked on this. Is she still in the House, or did she take up? Anyway, Elise Stefanik created a moment in higher education in her interviews. She didn’t pass legislation. She used the hearing as an opportunity to kind of expose some pretty serious issues. Is that something of what you have in mind with Congress taking on its more traditional role ,or is that an example of the problem?

Philip Wallach (26:14):

I mean, I wouldn’t want to gainsay the success of that particular example. She clearly performed very well in this very well-created forum where Congress asking some tough questions to powerful people made a big difference. I think that kind of oversight function that doesn’t necessarily have to route through legislation can be very successful. So period, congratulations for that. But at the same time, okay, now the Trump administration is in, we’ve got Republicans in control of both chambers of Congress. Maybe this is the big chance for Congress to try to steer a new course in federal higher education policy, and I mean indeed it is. We are seeing that, but it’s almost all just through executive branch action.

James Patterson (27:05):

Grant cancellations and stuff like that.

Philip Wallach (27:07):

Even taking the civil rights laws and finding whole new interpretations of them that are favorable to the sort of right-wing suspicion of affirmative action, instead of, so we see, again, people make use of strategies that are available to them in this environment. Some of them are good at that. To me, it’s regretful that some of the most potent tools are left neglected and that there’s opportunity to really fight things out in a deliberative way on the floor of Congress is often also just neglected, and so we don’t feel that we sort of make a lot of progress. We sort of have one side get its advantage for the moment or the other side, and we kind of expect things to flip back and forth in a fairly mechanical way when the election results change. It would be better if we actually had a way to figure out a modus vivendi that we can make more stable.

James Patterson (28:08):

The issue with Congress right now is that we have a shutdown. We have another shutdown. I remember when this was a huge deal. I was a younger guy when we had the shutdown during the Gingrich speakership and we’ve kind of had these shutdowns. Why can’t Congress pass a budget? Why can’t it handle fiscal issues the way that you would think are existential for the Republic?

Philip Wallach (28:40):

There’s a lot—as a Congress pedant, first I just have to slap you with a wet noodle for saying “the budget,” right? Our budget process is a complete mess. The only thing it’s used for anymore is budget reconciliation laws, which they used it for back in July, right? The whole budget process is supposed to be the opportunity Congress takes to look at the big picture and chart a long-term course that makes sense. Again, we’ve just completely disregarded that as a real opportunity to do real work. It’s become a partisan tool. It’s a disaster. Our annual appropriations process, which is what we’re having trouble with right now, why we have a shutdown, only controls a very small portion of federal spending, about a third.

(29:28):

Most federal spending is on autopilot as a result of entitlement laws. The thing driving us into fiscal peril is largely stuff that Congress doesn’t even pretend to touch on a year-to-year basis. But we have annual appropriations, something like $2 trillion that we are talking about allocating every year. The past year we’ve just been on a continuing resolution where they said, “actually, we’re not going to be able to figure out anything. We’re just going to continue the spending levels from the previous year,” and there’s a pretty darn good chance at this point that we might see that. Again, so levels that were agreed to under President Biden just continue those

(30:11):

And somehow assume that the Trump administration will do some on-the-fly adjustments of dubious legality to make things work out. That’s where we are right now. In the bigger picture, the shutdown itself is a little bit perpendicular to all that. It’s a little bit random or strange or something. Why do we have it? Because Democrats feel like they can’t say yes to anything involving Trump right now. They feel like their base is so sick of them seeming compliant that they needed to take a stand, so they took a stand and didn’t allow a continuing resolution into November or December, which is common as dirt in our system. That’s what Congress does every year, and the Republicans were not making any big policy asks to get that. It’s just that Democrats felt they had to say “no” to something, so they said no to this, and now it’s not quite clear what the way out of the impasse is.

(31:04):

They need to be given some kind of concession that they can spin as a win, but Republicans aren’t actually inclined to give them, and meanwhile, even if they were to agree on a short term continuing resolution, that doesn’t fix the larger problem, the Democrats don’t really feel like they can bargain with Republicans at all because they’re so afraid of how Trump is going to renege on the bargain. It’s kind of a big problem where even in Trump’s first term, we saw bipartisan cooperation happen on a fairly routine basis, and we really are at a point just now in the fall of 2025 where it seems like partisan cooperation might be something we just can’t do, and our government is not set up for that situation.

James Patterson (31:48):

See, the downside of doing these in person is getting hit by a wet noodle. I don’t know if we should do this again, but there are lots of people who have lots of ideas about how to make this better. I’ve heard removing cameras so that it’s not so much of a public display, increasing the total number members, excuse me, the total number of members in the House of Representatives. Obviously, you can’t do that in the Senate without pretty significant change to the Constitution. What is it in your book? Why Congress that you have in mind for improving this state of affairs?

Philip Wallach (32:25):

I do want to see us get back to committees. So there are structural things we could do to make committees stronger and to give them more of a clear share of agenda control. I’ve articulated my sort of preferred slate of structural changes, but I have to admit that the how question really seems quite secondary. It’s like whether we actually want to fix this problem, and based on what I’ve seen in the last year, the answer is just no. That pains me. I would like to be somebody helping this institution move toward relevance and move toward a sense of revival and understanding its place in the constitutional order, but that’s just not where we’re at this particular moment. The sort of more we can just get by the skin of our teeth at the moment is kind of the more realistic hope for right now. The larger turn back toward Congress has to come because people feel totally burnt out on this president-centered government and the way that it creates whiplash, and maybe more and more people who take these existential stakes that they perceive literally and try to solve problems with bullets. I would say that seems like a pretty predictable feature of the politics of this country in the coming years. So that’s bad. I would love to turn away from that, but we need to get to a point where people actually are ready to turn away, and right now, I just think people want to be in control of that chair.

James Patterson (34:05):

You’re right. The sources of political authority and political change become increasingly scarce, and as they become scarce, the stakes for securing those become higher and then they start to engage in things like firing on presidential candidates, and it seems like such a major opportunity for whichever party can mobilize in Congress that they can seize like a tremendous amount of political authority in Article One, Section Eight powers to say the least. So, is that what you think it’s going to take, this kind of catastrophe in dealing with some kind of presidential issue that leads us back to Congress, or is there even a way back?

Philip Wallach (34:46):

I guess I also tend to believe that we need some major disruption to our partisan organization, which Trump himself has been a major disruption, and I think I would push back a little bit on the idea that we are very well ideologically sorted anymore.

(35:07):

I actually think that if you try to figure out what do people in the Republican party believe about issues X, Y, and Z, from trade to should we legislate on morals to taxes? I think that the Republican Party is actually full of internal dissension, and so I think that there is more multipolarity out there in the electorate than we realize. Our political system really is set up to effectively shut it down, and it does a good job. But I think that some kind of forcing event could come through and kind of shake things up, and we could find ourselves unstuck and Trump, the most predictable event that we know should be coming is Trump’s withdrawal from the scene.

James Patterson (35:59):

Yeah.

Philip Wallach (35:59):

Don’t know when that’s going to come. You can argue about that.

James Patterson (36:02):

Well, there’s all these conspiracies that he’s building this ballroom, so clearly he wants to stay. I think he just likes to build stuff. That was his job before all this, right before game show host.

Philip Wallach (36:15):

But in any case, clearly the Republican party has organized itself around him over the last decade, and it will have to do something other than that before too long. So that creates some kind of forcing event for some kind of big fight where we try to figure out what this Republican party is all about. I think there is a fight about what the Democratic Party is all about going on. I don’t know how much it’s going to break through, but yeah, I think possibly the structural changes in Congress need to come downstream of a sense of political disruption, a sense that to accomplish something politically, some frustrated, bipartisan, cross-cutting coalition needs to make its move. Right. The touchstone moment that I look back to is the revolt in 1910 in the House of Representatives. So you had an extremely powerful speaker of the House, Joseph Gurney Cannon, a fascinating figure well worth learning about. He ruled the house with an iron fist, and he had a very orthodox Republican sense of what his party was about, and the fact that there was a growing progressive segment of his party who was frustrated with his leadership did not interest him very much. He felt that they should make their arguments in the party conference and have their say there, but once it came time, they needed to be good party regulars.

(37:53):

And eventually, these progressives made common causes with the Democrats, stripped him of many of his powers as Speaker of the House to get their legislation moving. They thought regulating the railroads was that important that they were willing to blow up their party coalition. What’s the something that’s going to make people get to that moment in the 2020s or the 2030s? I don’t know. I try to come up with a scenario in my book, and it is not a convincing scenario.

James Patterson (38:22):

What about entitlements blowing up?

Philip Wallach (38:26):

Yeah. Gosh, that’s really not so far over the political horizon anymore, right? Having to figure out something about the funding of Social Security and Medicare. I actually don’t think there’s a lot of bipartisan disagreement on these. In some ways, it’s about the mix of taxes and benefit cuts that we have to agree on, and it’s so painful that no one’s willing to get out ahead and incur political costs for no reason. So we have to kind of wait until we hit the wall. But actually I’m a little bit of a quietest on that one. I kind of think the parties are in enough substantive agreement that they’ll have to come up with some answer, so I think they will, but it’ll be ugly.

James Patterson (39:09):

And not a moment earlier than they have to.

Philip Wallach (39:11):

Not a moment. No, no, that’s for sure. So Trump, not his problem.

James Patterson (39:15):

That’s right.

Philip Wallach (39:16):

That’s very much clearer to him, and he’s just like all the other politicians we have right now. In that respect. There’s nothing special about it.

James Patterson (39:26):

Well, it’s been really great having you on the Law & Liberty Podcast. The book is Why Congress, the guest is Philip Wallach. Thank you so much for coming on.

Philip Wallach:

Pleasure, James. 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.

Many are familiar with Catholic and Protestant flavors of Christian social thought, but little is known about Orthodox iterations. Dylan Pahman joins the podcast to talk about his book The Kingdom of God and the Common Good, which aims to fill that gap. In it, he explores both the thought of Orthodox theologians and social thinkers less-known in the West and explains how the rise of Communism delayed the development of social thought in the Orthodox world.

The Kingdom of God and the Common Good by Dylan Pahman

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 in this podcast are published by Liberty Fund. Hello and welcome to the Law & Liberty Podcast. My name is James Patterson. Today with me is Dylan Pahman at the Acton Institute. Dylan has written a tremendous compendium of Orthodox social teaching, especially on economics. It’s titled Kingdom of God and the Common Good. Is it “in the Common Good” or “in Common Good”?

Dylan Pahman (01:07):

The Kingdom of God and the Common Good.

James Patterson (01:09):

Okay. My PDF has a slightly abridged title up here. So …

Dylan Pahman (01:14):

Sequel will be Two Kingdom God, two, common Good, and so on. We’ll drop the the’s at some point and be a new title.

James Patterson (01:21):

Please tell me that this is the first time you’ve used that joke. Okay. As some listeners know, when I interview people who are my friends, things tend to be a little bit looser. Dylan and I have known each other for many years and I’m very excited about this project because it is something that I never thought of, but rather than having me explain it, how about we’ll have Dylan. So Dylan, tell us about what inspired you to write this project to maybe give us the elevator pitch for the listeners.

Dylan Pahman (01:54):

Yeah, definitely. So I’ve been working here at Acton for 14 years as a research fellow and as an editor of our academic journal. And I got all my degrees are in theology, so all the economics and political theory I’ve learned on the job. And part of that was reading a lot of great scholarship and hearing a lot of great lectures of people talking about Roman Catholic social thought and Calvinist social thought, and even some Lutherans and other people. And I am Greek Orthodox, and I kept thinking, well, “what’s our perspective on all those stuff?” And for those unfamiliar, the term “Christian social thought” refers to the problem of the working poor in the industrial era and then further issues, social and economic issues beyond that. So it begins in the Roman Catholic tradition with the encyclical Rerum Novarum by Pope Leo XIII. And that was “On the New Things” is literally what it means or on revolutionary change.

(02:50):

So he is looking at the problems of social unrest and the rise of socialism, and he’s trying to come at it from the wealth of, at that point, 1,900 years of Christian tradition while also admitting that the world was very different and trying to engage that. And so that was the, inspiration is I really felt like my tradition needed something like that too. I think there’s a lot we can learn from other traditions and in fact, the first part–the book’s in five parts–the first part is just a survey of here’s what the other Christians are doing. Orthodox tend to like to be special sometimes, and we are special, but we also need to be part of the broader conversation. And I really don’t think we’ll know what our unique contribution is until we’ve actually surveyed, well, here’s what the other Christians are doing, here’s what the common ground is, and here’s maybe some areas of dissonance.

(03:38):

So the goal is to research and figure out what are orthodox principles for engaging our modern world and our modern economies and questions of wealth and poverty today, all the complexities of wages and lending and monetary policy and all that kind of stuff. And so what I wrote was basically the book I wished existed 14 years ago that didn’t exist. It’s a book that walks readers through contemporary Christian social thought, biblical teaching on wealth, poverty and society, orthodox church history, and then a survey of modern economics, which I actually look at historically. So my goal is that each chapter is very short, 2,000 to 3,000 words, like Law & Liberty essay length and people can maybe read one a day, that sort of thing and work their way through the book. And instead of bombarding people with terms, I take this more historical approach where I tell the story of Orthodox social thought and I tell the story of modern economics.

(04:35):

So we get a sense of who were the people; who was Adam Smith; who were the classical political economists; what were they dealing with; what motivated the rise of socialism and Marxism and what was the difference with Christian socialism and social activism and that kind of stuff. And then I finally take readers to contemporary Orthodox contributions, which there have been some, but part of the problem is that history that with the Russian revolution, you have atheistic, militaristic communism, just sweep across Eastern Europe and Russia and other traditionally Orthodox land had for a long time been under the Ottoman Empire and you just don’t really have a space for Orthodox to think freely about this stuff. The thinkers who did escape, and many of them were exiled from Russia, suddenly they find themselves with a very different set of questions that they concern themselves with. So they are wondering, well, how do we be faithful to our Eastern Orthodox tradition while living in the West?

(05:31):

And they start focusing on questions of ecumenism. And those are very good things, but it’s very distant from that question of, well, how do I be a good Orthodox Christian banker or whatever? How do I live in our modern economy as a faithful orthodox Christian? So that’s the goal of the book, is to walk people through that so that they know the story, they know our tradition and they know something of how modern economies work to prevent the kind of unfortunate and sometimes embarrassing statements that you can find on blogs and unfortunately sometimes even in unofficial church documents about the nature of wealth and poverty in our economies today.

James Patterson (06:10):

So I was actually about to ask you about the intervention of Soviet communism because I know a lot of listeners, their probably biggest association with Orthodoxy is going to be Russian Orthodoxy. So what happened with the encounter, not just of Russian Orthodoxy, but of Eastern Orthodox in general with communism? How did they respond to it in their social thought?

Dylan Pahman (06:42):

Yeah, so you can find writings actually as early as Vladimir Solovyov, who is a nineteenth century Russian Orthodox philosopher. He died in 1900. His first book is very metaphysical, but it begins with a critique of socialism. So he’s already seeing it in the kind of mid- to late-nineteenth century. His last book, The Justification of the Good, has a whole section on economics, and again, he sees this kind of danger. And then even more so in the early twentieth century, there’s an excellent volume that I recommend. I think you can find the PDF on archive.org. It’s called Vekhi, which is Russian for landmarks. And it was a collection of authors. It’s probably the most successful edited volume of scholars that I’ve ever heard about because usually they get published and never read, but it brought together, let’s see, S. L. Frank Nikolai Berdyaev, Sergei Bulgakov, somewhat recognizable names, but they were critiquing the Russian intelligentsia in 1909, so eight years before the revolution.

Dylan Pahman (07:43):

At that time there were storm clouds on the horizon. And there had been a failed revolution, actually. So they were almost taking a victory lab. These were all intellectuals who had had a religious turn in their thought and had realized that the kind of nihilistic and Marxist fervor was very, very much mistaken. And so they were critiquing their peers, their former peers at least. And as you might imagine, it was not well received. There was a huge blowup about this. Even people, Bulgakov was a cadet. He was basically the closest you could find to a liberal at that time. And he was part of the second Duma in Russia and the Russian Empire. But even people in his party didn’t like it, probably most notably Vladimir Lenin wrote a response to it. I mean, it really had that level of impact. And they talk about things that would be very recognizable to readers of Law & Liberty, the importance of rule of law and order and religious and moral culture, all that sort of stuff.

(08:43):

You see these thinkers really wrestling with these issues. And like you said, they kind of see the storm clouds on the horizon. And unfortunately you have this conflict. And that’s part of what I try to answer in the course of the book is to say, “well, what happened?” I mean, the Russian Empire is a mess in a lot of ways, but there’s nothing inevitable about history despite what Marxists will tell you, no un-combatable historical dialectic that we’re all just at the mercy of. People have free will. And why did a nation like that go in that direction? You see, in the early twentieth century, they were moving towards having a constitution with recognizable liberal human rights protections and things like that. But you had just this building and building and building of this class that had been about a hundred years before disenchanted with their role in society.

(09:40):

So the intelligentsia were basically aristocratic young men who ordinarily would’ve entered the civil service. And for the first half of the Russian Empire, there was a liberalizing trend, and it was not without problems from an Orthodox perspective, but it wasn’t all uncritical either. Their interaction with Western ideas and they were moving towards probably having a constitution. But then you get, I believe Czar Nicholas I and things changed upon his succession. You have the Decemberists uprising, the Decemberists murder the Czars negotiator, which was a very bad idea. I think they shot him in the back. They were the moderates as well, among people who wanted a constitution. The Decemberists, the moderates shoot the czars negotiator in the back. And so the czar commands his troops to turn his cannons on the crowd. And that’s kind of the end of that liberalizing trend in the Russian. That’s Russian,

James Patterson (10:34):

Russian politics in 30 seconds right there.

Dylan Pahman (10:36):

And so you have people, if you read Pushkin’s, Eugene Onegin, it’s all about this guy. You get this character in Russian literature called “the superfluous man,” and it’s this disenchanted young aristocrat, and it comes up again and again because it was a common phenomenon of people who thought their role was to reform Russian society and to lift up the former serfs and whatnot. And then they just kind of find themselves listless and directionless. And if they can, they get their hands on books. In fact, one of the reasons you find a lot of people coming out of seminaries being so radical in Dostoevsky’s Brothers Karamazov, it’s the seminarian who’s the most nihilistic and terrible character in almost the most in the book. And that’s because seminaries were one place where they could still have books that were banned elsewhere. The church was actually trying to protect freedom of speech, but unfortunately that meant there was books like Karl Marx where in the libraries, Joseph Stalin was like a Georgian seminarian as a youth.

(11:40):

And you see that sort of a trend. And so you end up, and then in the midst of all that, the last czar completely bungled military policy in World War I and economic policy at home; people are just losing their jobs standing in long breadlines an absolute disaster, and it’s just ripe for revolution. So you get this conflict, and I mean, frankly, many people at the time, and from an orthodox point of view will also say, and the devil, I mean, read Russian literature. It’s unusual for someone not to have a conversation with the devil at some point. And Bulgakov called it a black miracle that you have this society that is a thoroughly Christian society, has its issues and problems, but it’s moving in this recognizable direction. And then just the most terrible thing happens. I mean, conservative estimates count something like a million people martyred, more liberal ones would be up to 10 million by the Bolsheviks.

(12:44):

So it’s a really, really terrible time. Most of the bishops of the church are replaced by atheist agents of the church or of the state. All but one monastery was completely shut down, turned into a museum or labor camps. So really, really awful thing. And it’s something that you can only understand in part by understanding the history of economics. You have to understand, well, what is it about Marxism that captures people’s imagination? And I talk about that. There’s two chapters in my book where I deal specifically with Marxism, and one, I look at it as a worldview. So Marxism is sort of like the ultimate conspiracy theory. It’s something wrong in your life. Well, here’s the answer: you’re oppressed and there’s an oppressor. And yeah, he’s the bourgeois, but in other ages he would’ve been, there’s again this historical dialectic that suddenly can help people make sense of their reality.

(13:38):

I don’t think it correctly does, but you can see the appeal, right? You’re struggling. You know what? It isn’t your fault. And sometimes it’s not people’s fault, but it’s just this story that suddenly they can, this meta narrative that they can hang in all of their problems, all the problems they see in society and make sense of it all. And we are storytelling people as human beings. We want a story to hang everything on, and Marxism provides that for one and it provides a very powerful one. Yeah, the Communist Manifesto says the history of all societies is the history of class struggle, which I think from a historical perspective is the most ridiculous historical statement I’ve ever read. They say everyone is conspiring this, including Pope and Czar, never mind that the Pope condemned the czar for forcibly converting Catholics to Orthodoxy at the same time. No, they’re conspiring together.

James Patterson (14:31):

That’s right.

Dylan Pahman (14:31):

For the sake of capital. But the reason that works from a Marxist perspective is well, they all have a false consciousness. They all are under the sway of these social forces because it’s ultimately material. There’s no place for human persons in Marxism, for that inherent dignity and freedom. We are the product of a historical equation, even to the point where Engels says the same about Marx, that he discovered this great material, historical, social dialectic. But you know what? The time was right. It was bound to be discovered. If not Marx, someone else. He says this, this is his friend. He gives his friend no credit for his own intellectual achievement. He ultimately kind of worships this as something in the place of God. And that’s a critique you find from Father Sergei Bolgakov, which I draw upon in that chapter. It says, ultimately this is a religious movement and it’s trying to stand in the place of religion for people.

(15:30):

And what does religion do? Among many other things, it gives people a narrative, a meta narrative to make sense of their world. And so that’s the power of Marxism. And then the other side that I look at is the economic analysis of Marxism and why that doesn’t work, why the marginal revolution ended up becoming the mainstream in economics and why it actually better explains reality. I feel like this is a long answer to your question, but I hope it’s still interesting. The example I give about why Marxist analysis doesn’t work, and I try to do this with every chapter, if I can, I have some kind of little attention grabbing hook to help it be relatable. So I talk about how two years ago, Hasbro Company, Wizards of the Coast published a genius crossover product: Magic the Gathering cards that were Lord of the Rings-themed just as J. R. R. Token intended, I’m sure.

(16:25):

And among those cards, they printed a one of a kind printing of the one ring card and card collectors were really stoked to get it. And they’re opening these $12 or $13 packs of little rectangles of cardboard trying to find this one ring card. And eventually a young woman did open the card, she found it, and she sold it at auction to Grammy award-winning musical artist Post Malone for $2 million. Now, according to Marxist analysis, the price of something and the market directly reflects the amount of labor put into producing it. There was no more labor that went into producing that rectangle of cardboard than any of the other ones.

James Patterson (17:11):

Wait, to be clear, it is a card of a ring. It’s not actually,

Dylan Pahman (17:16):

Oh, no, it’s not actually a ring. Nope, it’s not. It’s like a baseball card.

James Patterson (17:20):

With a demonic.

Dylan Pahman (17:23):

Nope.

James Patterson (17:24):

Or power. It’s just a card.

Dylan Pahman (17:25):

Nope, it’s just a card. It might be kind of glossy. There might be some foil on there or something, but nope, just a card, just cardboard. And the young woman who opened the pack didn’t take any more labor for her to open that pack compared to anyone opening any other path. It just doesn’t explain reality at the end of the day, the labor theory of value, the other element being the assumption of equality exchange, but I don’t need to get into that, but that’s kind of the idea.

James Patterson (17:49):

Did Post Malone throw the card into a volcano?

Dylan Pahman (17:53):

Maybe he should. Maybe that’s why our world is so chaotic these days because Post Malone just won’t do the right thing. He’s trying to use it for his own power. I don’t know. I’m sure he’s got it framed and behind a glass case or something like that.

James Patterson (18:07):

It’s either that or the orb, which is, remember when Donald Trump went to Saudi Arabia and put his hands on the orb? We entered a second dimension at that point.

Dylan Pahman (18:17):

That’s one of those news events where I’m just like, I think I’m a smart guy, but I don’t think I really understand the world. End of the day, I didn’t even know they had an orb. Not to mention what its function is. I still don’t know.

James Patterson (18:29):

They haven’t brought it back. Have you noticed the orb is a one and done like the one ring card.

Dylan Pahman (18:35):

Served its purpose, I guess? Yeah, right. Anyway, so that’s a very long route to answering your question of, but it is a big question. How did communism happen? So part of that is just there was the right opportunity. There was a disaffected class of at least pseudo intellectuals, and then there was a really terrible economic and military and national crisis, and people were fed up and they took power into their own hands.

James Patterson (19:02):

So when it comes to the development of modern economics, so the eighteenth century is normally sort of looked at, but when you take a look at where a lot of Orthodox Christians are sort of in the occupied territories of what used to be Byzantium, they’re bearing witness to the silk trade. They see all of this specialization that comes in. Its manufactured, the conveyance of goods and the marking up of prices for risk and discovery. So does that area of orthodoxy, the Greek Orthodox and the Balkan areas, did they develop a greater appreciation for modern economics that maybe doesn’t translate into the same ideas that we have in Western Europe?

Dylan Pahman (19:49):

Well, I mean, it’s hard to find translated treatises on economic issues. I’m actually not convinced they don’t exist. I just don’t think it’s what’s interested scholars for a long time. Usually if you’re looking into that stuff, you’re looking at philosophy or theology, and then you’re into metaphysics or the doctrine of the Trinity or something like that. And if you see a treatise on usury, that’s just not the normal scholar’s interest, and so they’re going to overlook it. But I will say, actually that’s a really good example of a East-West difference is the question of usury. So in the West, partly due to the rediscovery of Aristotle and adopting his definition of money and his definition of usury. For them, all interests on a loan was sinful usury. And this was based on Aristotle saying, well, it’s not the nature of money to reproduce itself.

(20:40):

It’s not like seed that you can plant in the ground and get many more seeds. It’s just money. It’s sterile. Now, he’s not really thinking it through as later scholars even in the West would point out that you use money to create stuff and then you make more money, and that’s how you get more money from your money. But there of course, is the problem of exploitation. There are predatory loans out there, and in the ancient world, that was a real concern. If someone is desperate and coming and asking for a loan, they probably can’t pay it back. And so it amounts to theft and an attempt to completely dispossess them to even give them the loan in the first place. But what you find, because the east was less agrarian and had to be more commercial, as you said, they’re kind of at these trading junctures.

(21:26):

Legally there’s never a ban on usury. I think it was once attempted by Leo the Isaurian, who is known in church history for being one of, I think it was the first emperor to try to impose iconoclasm. So he’s not exactly the most orthodox or popular emperor in the history of our church. And it’s like the law that I’ve read is funny because he is basically chastising everyone, like, well, we tried this, but since everyone’s so sinful, we’re going to go back to having some usury. And if you look at the Justinian code, it just caps the rate of interest at a certain point depending on the kind of loan. And that’s actually really common in the East, including in the Middle East. There’s records of church cannons. Church cannons ban priests from lending at interest, clergy from lending at interest. And that gets a very important theoretical distinction, which does come up in the book starting with the section on the Bible between the law and the gospel.

(22:20):

So the law aims at impartial justice, and you actually see this in Deuteronomy. Ancient Israel was allowed to lend an interest to foreigners. I don’t think that was the poor foreigner they’re always called to care for among them. I think that’s like a traveling merchant, right? Somebody who could be expected to pay back a loan with interest. But among their own people, if someone comes to you and they’re your friend or your family, I mean Jesus is the same thing. Someone comes to you and says, “I need help. Can you give me a loan?” He says, “lend expecting nothing in return.” Well, you have a personal relationship. It’s not at the level of law. It’s at the level of mercy. The gospel focuses on mercy. And so you see, canon law is an organized body of law, but it’s law aimed at a system of mercy that pastoral restoration of a person. Whereas the civil law, it has to be impartial, has to file the rule of law a bit more strictly in a positive sense, and then they just cap the rate of interest because they know that you can’t have commerce without that. They’re trading with Russians and with Persians and with people from all around the world. And the empire wouldn’t have survived a thousand years if they didn’t do that. So there’s a different sensibility just because of a different historical experience there as well.

James Patterson (23:36):

Does there emerge any kind of new understanding of sort of orthodox social thought from its contact and eventual conquest in some ways with Islam? Because Islam has its own kind of Sharia sort of conceptual work here, Sharia here, not meaning the scary stuff, but they have their own system of laws about trade, and it’s usually very favorable to commerce.

Dylan Pahman (24:04):

Right. It is. Although they specifically do have laws about lending, and they have a whole system of ways of getting around their absolute interest prohibitions.

James Patterson (24:13):

Selling someone a token for a very large sum of money and then you giving it back to them,

Dylan Pahman (24:22):

Right, right. You find similar stuff in the early modern West, actually with the triple contract. That was something I do talk about Scholastic economics, actually. That’s where I start the history of economics. I talk about the Jesuit to the School of Salamanca and some Protestant writers as well. But I had to cut the part about the triple contract. It was just too much detail for the sort of book that it is. But yes, I actually have a whole chapter on orthodox Christians and Christians in general in the Middle East after the fall of Jerusalem, basically from the fall of Jerusalem to the Ottoman Empire. And so what you find is not so much different economic thought, although Christians did have a different view of usury. For example, Christians, what you find is a social shift. So suddenly Christians could no longer serve in the military,

(25:10):

But they could serve as administrators, public administrators. For centuries, they were the most competent people and the majority there. So they continued kind of running a lot of society and they dominated the trades. So education, medicine, and there was a ton of Christian merchants. So what you have is this interesting situation where in many cases, Christians were persecuted and they become second class citizens. This is dhimmitude; they have to pay a head tax, but they were often tolerated. So it’s really kind of a mixed bag; it depends on usually the temperaments of the caliphs rather than necessarily anything fundamental to Islam. And what you find is now you’ve suddenly gotten Christianity for the first time since Constantine disentangled from the state, right? And from any kind of state favoritism. So what you see at that time is actually the birth of the Scholastic method. It comes from Christian scholars, and the purpose of it is they want to reasonably debate with one another about things like the nature of Christ.

(26:14):

There were three different churches actually that had slightly different views about the nature of Christ. And then of course they want to also dialogue with Muslims, with Manicheans, Zoroastrians. There’s this religious pluralism that they encountered. And there’s this kind of amazing wealth of people that, and on one sense it’s a very different context, but in another sense, there’s a lot we can learn that we live in pluralistic societies today, and at least in the United States, there’s no established church or religion. So there’s actually quite a bit that are these amazing treasures that I actually added the chapter to the outline after the book proposal was accepted because Ancient Faith, the publisher is a ministry of the Antiochian church in the United States. And I thought, “boy, I have this whole thing on orthodox history. I should have a chapter that tells their story.” These are Palestinians, Syrian, Lebanese, Orthodox Christians, largely, at least historically.

(27:11):

I was like, “I need a chapter.” And thankfully there has been enough Arab Orthodox sources translated into English as well as some good secondary sources. I was able to write that chapter, and I’m so glad I did because it gave this excellent bridge in terms of natural law and the scholastic method to talking about the early economics of those Jesuits. And it also showed, again, this common ground I get a little tired of. I am Orthodox. I chose to be Orthodox, I’m a convert. I do have some strong convictions about our church, but I do get frustrated with the polemics. There’s a lot out there that’s “Oh, the West is just scholastic and rational and bad, but we’re mystical and good.” And it’s like there’s no scholastic method without us. We invented it. It came through these Christian educators to then Muslim scholars to then the west. And in the Byzantine era, everybody was a scholastic, east or west. It’s a silly sort of thing that I think is an example, that kind of unhelpful, unhelpful rhetoric that actually obscures what’s unique about orthodoxy rather than bringing it to the fore. So I think there’s a lot to learn from Middle Eastern Orthodox Christians and from that experience under Muslim rule.

James Patterson (28:26):

I was actually about to go. You’re anticipating my questions. This is good, Dylan. I don’t know why I’m narrating my thought process into the microphone, but might have something to do with being at Dollywood all day yesterday. The experience in the West is so different from that of the Orthodox. They’re in control of their own regimes, but they’re all fighting each other and they’re not just fighting each other in temporal authority, but also over spiritual authority. You have different popes showing up depending on who was allied with different kings. And this is not as true in Spain for obvious reasons, but when we think about France, Italy, Germany, and to a lesser extent England. And so the result is after the Reformation, there is another sort of attempt for those states to adopt a singular understanding of Christian social thought, but one that is considerably more pro-usury than well just lending, right? It’s not actually considered lending. And so what you end up with is this kind of fractured space of Protestant and Catholic social thought. And as you’ve indicated before, the Orthodox approach has a kind of productive engagement in the book. So why don’t you tell me about the modern version of Orthodox social thought as it confronts the Catholic effort to reckon with the industrial revolution as well as the Protestant?

Dylan Pahman (29:59):

Yeah. Okay. So some of the back history that I think is really interesting, you’re right that in the West there is that difference in the medieval period, but you actually see something similar in the Orthodox East when it comes to the Russ. So Vladimir unites them and baptizes them all, but then they start fighting with each other again. The Mongols show up and they say, out of my cold dead hands, and the Mongols say, okay, and then they conquer just about everybody with the exception of Novgorod and Pskov, who very wisely just preemptively surrender and agree to pay a tax. And they actually are both republics for over 300 years. So similar to you get Northern Italy and German republics, you get Magna Carta in England. So you see a similar Christian progression in the East. There are some differences though. So there’s no guilds in the East, which is an interesting phenomenon.

(30:52):

And what you have in the absence of guilds is a domination of monastic commerce. A lot of the markets were on monastery grounds, monasteries owned factories and bars and all sorts of printing presses, that kind of thing. As far as in the modern era, that’s when you have, well, the fall of Constantinople. So you do lose a lot of the intellectual powerhouse there. But you get the rise of Kiev again this time as part of the Polish Lithuanian Commonwealth. So actually technically part of the West, a Catholic kingdom, but one that was uniquely in favor of religious liberty at a time when everyone else was killing each other. It’s like they have, there’s constitutional documents you can find where they actually explicitly mentioned freedom for Greek Christians, meaning Orthodox, but they were also favorable to Protestants.

James Patterson (31:39):

Just to interrupt, that is a policy that makes sense when you have the Germans to your west and the Russians to your east. Absolutely, absolutely. Let’s not find each other guys.

Dylan Pahman

(31:48):

Yes. And they had two kings and they elected, I mean, it’s really fascinating thing. This is a bit of a tangent there. But anyway, you have this rise of Kiev in the first Orthodox theological school in the modern era is Peter Mogila’s Academy. And Peter Mogila was very much just reading Jesuit theology and then trying to make it Orthodox. And that’s not necessarily a bad thing. He made a catechism that was modeled after the Tridentine catechism, but it was so Catholic that he submitted it to, he said, “Hey, I think the whole church should adopt this.” And they’re like, “Hey, that’s great, but maybe you should take out all this stuff about literal fire and purgatory because we don’t believe in that.” He was just like, “oh, okay, sure, I’ll take it out.” I mean, he didn’t really know any better. So to some degree, you kind of have the Orthodox lagging behind a little bit.

(32:36):

You also have a very different social experience. So in Spain, once it’s re Christianized, one of the first things they do is discover the New World. And the New World means gold, and the Spanish empire is very much gold means being rich, and so we want more gold. And the result, Marjorie Grice Hutchinson notes, is that prices doubled twice in the sixteenth century: inflation. And combine that also with really terrible monetary policy that people were convincing the king to debase the coins in addition to flooding the market with a ton of extra gold. They’re also debasing the purity of their coin, and it just runs havoc. So that’s how you get all these treatises in the West about proper monetary policy in the early modern era. Whereas in the East, they’re just trying to survive under the Ottomans, right? They have a very different experience. So you shouldn’t really expect exactly a parallel, but by the time you get to the modern era, to answer your question, you do have people like Solovyav, Bolgakov, S. L. Frank, and they all take somewhat different approaches, but there are some commonalities.

(33:45):

I mean, one thing I track all throughout Orthodox church history is this idea of catholicity, which you might think, well, your Orthodox not Catholic. Why is that a central principle? But we in our creed, confess the church to be one holy catholic and apostolic just like anyone in the west. And I traced that all the way back to Ignatius of Antioch who was martyred in one 10 AD. He knew the apostles. Basically, if he didn’t know what Christianity is, we’re all in big trouble. And in his letter to the Smyrnaeans, he warns them about Gnostics. He says they care nothing for love. They neglect the orphan, the fatherless, and the widow among them, they deny the incarnation, resurrection of Christ. They deny that the Eucharist is the body and blood of Christ, and they reject the authority of the bishop. You on the other hand, where the bishop is present, let the people gather just as where Jesus Christ is.

(34:32):

There’s the Catholic church. I don’t think he just means “universal church” when he says that the word Catholic in Greek means through the whole, right? He’s talking about the church that cares for the poor, the orphan, the widow that believes that Christ became a material person in contrast to gnostics, who believes in a literal resurrection, and who believes that the grace of God is present in the sacraments. It’s all of those things together. And you see that kind of again and again, whether it be in Byzantium, that symphony between canon law and civil law, trying to actually address the whole human person, not without flaws, but still that’s at the heart of it. Then in the modern era, especially in Russian thought, because again, that was where the Orthodox were most free and could write about and think about this stuff, you get this idea of sobornos, which it’s a Russian word that just derives from the old Slavonic word for Catholic in the creed.

(35:32):

It’s literally catholicity. That’s what they’re talking about, and they take it in all sorts of interesting philosophical directions. But one person that I focus on who I like a lot is S. L. Frank, and he talks about it in terms of the element of personal relation. So he’s a personalist for anybody familiar with Jacques Maritain or Martin Buber, other people. We have those in the east as well. And he talks about how human beings are not isolated individuals. We all are embedded within relationships. It’s not just he, she, they. It’s you and me. And that’s incredibly important for understanding our social life. And what makes those relationships happen is that we like each other. I mean, it’s a really simple point, but we like and trust each other, and he contrasts this with another even bigger, more obscure Russian word, which is kind of this external unity of society, which he thinks is fine.

(36:30):

That’s okay, but that very much corresponds to impartial justice, this impersonal nature of things. So the state needs to be impersonal, law needs to be impersonal, and a lot of commercial relations need to be impersonal. If I go to the grocery store, it doesn’t really matter who I am. They can’t deny me service unless I’m causing a ruckus and hurting people or breaking the law. I show up, I pay my money, I get my thing, and there’s an agreement there, or you sign a contract and there’s justice once again is a standard: rendering to each what is due. But that is, while essential is a pretty cold society, if that’s all you have, We need relationships of love. We need friends, we need family, and we need that dynamic even in these more impersonal relations. So a country that has no patriotism, no loyalty or love is in crisis, right?

(37:23):

Business where the employers don’t trust the employees. I mean, this is one of his rejoinders to Marxism is like nobody hires anybody unless they trust them not to steal from their shop or whatever, and nobody takes the job unless they actually have some affection for their boss. And in a free society, if they don’t, they go get a new job. And so you actually have to have this as a sort of glue that holds society together. And he relates this to catholicity or to sobornos and to that, the most perfect expression being the church. So you get in all these kind of biblical Christian dichotomies between, or juxtapositions between grace and law or the church and the world. It’s a way of harmonizing these things with attention to these new eras, new realms of life in the modern era. One of the things you find across Christian traditions, even into the early modern era is that the Christian map of society is very simple.

(38:22):

It’s not wrong, but it’s sort of like if you found an old world map, which I found one of these recently from the early 1200s; it’s a circle. They knew the earth was round. It’s got Europe, it’s got Africa, it’s got Asia. Some of the details are a little fuzzy, but there’s actually quite a lot. There’s a lot written in Latin. There’s even a ring of islands all around the outside. But beyond that, it’s like sea monsters. They do not know about the western hemisphere or Antarctica or Australia. That’s fine. It served them well for a time, and then it became obsolete. And that’s a similar sort of thing happened with our social map. So in our catechisms, when you get to the command, “honor your father and mother” basically across traditions, they will all say, this also applies to other legitimate authorities, among which they say there’s the church authorities and the state authorities. So that’s where you get church, state and family.

(39:16):

But in the nineteenth century, suddenly you have business as just another realm of life. It’s not a family business, it’s not a state business, it’s not a church business. All of those existed before; the East India company and that sort of more of a state enterprise, or at least a crony-istic one. But the idea that there’s just someone out there who, they have a project, they have a way in which they want to serve a social need, and they’re going to provide a product and they need to hire people to work for them, and they get the machines and they get the capital and they get it going. This is a new realm of life and we need to theologize about this as well. And so Frank and others like him, they use this concept of catholicity to help build some continuity between that ancient tradition all the way back to the Bible even, and these new emerging realms of life, whether it be, again, business commerce, we could talk about higher education in a similar way or the art world or whatever.

(40:15):

We need to have a more accurate map of social life. So part of it, I do have a little bit of a constructive contribution. Mostly I’m trying to say here’s what other people think throughout the book, but that’s one of my constructive contributions is to say, here’s a more accurate social map. And I have a way of charting that out for people, but it involves this sense of there’s a impersonal and personal realm of life or economy I call ’em, and there’s also materially productive and materially zero sum, and you put those together and you get four different kind of sectors of social life. You have the state which is extractive, not necessarily in a negative way, although we all know about the negative ways, I’m sure, but every law works that way. If you break the law, if you don’t do the good thing, the law says you’re going to receive a bad thing that’s coercive, right?

(41:06):

That’s just the nature of law. Good laws work that way just as well as bad ones. There’s the family and other integrative societies where a baby doesn’t earn its mother’s milk, right? It’s just a matter of mercy. It’s a matter of just this one way gift. And of course, vice versa. I hope my children will obey me out of just the love of their hearts, but sometimes we do need those other dynamics, need a system of rewards and punishments to teach our kids to obey, but it does happen. And I provide for them just because I love them and I care about them. And then you can move into that productive economy, and you have things like friendships, which are very personal, right? Local business. I talk about, actually, I did this last year at the Ciceronian Society Conference. I had a paper on friendship, and I talked about it as the wimpy dynamic of life. This is a reference for all the people our age and older who remember the old Popeye cartoon, but it was the mooch, the character “Wimpy” on Popeye. And his tagline for some reason was he would show up is if I remember right, usually a non-sequitur. But he would just show up and say, “I’ll pay you Tuesday for a hamburger today.” Right? That’s an insane thing to say at a McDonald’s, right? It’s never going to work.

James Patterson (42:22):

Although they did try to make that a thing, right? Remember when Klarna, you could finance your burrito? They were literally doing the “Wimpy,” a model of burger purchasing.

Dylan Pahman (42:32):

Yeah. Yeah. I mean, I would be worried about usury in that case, but somebody can’t, that’s actually a good point. Afford a burrito, but let’s say a local restaurant owner, and you come to the restaurant and you order your food and you say, “Oh, shoot, I forgot my wallet.” You say, “Hey, John, can I pay you Tuesday for this hamburger today?” And they’d be like, “Oh, yeah, you’re good for it. No problem.” That’s a different sector of society. There’s a different nature to that relationship. We see that dynamic throughout everything else. Anyway, all that is to say, I draw that from my own tradition. I think that’s something that every tradition can learn from, and I hope that it’s a book that won’t just appeal to Orthodox Christians, that really, anybody who’s struggling with how to integrate faith in modern society will find something that they can build upon within their own tradition from this book. But that would be the thing that I would center on is those different categories of social life, and then especially that principle of ster Catholicity.

James Patterson (43:34):

Dylan Pahman, thank you so much for appearing on the Law & Liberty Podcast. The book is The Kingdom of God and the Common Good: Orthodox Christian Social Thought.

Dylan Pahman:

Thank you for having me.

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.

Especially since the controversies of 2020, the commanding heights of American culture have been dominated by a kind of left-wing moral panic. In his new book, Adam Szetela analyzes this toxic mentality’s influence on the publishing industry specifically. Many writers are either drafted into ideological crusades—or else become their victims. In this episode of the Law & Liberty Podcast, Szetela joins James Patterson to discuss his book and the sorry state of American literature.

This Book Is Dangerous! by Adam Szetela
Publishing Prejudices by Theodore Dalrymple

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 in this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson. I am contributing editor to Law & Liberty. Our author today is Adam Szetela. He earned his PhD in English in the Department of Literature at Cornell University. Before that, he was a visiting fellow in the Department of History at Harvard University. He’s written for The Washington Post, The Guardian, Newsweek, and other such publications. Today we’re going to be talking about his new book, That Book is Dangerous: How Moral Panic, Social Media, and the Culture Wars Are Remaking Publishing. It’s from MIT Press. Welcome to the Law & Liberty Podcast.

Adam Szetela (01:21):

Hey, thanks for having me, James. Appreciate it.

James Patterson (01:24):

So I just want to start off by saying that when I was carrying this book around at my office at the University of Tennessee, it got a lot of attention. People were very excited, and then when I told them about it, it got even more exciting. People were very thrilled to hear that someone had written this book. But before we get started talking about the details of this book, why don’t you give us an outline of what you argue in it?

Adam Szetela (01:49):

Yeah, so basically, so for context, I started noticing kind of in the early 2010s, this period that now hopefully in hindsight we’re referring to as the “Great Awokening” and sort of the birth of cancel culture, however you want to describe it. So there was a lot of attention around that time, rightfully going to universities for example, and sort of how they were shutting down speakers and you had these high profile cases of Charles Murray and Brett Weinstein and all these other folks. But around that time I noticed there was something similar happening in publishing. And every now and then a story would end up at The New York Times or The Washington Post that a book had been canceled before publication, and I don’t use that term metaphorically, I’m talking literally canceled before publication because someone had said it was racist or sexist or transphobic or homophobic.

(02:43):

And then sort of around the George Floyd “Summer of Love,” those cancellations really amped up a lot and I was seeing them more and more. And it was extending from picture books to journalism to scholarship to adult novels to memoirs. Really no corner of literary culture had been untouched by this climate of social media cancel campaigns. So basically I started with the question of if this is what I know about as someone who does not work in publishing, then surely this culture is affecting decisions that are being made behind closed doors. So I spent a few years interviewing people in all corners of publishing. So people who are presidents and vice presidents at the Big Five publishers, places like Penguin Random House, Harper Collins, Hachette, et cetera, to editors, to people who work in the marketing departments, to people at indie presses to directors of public library systems. And I even interviewed more than one person who is part of this growing career field of “sensitivity readers,” people being brought into edit manuscripts for potentially insensitive material. And these folks have now edited everything from a children’s picture book to there’s even scholarly journals that hire sensitivity readers now. So the book itself is really in many ways an exposé of this new historical moment in literary culture.

James Patterson (04:15):

The publishing industry, I don’t think, is something a lot of people know much about, but in particular you spend time talking about YA novels or young adult novels. And this is an area of publishing that really started to blow up as a result, I guess, of Harry Potter. So there’s a lot of details about the publication of young adult literature that I don’t know if people necessarily know. What is a “sensitivity reader,” how do they affect what’s published? And most of all, what is this whole concept of the moral panic? How does it play into all of that?

Adam Szetela (04:54):

Yeah, so the way I use moral panic in my book comes out of the sociological tradition called the “sociology of moral panic.” So these are folks who have studied everything from the Salem Witch trials to the hysteria over rock music at the end of the twentieth century. And basically a moral panic is a disproportionate response to a perceived threat. So the folks that I focus on in my book, and these folks in publishing, these folks on social media, who are getting books canceled and whatnot, they’re not people who are just like, “Oh, I think this book is not very good. I think it could be more well written.” These are folks who are associating books with violent crime. There’s someone I quote in my book who is actually head of an imprint who said, “Trayvon Martin might be alive right now if his killer had read better books as a kid.” These are folks who are comparing books to cars without seat belts. And in their minds, they think that the way you’re going to get rid of racism, sexism, transphobia, homophobia, and ultimately, people who voted for Trump, is to control publishing and control what people read, especially young people. So children, young adults, and they’re waging this crusade from their perspective to be on the right side of history, and they’re more than willing to get books removed from bookstores and to outright stop the publication of books before they even hit bookstores.

James Patterson (06:29):

Yeah, an element of the sensitivity era in which we use these sensitivity readers, you describe as a kind of reintroduction of race essentialism, and on page 58, a discussion of “racial mysticism.” How is it that these sensitivity readers that are attempting to kind of engage in some kind of filtering or refining of racial representation ends up ironically reproducing the very bias they’re trying to prevent?

Adam Szetela (07:01):

Yeah, it’s a great question. So basically to be a sensitivity reader, you do not go to college to be a sensitivity reader. You don’t complete any sort of course to become a sensitivity reader. All a sensitivity reader is, is someone who shares an identity with a character in a fictional book or the topic of a nonfiction book. So if I’m a black guy, I could be a reader, a sensitivity reader for say a nonfiction book written by a white guy that is in some way, shape or form about black people. I could be a sensitivity reader for a white guy who has a black character in his novel. And it’s premised on this idea that as a black person, I can speak to the needs, interests, values, et cetera of the “black community.” So what the way this sort of manifests in practice, and I try to offer a lot of empirical examples from the sensitivity readers themselves about what they actually do, but in practice, it sort of recreates the idea that people who share these demographic characteristics think the same, that they eat the same, that they have the same views of politics and things like that.

(08:10):

So there’ll be a sensitivity reader who’s like, “Hey, if there’s a black character in your book, I want to know what that character is eating for dinner.” That’s literally one example I quote, and it’s premised on this idea that black people in the US are supposed to be eating certain kinds of foods, talking a certain way, and ultimately the expectations for what they should be eating and how they should be talking actually are sort of the very stereotypes that they’re ostensibly sort of trying to correct in publishing. So an “authentic black meal” would be collard greens, something like that. Now, in reality, and one of the reasons that writers of color who I interviewed for my book who identify as being on the Left find these people so infuriating is because we’re now in a moment where a black novelist trying to get a book published is being told that their book is not “black enough” to be published. And essentially what the publisher means is we need more slang vernacular, we need more collard greens, we need more hip hop, things like that. And so that’s the short answer to your question. And a lot of this is being betrust by certain incentive structures in publishing. So right now, all the publishers are aware of the controversies. They don’t want their book to be called racist or sexist or whatever. So the sensitivity readers have created a market for their services, for their racial expertise and their expertise of these “communities”.

James Patterson (09:40):

There appears to be professional incentives within the industry to get ahead of a lot of the trends. In fact, I use the term “Get ahead” because I was just looking on page 62, probably one of the moments in the book where I had to stand up and walk around, I couldn’t believe what I was reading. It said there was a Filipino author who was talking to a white editor and upon the white editor discovering that the Filipino author is not black, he says, “Hey, you’re not black, you’re Filipino. Oh my God, we got to get ahead of this. We got to get ahead of this. You’re going to face a—” and then we’re not allowed to swear on this podcast. And the author, recounting this event to you, says, “The agent is telling me, ‘Hey, we got to swap some races around.’ We need to get a Filipino in this book somehow because so far it’s all black. I mean, there’s some mixed race people, but they’re black.” So what is it on earth is driving this white editor into such a panic that he thinks he’s about to lose his livelihood?

Adam Szetela (10:46):

Yeah. So especially around 2020, there was this emergent but now institutionalized idea that writers should “stay in their lane” when they’re writing. So if you’re a Filipino author, you shouldn’t be writing from the perspective of a black character or what have you. So in that case, this gentleman’s agent thought he himself was black and he turned out to not to be. So he was like, we need to, in his words, “swap some races around and get more people in this book who look like you, because I don’t want to take this to a publisher.” And the publisher realizes the author is not black, because they’re going to see that as potentially becoming the next target of these folks online who will be very quick to go after you if you’re writing outside your own identity.

James Patterson (11:34):

So there’s a particular book that becomes a kind of paradigm case, and this is the book Blood Heir. What is this book and what happens with this book?

Adam Szetela (11:46):

So this one’s wild, but is in many ways just representative of other incidents. So this is early 2019, there was a young adult author named Amélie Wen Zhao. This was her debut book. It from my understanding, got a good advance. It was getting hyped up. It’s a fantasy novel, set in a fantastical world. And in the months leading up to publication, people had started posting screenshots of the book’s description. So not even the book itself. And in the book’s description, they say this is a novel set in a fantastical world where there is slavery, but the slavery is not based off skin color. And people started saying that this was appropriating African American slavery, that this was “whitewashing” slavery. And for someone like myself who doesn’t have cognitive deficiencies, it’s obviously like a preposterous claim at face value, the idea that any book with slavery in it is speaking to African American slavery or taking something from that tradition.

(12:54):

From my understanding, the author was actually writing about sort of indentured servitude back in China, her home country. But anyways, so this reached a crescendo and the publisher, Penguin Random House actually canceled the publication of the book, sent the book to sensitivity readers for editing, and eventually it came out. Now, one of the things that’s most striking about this example is that there was someone, another author who led the charge in this cancellation campaign. He himself also, he was about to have his debut book come out. He’s an author of color as far as I can understand. He is on the far left. And a few months later, the same thing happened to his book. People went after him, said his book was, if I recall correctly, Islamophobic, because he had a villain in his book who was Muslim, and this guy, his book got canceled, it never got published, and he himself is a sensitivity reader. So when I was watching this, I was kind of like, if this guy cannot “get it right,” what hope do the rest of us have? This is a sensitivity reader for Big Five publishers who is heavily active in these cancellation campaigns, and even he himself cannot prevent himself from getting canceled.

James Patterson (14:15):

“Above all,” this is page 105, “above all, moral crusades tend to become more extreme. As they become more extreme, they lose sympathizers.” And you talk about how this was the case for the comic book crusade, and now it’s the case over why literature moving in the same direction, and it’s, like many revolutions, a revolution that is eating itself. But a part of this story about Blood Heir is the rise of social media. One of these social media sites, I think is going to be one that may not be familiar to many listeners to this podcast, maybe some, and that’s Goodreads. What on earth is Goodreads doing to authors, especially in YA?

Adam Szetela (14:55):

Yeah. So Goodreads is a platform where anyone can write a review of a book even if the book has not come out yet. So these folks who are involved in these cancellation campaigns, these are not what I will, for lack of a better word, called normal readers. These are very left-of-center people who spend a lot of time online, so not just on Twitter, not just on Facebook, but a big platform for them is Goodreads. So you’ll come across people on Goodreads who are not authors, who aren’t professional reviewers, but they have hundreds of posts, hundreds of ratings. They sort of see themselves as the de facto gatekeepers of literary culture and sort of the moralness of literary culture. So what happened was they started using this tactic that we call the “Goodreads review bomb.” So the way this works is let’s say you James have a book coming out in a few months, I get wind of it, maybe I get an advanced reading copy, or maybe as in the case of Amélie Wen Zhao, I just read the book description and I don’t like it.

(16:02):

I find it problematic. I can start sharing screenshots, posting on Twitter, things like that. But when you put in a book’s title on Google, Goodreads can be one of the first sites that come up, especially if you’re a new author and you don’t have a huge platform. So what these people realized is that working together, they could totally tank a book’s rating on Goodreads in a way that it won’t recover, and they can post comments that are like, “this book is racist, this book is sexist.” “This book is,” as my own title suggests, “this book is dangerous”. So some of these controversies, ones that eventually get covered in places like Slate in The Washington Post because a book gets canceled or what have you, or an author gets death threats, as was the case with the woman that wrote American Dirt. Some of this stuff just starts on Goodreads with people posting.

James Patterson (16:57):

For the life of me, and I can’t remember if it’s in the book or not, but for the life of me, I cannot think of a single real definitive indication that YA novels cause violence against underrepresented people. It just occurred to me while you were talking, it’s like, well, does this really happen? Do people have a moment they’re thinking of when this happened?

Adam Szetela (17:20):

Yeah, so no, they don’t, short answer to your question. And the relatively little empirical work that has been done on how reading actually shapes people’s opinions and stuff like that, I mean, it’s, it’s a skim field, and basically what they find is, yeah, if you watch, I don’t know, Al Gore’s The Inconvenient Truth or something as a 13-year-old, then maybe on a survey a week, two weeks later, you might be more liberal in terms of your views on that. But it’s not like people are doing these ten-year long studies about what books you read and how they affect your life and stuff. Now, one of the biggest ironies here is that a lot of the people in the pundit class who have been making that connection between books and the election of Donald Trump or the death of Trayvon Martin, these same people are highly critical of that one-to-one causality in other contexts.

(18:14):

So these are the sort of left-of-center people who will be like, yeah, it’s preposterous that someone’s going to shoot up a school because they played Grand Theft Auto, or it’s preposterous that listening to rock music in the 1980s is going to convert you to a Satanist or something. So they’re aware of, for lack of a better word, the stupidity of those sorts of arguments. But I call them “magic words,” when you’re and start inserting these “magic words” like racism, sexism, a lot of the sort of logical thinking just kind of goes out the window and then all of a sudden you’re connecting a picture book about George Washington’s slave to the death of George Floyd. And these are people who have power. It’s not just a random blogger online, it’s like distinguished professors of English or the presidents of imprints at  Big Five publishers and so on.

James Patterson (19:09):

Yeah, I was always laughing about seeing these tenured faculty that were participating in this. I guess once you’ve gotten tenure, you don’t really have a lot else to do for some cases except to review on Goodreads. I mean, there are better uses of your time. So there’s a lot of people listening to this that might remember Ryan Anderson’s When Harry Became Sally getting canceled. But one thing you point out is that aside from these kinds of examples, this specific one, it’s not really conservatives targeted by sensitivity readers or by the Big Five. So conservative authors aren’t the targets. This is a circular firing squad.

Adam Szetela (19:57):

So Big Five publishing houses are Penguin Random House, Harper Collins, Simon & Schuster, Hachette, and Macmillan are the sort of Big Five. So those are the ones that, for lack of a better word, have a near monopoly on the books that get published, and particularly the books that are profitable. I could of course start my own indie publisher and stuff, but I don’t have the distribution channels of Simon & Schuster. So the reason I focus on those publishers are in the same reason I would focus on the UFC as opposed to some backyard fighting organization if I want to study MMA.

James Patterson (20:33):

Yeah, this is not a video podcast, but is that Connor behind you I see? Is that

Adam Szetela (20:39):

Yeah, yeah, yeah…

James Patterson (20:39):

If we were running a different podcast, we could talk about the UFC because unfortunately that’s something that I follow probably too much.

Adam Szetela (20:49):

Anyway, I followed quite closely. I’m trying to get my hands on some White House tickets for July.

James Patterson (20:55):

Oh, man. Well, maybe they’ll bring Jones back. Although, anyway, no, no, no, we’re not going to do that. That’s not this kind of podcast. There is probably the funniest chapter to read is the chapter on political economy, and in the political economy chapter you talk about, or you open it with this man named Jason Allen who’s at a mansion in Bridgehampton, New York, and Allen is working as a pool repairman for another writer. Why is this story so emblematic of the problems you see with access to resources in publishing and the incentives to keep people of a certain kind of way?

Adam Szetela (21:38):

Yeah, so I will answer that and then I’ll actually go back to your other question about the relative paucity of conservative authors like Ryan T. Anderson. So in terms of this question, yeah, so one thing you’ll notice as I did when I started really studying this zeitgeist is that there’s a borderline fetishistic obsession with identity and making publishing as diverse as possible. And by publishing, I mean who works at the publishers, who works in the agencies, who are the authors being published? So it’s like if 1.5% of the population is, I don’t know, trans African-American women, then we need 1.5%. It gets that granular, but one thing you’ll not see is virtually any attention to the class backgrounds of people who end up working in publishing and the class backgrounds of people who end up getting the big contracts and things like that. So as someone who’s very much interested in that dynamic, that chapter is very critical of the kind of in some ways, hypocrisy of this movement. Because they will look at statistics on say, the number of women of color in publishing or the number of trans people or what have you, but particularly when it comes to race, there’s this idea that if you get more unconscious bias training seminars, if you force your workforce to read Robin DeAngelo or Ibram X. Kendi, then publishing will become this sort of multicultural paradise where you walk down the hallway and there’s five black people and three in it.

(23:21):

But one of the things that explanation fails to grasp is just the material realities of working in publishing. So you could go on LinkedIn right now or Indeed or Glassdoor and just plug in what is a starting salary for an assistant editor at Penguin Random House make, and you’ll see it’s like $51,000, and these are really, really hard-to-get jobs first off. And then two, it’s like, who’s living on $51,000 working in Manhattan? Well, I’ll tell you who. It’s people who have a parental safety net or people who have a trust fund or a wealthy spouse, that sort of thing. And one thing you’ll also notice when you look at who’s working in publishing, who’s working at agencies, these are people who are not being pulled from the local community college. These are people from the same, I dunno, 30, 40 to 50 universities, but really the same top 20 universities.

(24:19):

It’s the Ivys, Chicago, NYU, UC–Berkeley, UCLA, NYU. It is a very, very elite culture and one in which all problems including this problem of diversity, which is on all these people’s minds, are solved with solutions that have nothing to do with say, increasing the amount of working class people, people have working class backgrounds in publishing and that sort of thing. And then the question then becomes following their own logic. So their logic is like if there’s majority of white people in publishing, then it’s going to affect the stories that are being told. If its majority cis people, then it’s going to affect the stories that are being told. Well, then the question is like, well, if its majority highly educated people from selective universities and colleges in the US, then yeah, what kind of books do you think are going to be published and accepted?

(25:18):

And I will say this too, it’s not something I talk about at length in my book, but it’s something I’ve started talking about a bit more since its publication because it kind of relates to some current research I’m doing. The number one demographic of people who work in publishing is actually women. It’s a heavily feminine workforce, depending on what stats you’re looking at, it’s as high as 75 percent of people, and it’s largely white middle to upper class women who live in New York City. So if I’m a man and say, I want to write a book for, I don’t know, high school boys, a population that is historically not big readers, and I’m like, this is my audience. I want to write a cool book that connects to them, get some reading, that can be my audience. But in reality, my audience is the gatekeeper who is a middle to upper class white woman who lives in New York City and probably voted for Hillary Clinton. So if you want an explanation as to why certain books are not being published, that would be according to the Left’s sort of own logic why that is.

James Patterson (26:21):

The line here on page 131 is about sensitivity readers that really raised my eyebrows was “Many sensitivity readers earn more per hour than public school teachers, daycare workers, bus drivers, firefighters, dentists, and doctors. According to one university as of March, 2019, the average pay for a sensitivity reader was $0 to one penny per word. For a work of 60,000 words, you can expect to receive about 300 to $600 at an average reading speed of 250 words a minute. A 60,000 word manuscript will take five hours, four hours to read. This means sensitivity readers make an average of $75 to $150 per hour. If they work 40 hours a week, they can make $156,000 and $312,000 per year.” Are they providing any value that matches this? Are the books any good?

Adam Szetela (27:19):

I mean to give them the most generous reading humanly possible. It’s certainly true that when you look at the long history of literature, particularly American literature, yeah, there are books that have recreated stereotypes and et cetera, et cetera, and there still are cases. I learned this from talking to sensitivity readers where it seems like in certain contexts they can be somewhat helpful. But yeah, I mean I think about their value less in terms of the actual value they provide to literature and more in terms of the optics for the publisher. In many ways, sensitivity readers are now a kind of disaster insurance, and that evidenced quite clearly when you read acknowledgements for books. So now in acknowledgements ten, 20 years ago, you’d see, thank you to my editor, thank you to my agent, thank you to these readers.” Now you start seeing “thank you to the two sensitivity readers for helping me whatever, write about the Asian character in my book” or whatever.

(28:22):

And it’s kind of like this public relations preface of sort of getting ahead of any potential controversy that might ensue, right? Because it’s hard to say, “Hey, Adam, you don’t understand how to write Indian American characters” when I thank three Indian American sensitivity readers in the acknowledgement section of my book, I think that is what’s fueling it in large part because the stuff that I think most people would agree could be better like avoiding certain stereotypes, things like that. That stuff was already getting addressed by editors and by other people because in regards to the question that you brought up with Ryan T. Anderson, mainstream publishing is overwhelmingly left-of-center. It’s not like there’s this huge phalanx of conservatives or sort of far right people who are churning out these genuinely racist books season after season. As Durkheim would say, this is largely a society of saints, and in a society of saints, the saints go after the least saintly, which is why from the outside, this is just progressives going after progressives essentially for not being progressive enough.

James Patterson (29:40):

You provide a copy for the submission of stories to Folio, which is a literary journal published by American University, and it’s what came to mind when you mentioned the overrepresentation of wealthy white women because the description here is, okay, I’ll just say it, and people can make their own conclusions. It says, “If your jam is recreating Grimm’s fairy tales with a badass feminist spin, we want to hear from you. If your love language is recommending stories by Carmen Maria Machado, your taste is up our alley.” It’s an odd mixed metaphor. “If you correspond to how Jordan Peele corners the intersection between horror and racial social commentary, send us your stuff. Folio does not tolerate racism, bigotry, misogyny, homophobia, transphobia, Islamophobia, xenophobia, antisemitism, ableism, or any work that promotes harmful stereotypes and viewpoints.” And as you comment, that Folio is not getting a flood of racist, antisemitic, or otherwise intolerant submissions. So why bother even saying this? And I guess the answer is because of staking a kind of public reputation on the line, right?

Adam Szetela (31:02):

Yeah. I mean there’s few corners of culture that are as hyper left as literary culture, particularly literary culture tied to universities. So these days, if you want to be a writer, you can move to New York City and try to bus tables and sell your first novel. But increasingly, the more common path is you go to a university, you get an English degree, you get an MFA degree, and a lot of those university writing programs have these magazines like the one you quoted. So when they post that, I know I have published in these literary magazines, I have friends who have worked on them, professors I know who run them, there’s no significant contingency of racists and homophobes submitting stuff. So then it becomes a question of like, is this just virtue signaling to the public because we too want to make a statement about how we don’t tolerate racism, sexism, whatever.

(32:00):

Yeah. I mean, that’s probably the case in my opinion. But one of the profound ironies of this is like, and I quote a bunch of submission guidelines in my book, is these people will be like, we’re not going to publish your racist sexist work. We want whatever stories like Jordan Peele and stuff, but then they’ll say, Hey, if your story includes pseudo-sexist language or something like that, you need to preface this with a trigger warning at the front. So I just read that and I read these guidelines where these people, some of them will literally tie their literary magazine that has 400 followers on Twitter to global revolution and stuff like that. And then I read that and I’m just like, dude, you’re literally saying your staff is going to be brought to pieces if a trigger warning is not on the cover of your poem. And then it’s like these same people are talking about overthrowing global capitalism. These are literally the very last people I would want near me if I was interested in concrete political change. There are people who can, unless they’re lying, they’re people who can sort of get broken by the most minimal nudge of something that upsets them.

James Patterson (33:19):

When you start to piece together the book, it actually gets more horrifying because you’re learning now that the stated position you just mentioned justifies the creation of a $300,000 a year position to do race essentialism and YA novels. This is the thing, by the time I finished the book, I got so sad because I think a lot of people, I mean I’m 45, I don’t know how old you are, but a lot of us remember the Scholastic Book Fair, and it was fun. You would go there, you’d maybe buy an eraser, you would get Frog and Toad or something, and now you’re getting sort of left-wing race essentialism for sale. Does it have to be this way? Can there be some billionaire that creates a sixth alternative or are we stuck with this?

Adam Szetela (34:15):

Yeah, it’s a good question. I appreciate the Scholastic Book Fair throwback. I haven’t thought about that.

James Patterson (34:21):

I loved it. I would go there and I would just walk around and take it in. It was my favorite thing ever.

Adam Szetela (34:26):

Yeah, yeah. So money talks and BS walks. I think there’s some publishers, obviously Skyhorse Publishing, Regnery, its imprint, which publishes some of the big hitters on the right, like Ted Cruz, et cetera, et cetera. There are people trying to do that work. Now, do they have the same sort of capital, like a Penguin Random House? No. So I think for me to see actual change, it’s probably going to come from a cultural level in the same way the Left has been very effective at bending culture to its will. At the end of the day, these are for-profit companies. People don’t know it was the Murdoch family that has owned Harper Collins. And these Big Five publishers, they do have their conservative imprints where they publish really profitable books, but for the most part, the people who go into publishing are left of center and that sort of affects the norms.

(35:21):

But at the end of the day, it is bottom line, which is why you see people get fired from these publishers when they’re not meeting their bottom lines. I think it’s the main reason conservative imprints still exist. So if there was something comparable to what the left has done to put pressure on publishers, I could see them responding to that because the ones at the very top do have shareholders and they do have to meet public need and stuff. And I think more importantly, there’s an audience for books that are not pushing this over the top left wing agenda. One of the critiques I make just from an aesthetic position as a reader is these people who have spearheaded this movement, they will say, we need more diversity in publishing. When we need more diversity in publishing, we need to stop teaching Mark Twain.

(36:17):

We need to stop teaching whoever, and instead we need to teach this book, that book and that book. And then you read the descriptions of the books and it’s all more or less the same story. It’s all a story about some character from a marginalized background set in the present who’s valiantly trying to solve some social problem like police brutality or something like that. I quote specific books in my own book and I’m like, I have no problem with those books existing. To every reader their own book. But once you start talking about trying to prevent the publishers from publishing books that deviate from that, once you start talking about getting Huck Finn kicked off the syllabus so that your contemporary social justice YA novel is widely taught, that becomes a problem. In the same way I interviewed a director of a public library system who was like, I have colleagues who will not purchase Christian fiction even though there are people in our library network who would want to read that because it goes against their personal, moral-political beliefs. And at the end of the day, that’s doing a disservice to art to readers. And I think as we’re seeing with the backlash that’s going on against universities, I think there can be a moment where the proverbial chickens come home to roost when people are aware of what’s going on and frustrated with what’s going on.

James Patterson (37:56):

Yeah, we’re getting towards the end, but there is this one thing I wanted to ask about Fight Club. You point out, and American Psycho is another one, these are books written sort of a different period. The funny joke about Fight Club is it was written back when the worst thing a person could imagine would be having a boring job, right? Very pre-2008. But these are books that have taken on a new political valence among very extreme right-wing people. So is this an indication that there may be something about literature? I guess this isn’t YA. I mean, if you’re giving your kid American Psycho, maybe reconsider… But is this a good counterpoint to the criticism you’re leveling?

Adam Szetela (38:44):

Yeah, so I mean, I love Chuck Palahniuk who wrote Fight Club. If you see that severed arm on my bookshelf?

James Patterson:

I do. I do.

Adam Szetela:

That is an arm that he sent me that he signed. It’s a medical replica. He’s awesome.

James Patterson (38:58):

I’m insanely jealous that you have that.

Adam Szetela (38:59):

Oh yeah, yeah, yeah, yeah, you should be. It’s amazing. Yeah, so I mean I’ve interviewed Chuck Palahniuk for another project. I listened to Bret Easton Ellis’s podcast and stuff. Both of those dudes have said that if they were coming up in this moment, their magnum opus would not be published. They got sorta grandfathered into the system where they have proven profitable, they’ve been around for decades, so they’re going to continue to do what they do. But if you were a young novelist and your only goal was to get published, you would not do well by trying to mimic Chuck Palahniuk or Bret Easton Ellis. That said, I think your point about the way these books have been received differently over the years is a really good point, and it’s one that I’m very much on the side of, which is the side of polysomy, which is this idea that there’s always multiple interpretations to a text.

(40:02):

And so when Fight Club first came out, the left loved that book that was around the time of the Seattle antiglobalist protests and things like that. That was very much, I think Marxism had a sort of kick during that moment and they were like, yeah, this is awesome. Fight Club like “Eff American Capitalism, eff the sort of existential crises produced by white collar work.” He was in many ways a hero of the left, especially after the film came out. But now that book is considered alt-right, because I think this is a fair observation, it does sort of glorify what the left calls toxic masculinity, but a more violent kind of masculinity, which I’m kind of a fan of, as you mentioned with the UFC, but now it’s considered that’s bad, Chuck Palahniuk is bad. Same thing with Bret Easton Ellis. When American Psycho came out, that was considered the satire of the hour of Wall Street and excess, and he did get some flack by feminists and things like that, but now he’s considered super far right, et cetera, et cetera.

(41:11):

Same thing. I mean, JK Rowling’s a great example. Her books used to be the primary people going after her book used to be people really on the Christian who are accusing her of converting kids to witches and glorifying Satanism and stuff. Now it’s all about the trans stuff. That’s why people are burning her books now. So the lesson from that is there’s always multiple interpretations to attacks. I could read Fight Club and think it’s super progressive. You could read it and think it’s super conservative. I could get something out of it that’s totally different from you. So why would you try to define a book in one way and then try to enforce your definition of a book through defacto censorship and these other methods that these folks are using to control what we read and what we’re allowed to write.

James Patterson (42:01):

Well, to close, I have one last question, which is on, let’s see here. November 15th, Jack Della Madalena is fighting Islam Makhachev for the welterweight belt. Who do you got?

Adam Szetela (42:17):

I don’t foresee Islam losing to anyone right now.

James Patterson (42:20):

He’s already pretty GOATed. I appreciate the conversation. Sorry, those of you listening who don’t follow the UFC, but I cannot tell you how excited I am for that point. Thank you very much, Adam Szetela for coming onto the Law & Liberty Podcast.

Adam Szetela:

Yeah, thank you man. I appreciate it.

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.

From colonial times through the twentieth century, Western civilization became America’s own cultural heritage, and it was always taught in schools and universities. Then, in the later part of the twentieth century, Americans turned on Western Civ. Why did that happen? What are the consequences for our culture today? What can we do now to recover that heritage? Professor James Hankins joins John Grove, editor of Law & Liberty, to discuss these questions in connection with his new book, The Golden Thread: A History of the Western Tradition.

The Golden Thread, by James Hankins and Allen C. Guelzo
“Reviving the Study of Western Civilization,” by James Hankins, Law & Liberty
“The Right Standards for American Schools,” by James Hankins, Law & Liberty
“The Origins of the West,” by Max Skjönsberg, 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.

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. Pleased today to be joined once again by Professor James Hankins. Professor Hankins is professor of history at Harvard University and a senior writer for Law & Liberty. He’ll be joining the Hamilton School of Classical and Civic Education at the University of Florida for the 2026 academic year, and he is the author of several books including Virtue Politics and Political Meritocracy in Renaissance Italy. And most recently he has written with Allen Guelzo, The Golden Thread: A History of the Western Tradition, and that is what we’re going to be talking about today. Volume one was released last month, and volume two is scheduled to be out by the end of the year. So Jim, thanks a lot for joining me again.

James Hankins (01:28):

It’s a great pleasure to join you.

John Grove (01:30):

So before we get into the book itself, I thought we would talk a little bit about the project and where it came from and a little bit about Western civilization and the study of Western Civilization. So I understand you and Allen Guelzo have a relationship that goes way back, far beyond the writing of this book. So tell us a little bit about how you two know each other and where this project came from.

James Hankins (01:54):

Okay. Well, Allen is my oldest friend in academia. We went to junior high school (middle school, they call it now) and high school together. We were in the marching band together, but we’ve been close friends for about 55 years now. And we always kept up our friendship and met, and we’ve been talking about Western Civ and other topics for many, many years. We didn’t actually come up with the idea of doing Golden Thread. This was a proposal to us by Encounter Books. They knew of our relationship and they were looking for someone to write a Western Civ book. Encounter is involved in a massive project to reform and revive the study of American history and Western history in a way that is appropriate to our time. As you know, people have taught Western history to educated people for hundreds of years in America.

(02:54):

It’s been called Western Civ since, let’s say, the late nineteenth century. But if you went to school in America in the eighteenth century, you would learn about the Greeks and the Romans. You would learn about medieval civilization, you would study history of Europe, all of this. This is standard fare for educated persons in the West since the Renaissance, really. And this stopped rather suddenly about 40 years ago. The educational establishment decided that they wanted to go global. There was discussion of this in an article in Law & Liberty published this week that talked about why it was put down, and how no one gave a thought to what the long-term effects were going to be of not teaching our own tradition. So now we find ourselves in a clash of civilizations—and we do have a clash of civilizations—but the West has unilaterally disarmed itself. We don’t know anything about our own civilization. And believe me, I know this, I teach at Harvard. I teach what are supposed to be the best students in the country and the level of civilizational ignorance is just astonishing.

(04:12):

They’re smart kids and they’ve learned what they can learn in high schools, but high schools simply aren’t teaching Western Civ anymore. That stopped also 40 years ago. K12 education gave it up. I once went through the social studies standards for all 50 states, when I wrote another article for Law & Liberty, and it’s just not there anymore. They’re teaching global history now. Anecdotally, I have three nephews who teach in public school system and what they’re teaching as history these days is just completely disengaged from any narrative of the West. And this is a terrible thing for us. As I said before, we’re unilaterally disarming ourselves in the clash of civilization.

John Grove (04:58):

Before we go on, why is that? What was happening? Obviously, we know about the radicalism of the ’60s, but what was the rationale? Why were so many people convinced to give up the study of Western Civ?

James Hankins (05:11):

Well, it’s partly the Vietnam generation, which didn’t like Western Civ. They thought of it as a Cold War historical phenomenon. This is incorrect, right? Max Skjönsberg published an excellent article recently,

John Grove (05:29):

I was going to mention that too.

James Hankins (05:32):

… reviewing a book that shows that Western Civ has always been taught. I knew this already because I do Renaissance history. It’s just not true that Western Civ is an artifact of the Cold War, but that’s how the Vietnam generation saw it. And so they didn’t want to teach it anymore. They had a very negative view, not just of the United States, but the whole west. So there’s that element. But I think even more powerful, in the 1980s and ’90s when this was done, was that the universities and colleges in America aspired to globalize themselves. This was a big project at Harvard in 1980s. Derek Bok wanted to make Harvard an international institution. They wanted to found branches in India and there was going to be a Harvard Law School in India, this center and that center. And they were also taking in lots more foreign students than they used to take in.

(06:32):

So the population of the university changed. There were fewer people who were native speakers of English. There were fewer people who had any background in Western Civ. And those people had to be educated. And also the professors didn’t want to teach it. Professors never want to teach required courses. They want to teach their research, and in places like Harvard and the Ivies that was going on. People were teaching narrower and narrower things; they didn’t want to teach a big narrative anymore. So that’s part of it. It was the globalization project of the 90s. And that wasn’t necessarily coming from the left either. It was coming from conservatives as well who just wanted a university that was more globe spanning.

John Grove (07:18):

It was interesting. Prepping for this, I looked up that phrase, because I knew that phrase, right? “Hey ho, Western Civ has got to go.” And I was surprised to find that they started doing in the ’80s. That was an ’80s slogan. I was expecting to find it in like ‘66 or ‘67, but it was in the ’80s that people did that. And so that’s interesting background about what was going on in the ’80s at that time. How do you respond to that? It sounds like a related issue. How do you respond to that idea that focusing on Western Civ is a sort of cultural chauvinism or western chauvinism or something like that. And how does the focus on Western Civ relate to this idea that, well, we also want to study the world and study other cultures. Other cultures are always represented as good. So how do you respond to that?

James Hankins (08:03):

Well, I think the real problem is not cultural chauvinism—what the left at the time labelled Eurocentrism—but cultural self-hatred right now. I mean, the best taught subject at Harvard is the history of China. And I say this with admiration because the people who teach Chinese history have done a great job of covering the entire spectrum of Chinese history and having somebody to cover every era and teaching a survey course every year and having upper-level courses that people can study after they get interested. They do a fabulous job on that. And they also teach Islamic civilization. But Western civilization, no. Harvard last hired a senior faculty member to teach any Western subject, ancient, medieval, and modern, in 2007. And we have lost eight senior historians through death, departure or retirement or since 2007. So it’s actually neglected. There are so many things you can’t study at Harvard now.

John Grove (09:04):

That includes any faculty member that has just an expertise that happens to be Western, not necessarily somebody that committed to Western Civ as a whole? That’s any faculty member who has a specialty that’s western focused since 2007?

James Hankins (09:18):

Anybody. I’m talking only about the history department, okay? I’m not talking about the other departments, but in our department, there have been no new hires in ancient history, in medieval history, and European history since the Renaissance. That’s the whole of Western Civ. And we haven’t hired anybody. And this year I’m the only person at Harvard University teaching ancient philosophy. So once I retire, who’s going to teach Plato and Aristotle, and the ancient philosophical schools, and Augustine and authors like that? I don’t know. They might be able to get an Augustine course in their religion department, I don’t know. But that philosophy department used to have course called Philosophy 10. It was taught every year since the time of William James. And they introduced people to ancient philosophy because they thought that was important for people to know. And they have a guy they brought in from Munich to teach Stoic ethics or something this year. But that’s really it. And in the gov department, they have a course where they teach a few texts, political philosophy. It’s very sketchy. They’re well-taught courses, but they’re not really survey courses of Western political philosophy.

John Grove (10:35):

Okay. Yeah. So you mentioned this idea of just self-hatred or sort of self-loathing. Roger Scruton always used the phrase oikophobia. And I know at times he sort of presented that as a Western phenomenon, that it’s something that seems to have really taken root in Western countries. And so there’s just an interesting dynamic there. What is it about Western civilization, about the train of Western thought, that somehow led us to that desire to just turn our back on and hate our own tradition and thoughts and ideas? Do you have any thoughts on that?

James Hankins (11:14):

Yes. Well, I spent a lot of time in China, and I studied Chinese history because of a comparative history project that I’m involved in. And China went through this whole period of self-hatred from the time the Marxist took over in ‘49 down to quite recently. But at some point the Chinese decided, oh, we can’t really hate on Imperial China. We can’t suppress the history of it. We have to turn it into something that’s positive. So if you go to China today and study Imperial China, they’re very positive about their own history, but we have not had that turn. I think it’s basically coming out of the post-colonial studies people, a trend that has not been that strong in the US until recently. Post-colonialism dominates historical study in Europe, especially England. We have a very strong strand of it here in the US now, [particularly in indigenous studies and Middle Eastern studies], and I think those are the people who are demanding that

(12:06):

…we hate on the West. They feel that the West has been responsible for the state of post-colonial Africa and post-colonial Middle East. And it’s a way of shifting blame for them. They don’t want to take any responsibility for their own problems. So they blame everything on the West. But that has been picked up: I mean, this is what’s behind the endorsement of the Palestinian cause. And we have to side with the victim. So the West is strong, the West is wealthy, powerful. So we are the victimizers and we should be ashamed of that fact, [they say]. 

And in the US of course, the big issue is slavery. People have been taught nothing about Western civilization except that it had slavery. So we’re supposed to hate on the West because of its history of slavery. But of course, all civilizations have had forms of unfree labor, sometimes chattel slavery, sometimes forced labor regimes that you get in China. It’s just the fact that anytime a society is strong, it attracts labor from foreign countries that are not doing so well. And those people sometimes sell themselves into slavery, or sometimes they’re captured in war, but this happens in all civilizations. And Islamic civilization, I think, had a much more serious slave regime than anything in the recent Western history. But that’s forgotten.

John Grove (13:44):

I’ve often thought there is, to get back to that phrase like Western chauvinism, there’s a kind of Western chauvinism I think that holds Western civilization to this much higher standard. So the things that have happened all throughout the world, well, Western civilization is guilty of them and the others really aren’t. There’s a sort of implicit sense of superiority there, that we are more morally elevated and therefore have responsibility for these things.

James Hankins (14:10):

But John, it’s tunnel vision, right? Because the West has fantastic civilizational achievements, and this super negative history is just totally blind to all the great things that happened in the West, such as the invention of democracy, the invention of experimental science, the invention of theoretical applications to medicine and mathematics. And you can go on. In fact, if you look at our book that we just published, Allen and I published, it’s a kind of treasure trove for all of the achievements of the West. And that is its goal in large part, to remind people of all the wonderful things that the West has produced, not just in political theory, but also in the arts and in music and in architecture. The West has had an extraordinarily rich civilization. And unfortunately, one result of hating on the West is that people don’t learn that anymore. So we have a generation that’s growing up that doesn’t know the names of Michelangelo or J. S. Bach. They don’t know who they are. They don’t know who Thomas Aquinas is. They don’t know anything about anything. And it’s impoverishing. They’ve lost the golden thread, as we call our book. They’ve impoverished themselves with all this hatred. And that’s why we really feel it’s important to start studying Western Civ again, but in a way that’s appropriate for our time.

John Grove (15:41):

That’s a great segue. So let’s get more, talk more specifically about the book. I’ll note, first off, that it is a beautiful book. It reminded me, going back to when I was in college, how you went to the bookstore and got your books, and you could tell which courses were going to grab you and which ones weren’t. And this was the sort of textbook that says, yeah, this is going to going to be a good course. It’s beautiful, it’s well designed. It’s also very large. So anybody who’s picking it up outside of a course better prepare yourself. You’re going to want to plan accordingly. That’ll take a while. So looking at the substance of the book though, I’m going to do something that’s a red flag, and that’s if you have a 1000 page book and you quote the first page of it. That’s what I’m going to do, though. I’m going to quote this very opening of the introduction, and just let you elaborate a little bit. It says, “A civilization is a space, so to speak, in which people may breathe.” What does that mean? And we’ve already been talking about Western civilization, we’re talking about the importance of studying civilization, but what is civilization?

James Hankins (16:46):

Well, that first paragraph is written by Allen, and he was trying to make the point that civilization is a flower of a culture, one might say. It’s not enough simply to survive, and to have wealth, stability, and all the basic necessities of any society. The society also has to flourish. It has to give reasons to people why they love their civilization, why they love the countries that have inherited that civilization. And it gives them a space to perform music and to cultivate the arts. And it gives them a space to think about deep philosophical questions and to enjoy literature. And this, I think, is really behind a lot of our motivations in writing the book. We’re afraid that these great civilizational achievements will be lost. People have to understand that a civilization is something that has to be cultivated; it has to be practiced. We don’t only need to have people performing in symphony orchestras, we need to have people in high schools playing music that will enable them to keep alive these great musical traditions.

(18:09):

We need to have the works of classical civilization taught. So I have a friend on the faculty at Harvard who came from England and he’s looking for a school for his daughter, a 14-year-old daughter. She wants to study English literature. They went around to all the fancy private schools in Boston area, and they couldn’t find anybody teaching anything older than the year 2000. This girl wanted to read Jane Austen. She wanted to read George Elliott, but she couldn’t read them because the schools considered older English literature to be white supremacist. They worried that the students might pick up some colonial or racist ideas by reading older authors. So they’re being made to read young adult literature written by woke writers, mostly since the year 2000. It’s tremendously impoverishing. 

I have my own definition of civilization, slightly different from Allen’s. And my definition is a civilization is something that civilizes. That makes us more civilized people.

(19:17):

And this extends from developing all the human capacities, human flourishing, the ability to reason, the ability to speak, the ability to appreciate the arts, but also extends to things like good manners and treating other people well. Western civilizations have always had books, from the Greeks onwards, telling you how to treat other people, what’s polite, how to shave down the rough edges of society. And this is something we obviously need to be doing in our society today because we’re so much at each other’s throats and angry and shouting. Teaching the arts of civility is part of what a civilization does. It teaches the arts and civility. And in order to do that, you need to have examples. All of the great moralists of antiquity talk about precept and example. You had to teach “little morals,” etiquette is little morals, and you had to teach morals alongside that. But what you really needed is examples. An example is so much more powerful than precept. You can tell people the rules, but if you see somebody who’s really good, you want to be like that person.

(20:41):

Our civilization preserves examples of great heroism, great conduct, great artistic achievement. And if people are unaware of these possibilities, the chances that they will meet an inspiring example go down dramatically. Because most of us in our daily experience, we occasionally meet outstanding people, people of extreme goodness or holiness or heroic people, but it’s just not very common. If you read Marcus Aurelius’s Meditations (this is his own book that he wrote for himself, for his own edification), he starts with all of the people that he had met in his life who encouraged him to be a good person and to live a Stoic philosophical life. And that example is so important, but we’re stripping out all the examples of goodness and human achievement from our educational system.

John Grove (21:38):

And it seems like there’s something to it being shared, too. Somebody gets a good example from their father or somebody in their life, or just a book they happen to read. But there’s something about having this, the examples that we all recognize and share. And then we can talk to one another about that example or with that example in the back of our mind without even recognizing it. Today, even when we do have good examples, it’s sort of like it’s your own personal example and it doesn’t provide us something to…

James Hankins (22:10):

It’s just good luck. And I’m very grateful that my father was a great man. I mean, man of high moral principle, and I’m so glad for that. Not too many people these days have that; there are many people who don’t. But your point about the shared culture, I think is absolutely on target. And one reason why we have such partisanship and fragmentation in our public life today is there is no shared story. There is a shared story of America, of course, but America is a product of Western civilization. And it was created by people, the Founding Fathers, who knew Western civilization very well. Just read the Federalist papers and you’ll see that they’re very well informed about history, but they know they’re very interested in founding a republic. So Madison and Adams, above all, and others as well, had libraries. And they were looking for all examples of history of successful republics that they could find. And this is a shared discourse of the Founding Fathers, which we don’t have anymore, but they knew about the ancient Greeks. They knew about the Roman Republic and the medieval city Republics and Dutch Republic, and they were using that to inform their practical wisdom.

John Grove (23:33):

This is actually leading directly to my next question. So why don’t I go and pose it? When we’re thinking about Americans looking back at ancient Greece, and the Romans and the Dutch, I asked previously, what is civilization? My next question was, what is a civilization? So when you think of Americans and the ancient Greek polis and the America we live in today, quite different. There’s huge gulfs there. You’ve got Christianity in the middle, you’ve got modern commerce. So across time and also across space, what makes a civilization such that it’s not exactly a cultural unity, but there’s something there. So another way of saying this might be, what is this golden thread that you’re talking about? What is the thread that binds these things together that we can speak of it as maybe not a complete unity, but something that’s together?

James Hankins (24:26):

So in this book, we’re following Sam Huntington’s idea that the modern West is a third or fourth order of civilization that embraces earlier civilizations, which is itself an achievement, by the way. So Greek civilization was a self-standing civilization, its own heroes, its own stories, its own historical experience, its own arts and music. And the Romans, when they conquered the Greeks in the second century BC were wise enough to say, we need the Greeks. We want to be civilized like the Greeks. We want Romans to be civilized too. We want our own literature, we want our own architecture, but we want to stand in that tradition. So the Romans absorb the Greek tradition, and when Christianity becomes the official religion of the Roman Empire in the fourth century, the Christians were tempted to be abolitionists if you will. They were tempted to stamp out the earlier civilization,

(25:28):

because they had a lot of problems with the morality of the Greeks and the Romans. But they didn’t end up, like Islam, being completely secessionist. They didn’t crush Roman civilization the way that the Islamic civilization crushed Persian culture. They decided that they needed it and that it was valuable for Christianized Romans to remember the Greeks and the Romans. And so they kept it going. They kept teaching the same authorities, the same philosophy, the same literary monuments, and they kept building buildings in the classical style. Romanesque style is a version of the classical style. So they kept it going, and they adapted it to Christianity. In the 4th century Christianity itself changes and the Romans change at the same time, but they kept the golden thread going. 

And when the Roman Empire fell in 476, it’s the Benedictine order that decides it has to preserve civilization.

(26:37):

So they are copying manuscripts. Every single work of a classical text in Latin that we have today was copied at some point by a Benedictine monk in the early Middle Ages. So they kept it alive, and they fought for it too. I mean, there were many key battles that kept the Western civilization alive. 

European civilization emerges in my account in the eleventh century, and it also inherits the classical Christian past as well as the Greek and Roman past. But European civilization is something new, and one of the things that it includes is the cultural practices of the barbarians who had conquered the West. So it’s not true that the West has always destroyed barbarians. It’s in fact the case that Europe actually picked up from the German tradition an idea of consultation, that rulers have to consult with people and have the permission or acquiescence of the people before they can proceed with any policies that they’re going to do.

(27:44):

So the modern West is a fourth order civilization, which inherits from the past a very, very rich civilization. This is why people sometimes ask me, do you think Western civilization is better than Chinese civilization? I get this question in China, right? So the answer is: it’s not a fair comparison because Chinese civilization has a great unity to it from the time of the Han dynasty, or even before that, down to the early twentieth century. It’s really one civilization in a way that ours is not. So it’s not fair to compare four civilizations to one, and it’s an unanswerable question anyway, and not fruitful to pursue. But we want people to understand that we have an enormous cultural heritage, 3000 years of it that we need to preserve. And we in our generation have the same responsibilities as the Benedictine monks and the European intellectuals who founded the university. We have to keep it going. It’s up to us or we’re going to lose it all. And you can lose it.

John Grove (28:57):

Right. And it is nice to remember that there were other times where it seemed like things were on their way out, and things changed, but something was still handed down. So, I want now to just get more into the substance in the book. So volume one—and I understand you are primarily responsible for Volume One, and Allen Guelzo primarily responsible for Volume Two—Volume One, takes us basically from classical antiquity up to the Renaissance. So there’s a lot there. I’m not even going to try to cover the scope of that. But just to give a sense for how you approach some of these things, I thought I would just ask a few big picture questions about the development of Western civilization. So you’ve already kind of hinted at one of these, but one of the huge dividing lines in that period from antiquity to the Renaissance, obviously, is the rise of Christianity. And so we were talking about handing down, and how Christianity rose in this pagan world. They kept some things, they changed other things. What do you think is the most important thing to take from this massive movement?

James Hankins (30:05):

Well, Tom Holland wrote a wonderful book about this. I’m sure you read Dominion, and he talks about the fact that we’re all Christians, whether we believe in Christianity or not. The moral world that we inhabit today is a post-Christian world, at least for people like Tom Holland (I’m a Christian, so I don’t consider myself post-Christian), and even if you’re hostile to Christianity, you still have Christian morals. We still privilege the suffering victim. We consider that a suffering victim is someone who deserves our help. They didn’t have that attitude in pre-Christian Roman Empire or among the Greeks. And suffering was a shameful thing. So I have a section in the book, I think it’s chapter six, about the moral revolution of Christianity. The Christians, they’ve been alienated from the Roman Empire for centuries. The Book of Revelation is a gigantic denunciation of the Roman Empire, and they had been persecuted by the Roman Empire for centuries.

(31:12):

They worshiped a criminal who had been executed by the Roman state. That’s about as in your face as you can get. They were not persecuted continuously, there were outbursts of persecution, but they were determined to change the Roman state when they took over at the time of Constantine. They hated its violence. They hated its militarism. The early Christian military saints were all people who were sainted or martyred because they refused to fight under certain circumstances. St. George and St. Maurice and all these early military saints were saints who refuse to fight for the wrong reason, against the wrong people. They were determined also to do away with blood sports. Tom Holland starts off by talking about crucifixions, right? The crucifixions that were done by Crassus, I believe; in the first century—he wanted to put down a slave revolt, and he wanted to remind people that they shouldn’t rise up against the Roman state.

(32:22):

So they lined the Via Appia for hundreds and hundreds of miles with crucified slaves. And this was a message, a very strong message, do not revolt against the Roman Empire. But what Tom doesn’t talk about, or maybe he does and I just missed it, is that the Romans used to have beast fights. They would slaughter thousands and thousands of animals in the Circus Maximus or the arena, the Colosseum, for the entertainment of people. So people could enjoy seeing the blood spurting out of the animal and watch them die in agony. They would applaud at a particularly large animal being killed by a gladiator. It’s just sickening, but that’s what people liked to do in ancient Rome. And so the Christians did away with that. No more blood sports, no more gladiator sports. It took awhile to get rid of them, but they got rid of them. And so if you go to the Christian capital of Rome, which is Constantinople, now Istanbul, there are no gladiatorial games.

(33:26):

They have horse races. That’s the big public entertainment put on by the emperors. 

But there are many things like that. And one of the things that has been written about is the attitude to sex. In the ’60s, the Romans and the Greeks were admired for their open attitude to sex, but nowadays it looks a little different. The Christianized Romans decided that slave masters who forced their slaves to have sex with them were doing something wrong, and that should not be allowed. And the first expressions of the concept of human dignity emerged, right? St. Paul prohibits porneia, which is sex outside of marriage. And husbands—there was as a double standard as there usually is, that the males could do whatever they wanted for sex, with their slaves or with other women. And the women had to observe sexual purity, although they didn’t.

(34:29):

But the Romans, Christianized Romans, decided that forcing sex on your female slave was wrong. Historians today forget things like this. And I think that that’s something that we need to recognize again. Christianity has had a huge moral effect on Western civilization, going right back really to the Jews. I wrote a whole chapter on ancient Judaism and early Christianity, partly because I wanted to make the point which became ever stronger in my mind as I wrote about it, that Christianity is really descended from Judaism. It tries to distinguish itself from Judaism, especially in the second century when Jews are being persecuted. But it really grows out of the Jewish religion and its values, like equality, for example, the value of equality among members of the state—that really comes out of ancient Judaism. And so that’s something I’ve discovered. 

John Grove (35:36):

You mentioned tradition and a handing down or passing down. And one of the things that so many people today don’t realize is—even people who are anti traditional—they’re clinging onto these ideas that emerged from this or that tradition, so part of the divide is just: do you realize that you are traditional or not? And are you grateful for that tradition that gave you the ideas that you have or not? Other than the rise of Christianity, the other topic I was going to have you say a little bit about is the Renaissance. So you chose to end this section at the Renaissance, presumably, I’m guessing Volume Two is going to start right up with the Reformation. What’s interesting about the Renaissance for us today? I know you’ve written in some other things for us that you think various elements of our life are sort of ripe for a renaissance, and I thought there was a sort of interesting unity in ending Volume One with the Renaissance. What is interesting for somebody in the twenty-first century looking back on the Renaissance? What sort of example does that period give to us?

James Hankins (36:44):

Well, first of all, Allen and I decided to divide the book there because I’m Catholic and he’s Protestant. We spent our adolescence arguing over Catholicism versus Protestantism. So we decided we would not reenact our adolescent debates in The Golden Thread. But I personally believe that the Renaissance is a tremendously important period for us today because we need a renaissance. Our civilization has gotten rotten. We have forgotten our past, to start off with, but we also have tremendous partisanship. We have an educational system which doesn’t improve our human nature anymore. It doesn’t aim to improve our human nature. And the Renaissance is a period where suddenly in the mid-fourteenth century, people realized that things were falling apart and they had to renew the sources of civilization. 

So in the mid-fourteenth century, you have the failure of the crusades. All the soldiers come back, they start wars in Europe, and there’s continuous warfare.

(37:53):

The longest war in human history, the hundred years war, which is actually more like 150 years of war, starts with the end of the Crusades and it doesn’t let up. Europe is destroying itself, and the soldiers come down to Italy and they maraud and shake down towns. The town of Siena was surrounded by soldiers, I think it was 27 times, and they had to pay huge amounts of money and everything was destroyed. So they had that problem. They had just discovered deficit financing. Governments had discovered deficit financing for public funds using banks. So it wasn’t long before the King of England had bankrupted his entire country with debts to Italian bankers because the Italians were the bankers for Europe at the time. So the result of that was that the banks all collapsed. So this is gigantic financial collapse in 1342.

(38:55):

And then you have famines, and then you have the Black Death, which wipes out at least 40% of the European population. So things are looking pretty bad in the middle of the fourteenth century. And Petrarch, who’s the great leader of the humanist movement, he thinks God’s punishing us, obviously, but what can we do about it? And his idea is that we have to renew humanity, and we’re going to renew humanity through education, through reviving the ancient education. Because he lives in Italy. He’s surrounded by the ruins of the Roman Empire. He knows there was a great empire there at one time. And he’s a man of letters. He has the best library of his time, a private library. He’s read Roman history; he’s read Greek history. He reads the great writers of the past, Virgil and Seneca, and he says, where is the virtue? Where is the human excellence? The ancients had it.

(39:53):

We don’t have it. Our leaders are all tyrants. Our leaders are military thugs, or they’re very rich men without good morals. So his goal is to bring back the virtue of the ancients. And obviously it’s idealized. I think he was aware that the ancients were not morally perfect; he’s fully aware of ancient vices and disasters of different peoples, but he also recognizes that the ancients had something that no longer exists, which is this high level of human excellence, which only comes from a civilization. So he’s trying to refound European civilization through education and through trying, especially, to convert the elites—the princely elites and the republican elites of his day—to classical civilization. He wants them to bring back the virtue of the ancients, which includes wisdom and prudence, as well as the ordinary virtues of justice, temperance, and courage, which are not so ordinary.

(41:05):

So that’s his project: to bring back virtue. And the Renaissance is an age that seeks virtue, that seeks excellence, and that fact has been somewhat obscured by the modern historiography on the Renaissance. That’s what I was writing about in Virtue Politics, trying to correct the negative view of the Renaissance that you find in Hollywood. The view that the Renaissance is Machiavellian, for example, or that the sins of the corrupt Popes define the era. But the Popes are actually part of the humanist movement. They’re part of the Christian humanist movement that was founded by Petrarch. Many of them were, not all. So I’m trying to build a more positive image of the Renaissance itself, because it’s a resource for us. They pulled off a renaissance, and this is what the classical schools are trying to do right now in the US. They’re trying to create an alternative educational system inspired by the past.

John Grove (42:05):

Well, on that point then, you talk about refounding Western civilization in part through education. Obviously this book is part of that. It’s also part of a broader initiative, the Golden Thread imprint, that Encounter is going to do. Why don’t you just tell us a little bit more about that broader project?

James Hankins (42:21):

Well, it started with Bill McClay’s, Land of Hope, Wilfred McClay. It’s a wonderful book. It’s been very successful, and that was designed to give a balanced account of United States history. It wasn’t a celebratory account. It does celebrate, but it also points out the failings and the attempts of Americans to overcome their various failings. But it does describe the positive side of the US, and it does try to give people a sense of loyalty and love for their country. So then the Encounter people came to us with this project. They said, well, we have to do this for the civilization as a whole. We need a second volume, which is going to be like Land of Hope, a volume that will tell the story of the West in a balanced way, that will not deny the failures of the West, but will also celebrate its achievements. Keep the thread of our civilization going, or reconnect it, really, before it’s too late.

(43:23):

So that’s how this project got organized. And now Encounter has an entire publishing project built around the Golden, I think it’s called The Golden Thread Initiative. And they’re going to try to supply teaching materials and teacher training and all sorts of things that will be connected with both books, Land of Hope and Golden Thread, to renew education in America. And while I hope that there will be some public schools interested in doing this, we’re really directing these projects at the new educational alternatives, homeschoolers, Christian classical, classical charters. One of the things about our book and Bill’s book is that we’re trying to write a book that’s not hostile to Christianity. And many of the older Western Civ books are implicitly hostile to Christian societies, and they present the modern world as something that’s escaping superstition or dogmatism. And we don’t take that line. It’s not a sectarian book, it’s not a Christian book. It’s written for everybody to read. But we’re trying to write a book that’s not going to be hostile to Christians, or Jews for that matter. And so they can use it without the fear that their whole worldview is going to be subtly undermined.

John Grove (44:43):

Well, as somebody who has two kids in classical schools, it’s always reassuring when I hear that you have an involvement in that classical school movement. That’s obviously a really fast-growing movement, and hopefully this initiative will give a lot of clarity to that movement and give it even more momentum. So James Hankins, thanks so much for joining us here. You’ve been a guest on our podcast several times, three or four times. Always a great pleasure to talk with you. This is a great and worthy endeavor that you’re undertaking, and glad it’s finally out. We’ve been hearing about it for a while. It’s been much talked about, so it’s great to finally see it and to be able to dive into it. Thanks so much for joining us here again.

James Hankins:

It’s been a pleasure, and thank you for having me on.

James Patterson (45:29):

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.

Robert Nisbet is best known for his books The Quest for Community and The Twilight of Authority. Luke Sheahan joins the podcast to discuss a new edition of Nisbet’s lesser-known but perhaps most important book The Social Philosophers, a sweeping account of the history of community and its treatment by Western political philosophers.

Related Links

The Social Philosophers, by Robert Nisbet, foreword by Luke Sheahan
Quest for Revolutionary Community by Luke Sheahan, Law & Liberty
Revolutionary Degradation by Luke Sheahan, Law & Liberty
Why Associations Matter by Luke Sheahan

Transcript

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.

John Grove (00:39):

Hello and welcome to this episode of the Law & Liberty Podcast. I’m John Grove, the editor of Law & Liberty, filling in this time for our regular host James Patterson. I’m pleased today to be joined by Luke Sheahan. Luke is associate professor of political science at Duquesne University. He is a senior affiliate in the Program for Research on Religion and Urban Civil Society at the University of Pennsylvania. He’s the editor of The University Bookman, and he’s the author of Why Associations Matter: The Case for First Amendment Pluralism. And most recently, he’s brought back a new edition of Robert Nisbet’s book, The Social Philosophers, and he’s written a new foreword for that book, and that’s what we’re going to talk about today. So Luke, thanks for joining me.

Luke Sheahan (01:23):

Thank you for having me.

John Grove (01:24):

So let’s talk a little bit first about Nisbet himself and his place in the intellectual landscape of the twentieth century. Most of our listeners will probably be familiar with his book, The Quest for Community. I personally feel like that book is often cited but not necessarily appreciated in its fullness, to say nothing of the rest of Nisbet’s corpus. So I think there are a lot of intellectual conservatives out there who probably haven’t read a lot beyond Quest for Community and maybe not The Social Philosophers. So tell us a little bit about Nisbet and his importance before we get into this particular book.

Luke Sheahan (01:59):

So Robert Nisbet was a significant figure in the twentieth century. So he’s one of the few leading lights of the conservative movement who spent his entire career in academia. So he started off at the University of California–Berkeley, and he ended his career at Columbia University, holding the Albert Schweitzer chair, and retired from teaching in 1978, and commenced with teaching in 1939. So long career, very storied. He gave the Jefferson Lecture, which is the highest honor given by the federal government in the humanities. So a very significant figure. He’s most famous for his book, The Quest for Community. So that book was published in 1953. He was 40 years old, came out with Oxford University Press. It still was, as you indicated, it’s read or at least cited all the time. And there he makes the arguments that communities, real concrete communities, have been in decline for some centuries, largely due to the ideas of the state, the state being the most cohesive and important community and the state being composed of individuals.

(03:21):

So this kind of individual-state dyad has grown at the expense of communities by which he means families, local communities, professional associations, religion, and religious organizations. All of these things have been squished in the middle between the individual and the state. Now that argument he carried on throughout the rest of his career. It was the main aspect of his scholarship and popular writing. Now what people don’t quite realize is that when you read Quest for Community, sometimes you’re left with questions. Sometimes I wish it was twice as long, so there are certain things, I just want to hear more about this, what do you mean? And if you ever think that reading Quest almost certainly, he did go more in depth elsewhere. He wrote another 20 books or thereabout where he really digs into some of these issues. So the book we’re going to talk about today, The Social Philosophers was published in 1973.

(04:27):

So 20 years after Quest. He goes much deeper into his concept of community. What exactly is he talking about when he says these communities? What is a community? What he means is not a statistical aggregate. So it means people who identify psychologically as the same thing. They’re are community and it endures through time. We are the same thing. We rely on each other, we’re going to help each other, and we are devoted some higher cause or purpose, the community itself. That could be—and he says we can form communities around all sorts of things—politics, we’ve done that for a long time; war, we’ve done that for a long time. The family can be a community of course, and has been for many millennia. And religion is another one. And these are really four types of communities that have been the ones that have been with us the longest—kinship, obviously for tens of thousands of years, but most recently and as the subject of social philosophy, war, politics, and religion. He says these three have really dominated over the last couple of millennia and always at the expense of kinship. They always came into being in conflict with the clans and tribes and patriarchal family.

John Grove (05:48):

I want to get into most of what we’re going to talk about. We’ll be talking about some of these particular forms of community and how he approaches them, but I think you’ve already started to introduce us to The Social Philosophers and what that book is. But just tell us a little bit before we get into the details about where this book fits in Nisbet’s Corpus and what value somebody who’s studying Nisbet, what value they get, particularly from The Social Philosophers, because a sweeping book, very, very wide scope, broad take on Western history and social thought. Is this the pinnacle of his scholarship? Is this sort of the central book to read?

Luke Sheahan (06:28):

Yeah, so his kind of three most popular books are The Quest for Community (1953), Twilight of Authority (1975), and The Present Age, which is his Jefferson lectures from the 1980s. So those three [are] his most popular. They’re most accessible to the public, so they’re not too long by any means. They’re written as lectures or adapted from popular writings, scholarly based upon his scholarship, but accessible. So he publishes his first book, 1953. He actually doesn’t publish a whole lot in the coming decade because he’s dean of the University of California at Riverside. And then at the age of 50 or thereabouts, he goes back to teaching and he starts to really publish. Interestingly enough, he starts to really publish in earnest really in the 1960s. So in his fifties and sixties is really when he gets, kind of hits his stride interestingly enough. So The Social Philosophers comes in 1973. He’s 60 years old. And it is you might say, his magnum opus, what he really has to say about community all comes together in that book. So if you’re willing to invest in the 400 pages, that’s really what it is. And so it’s basically a textbook in some ways. It’s very sweeping in terms of both temporally, chronologically, he’s going through everyone. And also in terms of the breadth. So it’s not just political philosophers, it’s social philosophers as the title indicates he gets into economic thinkers. I mean Marx is in there, Adam Smith is in there, Plato’s in there, Aristotle’s in there, Burke’s in there, Proudhon’s in there, Tocqueville’s in there. It’s Althusius, it’s everyone.

John Grove (08:13):

I remember the first time I ran across this book back when you had to go hunt for it on 8 books somewhere for the original edition, and it was just really eye-opening. I had no idea that Nisbet had written this stuff on Plato and Aristotle. He’s not somebody you immediately think of as writing on the entire scope of the history of political philosophy. So it was a very exciting find when I first discovered, when I first discovered this book. So I think a lot of people who study twentieth-century conservatism will like it and people who are more interested in that broad sweep of political philosophy will use it. I know I really focused on his discussion of community and how it was being replaced in Greece in the century just before Plato and Aristotle. I use that a lot in the last time I taught a classical political thought class.

(09:08):

It’s useful to a lot of people. I will note before we get into some of the specifics, it does seem to me that when he talks about The Social Philosophers and political thinkers, he is pretty historically grounded in them in that he’s very interested in understanding how they are responding to the crises of their time. So he’s not somebody who’s kind of goes back and just finds ideas sort of in a vacuum and kind puts them in conversation together as if they’re speaking the exact same language. He’s very historically focused. And in some ways, it seems to me that it’s a book that when you’re looking back at the scope of Western, the Western tradition in general, he sort of punctures the idea that you should go back there looking for some time when everything was just right. He really presents it as a continual history of tension and crisis and conflict. And most of the great political thinkers are the ones who are trying to understand that conflict. Some of them definitively taking a side on the conflict. Others, especially when you get to the plural community, are trying to figure out how these various tensions between kinship, politics, war, how they can all be made to fit into the broader scope of human life. But he is pretty historically focused. Is that right?

Luke Sheahan (10:32):

That’s right. And so interestingly enough, he was responsible for the kind of importation of history into the discipline of sociology. So he wrote a lot on the historical grounding of the sociological tradition and sociology as a discipline. And he held joint appointments between history departments and sociology departments at the University of Arizona and at Columbia. So it’s very historically grounded and it was very much for him, a matter of the discipline that this is how you did things.

John Grove (11:02):

Okay, well, let’s get into some of the specifics in the book. You’ve already set the stage for this a little bit, but the book is divided up into different forms of community that he says, even though they take very different forms and different historical times, you can sort of trace throughout the Western tradition different types of community that people are building around and starting to understand themselves as within. The one that’s in the background. It doesn’t get its own chapter, and I was kind of wondering why it doesn’t have its own chapter, but it’s sort of in the background of all of it is kinship community. So it starts with family ties and for the most part with kinship community, he’s talking about more traditional societies where the family is the absolute centerpiece of human life and then everything else he sort of presents as a response to kinship community. So just tell us a little bit about the importance he places on kinship community and what caused that to break down. Why is it because for the most part, kinship community is sort of spoken of as in the past. There are little remnants of it that sort of remain in various parts of history, but what launched the attack on kinship community?

Luke Sheahan (12:23):

So kinship for him is the background of everything. As far as we know, human beings have spent most of our history and kinship groups, clans, tribes, these sorts of things. As far as we know, thousands and thousands of years, that’s how we lived. And obviously the kinship community is very important for procreation. You have to have some sort of coupling as far as we can tell, you need to be raised by your own parents or something close to it. Human beings even today are continued to come into existence and to be raised in that way.

John Grove (12:55):

Give us another 15 or 20 years and we’ll see.

Luke Sheahan (12:59):

Yes, but this is how it’s done. And so everything is in that. That’s the backdrop for everything. And authority structures in these places are fairly sophisticated, grounded, and shaped the human brain in terms of just how we are, but it doesn’t handle certain crises. So these kinship groups run into a sort of crisis, usually a crisis of war. There’s some sort of conflict. And it turns out the kinship group good for all sorts of things, existed for tens of thousands of years, not so great at winning wars. So just because your grandpa is your grandpa doesn’t mean he’s good at military strategy. Doesn’t mean he’s good with a sword or an ax. So an individual who is good with the sword and ax and is good at commanding on the battlefield presents a conflict, a challenge to the authority of the kinship structure. And so you have this war community is what he calls it.

(13:59):

You get a crisis of war of some sort, the general rises and he wins. But how does he win? He has to exercise absolute authority over the individuals, probably young men under his command, which means he has to break the kinship tie. They are not under their fathers and grandfathers, they’re under him. And his authority has to be absolute. So that means it has to trump the kinship group. So it creates that challenge. And then once that challenge is put into place and it’s successful, you end up with a permanent tension between the kinship group and the military community. Now some places, Rome kind of famously negotiated that for a number of centuries. So when the general returned to Rome, all the soldiers across the Rubicon, everything’s different. Not Caesar, but previous generals, when they crossed it was different. So you cross over, the soldiers are now under the authority of their fathers and grandfathers again, their complete authority. Whatever booty they had, they have to turn over to their family. All those rules apply. The general’s no longer the general in Rome, but that of course falls apart later when Caesar crosses, he remains the general, the individuals remain under his command. And that’s the crisis of Rome.

John Grove (15:17):

Importantly in Greece particularly, he says in Greece you didn’t have as much of that negotiation. It was more of a continual assault of the military and then the political community against those kinship bonds.

Luke Sheahan (15:33):

So Nisbet sees this as the rise of Cleisthenes in Athens. So he comes in, Solon had already tried some rearranging, it didn’t really last. Cleisthenes comes in and what he does is definitively breaks the power of the Athenian tribe. He utterly annihilates them. And so all of your identity is in your quote tribe, but it was a political identity. It was not a kinship identity. And that just changes everything.

John Grove (15:59):

It reminds of French Revolution sort of stuff. The way it describes it, right? It is you have these divisions that are just random divisions. You’re put in a group that that’s your group and it had nothing to do with your background, with your previous life. And so Burke’s line about nobody being committed to a square mile of territory or something like that where he says nobody feels commitment to be part of a zip code basically. And that was kind of the point for Cleisthenes. So that was the whole point. He doesn’t want people to be committed to those local because he wants all of their commitment to be focused at the polis level. So we’re already kind of getting at that. But the military community and the political community, and this is maybe one of his more provocative arguments, maybe a somewhat skeptical, even cynical argument or way of understanding politics and the origin of politics. He says the political state and the political community are very closely tied to the military community and war. So how does he understand that the relationship between war and politics?

Luke Sheahan (17:08):

Yeah, so what he sees here is Cleisthenes for example comes in. He’s the general, he reorganizes, but the war is over. So he says the political community, it’s the military community at peace, when it becomes institutionalized. We no longer refer to you as the general, we refer to you as the first citizen or the president or the emperor. We come up with another term for you. But it says the structure is the same. So military community, you got all the soldiers, the warriors, and you have the general. Well in the political community, you have the sovereign, you have sovereignty, and you have citizens. And the sovereign is, well, sovereign/ [He] has absolute authority over the citizens. He said, well, it kind of looks the same structurally. Now the political community becomes much more, you might say evolved. It changes. It starts to attach—the military community, what is it about? Dealing with the crisis of war. But the political community, what is it about? Well, first it’s maintaining order. First, it’s breaking the authority of the kinship, but then it starts to acquire other things. It starts to be about justice and morality and the highest life, where is the highest life? Is it in the family? Is it in the village? No, it’s in the polis. It’s in the political community. That’s where we achieve our full humanity.

John Grove (18:36):

I’ll pause right there and say, is all of that sort of just a rationalization in his view? Because a lot of political philosophy, especially people who study political philosophy, not me, because I’m already healthily skeptical of all this stuff, but for a lot of people who study political philosophy, they’ll say, well no, he’s presenting all a political philosophy as if it’s just basically a rationalization. These people have power, they have control that was justified militarily. And then they find these reasons to justify maintaining it in peace. So you could kind of see the history of political thought and political theory as being just this big rationalization for people to hold on to power.

Luke Sheahan (19:20):

He does see it as at least originating there. You’ve got to give it. Why does the military community continue after the war? You got to give a reason. And so if you say, well, because this is the highest life, because this is your true identity as being a citizen. This is more important than your family. You’ve got to give a reason for it to continue. So he does see it as a bit of a rationalization. Now that said, he does say, look, we probably couldn’t have civilization and clans at the same time. Something else had to come into existence. So we could have civilizations as we understand them and we could have art and music and high culture. That probably was never going to come out of the clans as much as he appreciates the scholarship on the clans, not as a primitive way of existence in this kind of demeaning way, but it’s not going to give you civilization as we understand it. And it’s given us all sorts of great things. He says, you’re not going to get there. But nonetheless, what happens at the beginning of political philosophy is trying to justify to rationalize what has happened. And some of it’s, it’s not necessarily a cynical rationalism of they were just trying to hoodwink people, but what’s done is done. They broke the power of the clans. The polis existed. Socrates comes along, this was in the past, it happened. So now what do you do? And they’re trying to say, well maybe there’s some good here too. And what does it mean to live in the polis we live in?

John Grove (20:51):

Right. That’s a good way of putting it, is that there’s almost the sense that they’re sort of discovering something that it seems like there is something that they’re getting out of that and they have to kind of figure out what it is, which is a little bit higher than just rationalization. It’s sort of a process of discovery that a political philosophy is doing there. We’re going to come circle back to politics in a bit when we talk about the plural community. But he goes through a military and political community, you mentioned in the third form of community, that says is very dominant in Western thought, is religious community. Then he has these other two, the ecological community, which is sort of like a community of withdrawal from everything else. And then also the revolutionary community. We don’t have time to go through all of those.

(21:48):

I picked out the revolutionary community. I wanted to ask a question about, because you wrote a very interesting piece for us at Law & Liberty in a very revolutionary year, 2020, or at least it felt like it at the time, called the Quest for Revolutionary Community. And there you kind of indicated that Nisbet’s idea of revolutionary community can really help us understand some of the dynamics of the everyday radicalism that’s sort of in our society today. Not necessarily people who are true mouths, but sort of banal revolutionaries of our own times. So tell us about the revolutionary community and how that notion might kind of help us understand our own times.

Luke Sheahan (22:36):

So the way he frames this is there’s the three dominant types of community, which we talked about, military, political, and religious. Sometimes you come to a period in time where those three fail, by which I mean they fail to really offer a satisfying community to a critical mass of people or at least a critical minority of people. And there are two reactions to this: revolution and withdrawal. So the revolutionary community is the type of community formed around, well, revolution. And he outlines each of these communities with having several elements. So the elements of the revolutionary community are myth, the myth of human goodness. So we’re looking around, I see a lot of corruption in our society. Politics is corrupt; religion’s corrupt; wars are all for selfish corporate gain, whatever. And we got to tear this stuff down so we can get back to the human goodness, which is lurking under the surface, but we, we’ve corrupted it through capitalism or whatever.

(23:37):

And the only way we can get there is violence. That’s the second element: the necessity of violence. You cannot have reform in a corrupt system. You have to overthrow it and it has to be violent. And this violence. So his third element is the holiness of sin. It’s good. Now, normally we think violence is a necessary evil. Of course you have to do it, but that’s only because you’re in a crisis. But no, for the revolution community, it’s a good thing. It’s to be celebrated when you behead people, this is to be celebrated. When you torture people, this is to be celebrated. So why we see eruptions of horrendous violence at revolutionary periods in kind of an astounding way. So think of the Soviet Union. You look at the stats of how many people the Soviets killed versus the czar, and it’s astounding. So you have an authoritarian czar and you have a revolution.

(24:29):

And not just the revolution, the continuing torture and death that continuous for decades afterwards. It’s just astounding. But yeah, it’s a holiness of sin. You have to have violence, you have to have this. And then number four, you have to have terror. Now we’ve used terror for a long time to control people, but for revolution, it takes on a whole new dimension. So I tied this into, I actually wrote two articles for Law & Liberty on this. So understanding the eruptions in the summer of 2020 in this term. So notice the revolutionary community has a political element. It wants to take over the political order, the corrupt political order, but it has a religious element. They have dogmas attached to it and they’re going to advance them, the revolutionary dogma. And they’re also a military component to, it has to be violent. So all these protestors, they were wearing jackboots and fatigues.

(25:22):

They looked like they thought they were in a militia and they were capturing parts of Seattle and holding them, and declaring them independent. There was a political element to it, a religious element to it, and a war-like element to it. They killed people, and they intended to kill more. And so there’s a total element to this. This is the fifth element, totalism, absolute control. Not just over your soul but over your soul and everything else. Political order, the religious order, military power. There are going to be no voluntary associations here. It’s taking over everything. And this final element is the elites. It’s always elite-driven. So this was true in 2020, we saw these ideas. They’re from academic departments. They’re articulating the revolutionary doctrines that they were advancing and that were driving it. And this has always been true of Marxist doctrines. It’s these elites who create them, whether it’s linen or Marx or whoever.

(26:24):

And then it’s imposed from the top on the masses. So I kind of identified all these in my article for Law & Liberty going on the summer of 2020. And I think cancel culture was very much driven by this revolutionary community. We saw these elements there. So you think of terror was very much what we are going to do is going to ruin your career. We’re going to get you fired, and we’re going to make sure you never get hired again. So you might not be dead, you might not be maimed, but you’re going to lose your house, you’re going to lose your friends and maybe your family, but you’ll have, your life will be ruined for the next three or four decades, however long you last. So all these elements seem to be there. And the totalism aspect is interesting. So we can’t have somebody on Twitter with 150 followers say something I don’t like. We have to go after them. And it was a bizarre aspect. I mean, I don’t really care what happens in San Francisco. I think it’s crazy. I might retweet something about it, but I’m not particularly interested in ruining anybody’s lives there. But they are really interested in ruining our lives on the other side of the country. But that seems to me to be the revolutionary community at work. So Nisbet offers this analytical tool to understand certain movements even in our own age.

John Grove (27:42):

Right. Yeah, I like that he sort of presents the revolutionary community as taking, as you just said, taking elements of politics of the military and of religion and blending it into one big mass. And that then overpowers anything else. Anything that claims to be religious community, the stable status quo, political community and so forth, all needs to be brought under this sort of revolutionary umbrella and be dominated by that form of community. So that’s kind of a good segue into the last form of community that he talks about, which is sort of the inverse of that. And that’s what he calls the plural community. And in this section he introduces or expands upon this distinction that he says between sort of monistic understandings of community and plural understandings of community. And all of the previous ones I think that he had talked about, he talks about in a very, he presents as kind of monistic character in the sense that it’s a form of community that presents itself as dominant and as the one that needs to be controlling that the political community as he discusses it in his second chapter, is a form of community that is precisely above and over and more important than kinship, more important than or potentially sort of maybe in tandem with military community more important than religious community.

(29:14):

And then when he talks about religion, he’s talking mainly about people who see religion as the dominant form of community and one that politics and military are subordinate to that. The plural community is the one that starts to introduce some nuance and some difference there. And he says the plural community starts with, I believe this is the “diversity of the human mind.” And he says, the plural community recognizes the diversity of the human mind and then says we need to have different forms of community if you’re going to have community that sort of reflects that diversity of the human mind. And so plural community is the first one that seems to allow for multiple forms of community. So tell us a little about his concept of this.

Luke Sheahan (30:01):

Yes, his final chapter is the plural community. It’s his answer to all the tensions and conflicts that have come before that he identified before. He says, look, human beings seem to have actually these different needs in our minds. The political community is making a point. The religious community is making a point. The kinship community is certainly making a point. The problem is neither, none of those give the final answer. So if we were to collapse into those type of community, you end up with tensions. It just seems like each of those communities can’t actually do everything. And one would argue, I certainly would, that the American Constitutional Order is a plural community. So what that means is there’s just this inherent baked in plurality, recognition of these different communities. So you take, we have a military community, we have a military, but it’s subject to the civilian powers.

(30:52):

So we recognize it’s there, it’s real, but it’s subordinate to the overall community. I mean, of course we have federalism. So yes, we have political powers, but they’re split up and we recognize there’s just different levels operating and it’s baked into the name of our country, the United States. And even beyond that, the religious community. So religious liberty. And what does that mean? Does it just mean individuals free free-floating citizens, get to believe whatever they want? Maybe that happens. But what it really means is organizations, concrete institutions exist that can make religious claims on their members. And in fact, I’ve argued before, and I think I’m right, that our system carves that out. So you take our tax exemption regime, Supreme Court has said that these tax exemptions are our subsidies, and it’s tried to justify that in various ways. I think that’s wrong. What it actually is, is a recognition that the religious community makes a very real claim upon us, and we can make donations to that.

(31:53):

They can tell us you have to tithe, then you tithe. And our tax regime says, we’re not going to count that. So we don’t say, “yeah, we’ll leave you with some money. You do what you want with it.” We’ll say, “we actually take that off the top. We will only make a tax claim upon what’s left over after you have paid your dues to your religious community.” So the plural community you recognize, yeah, religion makes a claim upon you, and we’re going to give it its space. Your family makes a claim upon you. We’re going to give it its space. Politics of course is there, but it’s going to be a limited government that will make a claim upon you, but it’ll leave space for all of these other associations. So the public community tries to leave them in place. So other elements of the public community, decentralization, for example, he calls functional autonomy. So all these groups to fulfill their function, whatever it is, they’re going to be autonomous insofar as they can do that and as insofar as they don’t stomp on the other or invade the other spheres of existence. So he doesn’t talk about sphere sovereignty or subsidiarity very much, but you can see those lurking in the background. They’re kind of articulations in various religious traditions of a plural community

John Grove (33:00):

Is the plural community—this is this question I legitimately just kind of struggled with—is the plural community a different understanding of politics? That’s not the sort of militarized political community, but it is a different notion of what politics is, and that’s how the plural community takes its shape is by having this specific notion of politics that doesn’t try to dominate?

Luke Sheahan (33:25):

Yeah, that’s exactly right. That’s the best way to see it. So see it as the political community he talks about is a particular type of political community. The plural community is a particular type of political community. So that’s one problem with his language is I know why he does it. He’s talking about political philosophy as such, Plato, Hobbes, Rousseau. But it gets confusing. And when I talk about those with people, they’re like, there were collective action problems that were being solved prior to Socrates and Plato. So how is that not politics? How is that not the political community and the plural community? I say the United States is a plural community, but surely it’s a political community. That’s how we talk about it. It’s a government and all of that sovereignty.

John Grove (34:08):

When he says political community, it’s sort of like Nisbetian term of art there that he has a very specific meaning with the political community, but there are other forms of politics, political activity that can be taking place. So before we move on from the plural community, I wanted to ask, why is the plural community so difficult? He opens the chapter on it by saying that it has “taken a rather poor second place to philosophies which have made their point of departure the premise of underlying unity and symmetry.” So he says that the monistic forms just seem to have dominated. Why is the plural community so difficult?

Luke Sheahan (34:46):

Yeah, so Plato seems, sorry, Nisbet seems to think that Plato is maybe responsible with this, and that’s a compliment to Plato. He’s utterly brilliant. So he gives this, articulates this vision of politics and it just captures the Western imagination and we kind of keep working in his mold. And Rousseau, Nisbet despised Rousseau, as many conservatives did going back a long ways. And so Nisbet hated him as much as anyone, but there’s no denying his utter brilliance. And so that was kind of a problem as he articulated the political community, the total political community in such beautiful terms, it’s hard not to be enamored of it. And so he said, that’s our problem is we ended up with some really talented guys on the other side and we’ve just been caught in that web. So that might be part of it. Part it might be precisely that philosophy as such is aiming to give an account a total account and to understand reality.

(35:48):

When we apply it to politics, we can’t help but to give it a unifying theme. So if I’m going to take all of philosophy, narrow it to politics, the tendency will be to try to give a total account under politics rather than saying, hang on, this is plurality. When I articulate this, if you have a unifying mind that needs to be completely coherent, you’re not going to be happy if I say, yeah, those religious institutions, they can do things, the governments can do things, families can do things, and there’s going to be tensions between them, and we’ll work it out, right?

John Grove (36:21):

You’re supposed to give me answers.

Luke Sheahan (36:23):

There’s certain, a cast of mind that is not satisfied with that and will never be. And so I think he kind of thinks there might be something in the human mind that wants the unity. It might just be that Plato was just so good, we’re kind of stuck in his mode and we’ve never been able to free ourself from it. It’s kind of hard to say. But nonetheless, as an empirical fact, it’s true that Burke did not get as much play as Rousseau. Aristotle doesn’t seem to have gotten as much play as Plato, at least from most of our history. Plato seems to have been the dominant one. And even today, we still want to speak in terms of politics and we struggle to say, we even think of the conservative refrain. We want limited government. Well, we don’t want limited government as an end in itself, per se, as if just if we limit governments, sure, why not?

(37:11):

It’s because we believe in all of these other institutions. The family has a positive authoritative role. When we talk about separation of church and state, what we don’t mean is well, because we don’t want the church to have an authoritative influential role. It’s that we want it to have an authoritative role. We just don’t think that that’s a state. It’s not that there’s going to be some overlap in politics. It gets more complicated than just church and state, but that we actually think it’s a real thing. I love it when I hear about some religious leader taking to task some politicians: “You are a bad Catholic and you’re not going to take communion if you keep it up.” Great, you’re doing the right thing. You’re skirting your authority over your parishioners as you want to. And that tension is a very real tension. That politician elected to be a politician to the district or whatever. Also a parishioner in the church, there’s a tension there, very real tension. And I say amen to that. The plural community says, that’s great.

John Grove (38:09):

I just saw a tweet—or an X or whatever they’re called on X now—yesterday by some it was fairly, I’m assuming fringe figure, but it was a successful troll because it was going all around Twitter where he said, if any church is holding a service in anything other than English, you’re undermining the nation. And I was preparing for this podcast at the moment and I was thinking, oh my goodness, here’s the political community and the religious community in tension. And this person, I think, is sort of a Christian influencer, but it seemed very clearly to have chosen the political community there over in that tension. The comment on Plato segues pretty nicely to my next point, which is that it’s such a sweeping book, and it covers so much territory. There is, and a lot of different thinkers, readers will be bound to disagree with some of his takes on some thinkers. Plato will be one.

(39:04):

I don’t have a dogmatic interpretation of Plato, but there are parts where I was like, well, maybe Plato is trying to get at something more nuanced than the way he presents. I think he gets Luther very wrong. I agree. Luther in particular, this question of the church and the state, I think, is in some way prefiguring an element of the plural community because I think a lot of Luther’s thought was precisely what you were saying, that the church is supposed to be doing something very distinctive and very different. And that was one of his big complaints about the Roman Catholic church is that he felt like it was doing all sorts of extraneous stuff that wasn’t the function of the church. But I think he misses some of that stuff. People will disagree with Plato,  might even be a few people who like Rousseau who are going to read it, which I don’t quite understand that, but they are out there. Can you sort of disagree with some of his substantive interpretations of these people while still kind of gaining the broader insight of the scope of the book?

Luke Sheahan (40:00):

Oh yeah, I think so. So Plato’s the classic example. So his reading of Plato is a little oversimplified and I think he knows it’s oversimplified. So he is saying, Plato gave us this vision. Is Plato way more complicated and sophisticated and brilliant? Yes, yes, he is. There’s a ton in Plato. Nonetheless, that vision of the political community, in simplified form from what Plato’s articulating about ordering the soul and all these things, yes, that seemed to have captured the political imagination in the West. That seems to be accurate. And people who defend Rousseau, they’ll be like, oh, read the constitution of Poland or whatever, that nobody reads and didn’t have very much influence. And it says, okay, but what does Rousseau say about the social contract as it took on the world and took over the world? I mean, we have to look at that. And so we can have our fun intellectual debates in academia over the proper interpretations, but in concrete, historical reality, what characterizes our understanding of the modern state, what part of Rousseau? It’s the part that the French that influenced the French Jacobins, it’s the part they took out of him. That’s what captured the imagination and that’s what dominated politics and the French Revolution and dominated politics since. So do read him with, he knows he’s not giving the definitive account of these guys,

John Grove (41:22):

And that’s not really what he’s trying to do. He’s trying to provide their influence in that broader sweep of history. That’s right. Yeah. That point about capturing the imagination, I always think of when I’ve taught political theory before, classical political thought, how much more engaged the students are with Plato than Aristotle. You get such a huge drop off when you go from the Republic to teaching the Politics because now you’ve just got this guy who actually wants to look at the world and just sort of explain what it’s, instead of, Plato has these just soaring imaginative situations that capture the student’s mind. You talk about the communism of women and children for a week or something like that, and then you get Aristotle and even Aristotle. So it should be mentioned. I think you sort of hinted at this, he places Aristotle very much in that plural community.

(42:16):

There would be plenty who would maybe argue, Aristotle is a political community thinker because you have all that language in Book One of the Politics that everybody likes to quote, “man as a political animal,” the polis is by nature in some readings are all these other communities sort of point towards the polis. That’s sort of the final culmination of everything. But what I found interesting is more I’ve read, the more I find it’s the boring chapter or the boring books in sort of the middle of the politics that everybody sort of likes to skip over, jump over to whatever it is, book seven that has this ideal king, skip over all this boring stuff about democracy and oligarchy. But it’s in there that you really get all that stuff about plurality because here it’s just like, look what is a real polis? A real polis has oligarchs and has democrats and they find all these various ways to institutionalize their authority and that’s what these constitutions are. I just mentioned that to bring back what captures the imagination might not necessarily be what captures the phenomenon that’s being investigated there. Alright, well we’re about to wrap up here. You got one minute, two minutes. What’s important about reading Nisbet today? Why should more people read Nisbet in general? Why should they read Social Philosophers?

Luke Sheahan (43:37):

So I think reading Nisbet today in particular, The Social Philosophers, gives us a way of thinking about politics, about political regimes, about freedom of association. I’ve connected a lot of Nisbet’s ideas to First Amendment rights that’s fresh and timeless. So there are some tired old debates. I mean, you take individualism versus statism. Nisbet kind cut through that very quickly. That’s a false dichotomy that we’re looking at. And so Nisbet helps us to see through these false dichotomies. And so I think really kind of deeper motifs going on underneath. He said, you can quibble about the way he discusses certain thinkers, but his basic typology is a really helpful way of thinking through when I’m looking at something right now, is this the religious community this guy says it is? Or is this the political community? And start thinking really hard about that. What is going on with these riots?

(44:33):

What is going on? I think they’re seeking community in revolution. And I think that tells us there’s been a failure in politics and religion and society at large to account for something. And that’s why we’re seeing these eruptions and they can be very dangerous. They can help us understand them and start to identify what’s going on. And then the plural community gives us a helpful alternative so we don’t have to argue about whether we should have a Christian nation or not a Christian nation established religion or not established religion. In some ways we might be thinking in terms of the political community and we’re just arguing within it, but we’re not actually outside of it and it can give us motifs and ways of understanding what’s going on that really, I don’t know that any other thinker really goes as deep as Nisbet and as thorough as Nisbet does and really giving us a really helpful typology and thinking through these things.

John Grove (45:24):

Alright, well that’s great. I really enjoyed reading. This is the second time I’ve read through The Social Philosophers and I benefited from it both times. It’s an elegant new edition. It’s from The American Philosophical Society Press. It is available now and it’s definitely worth your time, with your read. So Luke, thanks so much for joining us here on the Law & Liberty Podcast.

Luke Sheahan:
My pleasure.

James Patterson (45:48):

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

What is the future of DEI? Does it have at least some laudable goals, and are there better ways to achieve them? What do the American people really want when it comes to tolerance, inclusion, and discrimination law? The Manhattan Institute’s Robert VerBruggen discusses all these questions and more with host James Patterson in this episode of the Law & Liberty Podcast.

“Fight Bias and Legalize Meritocracy,” by Robert VerBruggen

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. I’m your host, James Patterson, contributing editor to Law & Liberty. Our guest today is Mr. Robert VerBruggen. He is a fellow at Manhattan Institute, where he provides policy research, writes for City Journal, and contributes to special projects and initiatives in the president’s office. And he has served as a deputy managing editor at National Review, managing editor at the American Conservative, and editor at RealClear Policy. And finally, as an assistant book editor at the Washington Times, he publishes on a number of issues and was the 2005 winner of the Chicago Headline Club Peter Lisagor Award. That’s great. And today we’ll be talking about his study at Manhattan Institute titled, “Fight Bias and Legalized Meritocracy, A Unifying Vision for Anti-Discrimination Law.” Mr. VerBruggen, welcome to the Law & Liberty Podcast.

Robert VerBruggen (01:38):

Great to be here.

James Patterson (01:39):

Let me give you two accounts of DEI and you tell me where they go wrong and maybe what half-truths they get. So the first is that DEI, which for those six or seven people listening to this podcast who don’t know, stands for diversity, equity, and inclusion, is mandatory for all hiring practices because of the permanently structured white supremacy in American institutions. And without it, we would experience the same levels of discrimination found, say in Jim Crow America. That’s the first version of the story, usually understood to be on the left. And the second version of the story is that DEI policies are a form of counter-discrimination designed to elevate minorities, otherwise incapable of achieving excellence in a competitive environment, and thereby exposing people to all kinds of forms of incompetence. These are the two extremes. It’s more of the right-wing extreme, and your study seems to say, look, let’s take this much more seriously and look at the evidence. What does the evidence tell us about these two positions?

Robert VerBruggen (02:54):

Well, sure, I think the beautiful and ugly thing about the term DEI is that it’s very vague. It can mean a lot of different things to a lot of different people. I think some people really do mean it just to refer to the concept of being open to people, being inclusive, being willing to hire and consider candidates from all different walks of life, and making efforts to make sure that you’re not overlooking people because of where they come from or who they are. And that’s, of course, entirely laudable, but I think it’s also a euphemism for, as you might say, counter-discrimination, reverse discrimination, whatever you want to call that, discrimination against sort of overrepresented groups or higher performing groups in an effort to hit the correct numbers that you think that a company or a student body should have. And I think that that’s where it runs into problems legally. I think there’s been a lot that’s been going on under the banner of DEI that has always been illegal, and I think that there’s a lot of gray area as well that as what the Trump administration is doing plays out. And as courts hear more of these cases, I think we’re going to have to resolve a lot of that gray area in terms of what exactly is allowed and what is not allowed in these sorts of areas.

James Patterson (04:06):

So where does the term DEI, or diversity, equity, and inclusion, come from? Does it have the same provenance as something like affirmative action? Does it grow out of affirmative action, or is it its own thing?

Robert VerBruggen (04:19):

I mean, I think it’s largely used in the same context as affirmative action. We talk about DEI and wokeness. These are sort of new terms or they’re new debates that we’re having, but in a lot of ways, they really just echo the debates about racial preferences and affirmative action that we’ve been having for 50 years or more. So I think in a lot of ways, they refer to ways of trying to diversify a company or a student body typically by taking race into account. And that’s also a problem that we have with the term affirmative action. The original use of it is just take affirmative action to make sure that you’re being fair and not discriminating by race. And it ends up being a euphemism for discriminating by race to get the numbers that you’re trying to get. And I think it’s a similar sort of thing with DEI where it’s just vague enough that a lot of people hear it and think, oh, that sounds nice, but it also turns out to be sort of a cover for some discriminatory and often illegal behavior.

James Patterson (05:07):

So the policy of DEI, at least as I understand it, is kind of a strange thing to emerge, given that as you put in your study, it actually has its origins originally in an attempt to establish a colorblind law. So how is it that we go from the colorblind objectives of, say, the Civil Rights Act of 1964 into at least as it’s been abused, a DEI that creates preferences almost to the point of quotas?

Robert VerBruggen (05:45):

Yeah. What the original civil rights laws reflected was sort of a consensus in America at that time that things had gone very, very badly under Jim Crow and it was not fair for African Americans to be treated the way they’re being treated and to basically ban discrimination by race. And these were written in very colorblind terms, and it was not only discrimination against certain groups was illegal, and it was okay to discriminate against other groups. It was just colorblind language that said, you’re not allowed to discriminate. But there’s always been a vocal minority in the US, and this is a debate that plenty of other countries have, as well, something Thomas Sowell has written a lot about, there’s always the vocal minority that says, no, we should be making more affirmative efforts. We should be discriminating in favor of the population that’s been discriminated against in the past. And that has very rarely actually been written into the law. It’s been very rare that Congress has put colorblind language into the statute books, but what’s been more common to happen is that courts and executive agencies blur the lines of the law and open the door that you see that with affirmative action in higher education. You see that with affirmative action plans in hiring where essentially courts and executive agencies blessed behavior that was pretty clearly not supposed to be happening under the Civil Rights Act.

James Patterson (07:01):

So let’s look at some of those laws, or at least what we might consider the sort of the big moments in anti-discrimination. What are they, and maybe how did judicial rulings or bureaucratic enforcement change?

Robert VerBruggen (07:20):

One of the bigger examples is affirmative action in higher education. The text of the Civil Rights Act says basically you’re not allowed to be denied participation in something that’s funded by the government, which is pretty much all colleges, public and private, on the basis of race. A couple decades or a decade and a half or so later, the Bakke decision comes along and says, well, you can consider race as one factor among many to get the educational benefits of diversity despite the very clear language of the statute that’s on the books. And also the constitutional issue of, especially for public colleges, denying equal protection under the law. It basically says it’s okay to do that. In employment law, you have a few different developments. One is the Griggs decision, which says that the original law had basically said you’re not allowed to intentionally make a test to give to your employees that’s designed to discriminate to weed out certain racial groups.

(08:15):

But you’re protected if you want to use tests to find the best employees. And the Griggs decision comes along and says, actually, if the test has a disparate impact, we’re going to hold you to a higher standard. We’re going to make you basically presumptively liable for discrimination for using that test unless you can defend it in court with pretty stringent rules and also with affirmative action. In private employment, you have the Weber and Johnson decisions which say, okay, if you’re a private company and you think you have a traditionally segregated job line, you can take race into account. If you have an affirmative action plan documenting what you’re doing, you can have an affirmative action plan to take race into account to some limited extent. And these are all things that are just not in the statutes. These are things that courts later kind of allowed out of the sympathy, frankly, with that vocal minority that wanted to do something that hadn’t been enacted in law.

James Patterson (09:11):

Yeah, there was a kind of optimism during the 1960s that with correct legislation and maybe with some kind of federal assistance, there would be a rapid evening out of outcomes. And when these don’t surface, there’s increasingly a justification for interventions that come from the courts. The one that seems to be most important, at least in beginning the process, is the Griggs decision in disparate impact. What does that mean?

Robert VerBruggen (09:46):

Basically, disparate impact means that in the case of an employment test (which is just kind of the textbook example of disparate impact, though the ruling applies to other selection mechanisms too) if you give people a test for the job and one racial group passes it at a significantly higher rate than another racial group that is presumed to be discriminatory, and the employer then has the burden of defending the test, showing that it’s adequately job related, showing that it’s validated. And there’s a whole very technical process that tends to play out in those kinds of cases called a Battle of the Experts, where each side hires testing experts to defend and criticize the test at a very technical level. So it basically says that if you’re going to use tests that have any kind of disparity, they have to be very rigorously vetted, and if you get challenged on them, the judge has to agree with you that they’re appropriate for the job.

James Patterson (10:37):

And the report on the area of employment, it says by the end of the 1970s, the Supreme Court had thrown out a requirement that Alabama prison guards be at least 5’2″ and 120 pounds, and yet allowed women to be outright excluded from certain roles in maximum security prisons owing to sexual assault fears. In the same decade an appeals court threw out a company’s categorical policy of refusing to hire those with criminal records. But the Supreme Court allowed New York’s transit system to refuse to hire addicts on methadone treatment without making case-by-case distinctions among applicants and job roles. The evaluation of written tests came to involve fact-intensive nitpicking of exactly what skills a test measured. I don’t know about you, if I were five one and 115 pounds, I would definitely not apply for a job as a prison guard, but what explains this battle of the experts? There’s a real aversion to being hauled into court and suddenly having to hire a firm or keep on staff a certain amount of legal expertise.

Robert VerBruggen (11:46):

Exactly. It’s not just, you can’t just say, okay, look, I’m using this test in good faith. There’s no evidence that I chose it to a certain racial impact. If you look at the test, I can explain to you why the questions on the test relate to things that I want my employees to know. It’s this really intensive process that stems from the EEOC putting out, they’re called the uniform guidelines. It’s a really long document on testing procedures that does not have the force of law, but that courts have really looked to over the years, and it’s just sort of an additional layer of requirement on employers that want to use tests. So when you use a test, you’re taking the risk of being held into court, and even if it’s a good test, you’re going to have to defend it. You’re going to have to go through the expense of defending it, and you’re going to have to hope that the legal process ultimately agrees with you that the test is a good one. So it’s basically an additional layer of risk that people take on when they try to screen their employees.

James Patterson (12:40):

We have a pretty lengthy history in the United States of what’s called redlining, which were efforts of cities or planners somehow to create housing arrangements in cities that would keep African-Americans out of certain neighborhoods. Do we find DEI as a policy impacting this sort of thing and has it been successful?

Robert VerBruggen (13:04):

Yeah, I mean, I went into the history of housing discrimination a little bit in the report. That’s an area where there’s been, I think, a lot of progress in a lot of different ways. One exception is that real estate agents do in more recent papers, still seem to just steer people to kind of like neighborhoods. And it not clear the extent to which that is because they’re trying to preserve discrimination, which I think is probably not a major motive these days, or if they’ve come to realize that if you have a majority white neighborhood, a majority black neighborhood, people of that race are going to be more likely to rent there. But that is illegal. You’re not allowed to steer people. So yeah, I think that’s an ongoing concern that there has been discrimination in real estate. There are laws to prevent that I think are good laws. And I think there are still, I think the audit studies do show that there are certain ways that those are still being violated, but there’s also been immense progress. There’s been a pretty big drop in a lot of kinds of bad behavior, like telling people that homes or apartments aren’t available when they are, that sort of thing.

James Patterson (14:01):

Earlier you mentioned the Bakke decision and its impact on higher education. Bakke comes down in 1978. What is this case and to what extent is it still controlling on issues of admissions to higher educational institutions?

Robert VerBruggen (14:19):

Sure. Yeah. I guess I forgot to finish my thought. It was the beginning of a very wishy-washy period in jurisprudence over the affirmative action issue. So it was basically, well, you can kind of do it, but you can’t have a quota. You can consider it to increase diversity, but you can’t do it, for example, in the name of social justice. It has to be that you’re trying to get the educational benefits of diversity. And then of course, as the Supreme Court turned back to the right, over the past few years we’ve had the SFFA decision that essentially overruled it without quite coming out and saying that it was overruling. It said that, no, you don’t get this extra sort of broad discretion to discriminate by race just because you’re a college.

James Patterson (15:03):

Great. And an area that, I guess, doesn’t occur to me that often because I’m not in this world, but there’s a fair amount of discrimination or history of discrimination in government contracting. And so maybe explain to an audience that may not know much about this, why this matters and what happened with it.

Robert VerBruggen (15:27):

Sure. Yeah. I mean, over the past 50 years or so, there’s been a number of developments under Nixon going back to Nixon and the Philadelphia plan and a little bit even before that where basically you had an executive order urging sort of diversity in government contracting and especially trying to ensure that African-Americans have equal access to those jobs. But it bled over into basically pretty intensive pressure on government contractors to balance their workforce in that way. And in one of the big developments of the Trump administration is that he rescinded the executive order from the Johnson administration that undergirds a lot of that. So we will see kind of going forward how well that works and how much that kind of trickles down to other layers of government because it’s not just the federal government that does this with government contracting.

James Patterson (16:17):

Yeah, and each of these stories has, I mean, there’s little distinctions and differences in them but they each seem to have the same sort of narrative, which is in the beginning there’s just reprehensible amounts of racial discrimination, especially targeted at black Americans. And then there are interventions in the law attempting to establish colorblindness. There is not the same degree of evening out that everyone had anticipated, and there’s still, less and less so, but there remains entrenched opposition to the law, that justifies greater interventions that haven’t really been repealed except maybe in the case of higher education in the SFFA case you mentioned earlier. But all the same remain sort of around and justifying increasing interventions despite the fact that the motivation of discrimination isn’t really around anymore. And this gets us to a section of the report called “Bigotry Falls, Disparities Persist.” So what are these disparities persisting, and what significance should we attribute then to failures of policy?

Robert VerBruggen (17:29):

Sure. I mean, one of the things I show is that if you look at surveys of whites asking things like, would you object if a relative of yours married someone from a different race? Do you think that people have a right to segregated neighborhoods? Would you vote for a black president if your party nominated one? When those sorts of questions that get at basically, are you a racist? You see a very steep drop off going back to the 1970s. So you’ve had, at least in terms of people being openly willing to admit to a survey taker that they’re racist, you’ve had a pretty drastic change in white attitudes essentially. And you have also seen some other things like audit studies showing that discrimination in places like the labor market may have fallen off as well, but you still see very deep inequalities in terms of things like school outcomes and things like wages, especially the male wage gap is very significant as I talk about in the report.

(18:28):

And that’s been just extremely frustrating. I think for everybody that was hoping for these things to improve and for America to take steps forward from its past that we haven’t seen these concrete outcomes equalize nearly as much as we wanted to. And I think what you see when you dig into the data, which I do a bit in that section and into the studies that have been done on it, is that the effect of intentional discrimination may not be gone, but it’s lessened over the past since the 1950s, 1960s. But instead, you still have these academic gaps and you also have, for example, in the labor market, you have the labor market putting a lot more value on education and skills where those gaps are still quite severe. So I think that there’s a really important discussion to be had around yes, continuing to fight the discrimination that still exists. And I have a section on audit studies in the report that goes into that. I do think that there is some level of discrimination that still happens in places like the labor market and the housing market, but I think we also need to work on things like human capital, making sure that education is sound from the early years and also that people have access to opportunity to apply the skills that they’re able to develop.

James Patterson (19:41):

Yeah, this section of the report really gets into some pretty technical data that you do a very good job of explaining for people that maybe aren’t as fluent in “statisticalese.” That’s not something some of us have to do in our daily jobs. What are some of the limitations of these studies? I see here, for example, formally studying the links among race cognitive skills, educational attainment and income has proved surprisingly difficult owing to certain patterns in the data and technical limitations. Maybe say more about what the problem is there.

Robert VerBruggen (20:22):

Sure. I mean, well, one interesting thing is that there’ve been some studies where you want to statistically control for things like test scores, you want to statistically control for educational attainment. And one of the weirder things is that because there’s such a big test score gap, African-Americans with a given test score actually get more education than whites with that same test score. So basically the test score gap is bigger than the educational gap in that sense. So you get very different results depending on whether you control for one or both. And there’s been a lot of debate in the literature about that. And one of the odder things is that in some analyses, you actually reduce the wage gap more if you just control for test scores as opposed to controlling for test scores and education level. So it’s a sort of conundrum of, okay, what is this actually telling us? How are we supposed to interpret this?

James Patterson (21:10):

And in some of these studies, I’m saying this almost as though I know this for certain, but maybe I should pose it as a question, but in some cases you’re dealing with sample sizes that are sufficiently small that where you control for population, you might end up with pretty few cases making it hard to make inferences. Is that a problem?

Robert VerBruggen (21:28):

It depends what dataset you’re using. If you’re using census data, those data tend to be really big. There are also some longitudinal studies like the National Longitudinal Survey of Youth that’s much smaller. You’re going to have sample sizes in a few thousand depending on how you strain out the cases you don’t want to analyze or which variables you’re looking at. But yeah, sample size can be an issue in some of these studies more than others.

James Patterson (21:52):

Well, that’s good to know that a lot of it’s done by census. This isn’t an area where I do any kind of empirical work, so I need to defer to the expert here. One of the things that emerges as a prominent study in this section is one where Patrick Klein and two authors send out 83,000 fake applications to jobs across the country offered by 108 major employers and check to see which received responses. This is a pretty incredible amount of work. Tell me about the results of the surveys and what bearing they have on the sort of broader discussion of DEI today.

Robert VerBruggen (22:33):

Sure. I mean, one thing I’ve been writing about for a while and pressuring people on the left to think more about is this sort of study, it’s called an audit study. The idea is that you send out otherwise similar applicants to do things like apply for jobs. What they did in this study is they sent out, you said 83,000 fake applications, and basically looked to see if the application had a stereotypically white or black name, did that affect whether you got a call back? And I’ve got the numbers here, about 25 percent of the white applicants were contacted within 30 days versus 23 percent of black applicants. So you have, it’s sort of an interesting disparity because on the one hand, it doesn’t sound that big, 23 versus 25. Basically, if you send out a hundred applications, it’s only a difference of two applications getting a response, but that’s basically a 10 percent gap for every 10 successful applications, you’re only getting nine if you’re from the disfavored racial group.

(23:31):

And of course, because this is just one aspect of the hiring process, it raises the question of, okay, if they’re discriminating at this level, what else is going on elsewhere in that process? And I think it’s important to note that when I say that I’m skeptical of DEI, I’m skeptical of reverse discrimination, that doesn’t mean we should lose sight of the fact that regular old discrimination is still a factor and it still matters and it’s still something that we do need to enforce and think about.

James Patterson (24:03):

Yeah, that’s right. There is this sort of persistence in this study to refuse to go to one of these chief narratives, but to stick with the data. That’s what makes it so valuable. I skipped over something I meant to ask you about, which is that there’s been this, especially on the right, some amount of discussion about the impact of family formation on success rates, especially for black men. What if any kind of impact could policy have on those kinds of outcomes?

Robert VerBruggen (24:36):

Yeah, that is kind of the million-dollar question. I’ve been thinking about family policy for a long time. I think there are certain things on the margins that matter. There are, for example, safety net programs that discourage marriage by taking benefits away when somebody gets married, things like that. I think that’s really important. That’s something we should be thinking about. But when you have a gap as big as the gap that we see in family formation in married parenthood, is any realistic government policy going to close that gap completely? I don’t know that it can. And of course, we’ve seen over the past 50 years, what started out with the Moynihan report is a crisis that was focused among black Americans. Instead of closing the gap and fixing it, it’s gotten worse over the years until fairly recently. And also, white illegitimacy rates have gone up, too. So that doesn’t seem to be something that we’re actually making too much progress on.

James Patterson (25:30):

So I wanted to ask you about this one last issue before moving on to the legal landscape, and I’m very curious about this because it’s one that I’ve heard people complain about when describing discrimination, which is the issue of stereotypically black names. Is this still in the Kline study?

Robert VerBruggen (25:52):

Sure, yeah. Yeah. That’s something that they address. They find that the particular name didn’t seem to make too much of a difference beyond the race of it. But there is a lot of research, and I do discuss this a bit in the report, suggesting that different names have different class connotations in addition to having different racial connotations. So there is that question about how much are you measuring class versus measuring race? One of the interesting things I found when I started to dig into this and that I mentioned in the report is a study finding that when there was a survey study about these class connotations and a fair number of people who had stereotyped a black name as being poor, when asked why they did that, they said, well, I know that there’s this income cap and it’s a black name, so I assume they were poor for that reason. So it’s not as clear cut as I think some of the critics resorting to that argument would like it to be. And also, I’m just not sure how good we should feel about it if employers discriminate against blacks but also discriminate against poor white people. It’s certainly worth teasing out the extent to which that’s what’s going on, but I’m not really sure that that’s anything good if that is what’s going on.

James Patterson (27:00):

Right, right. It’s one of these factors that–and I’m going to have a baby soon–it’s one of these things where you don’t realize that the name might actually affect trajectory, but apparently that is an issue now that I have to consider. So when we get to the changing legal landscape, you make a very important distinction between constitutional and statutory precedents, which are more important for DEI issues today.

Robert VerBruggen (27:32):

I think they’re equally important because I think we have an equal protection clause in the Constitution that’s been hugely important in a lot of these issues. The SFFA decision and the Bakke decision relied on equal protection despite the fact that the statute actually has much clearer language. The Bakke decision basically just assumed that the statute was meant to put into effect the equal protection clause despite the fact that it used completely different language. And the SFFA decision said, well, okay then, I guess we’ll decide this one on the equal protection clause. But the reason that I think that distinction is so important is that several of the originalist, or right-leaning, or however you want to put it, judges on the court are extremely reluctant to mess with statutory precedent. They have this sort of assumption or theory where if the Supreme Court screws up a statute, Congress can just pass it and fix it.

(28:24):

Whereas if the Supreme Court messes up the Constitution, it’s much, much harder to pass a constitutional amendment. That’s true as far as it goes, but I’m not really a fan of that way of thinking. I don’t think that the justices adhering to that are going to listen to this podcast and change their mind because of me, but I’m doing what I can on that. I think the problem is that passing a law through Congress requires both houses of Congress and the President all to agree to the same thing. And in the Senate, you might even need 60 votes to overcome a filibuster. So if Congress comes to a specific compromise and then the Supreme Court misinterprets that and says it means something else, they might not have the votes to turn that back to what the original compromise was. If any one of those decision makers either doesn’t think it’s worth the effort to put into changing the law or actually prefers that one because this was a compromise, if one part of that compromise actually prefers what the Supreme Court says to what they actually agreed to, they have no incentive to change that back.

(29:20):

So I think this sort of super deference to statutory precedents is a problem, but it’s just sort of a reality of the court that when you’re trying to overcome bad statutory precedents made in the past over issues like employment, affirmative action, you’re going to face a little more of an uphill climb than you do with something like SFFA where you can make your case to the originalist judges and they’re going to take the issue on and come to the conclusion they think is right without being excessively deferential to what was said incorrectly in the past.

James Patterson (29:53):

And I hope the listeners will forgive my academic bias here, but I have to ask just for my own sake. You have here some language here, it says, early signs indicate mixed compliance with the SFFA decision. The first class was admitted after the ruling revealed the kind of substantial demographic changes that one might’ve expected at others, there was virtually no change. Do you think we’re going to have to see more judicial interventions in the future?

Robert VerBruggen (30:28):

Yeah, I think it is actually very difficult to understand what’s going on in a lot of these schools. Basically, the Supreme Court said that you can’t use race as a factor. It didn’t say that you have to remove race from your admissions process and leave everything else exactly the same. Obviously if you were using race heavily before and you stopped using it, you’re going to see a big demographic change. But the more you change other things, the more you might be able to mitigate that demographic change. And the courts seem inclined to let people do that sort of thing, even if they are doing it for the specific purpose of preserving some kind of diversity. Even some of the briefs in the SFFA case from the plaintiffs were basically arguing that schools could preserve their diversity by moving to things like class-based affirmative action and things like that.

(31:11):

So I think it’s going to be very difficult to figure out which ones of these are doing things that are permissible and which one of these are basically still considering race even though told not to. And also where the courts are going to draw the line between what’s permissible and what’s not, because I think there’s a big gray area of policies that colleges may adopt specifically for the racial effects that probably would not be allowed in other contexts. For example, if you were trying to discriminate against black people or Hispanics, I don’t think that kind of thing would be allowed, to deliberately design your process to minimize their presence. But I think that the courts do seem pretty deferential to saying, hey, colleges, you can do things like class-based affirmative action. You can tweak those preferences with diversity in mind a bit. You just can’t use race directly. And I think finding out where to draw that line is going to be an interesting battle in the years to come.

James Patterson (32:06):

Yeah, that is, and I’m sure it’s going to be difficult to make everyone happy with any kind of result. There are some smaller programs you mentioned here and you highlight a COVID-era program targeting debt relief to black farmers and how it was replaced by a sort of thinly veiled, maybe more constitutionally compliant version. Is this a regular event in legislation where there are these handouts based around identity

Robert VerBruggen (32:40):

That has been much more unusual. As I lay out kind of earlier in the report, to me, the main thrust of the history is that Congress passes colorblind laws, and then the courts go back on it. Here, you had something that was kind of interestingly the reverse. You had big democratic majorities, and you had this sort of racial justice moment where people were very inclined to accept that sort of thing, so that Congress actually passed it and the Supreme Court rejected it, and then Congress tweaked it up a bit more. So I feel like that was part of the DEI fervor that we saw circa 2020, whether that’s over for good or whether we’ll see it again is an open question.

James Patterson (33:19):

Yeah. I have to wonder how many people were actually able to benefit from that. It’s a strange program, but I guess you never know what’s going to be in the law until you pass it. As a famous former speaker…

Robert VerBruggen (33:31):

You’ve got to pass it to know what’s in it.

James Patterson (33:36):

One of the worst things ever uttered about Congress. Also true, unfortunately, in many cases. In the midst of all of this, you reach a pretty poignant passage here. You say, “a backlash against double standards is a natural reaction, and racial favoritism raises additional issues as the nation diversifies and the horrors of the past decades recede. It’s one thing to grant preferences or special protections to black workers who attended segregated schools as children. It’s another to grant preferences to Hispanics over Asians for the foreseeable future, merely because the latter tend to perform better academically and economically. So while an identitarian equity-seeking approach has certainly shown itself to be a political possibility, it has proved neither popular nor desirable as an actual solution to the country’s racial problems.” Is this sort of where you land, or do you think this is where you think America’s landed?

Robert VerBruggen (34:38):

I think it’s both. I think any realistic solution going forward has to take public opinion into account. Even if I were to disagree with public opinion, I just think, you’re going to have all these people of different races living together and competing with each other for jobs and slots and colleges. You’re going to need a regime that has popular support, I think. So I think policy views need to be informed by public opinion to some extent in that regard. And I think the reality is that Americans never really made their peace with race-conscious policies. Even in some of the surveys, there does tend to be a racial gap, but even black support for a lot of these policies falls below 50 percent. So it’s a matter of, I think Americans generally want fair processes and equal opportunity and a fair chance to compete. They don’t want a thumb on the scale in terms of race. And I think public policy is going to have to sort of confront that reality and readjust, especially as we become more diverse. And as I said in that passage, as the horrors of slavery and Jim Crow fade into the past as we continue forward as a nation.

James Patterson (35:48):

Yeah, and in some ways there has to be some amount of time passing. We have a black justice on the Supreme Court who endured that life. He’s now 80, Justice Thomas. I’m reminded in that passage of something. I taught for a year as a visiting professor at Hampden-Sydney College. It’s a small men’s college in Central Virginia, and there was a generation of some white, some black men who were more or less illiterate because of massive resistance, in which they shut down the schools. They had illiterate parents, and so they were at that formative age when they would’ve learned to read at school, but never did.

Robert VerBruggen (36:32):

Yeah. It is a thing where each generation that passes, hopefully, those things go further into the past and are replaced by the better times that we’ve had more recently in that regard. So yeah, it’s one thing in 1970. It’s another thing in 1995. It’s another thing today, and it’ll be another thing 25 years from now, and my hope is that we will learn to find ways of focusing on concrete disadvantage and making sure that everybody has opportunity and everybody has a good education, and then letting people compete from there.

James Patterson (37:03):

So we’ve covered the courts a lot, but there’s a section on the future of DEI both in how the executive and the judicial branches will approach it. So maybe say a few things about what those predictions are.

Robert VerBruggen (37:19):

Sure. Well, essentially, what we’ve been seeing even since this report came out is obviously a huge push from the Trump administration. There’s obviously a very big Democratic Republican divide over this that we’ve seen in previous administrations, including the previous Trump administration. But this seems to me to be at an entirely different level. I mentioned that he rescinded the affirmative action and government contracting executive order. He’s reoriented the civil rights enforcement agencies so that they’re not relying on disparate impact theories anymore. He has started to take seriously reverse discrimination. It’s never actually been legal to put a job posting up that says you don’t want any white people to apply for it. But we’ve seen that, especially in colleges, that sort of thing. There’s a lot of things that have just been flagrantly illegal that they’re finally going after. And my hope is that this is going to be an even-handed enforcement effort.

(38:12):

If you look at the EEOC’s press releases on the cases that they’re talking about, there is still a mix of traditional civil rights enforcement, where you might have a case where black or Hispanic workers are being mistreated or being harassed at work, and they’re pursuing that still. I think that’s fantastic and it’s good, and also enforcing it even handedly, and obviously getting a lot more news coverage for going after DEI practices. So the executive branches have just seen this enormous reversal. I don’t know how much of that will last over the long run. Certainly, if a Democratic president is elected next, that’s all going to go out the window. I don’t know if that is going to create a precedent, kind of a standard for future Republicans to live up to or not.

James Patterson (38:56):

So in an area where you talk about the possibility of a grand bargain in Congress, which is interesting. I am happy to hear people still take Congress seriously as a source for changes. That was probably my favorite part of this was oh, Congress. But yeah, they can actually pass laws, not just make hits on cable news. So you say that the compromise could be, and there’s more to it than this, but the central nature of the compromise is effectively jettisoning disparate impact as a way of solving the problems created by the left, and in order to ameliorate the jettisoning of it, the government funding studies that would actually attempt to measure real discriminatory practices. And then throwing the book at those firms. Who are the buyers for this? Who are the people who might want this kind of law?

Robert VerBruggen (39:59):

Well, I mean, I think most people want an even-handed enforcement of anti-discrimination law. I think most people would think it’s unfair to say, you gave people a test and some people failed it more than others, so therefore we’re going to drag you into court and make you miserable. I think a lot of people would also think it’s unfair for there to be genuine discrimination where people are being rejected because of their race. I think that people who genuinely believe in colorblindness, I would say, are the buyers of that policy. And I would hope that it would be a little bit of a left-right compromise where the left gives up kind of this DEI approach to the issue that I think they’re paying some prices for in terms of public opinion anyhow, but the right admits, oh hey, there is still some discrimination out there. Why don’t we make more of an effort to address that? Why don’t we try to study it in a rigorous way and work with firms or sue firms as needed if they’re rejecting applicants because of their race?

James Patterson (40:53):

You’ve run into a problem, not you specifically, I’m sorry, Americans run into a problem where the two parties have to negotiate within their coalitions in their extremes. And on the right, you have people who are still racialists, right? And they’re self-discrediting in some degree, but still they manage to be a problem for people who want to take this on. And if you’re like me, and unfortunately, too online, you see a lot of their nonsense. But the left has more of an issue here because their more radical fringe, or their more radical advocates, are people who are, in some cases, actually employed as people in DEI organizations or activist groups. And so their checks are cashed on the basis of implementing these policies, whether it be for private firms that have brought in DEI executives or work as consultants. So this is essentially a hard sell for them, right?

Robert VerBruggen (41:57):

Yeah, exactly. I mean, I think the idea I put forth in the report is the centers of the two parties come together and pass a bipartisan bill, whereas increasingly what we’ve been seeing is that you have some fringe elements in both parties and increasing polarization among the electorate at large. So instead of passing a bipartisan bill, you wait until you have a trifecta and do what you can then. And I don’t think that’s a healthy way of making policy. And I think you’re obviously right if you look at that and say, that’s never going to happen because of this polarization and this refusal to deal with the center, I think. But yeah, I mean, I felt like it was helpful to at least outline in the report what it would look like if Congress did something that was consistent with public opinion, in my opinion, a fair policy.

James Patterson (42:44):

Oh, I didn’t mean to criticize you. I was, like I said, I was happy about it. I was just worried that it’s hard enough to make radical fringes of whatever side you’re on compliant, but when they’re paid not to be compliant, it’s even harder. So just as a final question here, how hard is it to make this very data-driven, complicated argument to people that are accustomed to dealing with DEI as either a term meant to imply an elevated racial consciousness or a form of racial favoritism?

Robert VerBruggen (43:25):

Yeah, I think one of the things I did in the report is try not to get too wrapped up in the term DEI. I mean, I certainly use it in the report. I don’t think you can talk about these issues without doing it. But honestly, after I work at the Manhattan Institute, we do a lot of work on DEI. And nonetheless, I still have trouble telling you exactly what it means, because as I said before, it means different things to different people. What I tried to do in this report is kind of connect the current DEI discussion, wokeness discussion, to all of these policy developments and all of these debates we’ve been having since the 1960s to some extent even before. And to talk about how anti-discrimination laws evolved and how it might move forward in a way that’s productive and that could gain the consent of the American people.

James Patterson (44:12):

So again, this study, “Fight Bias and Legalize Meritocracy: A Unifying Vision for Antidiscrimination Law.” Its author is our guest today, Robert VerBruggen of the Manhattan Institute. I hope everyone moves over there to take a look. We barely scratched the surface in terms of the material he covers, really, in 20 pages. I don’t think I could have done it. So thank you so much for coming on the Law & Liberty Podcast.

Robert VerBruggen:

Thank you for having me.

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.

America is still reeling from the coronavirus pandemic that broke out in 2020. Not only was it one of the most deadly health incidents in our history, but the strategies imposed by central planners to contain its spread also inflicted countless costs on everything from the economy and education to social life itself. Stephen Macedo, an author of a recent book evaluating the pandemic’s aftermath, joins Law & Liberty contributing editor G. Patrick Lynch to discuss the price of the pandemic on this episode of the Law & Liberty Podcast.

In Covid’s Wake by Stephen Macedo and Frances Lee
Liberalism vs. Scientism, a book review by Mary Carmen Mead
The Pandemic in Hindsight by Law & Liberty‘s Editors (March forum)

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.

G. Patrick Lynch (00:39):

Welcome to the Law & Liberty Podcast. I’m G. Patrick Lynch, a senior fellow at Liberty Fund and a contributing editor to Law & Liberty. And for this episode, I’m filling in for James Patterson. Today we are joined by Stephen Macedo, who is the Lawrence S. Rockefeller Professor of Politics in the University Center for Human Values at Princeton University. He writes and teaches on political theory, ethics, public policy, and law, especially on topics related to liberalism, democracy and citizenship, diversity and civic education, religion and politics, and the family and sexuality. We will be discussing his latest book In Covid’s Wake: How Our Politics Failed Us, co-authored with his Princeton colleague Frances Lee. Macedo and Lee have appeared in many major media outlets, including The New York Times, CNN, PBS NewsHour, and The Hill, to discuss the book, which has been lauded for its critical review of the political and policy responses to the pandemic. Steve, welcome to the Law & Liberty Podcast.

Stephen Macedo (01:36):

Thank you. It’s a pleasure to be here.

G. Patrick Lynch (01:37):

Well, it’s great to have you here. As I mentioned to you before we got started, I think this is a tremendous book and I congratulate you and your co-author, Professor Lee, on it. I want to begin by saying, I know for many of us, looking back on the pandemic is personally difficult because of the challenges we all faced, particularly those of us who lost loved ones. And yet in my view, this book is immensely important because it serves as a sort of a truth commission almost on the Covid response by the government, and it reveals a lot of unpleasant truths about how poorly the public sector performed. The title of your book suggests that the government failed the test of Covid. As a professor, would you have given the government an F for its response on Covid?

Stephen Macedo (02:18):

Well, thank you for the introduction first of all. I haven’t really sat down to think about that. And I think I would say that actually the scope of the focus of the book is a bit wider than just the government, though public health officials and others obviously played a very important role in a way, the focus of the book is on what we call the” truth-seeking departments of liberal democracy,” journalism, science, public health included in that of course, and universities more broadly. And while it’s true that public officials did, I think in many cases pass the buck and say “follow the science” in a way to avoid taking responsibility for hard decisions themselves, it’s also the case that these other institutions did not ask hard questions and didn’t play their role as well as they should have under the influence, I think, of the polarized environment in which we live, a kind of epistemic tribalism that so deeply affects our politics.

(03:20):

So we do look back on the record and try to be as accurate as we can. It’s really only the beginning of a reckoning because there’s so much we don’t understand still. I think about what happened and what the results of the policies may have been, but it’s our best shot at doing a first take, fair mindedly, on what happened. And we do emphasize the shortcomings. Part of it is that there were a bunch of pre-Covid pandemic planning documents, which looked at these non-pharmaceutical measures going back to 2005, 2006, and they were skeptical, let’s put it that way. They emphasized the weak evidentiary basis for a lot of those measures that were imposed. And they emphasized the importance of being frank with the public about the weak evidentiary basis and the certainty of costs, considerable costs from imposing these measures.

G. Patrick Lynch (04:18):

I’m glad you raised that because I think that was one of the most eye-opening parts of the book. I think if you asked the average citizen, if they knew that, in fact, all the pre-pandemic planning had shown that there was skepticism about many of the measures that were pursued, they would be surprised. And I certainly was surprised. Can you explain to our listeners exactly why policy officials in most of these major health organizations in the public health field generally advocated for abandoning most of this planning? What happened? What shifted in their thinking?

Stephen Macedo (04:47):

Well, let me say a word about those things first. It is remarkable that the planning documents went back early to 2005, 2006. George W. Bush read John Barry’s book on the great influenza of 1918, and he initiated these planning processes. There was always a national security component as well, having to do with bioweapons, but he was concerned about another pandemic. There were mathematical modelers who were optimistic about the effectiveness of these measures, very optimistic. And they wound up playing a leading role as it turned out in shaping some of the discourse. But going back to that era, scientific officials who looked at this, including the Institute of Medicine, as it was called back then, which has issued a report on these measures and said that they found the evidence unconvincing and that there was a lot of uncertainty around these measures. And anyway, in 2019, Johns Hopkins did one of these surveys on all of these non-pharmaceutical measures, social distancing, mask-wearing, school closures, border closures, and so on.

(05:49):

And emphasized just as you said, the weak basis. And the World Health Organization did one that came out in November 2019. And among the things that said there, again emphasizing uncertainty, weak evidence, was that there were certain measures that were not recommended under any circumstances, including border closures, quarantine of individuals who had been exposed, and contact tracing, and those were not recommended under any circumstances according to the WHO. And those were all implemented in short order during Covid. I think what happened and what shifted the discourse was partly that the World Health Organization sent a team to China in late January 2020 to survey their response. And that team came back after spending about seven or eight days in China in Wuhan, Hubei Province, and proclaimed that the Chinese had solved the problem, that they had defeated the virus, and that every government in the world should follow the Chinese strategy of suppressing the virus, locking down–something that’s never really been attempted in human history before.

(06:55):

And when you read that report from the World Health Organization, a joint mission that included half Chinese participants, half non-Chinese participants, only a couple of Americans were involved in that, it reads like an award citation, as we say in the book, it’s just uncritically endorses the strategy. So that played a major role. And then there were a couple of other things too. A bombshell report came out of Imperial College London on March 16, which had very impressive graphs. The lead there was Neil M. Ferguson, who’s another mathematical modeler who had been involved in the original 2005, 2006 projections. He said that if we didn’t impose this whole suite of measures, this “Report Nine” from Imperial College said that if we didn’t impose this whole suite of measures by the end of August 2020, we’d have 2.2 million dead Americans. So that report, which was finalized and published on March 16, the Trump administration had gotten an advanced copy of it, that was shown to Donald Trump on March 16.

(07:58):

And later that day, he had a news conference where it was recommended that places with infections spreading should close bars and close other places and impose lockdowns. By that time, schools had already closed across substantial parts of the country. But so those two things were important, and there were other projections that were made. 3.4 percent death rate was projected by the head of the World Health Organization in, I think it was February, or maybe it was early March. So there was a lot of fear. There was a lot of uncertainty of course, and the original lockdowns were very widespread across the country and across Europe. But I think what’s in a way most important is that the European–well, some countries never closed their schools at all. I don’t think Iceland ever closed at schools. Sweden never closed them for kids under 16. And the Western European countries in general, France and Germany and other places in Europe, reopened their schools at the end of April and May.

(09:03):

And it was clear, by the middle of May certainly, that schools were not spreaders of Covid and that teachers were not at great risk. And the European health ministers met education ministers, excuse me, met I think it was around May 10 or something, and issued a statement of the education ministers from around Europe saying that it was safe to reopen schools. So there was a lack of learning, especially in Democratic states, which closed down faster and stayed closed much longer than Republican states. It was a partisan pandemic, as we say in one of our chapters, that there was a striking partisan divide on the stringency of all of these measures with democratic states imposing school closures much longer. Republican states were generally reopening their schools in the fall of 2020. Many Democratic school districts were closed through almost the entire 2021 school year. California closed right through March. So the discourse, the narrative, became very rigid and intolerant of dissent. So I would say that a big part of the book focuses on the shortcomings of public deliberation and kind of intolerance of dissent, forgetting the fundamental principles of science and, in a way, classical liberalism: To be open to dissent, to allow criticism, to welcome criticism, and to not close off disagreement prematurely.

(10:37):

I think one thing that happened, we found is that, about April 2020, once the lockdown strategy had been adopted in, of course, many parts of the country, but there’s the sense of a war mentality that arose. We see this in a report that came out of the Safra Center at Harvard that was endorsed by the Rockefeller Foundation and other foundations including the Niskanen Center, and indeed the American Enterprise Institute put out a Covid planning document or policy statement around that time, April, May 2020, which also endorsed the lockdown strategies to some considerable degree descent, became that this is our chosen strategy and dissent was unwelcome, that we were on a war footing and we needed the equivalent of national unity in the face of a war, in this case, a war on Covid. So as in previous wars, we cracked down on dissent, and that was the big problem. Mistakes get made, but we should have been more open to dissent and disagreement and more ready, prepared to learn over the course of 2020, especially over the summer.

G. Patrick Lynch (11:52):

So this is one of the questions I wanted to ask you, because I think the emphasis on deliberation, discourse, and exchange of ideas is one of the strengths of the book. You mentioned, for example, the Great Barrington Declaration in the book and talk about it in a way that I think is probably the fairest and most honest assessment of it that I’ve seen because it was such a polarizing document when it first came out. And you also mentioned the example of Sweden. Before we get into the sort of who was right question, can we talk a little bit about the importance of deliberation during these times of crises? I guess I was struck by, on the one hand, the hopefulness that y’all place in the importance of having that deliberation discourse during a crisis, during this war language. But is that too much to ask of democracy? Is it too difficult to believe that during a crisis we can tolerate and have that kind of discourse and exchange? And I think this is obviously critical, looking back on Covid, and potentially even more important for looking forward to whatever the next problem’s going to be.

Stephen Macedo (12:53):

Yeah, well, it is a very reasonable question, and I don’t have a particularly good answer for it. One thing I would say is that other democracies did a better job. There was more open debate, I think, in the UK, there’s a very good book by Mark Woolhouse called The Year the World Went Mad. He’s obviously very critical of the lockdown strategies, as you can tell from the title of the book, though he supported the first lockdown, though in retrospect, he doesn’t think it did much good because these lockdowns tend to be imposed after the viruses, the horses out of the barn. So the lockdowns tend to get imposed, late viruses tend to come in waves. So oftentimes the rates of infection will drop at some point after, and people assume that’s because of the interventions, but it just turns out there’s not a lot of great evidence for that.

(13:39):

But they did learn more over the summer in the UK. There was more open debate there. And in Germany and France, I think. So the US is especially polarized by Western standards, and this is a dispiriting picture, a window into the state of our highly polarized political discourse. So I wouldn’t hazard guesses about how well we’ll do in the future, but we do need to think about this. And part of what happened, I think, is, as you’ll recall, 2020 was an election year. Donald Trump was on the ballot. He was associated with the “Let’s reopen the economy as fast as we can” sort of approach. He also, of course, referred to the virus as the “China virus” and so on, kind of unhelpfully actually. But suggesting that the virus might have leaked from the lab was always a plausible hypothesis, which again, should have been entertained and was not particularly, and still not being properly entertained, I think, in the US more so than in Europe.

(14:37):

So I think that was part of it. And of course finally there is some reckoning going on on other issues on this too, that if Donald Trump said it, that must be the opposite of the truth. And that was one thing to say we should not take him particularly seriously on these particular matters, but it’s another thing to assume that the truth is the opposite of what he says. That was a silly approach as well. But deliberation is important. It proceeded better in other places. We should have paid more attention to the pre-Covid pandemic planning documents. And there were voices. I mean, it’s not as though no one pointed these things out. Emily Oster, an economist at Brown, wrote some very good pieces pointing out the cost of school closures and the safety of reopening them. Graham Allison, who is scholar in crisis decision making, going back to the Kennedy administration, he’s a very senior scholar at Harvard.

(15:35):

He put out a statement right around the time that Harvard Saffer Center put out its statement, and this is I think in April, maybe late April 2020. And Alison said, look, we need a wider conversation and wider deliberation here. We need a Team B, we need devil’s advocates. We’re doubling down on the strategy and we’re not sure that it’s the right strategy. It’s going to be costly, he pointed out, and we need to reexamine our assumptions and widen the discussion beyond epidemiologists and public health experts, and have a wider conversation. And he was exactly right, surely on that score, but from what I can tell, his statement was completely ignored. So there were people calling for wider dissent, and there were others. Katherine Eban in Vanity Fair wrote some good pieces as well. So there were a few voices out there, but these issues were not discussed adequately for sure.

(16:35):

And then the Great Barrington Declaration–well, let me just say one other thing. When the lockdowns were imposed in March, there were dissenters. Michael Osterholm, who’s one of the leading epidemiologists scientists in the world at the Mayo Clinic University of Minnesota. He warned in mid-March 2020 that these lockdown measures were unlikely to succeed, that they would be extremely costly, that the best strategy was probably protecting the vulnerable from Covid and allowing most people to go about their business, and recognizing that there was a huge age gradient in vulnerability here. Young people were relatively at low risk. They could acquire herd immunity from getting infected and recovering. He pointed all this out in March. David Katz from Yale did. Tom Frieden, former CDC director, again, pointed out the cost of schools back in March 2020. And then those voices tended to become silent. And when we got to October and the Great Barrington Declaration was published, they were saying essentially the same things–Kulldorff, Bhattacharya, and Sunetra Gupta from Oxford, Harvard, and Stanford, they were essentially saying essentially the same things that were said back in March by Michael Osterholm and Tom Frieden and David Katz at Yale and Justin Leslie from Johns Hopkins. But they were greeted, as people know, with great intolerance. Francis Collins, the head of the NIH then, called them “fringe epidemiologists, dangerous, they’re going to kill people.” By that time, schools had reopened in Europe and reopened for months. Schools had been open for Republican states since August. So I think when it comes to school closures, I think people are starting to recognize that that was kind of egregious, the extent to which we didn’t learn from other places about the relative safety of reopening schools. And so I do think that while the Great Barrington people were wrong about some things for sure, they speculated about the virus having traversed society in a much more widespread way over the summer.

(18:37):

And in the fall, there were some projections about the virus being already on its way out over the summer. I think it was what Sunetra Gupta said, and Bhattacharya has gotten a lot of flack for a Wall Street Journal op-ed he wrote with, I think it was Eran Bendavid, in I think it was April 2020, March or April 2020, suggesting that Covid might lead to as few as 20 to 40, 60,000 deaths. That was the low range of his speculation at that point. The main point of that op-ed and of his work in the spring of 2020 was trying to do studies of the population to see how many people had antibodies or other evidence of having had Covid infections. We knew how many people were getting seriously ill from Covid, but we didn’t know how many people had contracted the virus and not gotten seriously ill because the symptoms are much the same as the flu or cold or other symptoms.

(19:35):

And many people had mild symptoms. So he was really in that op-ed emphasizing the importance of doing these seroprevalence studies in the community to try to figure out the actual mortality rate, which was not as low as he speculated. But there have been viruses in the past that have more or less just disappeared: Swine flu in 1976, we had a mass vaccination program for that, and it never materialized. So he wasn’t completely off base when it comes to the evidence of previous flus. But in any case, his main point was that we needed to do these seroprevalence studies, and he tried to do them in California on a shoe string, but the CDC should have been doing them and wasn’t doing them at the time. So I think the Great Barrington folks were hardly infallible. And Bhattacharya has admitted himself that he made mistakes, everyone did. But I think they were calling for a wider discussion of the cost of these measures. And certainly in retrospect, they were correct about a number of things, including the need for a wider discussion. And going forward, we should at least take seriously respectable dissenters as they certainly were.

G. Patrick Lynch (20:51):

So you mentioned Emily Oster and Graham Allison. It’s interesting. Those were two people I wanted to sort introduce in the conversation because Emily Oster’s work was to try to figure out, she was trying to collect data on schools and just take a look at the trade-offs, and to raise that trade-off question. One of the interesting things for me, reading this boo,k was learning about what worked and what didn’t. You’ve got an entire chapter dedicated to taking a look at the US through the lens of federalism to try to see if a lot of these NPIs were effective. And can you walk our listeners through sort of a general overview of those results so that you can at least share with them what y’all’s view is on the effectiveness of the NPIs compared to vaccines, compared to some of the other measures that were

Stephen Macedo (21:35):

Pursued? Yeah, yeah. My coauthor, Frances Lee, who’s an excellent empirical scholar, very broad intellect, but she really knows her empirics as well. She did a 50-state study of the United States based on CDC data from across the 50 states, looking at Covid mortality from the period from the beginning of the pandemic through the availability of vaccines. And it’s not the best data in the world, it’s state by state, but it’s the best we can do. Other scholars have done this work. Thomas Bollyky also did a state-by-state study using somewhat different data. He came to the same results. But what it shows is that the states divided very sharply in terms of the stringency of these Covid interventions, school closures, masking, social distancing, business closures, restrictions on social gatherings, and so on, with Democratic states imposing much lengthier stay-at-home orders compared to Republican states.

(22:33):

It’s really a very strong partisan relationship, very strikingly so. And there was also a partisan relationship on vaccine uptake with Democratic states people getting vaccinated at a much greater rate than in Republican states. And what the data that we have shows on mortality in the 50 states is that there was no relationship between the imposition of these non-pharmaceutical interventions, the school closures, the masking, the social distancing requirements, stay-at-home orders, and so on. And Oxford has this index of nine of these measures, and they’ve rated governments around the world on the stringency of their interventions, and we have our own data on school closures and so on. No relationship between the stringency or length of these restrictions and Covid mortality. The partisan divergence on mortality begins after vaccines are available. So the evidence shows that the evidence that we have provides evidence for the effectiveness of vaccinations at curbing mortality, the rate of death correcting for age and percentage, uninsured and percentage urban, correcting for a whole bunch of other confounding variables.

(23:46):

The evidence shows that the rate of mortality did go up in Republican states by about a third higher than Democratic states after vaccination, but not before. So we simply have an absence of evidence for the effectiveness of the NPIs on mortality. There is some evidence that they reduce transmission, but not enough or in the right places to affect mortality. We just had a piece published in the Boston Review Forum, and there were four critics there, three of whom focus on this issue, expressing doubt about our findings, but they all emphasized transmission reductions. None of them present any evidence suggesting that there was mortality reduction. And it’s just not clear that these costly measures were worth it if we didn’t reduce mortality and serious illness. Now, there’s another study in Europe, 29 states of Europe by Pizzato et al from the University of Milan, came out in 2024.

(24:43):

It’s excess mortality data across all the states of Europe with a 10 year prior to Covid baseline. So what they did is they looked at the mortality rates across Europe and the 10 years prior to Covid, they adjust for demographic changes over that course of that time and under Covid and look at the excess mortality post-Covid just to see that that’s considered the best measure because when it comes to recording Covid deaths, countries have done it very differently. In Norway, for example, in order to be recorded as a Covid death, it had to be certified by the medical examiner. In Sweden, if you died with Covid, it was counted as a Covid death. So countries had different methodologies for counting their Covid deaths, but if you focus on excess mortality, that’s considered the better study. And what this study by Pizzato et al show, is that Sweden had the best outcomes across the pandemic in the entire 29 states of Europe.

(25:36):

They did have a bit higher earlier on in the first few months. There may have been various reasons for that. They had had a mild flu season the year before, maybe even the two years before as compared with Norway and some other countries which had harder flu seasons. So there were more people alive who were very vulnerable to respiratory infections. But by the spring of 2020, they were doing better than their Nordic neighbors and other European countries. And over the three years of the pandemic, they had the best outcome in Europe according to Pizatto et al. And again, they find no relationship, and they expressed surprise about this and the article, no relationship between the more stringent NPIs and lower mortality across Europe. So the evidence is fairly considerable, and it just means, as my co-author says, and in the language of social science, we cannot reject the null hypothesis, which is we just can’t reject the proposition. The evidence does not allow us to reject the proposition that these non-pharmaceutical interventions, costly as they were not just economically, but in terms of our lives, socially, family relations and so on, social relations. We just can’t show that they had any significant effect. So that’s what the data shows.

G. Patrick Lynch (26:49):

Steve, where did discussions about trade-offs go exactly? Because you guys have a great citation about a survey of economists who were asked whether or not they supported the lockdowns despite all the costs. And something like, I believe the site was something like 80 percent of them said, no, the lockdowns are worth it. And these are economists who were supposed to be talking about trade-offs. And y’all point out throughout the book that there was no consideration or at least very little consideration, except for some dissenting voices to the notion that the costs here were significant, there were things that had to be included in the policy discussion. What happened to alternative voices? What happened to these kinds of discussions? And can you talk a little bit about some of the suppression stories that you tell in this book about the government and certainly leaders in public health and leaders in social media and their inability to maintain the kind of liberal values that you think are very important?

Stephen Macedo (27:40):

Yes. Well, I think the discussion of cost was simply in a way bypassed. There was a lot of rhetoric about, oh, the kids will recover. The kids are fine, the kids will be resilient. We do think there was a class bias issue here. The policies were being made by, and of course, the educated elites who staff elite journalism and universities and science, our members, in effect of what we could call the laptop class. We were able to work at home on our computers, being better off. Our kids were relatively well-positioned to be able to study. I mean, it was hard on them, of course. And I don’t think enough attention was paid to the fact that one third of American workers had to keep working right through the pandemic to keep our electricity on and the internet running and the lights on and the fire department and the police department and food service, food preparation and so on and so forth.

(28:34):

So a third of workers had to keep going to work, their kids had to be taken care of, somehow had to do online schooling, and so on, under much more adverse conditions. So there was definitely a class component to this, I think. So that was part of it for sure. Somehow, the cost issue got bypassed. Fear gripped people, the fear of death, dying a suffocating death from Covid. And it was a bad pandemic. We shouldn’t discount that. It was the worst pandemic in a century. But we do find that among journalists and public officials who–take Andrew Cuomo for example, we quote him in the book, he had those news conferences every day, and he won a special Emmy Award for his news conferences. He was seen as the “Un-Trump” during 2020 under Covid. And he constantly said, “I’ll do everything we can to reduce the spread of the virus, and if everything we do saves just one life, it will be worth it” without giving any attention to the other side of the ledger.

(29:36):

So it was like doing cost-benefit analysis with no attention to the costs at all. And there’s actually have a quote from him in the book saying something like having to stay home and keeping your kids out of school very bad, but not death, domestic violence on the increase, very bad, not death. And he goes through this whole series of things. The only thing that they focused on was reducing deaths from this disease. Francis Collins has said subsequently in a really quite amazing online discussion he had in July, 2023, that the way he put it there was that the public health mindset is to focus only on reducing deaths from disease and not to focus on anything else, including keeping kids out of school for so long that there’ll be lifelong detriments that they never will recover from. And of course, bad health outcomes associated with postponing hospital visits, doctor visits, bankruptcies can have very bad psychological and health impacts for those involved owning their own businesses and so on.

(30:40):

So there were going to be deaths on the other side, but no attention was paid to them. And the news media also played a role. They constantly asked why more wasn’t being done. We have quotations from journalists questioning governors and so on saying, and the President, “Is any attention being given to a national lockdown such as being imposed in the state of New York?” and so on. So there was an attention to this. I would recommend one other book by the way, which came out a bit after ours called An Abundance of Caution by David Zweig, which focuses on school issues. And it has many parallels to our book. It’s a terrific book. We think very highly of it. And Frances and I, and it’s well researched, and he really also shows how biased the media was that the percentage of negative coverage of news concerning Covid was overwhelming in the United States as compared with Europe.

(31:32):

So, for instance, he talks about a specific CDC report that came out in April, I think it was April 8, 2020, a month and a half into the pandemic. And it contained various pieces of information, including that children were at very low risk from Covid, but that African Americans and men were at greater risk than women and non-African Americans. The media reported widely on the negative information about men and African Americans being at greater risk, but they didn’t report the positive information about kids being at very low risk, the bad news predominated. And there was a narrative that took hold. It was a partisan narrative. It had to do with partisanship in part, and people weren’t willing to question the narrative. And we moralized the disagreement, questioning what was considered to be the science, not “following the science” was considered morally reprehensible. Masks, of course, became a very visible symbol of this.

(32:34):

The evidence around masking was extremely weak, and people shifted their positions this promiscuously, as did Dr. Fauci. I mean, he was asked in 2019, a few months before the pandemic with no sign of the Covid on the horizon by an interview, what should I do in the event of another pandemic? Should I wear a mask? Dr. Fauci immediately interrupts the interviewer and says, “No, no, no, avoid the paranoid stuff. Just keep yourself healthy, get a good night’s sleep, don’t drink too much, get some exercise, and so on.” And a few weeks later, he’s for not recommending masks, then recommending masks, and so on. And he still says now that they work, but now he says that it had to be an N95, which was not, of course, what was required at the time. And then there were warring op-eds in The New York Times by my colleague, Zeynep Tufekci,

(33:19):

“The science is clear that masks work.” And Bret Stephens, “No, the science is not clear. Well, I think Bret Stephens was closer to the truth there, and the evidence is still lacking for the effectiveness of masks against aerosolized viruses, such as this was. And I think we knew that quite early on. So yeah, the narrative took hold and it still exists, I think, around some of these measures. We’re having some more open discussion, the school closures, the cost of the school closures for kids, I think that’s just too dramatic to ignore. But the origins of the virus issue remains kind of a mystery. Nature magazine, the public-facing magazine of Nature, the science journal, a very prestigious journal, published an article in February 2025 saying, “There’s more and more evidence to support the natural origins theory of Covid in a Pangolin or a raccoon dog from the market.”

(34:15):

I just don’t think that’s the case. There is, it remains debated among scientists, but there’s not growing evidence for that. Only a month later, the French Academy of Science, or maybe it’s the French Academy of Medicine, voted 97 percent to 3 percent in favor of the proposition that the virus likely emerged from the lab. And there is quite a lot of evidence. I think it’s more likely than not that it emerged from the lab, but we’re not having a serious discussion of that. And it’s not just a matter of historical reckoning. Did the worst virus in a century, was it manipulated through research funded in part, funded adjacently, at least by the US government in a lab that involved collaboration between American scientists and Chinese scientists? I mean, my God, we’re not investigating that. But the most important part of it perhaps, is that the research still goes on, that we’re still doing this gain of function of research on coronaviruses and other viruses, and it remains dangerous.

(35:14):

So that I just find shocking as well that we’ve not had more public engagement on that issue. Where’s 60 Minutes when you need them looking into these matters? So there is a question, what mistakes did we make? What should we have done? We don’t really try to answer that question. We’re not epidemiologists. But what was the discussion like as you asked? Did science function the way it should function? Did research function the way it should function? Did journalism function the way it should function? Were skeptical questions asked to authorities? And unfortunately, we find that these institutions did not function as well as they should have. And the skepticism that is normal on the part of these institutions towards public institutions, public measures, public policies, where social scientists routinely question whether any policy actually works. That was sorely lacking around this one.

(36:16):

And we still are surprised. So you asked about restrictions on speech and so on. It did become clear. The evidence presented in the Missouri v. Biden case which became Murthy v. Missouri on appeal, that the Biden administration was suppressing social media posts against US policy during Covid, ample evidence of that, threatening the social media companies with the loss of Section 230 protections against liability, which would’ve bankrupt the companies and put them out of business. And intense pressure was brought to bear because we have the emails now, it was subpoenaed through the records. And this was all being done in secret, suppressing arguments and evidence against government policy and boosting government messaging. And we don’t know actually of a single law school conference on those issues. I don’t think the ACLU filed a brief in that case. So it’s kind of amazing that these matters are not being adequately looked into even now.

(37:18):

And there is concern about misinformation and disinformation on the internet for sure. We’ve always had misinformation and disinformation. Maybe it’s worse now than it used to be, legitimate reason for discussion. But I don’t find myself feeling highly confident about trusting the government to become the censor here. So that record as well is quite important and quite impressive. We talked to a scholar who also edits an education journal, and he wrote a piece in March or April 2020, pointing out the cost of school closures, drawing out evidence from previous teacher strikes and blizzards where schools were closed even for just a couple of weeks or a few weeks, and pointing out based on that evidence, how much learning loss would take place and so on. And he was saying to us that as far as he could know, that that was immediately suppressed. And his journal more or less disappeared from the internet once he published that article. So that’s anecdotal, but we have ample evidence that that sort of thing was happening partly on the initiative of the social media companies themselves, but then certainly with administration involvement under President Biden, which they renounced it. And so when it got to the Supreme Court, the Supreme Court didn’t consider merits because the policy had been revoked, but it certainly is a matter of concern. Free speech was one of the casualties of Covid it seems, or at least unbiased representation of different points of view on the internet.

G. Patrick Lynch (38:52):

So two quick questions to finish up. Number one, you talked about the chapter in which you all summarized the cost. Can you briefly walk our listeners through some of the costs of the pandemic as you all measure it?

Stephen Macedo (39:02):

Yeah, this will be brief. We have a whole chapter on that. And again, my colleague took the lead on that and did a wonderful job. Well, there are the fiscal costs for one thing, the 2020 Covid relief effort was as much as a percentage of GDP corrected historically as the entire New Deal and the 2009 financial rescue package put together. So 2020 was a huge fiscal cost. We have graphs there showing that. And then in 2021, we did essentially the whole New Deal over again as a percentage of GDP, as the equivalent of percentage of GDP. So the fiscal cost and the debt burden that we passed on to future generations is itself quite significant. And it also means that the country is in a weaker position when it comes to trying to respond in a fiscal way to a future recession.

(39:54):

Learning losses have been profound. I believe it’s the case that chronic absenteeism is up one-third from before the pandemic. Losses of learning test scores and so on have been very considerable and have been especially bad among poorer kids, low-income kids, and minority kids, just as predicted. So the learning losses and the lifelong detriments to education are profound. Associated with the loss of jobs and schooling, the crime rate went up in many cities, the biggest year-on-year increase in crime in recorded history, I believe. At first, that was associated with the George Floyd protests. But recent research now shows that they pre-date that the crime surge is associated with the Covid lockdown measures and business closures, not the George Floyd protest. They may have contributed a bit later on. Again, business losses and healthcare losses in terms of postponed doctor’s visits, medical interventions, cancer screenings, and so on, depression, higher rates of depression, drug abuse, and so on, including the populations, not themselves significantly affected by Covid. And greater isolation. Church attendance has, I believe, never returned to pre-Covid levels, business closures in many cities.

(41:20):

If you go to Washington, DC, the city is still never fully recovered from Covid, nor is San Francisco. So there have been many losses of businesses in inner city areas that have permanently, or at least over the long term, reshaped many cities, and the feelings of depression and isolation and loss of social connection, and so on. So the cost themselves have been quite considerable, and we’re still trying to figure them out. I think our chapter is a kind of first take survey on that, but there’s no question that the costs are very considerable, and for many people will be lifelong. And just as the pre-Covid pandemic plan said, they seem to have hit poor and minority families and children, and people more severely than the better off.

G. Patrick Lynch (42:10):

I want to finish with one final question. One of the big takeaways for me of this book was that humility is something that we could use a lot more of, certainly in public life, but also in politics. Because I was stunned at how policymakers and politicians were either afraid to say or didn’t feel comfortable saying, We don’t know. We don’t know exactly what the trade-offs are. We don’t know exactly what works and what doesn’t work. We’re going to try things. We’re going to try to move forward with them. And I guess I wonder a little bit, a big part of the project that you all are pursuing is this focus on democratic institutions and elites and other policymakers and folks in academia and media, their inability to accept humility. Is an ability to accept humility one of the goals of this book? Is it something you guys thought about and talked about as you were composing it? Because it seems to me my big takeaway is we need to be a lot more humble the next time we face something like this to understand what we don’t know before we start acting on the things that we think we know.

Stephen Macedo (43:13):

I think that’s exactly right. I think you’ve captured it exactly. There’s no question that those pre-Covid pandemic plans that I mentioned, which are quite remarkable to go back and read, and we survey them in our chapter…

G. Patrick Lynch (43:24):

That was an eye-opening way to start the book.

Stephen Macedo (43:26):

It’s just astonishing. I was sort of amazed when I came across them and even this Institute of Medicine letter from 2005 warning that public officials will be apt to exaggerate the certainty of these measures working and to implement them to show that they were in charge to show that they had things under control for political reasons, in other words, not because of the sound science behind them. So I think you’re exactly right. And I think part of this is a public health thing that the messaging from public health officials and public officials associated with pandemic planning probably had to do with behavioral change, trying to get people to change their behavior. Francis Collins says this, we quote this in the book that we were trying to get people to change their behavior, in case what we were recommending was right, but they weren’t sure it was right.

(44:16):

And he admits again in the July 2023 message he gave, that we should have been more frank about that. And we lost a lot of trust because we were not frank, that we weren’t sure about the things that we were recommending. So I think that’s a big part of it, is that public health officials need to realize that they are responsible for telling the public the truth. They have not been authorized to not share the truth with us. And the way that Paul Offit, who’s a doctor at the Children’s Hospital of Pennsylvania, puts it, is they need to commit themselves to truth-telling with nuance. If there’s uncertainty communicated, if there is some evidence of adverse incidents associated with a vaccine, even if they’re quite minor, don’t cover it up, allow it, and recognize the limits of the evidence. And that’s going to be the only way to restore trust is to be frank with the public, because the public has access to many sources of information and many dissenting voices.

(45:08):

And I think honesty and humility are two virtues that need to be rediscovered in the wake of Covid. We just need to be honest about the limits of the evidence. People figure these things out. They were told about the vaccination. So if you get vaccinated, you’ll be a dead end to the virus. You will not transmit the virus to others was what was being suggested. We did not have evidence of that. Transmissibility was not an endpoint in the vaccine trials, so that should not have been claimed. And once people found that, well, even if they got vaccinated, they could still get Covid, get milder, somewhat severe disease, but not life-threatening disease nearly at the same rates. Nevertheless, they felt they had been misled. So I think you’re exactly right. We need to be much clearer about the limits of our knowledge. It’s not a comfortable thing to hear in a pandemic that we don’t know exactly what to do.

(45:58):

We’re not sure, or maybe this is worth trying even though it’s going to be costly and there’s some evidence for it. But I think that that’s absolutely necessary: frankness and truth-telling. And those are supposed to be, again, the fundamental virtues of science and universities, university researchers, and journalism. So I agree. I think that that’s exactly right. And that’s something we found throughout, that there was an inadequate commitment to frankness, humility, and also being willing to say things that might seem to be critical of your own side in a partisan way, things that might be at odds with the narrative that’s favored by your side and the partisan struggle. I think people need to rise above. Scientists, journalists, academics need to do more to realize the importance of rising above partisanship.

G. Patrick Lynch (46:55):

And on that hopefully positive note, we will conclude. Steve, I’d like to thank you very much for being on the Law & Liberty Podcast.

Stephen Macedo (47:01):

Today. Thank you very much. I enjoyed the conversation.

James Patterson (47:05):

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 Roberts Court delivered a number of wins for conservatives in its recent term, and Professor John O. McGinnis thinks it may mark the maturation of the Court’s administrative state jurisprudence. Host and contributing editor James Patterson is joined by Professor McGinnis, who explains both the broader trends of the Supreme Court, and some of this year’s major cases, including Mahmoud v. Taylor, US v. Skrmetti, and Trump v. CASA. 

Law & Liberty’s Coverage of the important cases of the recent term:
John O. McGinnis, Logic Without History
Chad Squitieri, Nondelegation Doctrine in Limbo
Joseph Griffith, A Victory for Religious Liberty
James Rogers, Skrmetti‘s Win for Self-Government
Adam J. McLeod, A Charity Case
Richard W. Garnett, Education Pluralism Delayed

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. I’m your host, James Patterson and contributing editor to Law & Liberty. And our guest today is Professor John O. McGinnis, the George C. Dicks Professor in Constitutional Law at the Pritzker School of Law at Northwestern University. He is a graduate of Harvard Law School and has areas of expertise in constitutional law, international law, and antitrust law. Today he is going to be giving us our Supreme Court rundown, which we do annually. And so we are going to start with just a general discussion of the session and then go through some of the more important cases and maybe touch on some interpretive questions at the end. Professor McGinnis, welcome to the Law & Liberty Podcast.

John McGinnis (01:32):

Delighted to be here.

James Patterson (01:34):

Alright, let’s get into a general question is: how would you describe the docket for the past year? Was it a victory for conservatives, a retrenchment of the progressives? What is the general thrust of all the cases combined?

John McGinnis (01:51):

I think overall this was another very good term for, if we want to use the term conservative versus liberal, which doesn’t completely describe the court because there is an interpretive axis as well. There’s also an overlap between what conservatives and liberals think about interpretation. So I think that it’s fair to say this was a strong term for conservatives, although I would note that what I think is the most distinctive about the Roberts Court, what I think it will be most remembered for in 50 years is an administrative law revolution. In other words, trying to put back the administrative state within the bounds of separation of powers, forcing the court to say what the law is and the legislature to legislate rather than have the executive branch create broad rules under discretion. I think that may be petering out a bit because there were at least two cases where the court could have taken the further and declined to do so. So I think we see that this is one way I would describe it as a mature conservative court in which at least in the administrative law area, the clear objectives may actually have been largely realized. On the other hand, there are still very important decisions that I think conservatives welcome particularly, the curbing of universal injunctions–which goes to the nature of the judicial power–and I think a very important religious liberties case in Mahmoud v. Taylor, which is very important both doctrinally and sociologically. And maybe I think the most important case of the term.

James Patterson (03:47):

You really stressed before we got started, how overlooked the administrative law cases were. So why don’t you tell us about the case that you think has been most overlooked and what makes it so significant?

John McGinnis (03:58):

So one very important case is FCC v. Consumers’ Research because there the petitioners tried to make a full-blown nondelegation argument and the court rejected it despite indications before that the court was interested in perhaps revisiting the nondelegation doctrine. This may suggest that we are coming to the end of the revolutionary period of the Roberts Court on administrative law because first of all, there is a strong dissent by Gorsuch speaking for himself and Justices Alito and Thomas arguing that this again was a very broad delegation and while it may have met the old standard of “intelligible principle,” it still allowed the executive branch large policy discretion of the kind that critics of the administrative state have suggested only Congress should exercise. And actually, of course, the Gorsuch, including in a dissent that was joined by Roberts, had raised questions about the intelligible principle doctrine.

(05:14):

And Justice Kavanaugh, who’s in the majority in this case also had raised questions about it. So there seemed to be perhaps a majority for really changing the nondelegation doctrine and requiring Congress to make the major policy decisions in legislation. And that would’ve had huge implications for the administrative state because right across the policy space Congress has, at least critics would say, abdicated its policy authority and given that over to the executive branch, allowing the executive branch to make really legislative decisions. Nevertheless, Kagan–an opinion by Justice Kagan–really brushes that aside. And that suggests, I think, that we’re not going to see a major change in the nondelegation doctrine. And indeed Justice Kavanaugh, in a concurring opinion, suggests well that’s no longer necessary because the court has already done work to confine the administrative agencies. And two things in specific, he discusses, one, the Loper Bright decision that takes away interpretive discretion from the administrative agencies and places it in the court.

(06:30):

And two, the major questions doctrine that suggests that at least in new kinds of actions by the administrative agency, ones that aren’t traditional, and if they are major and go beyond filling in the details in a new way, well then Congress has to come back and authorize it. But that’s not a constitutional rule, it’s a rule of statutory construction you might think of as a poor man’s nondelegation doctrine. So I think that case is really very important. But the nondelegation doctrine has been a target for conservatives for as long as I’ve been a law professor, and it really suggests that the nondelegation doctrine isn’t going to change much. And it suggests that it won’t change much because the court has already a structured doctrine in a way that it thinks sufficiently confines administrative agency. So I think that’s a very important case.

James Patterson (07:27):

Right. This is actually the first I’ve heard someone talk about it to that degree. Do you think maybe it’s because there’s a bias for big changes and in this case this isn’t really a big change?

John McGinnis (07:40):

I think that’s right. I think that’s right. So it’s a case of course that liberals are quite happy with and conservatives hardly want to trumpet. And maybe also there’s truth to Kavanaugh’s concurring opinion that the nondelegation doctrine has become less important as a target after Chevron was overruled. And we have the rise of the major questions doctrine, which now, and as Kavanaugh’s concurrent suggests, is part of the warp and woof of administrative law.

James Patterson (08:12):

Well, I guess congress has had its bacon saved now they don’t have to go into session all the time.

John McGinnis (08:18):

That’s right. Well, still with the major questions doctrine, they may force Congress to come back and legislate. And so I think that’s the argument and note that what it allows the court to do is save old large delegations. And of course if it struck those down, you might think that would rather be chaotic, or at least if it struck them down retrospectively, because there’ll be all sorts of regulations that will be called into question. And yet the major questions doctrine allows it to say, well, you can’t go further if it’s not a traditional way you’ve exercised authority under broad delegations, we’re not going to let you go further. And that creates less disruption. And so it’s a very carefully scalpelled doctrine to prevent disruption and protect reliance interests without allowing the administrative state to go on in the way it did before.

James Patterson (09:20):

So moving on to a case that’s close to my heart. We have the Mahmoud v. Taylor case. What is this case about and what made it such a significant event and religious liberty?

John McGinnis (09:32):

Well, the case is a case that comes out of Montgomery County. Montgomery County in its English language curriculum introduced a variety of “inclusive books” that at least I think it’s fair to say, celebrate at both same sex marriage and gender transitions. And of course, that’s at a fault line in our society, both about traditional religions–notice that the lead plaintiff in this case was a Muslim–all the Abrahamic religions, at least traditionally, I have affirmed opposite sex marriage and certainly a binary view of the sexes and an immutable view. And so this is in some sense a substantial challenge to that. And the Montgomery County had permitted previously religious parents to opt out of the curriculum but then decided that was too disruptive and prevented its objectives and said, well, your children have to attend this curriculum. We won’t give you notice of when these books are going to be read and they have to attend in any event.

(10:49):

And a group of a coalition of actually parents who are Christian, Jewish, and Muslim challenged this and said that this is a burden on our religious liberty and we should be able to opt our children out of this public school curriculum. And this was, I think, the major religion case of the term and it I think changed or at least may suggest even further changes in the doctrine of religious liberty and also I think is an important case sociologically and politically for reasons I’ll discuss. So let’s begin with it doctrinally. So doctrinally, what was important about the case was the idea that these celebrations could be a burden on religious liberty. And the argument here is really very similar oddly enough to cases in the establishment area in which, for instance, the court has said that school prayer, even at graduation can be a burden, can harm, can create an establishment of religion because there’s some coercion involved, there’s a captive audience.

(12:05):

And in this case, of course, it’s a very young captive audience that’s going to have trouble making its own decisions about whether or not the teacher is right, about whether the teacher and the curriculum is right about celebrating these matters. And the court also points out quite correctly that the instructional materials for the teachers really told them to shut down, effectively shut down discussion if someone said, “well, how can someone transition? This is a boy, a boy  is a boy, a girl is a boy.” They were to say, “well, that’s a hurtful comment.” And that’s obviously a way of, in some sense a condemning a kind of religious perspective. And so that’s significant in itself. It suggests that, at least for children of tender age, the actual speech of the government can be a burden on religion. So that’s, I think, new and important. Secondly, doctrinally, the court relied on a case called Yoder.

(13:08):

You may remember this case. It’s a case in which the Amish challenged the obligation to send their children to high school as a burden on their religion because it would integrate their children into a modern way of life and pull them away from their religion. And that case is a famous case. The court upheld the right of th Amish to pull their children out of public school. And it did so despite the fact that that law was neutral in its application. It applied to all religions, people who are not religious, the high requirement to go to high school. And that might seem to be blessed by a case called Employment Division v. Smith, which allows neutral rules even if they do burden religion. And in this case, Justice Alito in his majority opinion said, well, of course they didn’t apply Smith in Yoder and we’re not going to apply it in burdens that look like Yoder.

(14:12):

He didn’t quite say what those burdens were. I guess one could say maybe burdens on children are those kinds of burdens. So that’s significant. I think it’s also maybe significant, as you may remember, that Justice Alito is no fan of Smith. He dissents, or he concurs in an opinion, and says that Smith should be overruled previously. And you might say, well, by making another exception to Smith, at least Justice Alito may be hoping to set it up for overruling because in stare decisis analysis, one way the court often overrules cases is this just, well, there’s been a lot of exceptions to this. It makes it hard to apply and therefore that’s another reason for thinking that the doctrine is wrong, that we can overrule it. So I think it’s very significant doctrinally. Of course, sociologically this case is enormously significant because this is a case about public schools and the curriculum of public schools.

(15:16):

And that is in some sense the fault line between this traditional, religious view of morality and a new morality that I think has come up. And the question is how far and this meme in the dissent, how far democracy demands that we allow, encourage new norms that are compatible with the way we think our democratic polity should live. And that is the big fault line here, and I don’t think it’s going away. And so that’s why it’s significant. One point I would make though is you might say that in one sense the liberals should be happy they lost this case because one of the pressures for school choice and homeschooling is precisely that religious people feel alienated from the public schools. And so if they feel more alienated, that’s going to make a greater pressure for homeschooling, which may well have to be constitutionally permitted. And school choice, which the court in a variety of decisions has said is all right. And you actually can have vouchers for religious schools. So in that sense, by making public schools more friendly to people of traditional religious views, it may take some of the steam out of the move to demand alternative schools or alternative structures for education. And that may actually be a democratic reinforcing aspect of this decision, which I don’t think is widely understood.

James Patterson (16:59):

Yeah, I wanted to get at this issue about the schools. What is it that the court really is always dealing with? Is it the court itself? Is it the laws where so much of the religious liberty case law has to do with schools like from Lemon v. Kurtzman to this one, you see it all based around school funding or the curriculum content. Why is it that religious liberty is so based around education minors?

John McGinnis (17:29):

I think it goes away. It’s really a political theory issue, I think ultimately, and two ideas of the enlightenment, I would go back far as to say that. So one idea of the enlightenment is very much liberal, decentralized ideas. So you might want to really encourage different sets of beliefs and so be protective of people’s right to opt out and to protect those beliefs to actually going back to other school decisions to give money in some sense to religious schools so long as you give it to all private schools. That’s one vision. But then there’s another enlightenment vision that goes back to Rousseau that really worries about education, actually says that education says that what we really have to do is prevent education in a democracy from having quote as he puts it, “the prejudices of the fathers be reflected in education and prejudices of the families.” And the reason is that makes it harder to form the general will of democracy. And of course it does. It creates a much more pluralistic, much messier world if the next generation comes up with a whole variety of views. And so I think that’s the reason it’s really a fault line between two different views of the enlightenment, two different views of democracy, one that celebrates real pluralism, a real pluralism in different perspectives, and another that’s much more worried about the coherence and the unity that democracy needs.

James Patterson (19:14):

That’s great. Alright, so another case that got a lot of attention was the US v. Skrmetti case. It’s not something I think people would’ve expected to see at the court even like 10 years ago, but this concerns transition care for young kids here referring to transition from one gender to another. This was a Tennessee law that prohibited them. So what did the court rule and what do you make of the decision?

John McGinnis (19:46):

Well, the court upheld this ban. So the ban to be clear, was a ban on gender affirming medical treatment for minors. And so we’ve seen this across the country. This case came out of Tennessee and the argument for it is minors can’t make these irreversible decisions and we’re going to uphold them. So one way of understanding this case, and I think this is the way the court, the majority opinion and we’ll talk that there important concurring opinions here as well. Majority opinion, I think really tried to understand this is a case about minors, about young people and really therefore it wasn’t really a case about discriminating against transgenderism at all. It was just about minors. And of course then it just gets rational basis review and maybe even particularly lenient rational basis review because even in other cases, even cases like the First Amendment when young children are involved, we don’t actually have the kind of stringent scrutiny that we would have even for well-established rights like the First Amendment.

(21:01):

So I think that’s the way the majority puts it. Both the dissent and I think an important concurring opinion by Justice Alito say, well, is this really fair way of understanding this? I mean it seems that this is sort of aimed at transgenderism. This can’t be seen to be neutral in any way. It’s only aimed at the use of these drugs for transgenderism for other reasons you can use it. So it isn’t really easily understood as just a medical intervention. And so he thinks you have to deal with the question of whether transgender people are a quote “discreet and insular minority.” And he writes that, well, they really aren’t according to the traditional standards because they don’t look like people who have been discriminated against in the way that African-Americans were, not certainly by laws, and that there’s nothing on the order of the visibility.

(22:03):

In other words, you can’t actually see whether people are transgender very readily. And so some of the traditional tests, we shouldn’t include them as a discreet insular minority. And so that’s a very different perspective and I think is going to be important going forward because the court has accepted cases that seem clearly about deciding that transgender people can’t participate in sports for instance, or at least in a sport of their choice of the gender of their choice. And that, I think, is going to raise much more directly these questions of whether transgender people are a discreet and insular minority. And so I think we’ll hear a debate about that next term.

James Patterson (22:54):

And transgenderism as a social phenomenon does have its own peculiarities that make it difficult to make perfect analogies either from issues concerning black civil rights or LGBT or LGB rights. I guess because of this, the transition itself requires surgical or pharmaceutical interventions in this case specifically for young people because of the nature of puberty and the changes that come with the bodies. Do these kinds of differences potentially affect the decisions that judges will be making?

John McGinnis (23:30):

I think so. I mean, one, again, socially one might say that the difference is someone who looks at the case, the Supreme Court more as an institution that reflects deep social trends in society. There’s just no doubt that rights to homosexual conduct have been much more widely accepted than transgenderism. And I think that’s going to have an effect on how the court is likely to deal with these cases. And I think also the sense that men and women are different and, therefore, not interchangeable in sports even whatever interventions have been made is very deep rooted in society. And so I think it’s likely to have a substantial effect on the way the court deals with these changes. There have been some interesting articles that have been, even by liberals, who’ve been very critical of the way these cases have been litigated, suggesting that the cases have gone too far and too fast and are just very unlikely to succeed in the objectives of the transgender movement. And I think that’s right. It’s seems to me very different from the cases of the same sex marriage litigation which unfolded under a longer period and I think was much more carefully targeted to move more incrementally to the objectives of that movement

James Patterson (25:23):

For some people. We’ve a bit buried the lead here because we’re only now going to talk about Trump’s executive order on pausing birthright citizenship. The court ruled on this and what was the ruling?

John McGinnis (25:38):

Well, so first of all, it’s important to note that it didn’t rule at all on birthright citizenship. All that was thought to be the rule and it was never likely that was going to happen because it didn’t take that case for this issue. It actually took the case for something that it goes way transcends in some sense, birthright citizenship because it’s now a phenomenon in every administration. And the phenomenon I’ll describe as this is there’s the administration, Democratic or Republican, takes some legally controversial step. The Biden administration, for instance, it was a payment of school loans, forgiveness of that, forgiveness of school loans. A good example is of course, birthright citizenship and the Trump administration. And then what happens is groups that are opposed to that find a district with a set of very favorable judges to their perspective. And that’s easy to do actually in the US was there are a lot of districts, and we still have a blue slip phenomenon in the Senate that allows home state senators veto power over district court judges.

(26:55):

And so actually even under Republican administrations, the justices who are appointed in California, our district court judges are somewhat liberal. And conversely, even under Democratic administrations, the district court judges in Texas are somewhat conservative and you can find the best district and get a result that’s likely favorable. And then this single district judge does a nationwide injunction and stops the administration’s program in its tracks. So that’s the political, social issue that’s raised by this. And so the court’s decision to eliminate, and I’ll say it’s maybe a little too strong to say that, to say that as a matter of course, at least, the district courts can’t enter such injunctions, will help both administrate, both Republican and Democratic administrations. And their theory of why this is the case is really a statutory theory about what equity meant in a statute that was passed very close in the beginning of the republic.

(28:10):

And the argument was that it doesn’t include the power to have these nationwide injunctions because equity only gives the power to give “complete relief to the plaintiffs in a case.” And if you sue, just as an individual in a court, for instance, in San Francisco, about one matter or the other, it’s not obvious to give complete relief, you have to have a nationwide injunction. You can say, well, the government, you can’t do this to this particular person that gives them “complete relief.” So that’s the holding of the case and the reasoning of the case is that’s all that equity required as equity was understood around the time of the early republic. Well, I think you, and I’m not unhappy to not begin with this case. Well, it’s a very important case. I think the case and the dissent in the case and the criticisms and the worries are a little overwrought in the sense that there are other ways to get fuller injunctions than just to an individual party.

(29:22):

You can bring, for instance, a class action and that can protect everyone similarly situated. And so that, while it isn’t a universal injunction, it can give complete relief to people who are maybe threatened by this order, at least if they meet the standards of class actions, which will I’m sure turn out to be another debate. Moreover, in some cases you might say to give complete relief, you might have to move to a more, something that looks more like a nationwide injunction, and that may be an example in the birthright citizenship case. Many of the plaintiffs in these cases are states and states say, well, we want to treat, we think that everyone in our state who was born, who’s here and was born in the United States is a citizen. And well, that can apply only to people in their state because of course some people in their state may have been born in other states. And so how are you going to give effective, complete relief may actually turn out to be quite a broad injunction. So while this is an important ruling, its actual effects on the ground, I think, remain to be seen to see how much of a substitute class actions are and how much it will be necessary in particular cases to have broader injunctions to give the kind of complete relief that the majority in the court admits that equity contemplates.

James Patterson (31:05):

So no reading on the actual Fourteenth amendment, we don’t get comprehensive statement about religious liberty and Mahmoud v. Taylor. We get a kind of punt or dodge in the administrative law case, it feels like everyone kind of got a piece of what they wanted but maybe didn’t quite get the home run in any individual case they were hoping for.

John McGinnis (31:32):

That may be fair. I tend to think that Mahmoud v. Taylor was a pretty comprehensive victory for religious liberty. And, as I say, maybe sociologically, it helps the public schools and in that sense takes some of the steam out of a movement. So that might be the silver lining for liberals, but in both doctrinally and in its strong support for parental liberties to raise their children in their religion even as against what happens in the public school, I see as a pretty dramatic win for religious liberty and continues a stream of wins in the court. I would say that for the Roberts Court, religious liberty has been second only to the administrative state so far in its importance. And, as I’ve suggested, maybe the administrative state changes in the law of the administrative state are, may now be tempering, or maybe running out, or slowing down.

(32:48):

And that Mahmoud v. Taylor gives no sense that that’s true in the context of religious liberty. So I would put that caveat on your description. I think religious liberty still seems to be a strong engine of constitutional change. I think of constitutional change. Of course, defenders would say going back more towards the original meaning of the constitution, but I think we see that as a long way to play out. And indeed there was one case we haven’t talked about, of course, because it didn’t have any result, which was a case coming out of Oklahoma in which the court didn’t decide the case because the justices were divided four to four with Justice Barrett recusing. And that case was whether a holy religious school could be a charter school. And it was a Catholic school. And that remains an important issue. And so that case is going to come back in one form or another with a different school to the Supreme Court and Justice Barrett will be the decider. And you might think the chances for those who want to expand religious liberty to include the ability to participate in any charter school program, I would rate their chances as pretty good. So I think we’ve got a ways to go in looking at where religious liberties will go in the Roberts Court.

James Patterson (34:20):

Well, I will 100% accept the correction because it’s in a direction that makes me feel much better about that area of case law that is religious liberty. Two final questions. One is were there any examples of the development of originalism or any kind of interpretive methodology that stood out in this? Or did we just have a sort of normal sort of year in which the court’s making normal decisions?

John McGinnis (34:50):

So going back to the administrative law cases, I think we see a kind of pragmatic endpoint or stopping point even to originalist revolutions. So the revolution is to try to put the administrative state back into the separation of powers, but the question is how can you do that without disrupting the administrative state? And the court, I think, feels that it’s done so with the major questions doctrine and overruling Chevron without bringing out the heavy artillery. And so, for pure originalists, that doesn’t make any difference or much difference. And yet we see the court, I think, exercising a sort of pragmatic stopping point. And so that’s I think the most important aspect because otherwise I don’t think there were that many full-throated new and novel originalist discussions in constitutional law. Although I would say that in statutory interpretation you might say that the Trump v. CASA case, the case about universal injunctions that focused on the meaning of equity close to the early republic had a statutory interpretation.

(36:14):

It was very similar to constitutional interpretation. It sort of took a text and tradition approach that looked not that dissimilar from what the court has been doing in the Second Amendment. So it looked at the text, what did equity mean? But then it started to look a bit at the traditional forms of equity, even after 1789 and suggested that nothing looked like universal injunctions. So in that sense, we might be seeing, and I think this is a good development, although I will bracket exactly how it should be done, we should understand statutory interpretation as like constitutional interpretation. We shouldn’t say for instance that statutory interpretation is textualism any more than we think of constitutional laws, just quote textualism. It’s statutory originalism, understanding the text of a statute in the context of its time, including the legal interpretive rules of its time. So I think there’s a hint of that in the cases, and I would welcome that methodological development.

James Patterson (37:27):

So final question. I’m sure some people anticipated when we got to the Trump v. CASA case that we would bring up something that I’m now only going to bring up, which is that the court typically tries to keep disagreements or internal politics among the justices in the chamber. They don’t like to reveal it too much, but, in Justice Barrett’s opinion, she made some pretty pointed comments about Justice Ketanji Brown Jackson. Is this supposed to be a very pointed demonstration against her or is this a more typical kind of way of addressing a dissenting justice in a case like this?

John McGinnis (38:10):

Well, certainly there have been often pretty sharp responses, although they’re often in dissent. Justice Scalia, for instance, was famous for his sharp pen. Justice Barrett of course was a former clerk to Justice Scalia. But it is true that Justice Barrett has hardly been known for her sharpness. And of course, I think it’s fair to say Justice Ketanji Brown Jackson’s dissent was extremely sharp saying this was really a threat to the rule of law. And Barrett’s comment as well, judges have to follow the law as well, and we only have constrained power. So I think this is interesting in this sense. I do think that some of the dissents this term, both Justice Jackson’s and in some cases Justice Sotomayor’s were particularly, I think struck the majority at least is particularly shrill. And maybe that’s not surprising in our society that why shouldn’t polarization come to the Supreme Court? But you detect at least on the part of the dissenting justices some real unhappiness and even anger.

(39:26):

And this was a kind of response to say that, well, we are following the law too. Well, at least we’re following our understanding of the law. You can’t say that we’re being lawless. And so that’s the context in which I read it, a really sharp response to the idea of the court that they are countenancing violating the rule of law. No, they’re following their best understanding of the rule of law, and at least the dissenters should give them that, that they’re doing that in good faith. And I think Barrett seems to think that Jackson is really kind of crossing the line here and that’s why she’s responding pretty sharply. I think an interesting question going forward is some division between Justice Kagan on one hand and Justices Sotomayor and Justice Brown Jackson on the other, if you ideologically score the court, Kagan is really sort of midway between what I would call the Roberts, or maybe it’s a little closer to Sotomayor, but midway somewhere.

(40:36):

And so she’s really not with them completely jurisprudentially, and I think she’s going to have a choice about how far she’s going to side with some of these majority dissenting opinions. She did so in the CASA case, which was sort of surprising because at Northwestern University I heard her at law school, she came and really expressed great doubts about universal injunctions, and yet didn’t even write a concurring or a separate dissenting opinion explaining that, but just joined in this very harsh dissenting opinion of Sotomayor.  She didn’t join in Jackson’s. And so I do think that’s an interesting question going forward where Justice Kagan is going to be, because I don’t think she’s entirely with the program. That would be my suspicion of the dissenting justices. And we saw just actually the other day, her part from the dissenting justices in a case which effectively slapped down a lower court judge for not following the Supreme Court. And although she didn’t agree with what the Supreme Court had said in the second decision, she  said, “well, no, the lower court has to follow what the Supreme Court, what we’ve said, even if I were in dissent.” And yet Jackson and Sotomayor were again in dissent. And so I think that’s going to be something interesting to play out.

James Patterson (41:59):

That’s a very good point to end on because I’ve thought about that myself, the internal division of what we would consider the more left of Center Justices. Well, Professor McGinnis, I just want to thank you so much for giving us a very comprehensive discussion here. It’s hard for me sometimes to keep up, and I guess we’ll have to talk, if not sooner, at least next year, when the court will no doubt do its thing.

John McGinnis (42:24):

Well, thank you very much. Very much enjoyed talking to you.

James Patterson (42:28):

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.

Although they understand themselves as missionaries to the marginalized, woke elites use their ideology of oppression to protect their own privilege and social status. Contributing Editor G. Patrick Lynch discusses these dynamics with Musa al-Gharbi, author of We Have Never Been Woke, and a shrewd diagnostician of elite hypocrisy.

We Have Never Been Woke by Musa al-Gharbi
“Questioning the Oppression Olympics,” by Jesse Smith (Review of We Have Never Been Woke)

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.

Patrick Lynch (00:39):

Welcome to the Law & Liberty Podcast. I’m G. Patrick Lynch, a senior fellow at the Liberty Fund, and a contributing editor at Law & Liberty. And for this episode, I’m filling in for James Patterson. Today we’re joined by Musa al-Gharbi to discuss his critically acclaimed 2024 book, We Have Never Been Woke: The Cultural Contradictions of a New Elite published by Princeton University Press. To give our listeners some sense of the impact of the work, the book was listed by both the Wall Street Journal and Mother Jones of all places in their top books of year. Musa has discussed the book on numerous prominent podcasts and periodicals across the ideological spectrum. Musa is a sociologist in the school of Journalism and Communications at Stony Brook University. Musa, it is so great to have you on the Law & Liberty Podcast. Welcome.

Musa al-Gharbi (01:23):

It’s great to be here. Thank you so much for having me.

Patrick Lynch (01:25):

Thanks for coming. The book has just gotten a ton of a positive attention and I think very deservedly so. It’s well worth a read for our listeners and I strongly encourage you to pick a copy of it. Let’s jump right at the beginning and give the listeners some background. The key claim that you make is that there is a group of people, these woke folks who are very interested in categories, but they themselves are a category, and you use that term “symbolic capitalists” to describe who those folks are. Can you explain a little bit about what symbolic capitalism is, who symbolic capitalists are, and how they differ from other folks in the market system?

Musa al-Gharbi (02:00):

Sure, sure. The “we” in We Have Never Been Woke, is this group of folks that I call symbolic capitalists, as you said. So the term “symbolic capital” is from a Pierre Bourdieu, a different sociologist. And what Bourdieu argued is that symbolic capital were the resources that elites draw on to get other people to do what they want to conform with their preferences, but without stark coercion. So as people like Weber and so on have pointed out from beginning of the field of sociology, almost all social orders do in a deep sense, rely on some kind of consent. It’s actually very difficult to just coerce, to constantly surveil everyone in society, and to constantly be coercing them into doing what you want them to do is basically impossible. The only way that any social order persists is because huge shares of the population comply when they could choose not to.

(02:54):

And so symbolic capital are the resources that people at the upper ends of social distributions often rely on to get other people to do what they want, to follow their will to accord with their preferences. Bourdieu came up with three different forms of symbolic capital. So there’s political capital. That’s when you get people to do what you want based on your position in an organization and based on your reputation for getting things done and so on. So an example of people leveraging political capital would be, you should do this because I’m the manager, I told you to do this and I’m the manager, so you should do it because I’m the manager, right? So the place that you’re occupying in the social order creates this expectation of deference. And the same thing is true of parents talking to children, for instance and so on.

(03:40):

Then there’s cultural capital, which is when people try to do what you want, conform with your preferences because they think you’re cool or interested or sophisticated or cultured or they like you and they want you to like them, they want to ingratiate themselves with you. And then finally, there’s academic capital, which is when you try to get other people to defer to your preferences, to do what you want because you have some kind of knowledge that they don’t have because you’re tied to institutions of knowledge production. So people leverage their academic capital by emphasizing, for instance, that “I have a PhD in sociology,” or “I came from Columbia University,” or “I write for the New York Times.” So these are all examples of people trying to leverage academic capital. And I call these people symbolic capitalists because the main way that we make a living is by cultivating these different forms of symbolic capital and by leveraging that symbolic capital on behalf of ourselves and other people.

(04:40):

So who are symbolic capitalists? Symbolic capitalists are people who primarily make a living based on what they know, who they know, and how they’re known. They’re people who make a living by manipulating symbols and data, ideas and stuff like that, instead of producing physical goods and services to people. So if you think about people who work in fields like journalism, consulting, education, finance, things like this, these are all examples of symbolic capitalists. They’re people who make a living by manipulating symbols and data and ideas and stuff like that, instead of providing physical goods and services to people.

Patrick Lynch (05:13):

Historically, this group, well, first of all you claim this is not the first wave what we call wokeness, or that this group has some aspirations and uses, and tries to leverage its position throughout history, or at least in the last 150 years or a hundred, say 120 years. But historically, it seems like this group has become more homogeneous over the past 20 years, that it’s moved in a particular direction and it’s started to adopt a set of views. Why do you think that it’s moved towards adopting these views? And what do you think are the forces that are moving it towards what we now call “wokeism” in which you identify these sets of cultural expertise and the kind of call to power that gives them this leverage over other people?

Musa al-Gharbi (05:59):

Yeah, I mean, one of the things that’s really interesting about symbolic capitalists as a group is that we have this kind of longstanding relationship between the symbolic professions like law, higher ed journalism and so on, and social justice, narratives about social justice. So from the beginning of a lot of our professions in their recognizably modern form, when they started organizing as professions, if you look at symbolic capitalists today, and through most of our history, we get more pay than most other workers. We have a lot more prestige than most other workers. We have better benefits and working conditions, a lot of autonomy and freedom. As an academic, the freedom I have and how I structure my time and what I work on day to day, it’s truly wild. As someone who’s had normal jobs in the past, it’s truly insane. And from the beginning of our professions, this autonomy, this pay, this prestige, we’ve said, the reason you should give us these things is not for our own sake, but because if you give us these things, it’ll better empower us to help everyone in society, including, and especially the least among us.

(07:06):

A lot of our professions are explicitly defined in terms of altruism and serving the common good. So take my own profession, for instance. Journalists are supposed to speak truth to power and to be a voice for the voiceless. Academics are supposed to follow the truth wherever it leads and to tell the truth without worrying about anyone else’s political interests, their economic interests and so on. And so our professions are defined in terms of altruism and the common good. And when you look at the landscape of public opinion at who in America is most likely to self-identify as anti-racists, as feminists, as allies to L-G-B-T-Q, people as environmentalists and so on, environmental, it’s symbolic capitalists. And as a group, we overwhelmingly self-identify as some kind of left of center, either liberal or progressive or left or socialist, something that says “not right wing,” and politically we’re overwhelmingly and increasingly sorted into the Democratic party.

(08:09):

This wasn’t always the case. This is actually relatively recent, our longstanding cultural liberalism and so on has been a pretty persistent feature of the symbolic professions. But for a while, kind of where we sat on the Democrat-Republican spectrum was actually kind of volatile, but there was this kind of sorting that happened over time. So today within the parties and their ideology, symbolic capitalists are overwhelmingly something like five to one sorted into the Democratic party. And yeah, one of the things that’s interesting is that, as you said in some dimensions, symbolic capitalists have been getting more diverse than we used to be in the past. So, a lot of the professions when they were created, they were created as basically sinecures for white Anglo-Saxon Protestants. People who were not white Anglo-Saxon Protestants were forbidden from joining them. So black people, for instance, couldn’t be lawyers.

(09:09):

The American Bar Association excluded black people from taking part in the American Bar Association. And when black people tried to create their own legal associations because they couldn’t get into the ABA, the ABA worked aggressively to shut those down and so on and so forth. But there were these changes starting in the 1950s and 60s where women became, there was a passage of Title IX, BEOC, policies on sexual harassment and discrimination, things like this, so that a lot of the barriers that were set up to prevent women from joining the professions were eventually taken down. And the same thing is true for non-whites and so on. And so the professions today are more diverse than they were in the past. But critically, even today, these professions and these institutions tend to be significantly less diverse than most other workspaces. They’re actually, compared to most other workspaces, they’re actually much more hierarchical, much more exclusionary, and in many respects have been growing more so. Especially the reliance on degrees and elite degrees is this kind of important sorting mechanism.

Patrick Lynch (10:12):

And I think this is an important point for the listeners. So the way you think about diversity: it is not necessarily the case that it’s based exclusively on things like race and gender. It’s based on economic opportunities and backgrounds to some degree, unless I’m reading the book incorrectly.

Musa al-Gharbi (10:29):

Yeah, absolutely. Well, and they actually intersect in ways that are important and underexplored. For instance, a lot of programs like Affirmative Action were created as basically a kind of soft reparations program for American descendants of slaves. But look at who benefits the most from race targeted affirmative action policies. So, these are programs that were designed to provide social mobility for people who had been historically disadvantaged. They were designed to give a leg up to people who were American descendants of slaves. That’s not the way these policies actually function in practice. The primary beneficiaries of race targeted assistance, affirmative action programs, as I show in the book, tend to be black people who are already relatively affluent, whose parents were also highly educated and successful. So in practice, they primarily serve as ways to help elites who are not white reproduce and enhance their own elite positions. They actually don’t do a lot to help the genuinely disadvantaged.

(11:32):

And even when you look at which black people tend to benefit from these programs, even though they were programs that were created for American descendants of slaves, that’s actually the subset of black people who are least likely to benefit from the programs. And at elite universities and in knowledge economy professions, the people who benefit the most from admissions and hiring preferences for black people, for instance, tend to be Afro-Caribbean and recent African origin people, people who are of recent immigrant background, from the Caribbean, or from Kenya or Nigeria or places like that. So people who are not American descendants of slaves, and the people who are American descendants of slaves who benefit from the programs tend to be half white like myself. And this matters because biracial people have importantly different risk exposures, importantly different vulnerabilities, importantly different social networks and opportunity structures compared to monoracial non-immigrant black people.

(12:30):

And so, in practice, this is what you see with the beneficiaries of a lot of these programs. On its face, it’s already the case that a lot of these professions are actually less diverse than most other workplaces. But even the diversity that’s there is often misleading. So if you look at schools like Harvard, they’ll say, we have X percentage of students who are black. Well, the share of your students that are American descendants of slaves, which is the overwhelming majority of black population, is what most people think of when they hear “We have X number of students who are black.” That is not the population of students that you see at Harvard who are black.

(13:17):

And so these intersect in interesting ways, these kind of class things. The last thing I’ll say on this is that actually, this is one of the cases where in a lot of knowledge economy spaces, a lot of these symbolic economy hubs and institutions, there really are aggressive policies in place that tend to punish people who diverge from the kind of dominant left-aligned viewpoints on cultural issues especially, but even on other issues. Now, one of the things that’s striking about that is that the people who tend to suffer the most from these policies don’t tend to be people who are already privileged and overrepresented in these institutions. The people who belong to the dominant group at these institutions also tend to subscribe to the dominant viewpoint. That’s part of the reason it’s a dominant viewpoint, because it’s the viewpoint of the dominant group.

(14:14):

Again, if you look at the highly educated, relatively affluent urban and suburban white people who dominate a lot of these institutions, they are also the people who are the most likely to subscribe to these left-aligned cultural views. And so if you create an institution that’s hostile towards socially conservative views, towards religious views and so on, the people who tend to suffer the most from that, who are most likely to be punished, excluded, and so on, to face a hostile atmosphere, are people who are already underrepresented. So people who are of immigrant background, people who are of non-traditional academic backgrounds, people who are from lower income backgrounds, people who are ethnic minorities and so on. These tend to be the people who face the most hostile atmosphere. And we can see this when a lot of institutions create policies that are supposed to help that, often in the name of empowering minorities of various kinds. Minorities are often the people who suffer the most.

(15:14):

So for instance, a lot of knowledge economy institutions have created anonymous reporting systems. If someone says something that’s not in accordance with predominant norms of highly educated, relatively affluent to urban and suburban white people, you can report them. The idea behind a lot of these anonymous reporting systems is that people who are from less advantaged backgrounds often don’t know how to work the system as well as more traditional applicants, and they’ll feel less comfortable seeking authorities. This is actually true; there’s a lot of research on this and it’s actually true. But consider how these systems work in practice. So there’s a great study in Harvard Business Review that was published by Frank Dobbin and Alexandra Kalev. They found that when companies institute these anonymous reporting systems, the net effect is that there doesn’t seem to be any kind of negative effect on managers who are white or male.

(16:20):

They are not more likely to get punished, they’re not more likely to get fired and so on. For white female managers, there’s a slight uptick in disciplinary actions that they face. For non-white female managers, there’s an even bigger uptick, and then for non-white male managers it’s huge. They are much more likely to get fired and terminated and so on. This is counterintuitive because what the reporting systems are supposed to do is help punish people who speak out of turn on cultural issues. So the intuition is that people who are minorities and so on would be benefiting the most. The reason they don’t is because the people who are actually most likely to know the right thing to say in different circumstances, who have mastered the cultural scripts of what’s appropriate and not, tend to be people who are from relatively affluent backgrounds, people who are white, people whose parents were highly educated and so on. The people who are actually already underrepresented, they’re the least likely to have mastered these discourses.

(17:18):

They’re likely to say the wrong thing at the wrong time, or to say things in the wrong way. And so when you make it easier to punish people who color out of the lines, again, even if the intent is to help people who are disadvantaged, it often has the opposite effect. And so a lot of these issues are actually deeply intertwined in a way that I think a lot of people don’t appreciate. So a lot of times people focus on things like race and gender and sexuality while ignoring class, or they focus on things like viewpoint diversity while ignoring things like demographic diversity, or they view these as antagonistic pursuits so that the people who support viewpoint diversity often think that demographic diversity is nonsense. But if you keep pulling from the same subset of society, but expecting that somehow you’ll get a radically different share of views, that’s kind of weird. But on the flip side, a lot of the people who support demographic diversity also have really negative views towards the viewpoint diversity stuff. When in reality these are actually really deeply interrelated social problems that are best addressed in tandem.

Patrick Lynch (18:31):

Let’s jump in here and talk about why. So just to clarify the language, the diversity piece. These symbolic capitalists are a group. Why do symbolic capitalists take on this woke identity? What advantages does it give them in their day-to-day lives, their professions, their careers?

Musa al-Gharbi (18:48):

Yeah. So one of the things that’s interesting is that as I noted from the beginning of the symbolic professions, our autonomy, our payer prestige were rooted in these claims about altruism and the common good. And so this created this unique form of status competition within the symbolic professions where for a hundred years now, for more than that, people who did an especially good job of depicting themselves as allies for the marginalized and the disadvantage, as having the right motives and so on, were seen as being especially worthy of deference and prestige and power and respect, and holding strong social positions. And on the flip side, people who were successfully painted as having the wrong motives or feeling the wrong things about the wrong groups or being in bed with the wrong people, they’ve been seen as worthy of having their position and their social respect stripped away.

(19:40):

And again, this isn’t something that started with Twitter. This has been a recurrent aspect of the symbolic professions from their outset. One thing that changed a little bit in an interesting way is that since the beginning of these professions, there’s been this competition about who’s the most oriented towards social justice, who was the best advocate for social justice. But after the things like the Civil Rights Act in Title IX, there was this interesting shift. As you started getting more women and minorities, and it became more acceptable to openly acknowledge yourself as queer or something or things like this, this kind of changed the status competition a little bit in an important way, because increasingly you had this group of people who couldn’t just claim to be good allies and advocates for the marginalized and the disadvantaged in society, but they could actually claim to directly represent minoritized populations.

(20:39):

They could claim to directly embody the kind of disadvantage and oppression we’re trying to fight. And so, you started seeing this new form of symbolic capital that developed within the symbolic professions, I call it totemic capitalism, which is when people kind of lean on their association with historically marginalized and disadvantaged groups in order to be taken more seriously. So, within the symbolic professions, people who self-identify as say racial and ethnic minorities are viewed as being more morally pure. They have a stronger moral authority. They’re seen as better people than whites. They’re also perceived as having deeper, truer, more authentic insight into racial issues than whites. People who are women who are gender or sexual minorities are perceived as having truer, purer insights into gender issues than men, cisgender heterosexual men, and are also seen as being better people, as being morally pure, as having better mix of motives and so on. This is actually, again, a form of deference that’s unique to the symbolic professions. It’s created this kind of unusual situation where the people who are most likely to self-identify as some kind of marginalized population, who are most likely to self-identify as victims, happen to be the people who are most likely to be social elites. So you have these social elites who are painting themselves as marginalized and disadvantaged, often kind of stretching the truth, sometimes telling not fully accurate stories about their ethnicity, and that sort of thing.

Patrick Lynch (22:31):

I very much enjoyed that part of the book. Not only do you list a lot of examples where incentives are so strong for these elites that some of them, a number of them, engage in fraud and make up these identities. Or in the case of sexuality, you document that for people who identify, for example, as bisexual, they’re more likely to be engaged in heterosexual relationships than the heterosexual people, at least for women, I believe it is. It’s a really, really interesting take on the data. And can you talk a little bit about these examples and what’s going on here? What are the underlying mechanics?

Musa al-Gharbi (23:04):

Yeah. So, let me turn the lens on myself, as I do briefly in the chapter as well. I mentioned before that there are important distinctions in practice between people who are Afro-Caribbean or of recent African origin, or people who are biracial versus non-immigrant American descendants of slaves. There are these vast differences in terms of their life outcomes or opportunity structures and all of this. But most of the black people that you see in knowledge economy spaces tend to be either immigrant, black people, or biracial. So I was on a panel, for instance, on polarization at this big conference, and there were four black people who were speaking at this conference. Two of them were of Jamaican backgrounds. One was a Kenyan Nigerian person, and then there was me who’s half white. So four black people, not one single person, not one single person was a non-immigrant, monoracial, American descendant of slaves. But here we are offering the black perspective on this issue, and that’s how it is with the overwhelming majority of black people that you see. And the thing is, even when I describe myself, I often just describe myself as black. I don’t describe myself as biracial. I don’t describe myself as mixed race. I could come up with flattering reasons why I do that. For instance, I could tell some story about how when people look at me, they basically never go, oh, there’s a white guy, and so I’m generally perceived and coded.

(24:36):

I could tell this kind of a story, and those stories would be true, but they’re not the whole truth. Another thing that’s also true is that in a lot of the spaces in which I operate, I gain more credibility. I’m seen as being more moral. There are more opportunities provided to me to collapse this kind of more complicated story about my ethnic background into just describing myself as black. In fact, one of the things that’s really interesting about the book, We Have Never Been Woke, is that the book is itself a kind of a physical embodiment of many of the social dynamics and critiques. So for instance, the book critiques the use of credentials, especially credentials from elite schools like Columbia to decide whose voices are worth listening to, whose perspectives are worth taken seriously.

(25:36):

But I published the book with Princeton University Press, and I published the book with Princeton University Press very deliberately. I targeted a prestige press, and they were interested in me in part because I was coming from Columbia. If I had sent them the same manuscript, but I was a PhD student at the University of North Dakota, that’s a fine school. But if I sent them the same manuscript as a PhD student from the University of North Dakota, it probably would’ve ended up in the slush pile. There wouldn’t have been a competitive auction for the rights to it. Similarly, the book critiques how people leverage their association, and these kind of collective identities like black or Muslim in the service of their own individual benefit. But it’s also the case that part of the reason Princeton was interested in this book is because I’m black. Now, it’s not the case that all black people just get Princeton books.

(26:29):

“You get a book! You get a book!” They didn’t publish it just because I’m black. But it is the case that if I had sent them the exact same manuscript as a cisgender, heterosexual white person, especially God forbid, if I had any whiff of conservatism or Christianity about me, the exact same manuscript would’ve been evaluated in a very different way. It probably would’ve been passed over, perceived as being too risky or something like that. To the extent that they published it at all, they probably would’ve subjected it to sensitivity readers and a whole bunch of other oversight. The reason why I was able to go “pow, pow, pow” and just say what I think is in part because of my racial and ethnic identification, now the book criticizes the use of ethnicity to decide who gets to speak honestly about which topics and whatever, but the reason I’m able to leverage those critiques in the way I am is because I’m a black Muslim dude who writes for The Guardian. So there is this kind of interesting sense in which the book is itself a physical manifestation of a lot of the things that it’s criticizing.

Patrick Lynch (27:44):

So three quick things. Number one, thank you for clarifying the pronunciation of Colombia. I have been mispronouncing it for all these years, so I appreciate it. Second of all, if we can kind of summarize this, in your view, wokeism is a self-interested act by these elites, by symbolic capitalists are using woke in very, very self-interested ways, even though they may believe these ideas. I’ll help bring a little bit of the book in here. You don’t claim that these folks are just being disingenuous. They have adopted these views, but that it is in fact in their best interests to be able to boot up use.

Musa al-Gharbi (28:14):

Yeah, I’ll say just real quick on ethnic identification, just to bring that point full circle. So to me, it’s the case that for instance, self-identifying just simply as black feels like the best, the most appropriate, the truest way for a lot of folks like me to define themselves. So it’s not cynical or insincere, this conflating of the more complicated ethnic background that most of us have into just calling ourselves “black” instead of Afro-Caribbean or biracial. Now, that said, I suspect that if the opportunity structure were different, such that it was more advantageous to self-identify as biracial or mixed race, or that it was more advantageous to create a distinction between Afro-Caribbean people and black people, if Afro-Caribbean people or recent African immigrants were seen as more prestigious, as being better truer, more authentic, more moral or whatever, then I suspect that a lot of these same folks, myself included, would probably have some different sense of this. What would strike us as the most authentic way of understanding and describing our racial identity might be different.

(29:26):

Now, that’s not to say again that we would be cynical or insincere, it’s that the set of stories that we’re drawn to about ourselves and other people are importantly structured by what’s in our interests. So one of the contributions that I hope the book makes is that often there’s, especially on the left, there’s this tendency to create this kind of false binary. You’re either using something in a self-interested instrumental way or you’re sincere. And so there’s this whole genre of work where if you can expose that someone has an interest in believing something, or they have an interest in promoting some idea, then you go, ha, you’ve been exposed. You must be cynical, you must be insincere. There’s this whole genre of stuff on the left that attempts to do this, and it also plays out with funding and other things like that.

(30:26):

If you can show that someone has received funding from the wrong people, then ha, they must not really believe it. They must be cynical or insincere. This is a really terrible way to think about thinking. So there’s a lot of research in the cognitive and behavioral sciences that shows things at a very fundamental level about the ways that we perceive the world. We’re faced with these really intense challenges. At any given moment, I’m just being bombarded by just tons and tons of information, and I have to make decisions about what to focus on, about what to remember, about how to sort the things that I focus on into a coherent picture of the world in terms of the kinds of stories I tell about why things are the way they are and so on. We don’t make these cognitive decisions in a random way.

(31:22):

We don’t make them in a disinterested way. We make the choices we make about what to focus on, how to remember how to fit things together. These are deeply informed by what we want, by what we expect, by what’s in our interests. This is the way that our brains are structured at a very fundamental level, and it’s usually life affirming. It’s fitness enhancing, it’s life affirming to kind of analyze the world in this way. It’s a healthy thing to interpret the world in this way, but it does cause problems in a lot of circumstances. Now, if we take this literature seriously, that the ways we perceive and think about the world at a very fundamental level, at the foundational level are shaped by things like our interests and our goals and priorities, then we can see there’s not actually any kind of a tension between believing something sincerely and using it instrumentally. If we had an interest in believing something, we would actually be more likely to believe it sincerely, to believe it passionately, and to try to get other people to believe it too. And so the argument that I make in the book is that, yeah, some capitalists are sincere when we say things like “we want the people at the margins of society to live lives of dignity and inclusion.” We’re not lying when we say that we want the people who are suffering and poor to be better off and flourish.

(32:45):

We’re not being deceptive. When people were crying after George Floyd was killed, that was a performance, but it wasn’t just a performance. People were actually sad. The thing I stress in the book, the core problem, this kind of tension that’s defined the symbolic professions from the outset is that on the one hand we have this set of sincere commitments towards egalitarianism, but that’s not our only set of sincere commitments. Most people who work in the symbolic professions are also sincerely committed to being elites, which is to say we think that our perspectives should count for a lot more than the people checking us out at the grocery stores. That our priorities, that our values, that our needs and demands should weigh more heavily. We think that we should have a much higher standard of living than the people delivering our packages or driving us around when we Uber. When we want our children to reproduce our own social position or to do even better than us, this set of commitments is also very sincere, and they’re in fundamental tension. So we have this set of desires to be an egalitarian, the set of desires to be an elite. They’re in fundamental tension. You can’t actually be an egalitarian social climber. It’s a contradiction in terms.

Patrick Lynch (33:59):

Lemme jump in here because time is running a little short, and I want to touch on two things that I think you underlined very, very well. The first one is this idea: so you said you speak for black people even though you are biracial, and that you were on this panel with two Caribbeans and Kenyan. Talk briefly about how there are differences among, say, the main working class blacks, working class Latinos, and how elites express themselves. You talk about use of the term Latinx in the book, which I absolutely 100% resonated with me because when I go to Latin America, and I do frequently for my work, I tell people that this is a term among elites in the United States now, and they look at me as if I’m speaking Martian. They’ve never heard this term before. They have no idea what it means. And you talk a little bit about this, you talk a little bit about how white people have adopted the defund the police position, even though African-Americans by and large don’t support it. Can we talk a little bit about these tensions and how there is a non-representative nature to this. I think you just touched on that tension, so let’s discuss this.

Musa al-Gharbi (34:59):

So this issue of non-representative representatives, that’s something that I’ve been interested in for a long time. I don’t think I’ve talked about this before, but I started becoming interested in this question from my work on national security-informed policy. So there’s this phenomenon where if we want to understand, for instance, what would happen if we depose Hussein, or what would happen if we overthrew the Ayatollah in Iran, it’s actually kind tough for us to just go to Iraq or go to Iran or go to Syria and other places like this and do nationally representative polling. And so what people often did is they looked around in the United States, they found people from Iran who were in the United States, or people from Iraq who were expatriates and asked them, “Hey, if we get rid of Saddam Hussein, how will people respond?”

(35:59):

Now a problem with this is that the kind of people who are expatriates tend to vary in systematic ways from the baseline population that’s in that country. It’s part of the reason why they’re expatriates in the first place. Because there are people who don’t fit in as easily with the mainstream culture and politics of the country they came from. And the longer they’re in the United States or some other country, the less representative they become, because they’re just less connected, but often the people who are expatriates don’t understand themselves to be non-representative. They think that they have their finger on the pulse, that they’re broadly like most other Iranians, that they have their finger on the pulse of what most other people from Iraq feel, and so on. And there’s this kind of systematic pattern of blindness that often happens where not only are they not representative, but most of the other people who are in their social networks who are from Iraq or Iran or whatever, are also non-representative.

(37:03):

So they know a bunch of other expatriates in the United States or their family back home who also hates the ruling government or whatever. And so almost all the Iranian expatriates, almost all the Iranians that they talk to, also hate the Ayatollah. And so it’s really easy for them to fall into the illusion that these perspectives are representative. They know all sorts of Iranians, every Iranian they know agrees with them, perhaps overwhelmingly agrees with them on this. And so it’s really easy for them to think that they are in fact representative when they’re systematically not. And this is the kind of a thing which I became sensitized to when I was studying foreign policy national security questions, because this problem actually contributed to some of the big intelligence failures and strategic blunders in the national security foreign policy arena.

(37:51):

It also really messes up our understanding of a lot of domestic issues. So you have the same kind of situation where a lot of people who are the kind of black writers again, who are themselves typically from relatively affluent backgrounds or they’re biracial or they’re Afro-Caribbean or whatever, but they self-identify as just black. And they think of themselves as being broadly representative of black people as a whole. They think that their views and priorities and preferences broadly align with those of black people as a whole. And most of the other black people that they know in these elite spaces and that they talk to, they’re not very often engaging with normie black people. And so all the black people that they know tend to share similar sensibilities and views. And so it’s really easy for them to fall under the illusion that this is just how most black people think because all the black people that they know think and talk this way.

(38:42):

And it’s really easy for white people who work in these knowledge economy spaces to also come under the illusion that these black people are representative of how most black people think, because that’s all of the black people that they know in their knowledge economy, and because these white people are also not just going out engaging with normie black people. And so it’s all the black people that they know seem to support defunding the police and things like this. And so it’s really easy for them to fall into the illusion that this is just a popular idea with black people. And so what often happens for convenience and for other reasons is that if you’re a knowledge economy professional and you want to go, oh, well, what do black people think about the police reform? Rather than conducting or consulting nationally representative survey data, to understand the modal black opinion, which takes a lot of work and efforts and so on, or rather than going out into the affected communities and just directly asking the impacted stakeholders what they want, which also requires a lot of legwork and a lot of effort, what they do is they go, well, let me see what the black writers in the New York Times think and say about this. With the implicit assumption that these people either themselves are directly representative, or must have done the work, because they’re making strong claims in their essays about what black people want, what black people feel.

(40:05):

So they assume that either these people are representative themselves or they’ve done some kind of research to find out, and that’s often not the case. And so we have this problem where you have all of these people who are held up as representatives of various groups, whose preferences and values and priorities are demonstrably not representative of how most people from those groups think or feel. But this is something that most people themselves are unaware of. They’re often not aware of how unrepresentative they are. And this is something that a lot of the people who listen to those folks are also unaware of.

Patrick Lynch (40:43):

So one final question, and we have to wrap it up unfortunately, although I’d like to talk to you for several more hours about the book because again, I would encourage all of our listeners to pick up a copy. It’s really, really insightful. Very, very powerful. You don’t talk a lot in the book about what would be some of the mechanisms, some of the institutional changes, some of the concrete steps that either symbolic capitalists or societies a whole could take to help out people who are in the lower end of the economic spectrum. And really, this is a book that’s implicitly about economics. Do you think the problem is that symbolic capitalists are blocking the use of the public sector or preventing the private sector from effectively helping people at the lower income ends, particularly minorities, racial and ethnic minorities or people of oppressed groups, to make serious economic strides? Is it that they are preventing one or the other or both? Can you elaborate a little bit on that? Have you thought much about that because it’s not really in the book.

Musa al-Gharbi (41:38):

Well, so one of the things I do in the book is I do challenge this fantasy that most symbolic capitalists seem to hold, which is that the real problem in society is just the top 1%, and that if we just tax Elon Musk hard enough, we can fix all the world’s problems. One of the things I show in the book is that one of the limitations of the “taxing Elon Musk hard enough” approach is that it’s actually kind of tough to just take money from the rich and just transfer it directly to the poor. That’s a little more possible now with platforms like GiveDirectly and things like that. But most typically what happens is that when you tax people like Elon Musk, it gets put into institutions that symbolic capitalists control, and we gobble up most of that, and then after we’ve had our fill, we sprinkle the bits that are left on the genuinely marginalized and the disadvantaged such that the people who actually need the help the most often don’t benefit as much.

(42:48):

So, I’ll give quick example of this. One thing I do talk about in the book, at the beginning of the symbolic professions, at the time when the professions were being born in the recognizably modern form…

Patrick Lynch (42:59):

The progressive era.

Musa al-Gharbi (43:00):

The progressive era, yeah. There were these two big changes that happened at once. There was the creation of big philanthropy in its recognizably modern form, major foundations and blah, blah, blah, administrative, all these programs. And then there was also the passage of the income tax, which was successfully defended in the Supreme Court. As a result of these two changes that happened roughly at the same time, there was this massive transfer of wealth from the Gilded Age elites downwards. So far it sounds good. Okay, but where did the money go? So as Randall Collins shows in his book The Credential Society, the primary wealth transfer that actually occurred during this period was from the rich to the upper middle class, symbolic capitalists took from the rich and we gave to ourselves, and there were some programs that were created. There were some ways in which the genuinely marginalized and the disadvantaged were made better off, but not nearly as much as could have been the case, and not nearly as much as would’ve been expected given the sheer amount of resources that were transferred downwards.

(44:00):

This has been a consistent problem also in Marxist and socialist regimes throughout. It’s something that Mikhail Bakunin, a contemporary of Marx, flagged from the outset. He said, you could take the most ardent dedicated revolutionary and imbue in him absolute power, and within a week he would be worse than the Czar. It’s actually not the idea that you would have this group of people that take all of the wealth and resources in society, they get control of them, and then they’re just going to give them all out equally, not taking not one extra dime for themselves, for their own communities, for their own families, for their own institutions, and then they’re just going to step away and live among the regular people as equals. This is the kind of thing that was kind of envisioned by Marx, but Bakunin said, there’s no chance in heck that would ever happen.

(44:50):

And this has actually been the case every time that people have tried to do this kind of a thing, Bakunin has seemed much righter, much more correct than Marx on this. So this is a perennial problem. When we try to take these resources, symbolic capitalists themselves tend to be the kind of big clutch, not the super elites actually. We can take the money from the super elites, but then it ends up in our hands. And then most of it, this has been the consistent problem with a lot of these redistribution schemes. We support redistribution, because of course we would, it means that there’s going to be a lot more resources in our hands. In fact, this is one way (last thing I’ll say on this) in which symbolic capitalists actually differ policy wise from most other Americans.

(45:39):

So most Americans prefer what you might call pre distribution. So they prefer things like high wages and benefits and stuff like that that make redistribution less necessary because they have a job, they have good pay, they don’t need help from the state. This is what most people actually want. Symbolic capitalists, on the other hand, tend to strongly prefer redistribution. This is because redistribution gives us the best of all worlds. On the one hand, we get access to all of this cheap labor. We can exploit these people, pay them really poorly, which allows us to live at a lifestyle above our typical means, because we can exploit all of this service labor, and we’re the ones who exploit it the most as I show in the book. So we can benefit from all of this disposable labor provided by these desperate and vulnerable people, but we don’t have to feel too bad about it because we take money from Elon Musk and make sure they don’t starve.

(46:31):

And so we kind of get the best of all worlds here. We get to exploit the laborers, and we don’t have to feel too bad about it because we take from people who are richer than us to make sure that those people at least survive at subsistence level. So redistribution is really good for us, but that kind of approach is actually not what most workers prefer. There’s actually a lot of research as well that shows that if you just provide people money, so if you do direct transfers of wealth, that tends to work better than a lot of more structured programs. But people like us often have this sense that we know better what other people should want and should need, and that if you just give other people money, they’ll misspend it and so on. And so we like programs that highly structure how people can use the money that create all of these oversights and constraints that try to push people down the channels that we think are in their best interest. And so this is another example of how there are actually these systematic differences even on issues like resource allocation between symbolic capitalists and most other people in the country.

Patrick Lynch (47:41):

And on that Friedman-esque note, we unfortunately must bring this conversation to a close. Musa, thank you so much for taking the time to be here. I would again encourage our listeners to pick up a copy of this outstanding book. Thank you very much for being on the Law & Liberty Podcast.

Musa al-Gharbi (47:55):

It was a lot of fun. Thank you so much for having me.

James Patterson (47:57):

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.