Category: Michael Novakhov – SharedNewsLinks℠

My thanks to my three interlocutors on the important issue of the Constitution and the unitary executive, Andy Smarick, John Yoo, and Keven Frazier. As I wrote, the theory of the unitary executive asserts that “the president has authority to direct all parts of the executive branch and to fire anyone in the executive branch or, at least, to fire anyone with authority over policy.”

There are, of course, any number of alternative institutional arrangements to the unitary executive; these are reflected currently among various forms of “horizontal” plural executives adopted by US states, but also historical forms of “vertical” plural executives that Alexander Hamilton criticizes particularly in Federalist #71.

I focused my analysis on what I consider to be the most broadly relevant choice of executive form today: On the one hand, the national government continues with the current system that recognizes [a] “independent executive agencies” that are immune from formal and continuing presidential direction and removal authority, and [b] provides merit protection to numerous executive employees who influence policy, thereby immunizing them from the direction of the electorally accountable chief executive. The alternative would be recognition that the US Constitution does not allow statutory creation of a horizontally plural executive (in the form of independent executive agencies) nor a vertically plural executive (in the form of judicial review of the cause for which a president replaces currently merit-protected executive employees).

I argue that the second of these alternatives is superior to the first in the current context. The problem with the first alternative is not simply the formalism that the US Constitution does not comprehend these statutorily created plural forms of the executive, but that, unlike plural executive arrangements at the state level, these constitutional oddities are immunized from electoral accountability, which is the first guardrail for insuring executive accountability and competence.

At the same time, it merits attention that the doctrine of the unitary executive is a doctrine regarding presidential control of the executive branch only; it does not authorize the president to usurp Congress’s legislative power by executive order, nor does it authorize presidential usurpation of judicial authority by executive creation of ersatz courts.

Bureaucratic developments such as independent executive agencies and merit protection were designed to immunize parts of the executive branch from the political control of the elected head of the executive branch, the president.

What the reformers did not anticipate, however, was that over the decades, as presidents with different electoral mandates came and went, yet the Federal bureaucracy soldiered on as designed, voter frustration would increase with a bureaucracy that proved immune to changing voter and presidential preferences. The relative inelasticity of the Federal bureaucracy to changing political preferences is one cause, I would suggest, of the belief in the existence of the “deep state.” This frustration, in turn, has led in part to increasing belief reported in surveys among many Americans, particularly those on the right, that the country needs a “strong leader who is willing to break the rules.”

The problem, however, isn’t aristocratic expertise, it’s that aristocrats aim at a different bullseye than do democratically accountable officials.

What critics overlook in their concern for American democracy in the face of a desire for a strong leader is that the initial anti-democratic move, the move that prompted the present populist reaction, was the move to immunize wide swaths of the American national bureaucracy from electoral accountability.

Let me touch on a few items discussed by my interlocutors.

The Unitary Executive Reduces Informational Costs for Voters

Kevin Frazier and I agree on the criteria by which to judge the choice between the status quo bureaucracy, with independent executive agencies and vast numbers of merit-protected employees who influence policy. The irony is that a unitary executive would accomplish the goals he stipulates better than the status quo does.

Frazier writes,

Rogers … works from an idealized conception of voter capacity that assumes citizens possess sufficient information, political knowledge, and civic motivation to fist identify the responsible governmental actors and then translate that assessment into electoral consequences.

The irony is that my argument assumed the opposite of this; my argument—Hamilton’s argument, actually—was that by simplifying institutional structure, a unitary executive reduces information costs for voters and, as a result, improves accountability.

Consider the two most relevant institutional alternatives. One in which a single national-level elected executive—the president—is responsible for the entire executive branch. The other institutional alternative is the status quo, in which there exists a welter of independent regulatory agencies largely immune from presidential control and, in regular branches of the national bureaucracy, most of the staff are merit-protected. This means they remain protected from presidential control.

Frazier argues that “complex lines of authority remain obscured.” That is exactly right. But which institutional mechanism is the more complicated? One can read the answer off from the name itself. A “unitary” executive is obviously the less complex; the alphabet soup of independent agencies and the inelasticity of agency outcomes to changes in presidential administration mean that the status quo is the more complex institutional arrangement.

Frazier next raises the obvious issue of bureaucratic expertise and hierarchical control. This, of course, is an important issue, and a traditional argument for the move from the old patronage system to the current system of protected employment.

The answer requires that we weigh the interest in democratic accountability relative to the interest in expertise.

An analogy might help. In Democracy in America, Alexis de Tocqueville observes similarly to Frazier that “the laws of American democracy are often defective or incomplete; sometimes they violate vested rights or ratify dangerous ones.”

In an eerie parallel to Frazier’s argument, Tocqueville observes that aristocratic governance provides expertise at crafting and implementing policy:

Aristocracy is infinitely more skillful in the science of the legislature than democracy is capable of being. Master of itself, it is not subject to transient impulses; it has long-term goals which it knows how to mature until the favorable opportunity presents itself. Aristocracy proceeds skillfully; it knows the art of making the collective force of all its laws converge at the same time toward the same point. It is not the same with democracy: its laws are almost always defective or ill-timed.

Despite the advantages of aristocratic governance, however, Tocqueville concludes that “democratic government, despite its faults, is still the most suitable of all to make this society prosper.”

Why is that? It’s a matter of what target each group of policymakers aims at. Educated, expert Aristocrats hit the target they aim at with less variance than democratic policymakers. The problem, however, isn’t aristocratic expertise; it’s that aristocrats aim at a different bullseye than do democratically accountable officials. While democratic officials have a much greater spread around the policy target at which they aim, the center of mass is the bullseye preferred by current voters.

To be sure, there is a cost to the loss of bureaucratic expertise. But observing one side of the argument does not mean that realizing a greater alignment of bureaucratic outcomes with democratic outcomes is not worth the cost.

Institutional Choice Beyond My Two Choices

Andy Smarick wants to push beyond the two alternatives I discuss. He writes that the “more interesting question … is whether there are other legitimate systems that are as good or even better than the unitary executive at responding to America’s unique characteristics.”

In particular, Smarick makes a nod toward state-level plural executives and concludes that “the plural executive’s messiness and inefficiency might well be a natural antidote to populism.”

I don’t disagree. I focused on a unitary executive versus the status quo, mainly for tractability in a short essay. If the Supreme Court were to declare congressional statutes that create a plural executive an unconstitutional infringement on executive authority, we would revert to a form of the unitary executive. Nonetheless, I am open to the possibility that the type of horizontally partitioned plural executives that states have, with separately elected executive heads, could be usefully adopted at the national level. It would take a constitutional amendment, however.

Scalia did not share Yoo’s belief that the Constitution only makes “narrow” exceptions to executive power in foreign policy.

That said, there remains a question of the informational complexity of state-level plural executives. That is, whether the proliferation of executives decreases democratic accountability relative to a simpler executive structure. The institutional heterogeneity across the states might be able to give legal and political scholars some empirical leverage on the question of whether increasing the number of horizontally partitioned executives confuses voters relative to fewer executives.

Directing Bureaucratic Agencies & Foreign Policy

John Yoo curiously asserts that “Rogers defines unitary executive … as only extending to the president’s constitutional right to remove inferior officers.” It’s curious because I repeatedly provide a more expansive definition of the institution.

Early on in my initial essay, I define the unitary executive as the institution in which “the president has authority to direct all parts of the executive branch and to fire anyone in the executive branch or, at least, to fire anyone with authority over policy.” I later refer to the unitary executive as placing the “entire” executive branch under the “immediate direction and oversight by the president,” as “presidential authority to direct policy outcomes,” and I note twice that the plural executive form—the antonym of the unitary executive—places executive officers beyond the “direction and control” of the chief executive.

And as the events that gave rise to Humphrey’s Executor demonstrate, the authority to direct the executive branch is predicated on the removal power: The president’s removal power is the inducement for executive branch employees to follow the president’s direction. To be sure, the president cannot exercise power the Constitution delegates to the legislative or judicial branches, but that is different than recognizing that the Constitution generally confers presidential authority over the executive branch.

Yoo is particularly concerned about the president’s authority over foreign policy. He writes, “At the time of the Constitution’s framing, executive power was also understood to include the war, treaty, and other general foreign affairs powers.” However true that may be, the Constitution has more to say than can be deduced merely from interrogating the word “executive” in the abstract.

But here, Yoo’s expansive argument regarding foreign policy ironically runs into Justice Scalia.

Despite Scalia’s full-throated endorsement of the unitary executive in Morrison (Scalia wrote that the Constitution does not accord the president only “some of the executive power, but all of the executive power”) Scalia did not share Yoo’s belief that the Constitution only makes “narrow” exceptions to executive power in foreign policy.

In dissent in Zivotofsky v. Kerry, for example, Scalia wrote:

It turns the Constitution upside-down to suggest that in areas of shared [congressional and presidential] authority, it is the executive policy that preempts the law, rather than the other way around. Congress may make laws necessary and proper for carrying into execution the President’s powers, but the President must “take Care” that Congress’s legislation “be faithfully executed.” And Acts of Congress made in pursuance of the Constitution are the “supreme Law of the Land”; acts of the President (apart from treaties) are not. (Emphases in original.)

Scalia concluded his argument in Zivotofsky with the warning that the Court’s majority opinion “threatens congressional power over foreign affairs with gradual erosion.”

This is not to suggest that the president has narrow executive authority in foreign policy. The majority opinions in cases such as United States v. Curtiss-Wright Export Corp. (1936) and Zivotofsky v. Kerry (2015) demonstrate otherwise. Nonetheless, the president’s executive authority over foreign policy must be construed in light of the whole Constitution.

I think the greater practical challenge to the Constitution’s theory of executive power is found not in limitations on the president’s authority over foreign policy, but in congressional legislation that has statutorily created a plural executive. The statutory creation of a “fourth branch” of the US government represents a congressional usurpation of executive authority and, substantively, has resulted in a diminution of democratic accountability over the national government’s burgeoning administrative state.

Growing up, every group of male friends has that guy. 

He’s a little unsure of himself, even among close pals. He’s a little strange, even by the gang’s own eclectic standards. He somehow always finds the wrong thing to say, even though no topic is off limits. Of course, the rest of the guys tease him for it—partly with malice, but eventually also some fondness. Because despite never really fitting in, he’s seemingly always around. Until one day you all go your separate ways. 

What happens to a guy like this? 

On the surface, he’s probably adapted to normal adult life. You might occasionally see his odd Facebook posts and chuckle (or scoff) to yourself, but you really don’t know how he’s doing. That is, until you sit through the 100 minutes of hilariously bleak cringe that is Andrew DeYoung’s breakout film, Friendship, which introduces a protagonist so painfully awkward that you’ll recognize him the moment you meet him: Craig Waterman is that guy. 

Craig (Tim Robinson) passes as a normal guy, mostly. He has a pretty wife (Kate Mara), who’s more or less nice to him, even as she bites her tongue at his eccentricities. He has a teenage son who likes him well enough, even if Craig can never quite win his respect or admiration. His stable, if soulless, white collar job pays enough for the family to put their home up for sale, presumably to buy a larger one after Craig managed to competently, if not confidently, secure a promotion for himself. Everyone knows he’s a bit off—he’s the husband who makes uncomfortable jokes at his wife’s cancer support group, the dad who tactlessly asks about his teen son’s dating life, the colleague whose awkward small talk leaves him left out of office smoke breaks—but they mostly tolerate him despite occasional laughs at his expense. And although he has no friends, he’s perfectly content with his mediocre and insular life, indifferent to both vitality and connection—until his cool new neighbor, Austin (Paul Rudd), moves in down the block. 

Austin is everything Craig’s not: he has an exciting job as a well-known weatherman, wide-ranging interests from music to ancient history, and a large pool of male friends. He’s got rizz and aura, as the kids say, with good hair to boot. When Craig’s wife sets the two up on a bro-date, Craig’s instantly charmed, even smitten, and eventually becomes obsessed. While the story unfolds along the lines of Fatal Attraction, there’s thankfully no implied homosexual undertone. Rather, this is the platonic, heterosexual, and all-too-common story of an adult man struggling to find “friendship.” 

Far from a psycho-sexual thriller, Friendship is black comedy at its finest. Tim Robinson—best known for his cringe-inducing, “regular guy” sketch show I Think You Should Leave—injects his signature unhinged energy into every mundane interaction. 

Austin introduces Craig to the rest of his friends, where the group of men hilariously bond by harmonizing Usher’s “My Boo” before engaging in a friendly boxing match. Of course, Craig is lanky and unathletic, so Austin lands a few effortless punches. But Craig also doesn’t quite get the subtle social nuances of friendly competition, and he sucker punches Austin in response, expecting the gang to cheer. Instead, they turn on him, and his “apology” only makes it worse: “I’ve been a bad boy,” he says, shoving a bar of soap into his mouth. The scene feels seemingly endless, as the men gawk at Craig’s increasingly excruciating struggle session. I laughed, along with the rest of the audience, but also wriggled a bit uncomfortably in my seat. 

After only “a few good hangs,” Craig’s sheer social ineptitude proves to be an irredeemable embarrassment. Austin bluntly informs him, “I no longer wish to continue this relationship.” In a spiral as hilarious as it is pathetic, Craig spends the rest of the film losing his mind (and his dignity) trying to prove both to himself and Austin that he can be one of the guys. (From this point, there will be spoilers.)

Most men don’t crash out over a brief friendship fizzling, even if it ends on shameful terms. They don’t obsessively try to emulate their friend’s interests and hobbies, failing miserably, as Craig does, because they just don’t have his natural aura. They certainly don’t break into said friend’s house in a fit of insecurity, steal his gun, and then come back later to boys’ night uninvited to force “a hang” at gunpoint. 

Raised in this new America, many millennial boys have grown up with a total ignorance of how to connect as adults, destined to forever be that guy.

But many men are seeing a sharp decline in their social lives, which makes them more likely to become that guy in the first place. Craig is certainly not alone in his desperation; surveys show that male social circles are shrinking. Whereas 40 percent of men said they had 10 or more “close friends” in 1990, that figure fell to 15 percent by 2021. An equal proportion now say they have “no close friends” at all, compared to just 3 percent in 1990. And even the film’s director isn’t immune. 

“I saw myself kind of spinning out,” DeYoung told The New Yorker, detailing his own failed friendship that inspired the film (which he also wrote). Like Craig, he pathologizes friendship, explaining the “alienating quality” of meeting new groups of buddies, “even if they’re nice and trying to bring you in.” And despite seeking low-pressure friendships based on “just fuckin’ around and hanging out,” he’s too neurotic not to overthink it. He was even worried about how making the film together would affect his friendship with Robinson. 

Yet to DeYoung, the struggle to find meaningful friendship isn’t a universal experience that all men (and all people) go through, but more a symptom of the time we live in: “It feels like the fascistic turn we’re experiencing now is a response to the invitation to vulnerability in the culture,” he explained. “We’re in a hyper-stimulated world, so it makes sense to go to the right, because it gives you at least a sense of control. Ideally, Craig embodies some of that rage of not knowing how to connect, yet deeply wanting to.”

So it’s no surprise that the film’s tagline reads, “Should Men Even Have Friends?” It feels tongue-in-cheek, and it probably is—but it nevertheless hits differently knowing the director thinks the best way to resist the rising tide of “fascism” is to preemptively neuter yourself and submit. Despite the banal lecture, however, Friendship is still one of the most entertaining movies of the year so far. And DeYoung is somewhat right, just not for the reasons he thinks. 

The trial-and-error of adolescent social bonds offers a sort of training wheels to adult relationships. At that age, the stakes are quite low. Ostracized from one group? Join a new club, choose a new summer camp, sit at a different lunch table. Most guys eventually learn the game; after all, we’ve all been that guy at some point in our lives. But those who don’t are left floundering without the early life lessons they ought to have learned, now facing the real world stakes of adulthood, where the opportunities to make lasting friendships become far more scarce and loneliness is self-perpetuating. Boys used to have ample opportunities to experiment in this socialization, but for millennials and above, “boys will be boys”-type activities have increasingly fallen out of the social milieu. DeYoung’s “invitation to vulnerability” seems to imply that boys should simply act more like girls if they want to connect in the modern world, yet the film still romantically clings to these boyhood activities. 

As two grown men, Austin and Craig partake in all the usual activities that teenage boys are apt to do: adventures in an abandoned aqueduct, rock bands, ancient knife collecting, and of course, fist fighting. But for boys today, these activities all risk being pathologized out of existence. What was once an “adventure” is now felony trespassing; good luck explaining that on your permanent record. Want to jam out? No, practice piano five hours a day so you can get a scholarship to Yale. Interest in historic knives? Careful, you might hurt yourself, and are these things even legal to own in your state? What about a little friendly boxing? Try explaining that in your deposition when another parent decides to press charges. 

We’ve sacrificed normal boyhood interests and rituals on the altar of credentialism, safetyism, and downright litigiousness, and then we throw ADHD drugs at the problem to feel like it’s all okay. But boys are still paying the price down the line: these new social conventions are the problem, not the solution. Raised in this new America, many millennial boys have grown up with a total ignorance of how to connect as adults, destined to forever be that guy. So it’s no wonder that many, like Craig, are opting out entirely: surveys show 1 in 4 American men 15-34 experience “a lot” of “loneliness,” far outpacing the national average as well as international figures for men in the same demographic. 

Endless ink has been spilled on derivative think pieces in recent years, tracking the problem along the same lines as DeYoung: If only men could ditch their so-called toxic masculinity, then they’d be just fine. Yet the film succeeds because it’s far less hostile: instead of reveling in the pain of that guy, it comes from a place of empathy by way of someone who feels like that guy himself. Because it’s written from this perspective, however, it’s imbued with a sense of insecurity, if not mild resentment, towards normal, well-adjusted, masculine men, and inevitably sees Austin as somewhat the bad guy. 

You have to imagine DeYoung felt a bit of schadenfreude setting up Austin’s character as a fraud. His toupee slips—so much for that lush head of hair—and Craig’s hostage hang turns to a hilarious bonding moment, as he keeps the rest of the guys on the ground until Austin can refit his hairpiece. As the police drag Craig out, Austin throws him a wink. 

It’s a cheeky ending, but is this really what male bonding hinges on today—the acknowledgement that masculinity itself is a lie, and that any pretense otherwise serves as an obstacle to having friends at all? In this formula, the necessary “vulnerability,” as DeYoung calls it—which is really just a neurosis—comes from rejecting traditional masculinity, but in reality it goes both ways: The new social push for men to be more “vulnerable” (i.e. feminine) can be just as alienating as the old standards of masculinity, with both dictating that men conform to a prescribed place on the Masculinity Map. Yet the real obstacle to friendship is trying so hard to connect in the first place, that social consensus, rather than organic relationships based on common interests and individuality, becomes the ultimate goal when it should simply be a downstream side effect. Strained efforts to make this into a tale of friendship-heuristics are but a symptom of the original failure, and the real “control” comes from reclaiming a sense of personal agency amidst overbearing social pressure. 

Social bonds come from the vulnerability of revealing your true self to others, knowing they may or may not feel a connection; if they do, your bond is that much stronger for it. That’s nothing new, and Americans of all stripes could use a little more of it. But the path to making friends isn’t thinking (and stressing) about it as if friendship is a college exam to ace or a punishment to avoid, and the lesson modern men need to hear more than anything else is to just chill out: do things with other people, things you actually like and think are worthwhile, and don’t obsess over whether they’re socially optimized. Because the more you worry about being that guy, the more likely you are to become him. 

One of the perennial questions of political philosophy is the relationship between man and nature. Is nature fundamentally hostile to life, or does it—instead—make all we cherish worthwhile? For all their disagreements, thinkers as different as Aristotle, Thomas Hobbes, and Jean-Jacques Rousseau all saw man’s relationship with nature as a fundamental, perhaps the fundamental, problem of politics. But despite the ever-present character of this problem, contemporary American society has increasingly become uncomfortable with questions about it. The modern blockbuster—defined as it often is by stories of superheroes, fairy tales, and sci-fi universes—so often speaks to us not about the frequently uneasy relationship between man and nature but about the human capacity to transcend the limitations of our natures, to become whatever it is we want to be.

At first glance, Jaws would seem to be a most unlikely candidate for a film that seriously considers man’s place in the natural world. Released 50 years ago in the summer of 1975, Jaws was a film that captured the imagination of the nation, all but inventing the summer blockbuster and forever pervading popular culture. Even those who have not seen the film are undoubtedly familiar with the classic shark motif by the Academy Award-winning composer John Williams, as well as the ominous warning relayed late in the film: “You’re gonna need a bigger boat.” To many, Jaws is a film whose universal appeal, financial success, and presence in our cultural memory bespeaks a lack of depth. The truth is that the appeal of Jaws rests in its able handling of problems that are universal to the human experience and political life. Jaws confronts the frailties of human nature, the precarious yet valuable position of civilization, the limitations of democratic politics, and the human capacity for virtue in the face of adversity.

Jaws follows Martin Brody, played by Roy Schneider, whose simple and contented existence as the police chief of a small New England town named Amity Island comes to a halt with the discovery of a mangled, mutilated body on the beach. In the film’s famous opening, a young woman named Chrissie Watkins had gone skinny dipping and been attacked and killed by a great white shark. Her would-be male companion—so drunk that he could not even make it into the water before having passed out—slept uselessly on the shore while the young Chrissie lost her life. The film’s dramatic opening sets the tone for all that follows. As innocent young people die, hedonists are unable or unwilling to do anything about it. The pleasures of civilization sometimes coexist uneasily with a world where so many natural forces threaten us.

Chief Brody is a good man swept up in these events. His very first scene establishes him as a man devoted to the traditional family. He is happily married to his wife, Ellen, and he is a good father to his two children. In one of his earliest scenes, Brody chides his son for playing on a dangerous swing set in their yard. The lives and safety of his family are of the utmost importance to Brody. But, in this case, the danger resides in his own yard, foreshadowing the far more serious problem of the shark that is to confront the whole town later. Lying out of sight deep beneath the ocean waters, there is a threat to the well-being of Amity Island’s citizens in the form of the shark, a force of nature that is—as photographs of Megalodon teeth early in the film suggest—a throwback to an ancient, prehistoric era, one before the rise of democracy, civilization, or even true politics. The very same ocean that had given life to Amity Island’s comfort and guaranteed its position as an affluent, tourism-heavy community now presents a threat to its very existence.

A shark can never be mollified through the ordinary procedures of liberal democracy.

Having seen the body of Chrissie, Chief Brody rightly concludes that the death was caused by a shark, and he attempts to close the beaches. He is challenged, however, by the mayor of Amity Island, Larry Vaughn. Mayor Vaughn is the quintessential politician. Slimy and self-interested, the mayor’s principal concern is not with the safety of the citizens he was elected to serve but instead with preserving Amity Island’s status as a wealth-generating tourism attraction. “Amity is a summer town,” he says, and it needs “summer dollars.” Having convinced, or possibly bribed, the town coroner to falsify the events of Chrissie’s death as a boating accident rather than a shark attack to avoid public panic, Mayor Vaughn embodies the dangerous tendency of elected officials to sacrifice truth on the altar of expediency.

In 1975, the nation was troubled by the twin crises of Vietnam and Watergate, and it was in no mood to trust its political officials. It is therefore no surprise that, in a film from this era, we see a marked cynicism about government. What is surprising—however—is the very depth of Jaws’ skepticism about the capacity of elective politics to save us. In the 1970s, most Americans resented the alleged corruption and power-seeking of their national officials as well as the big city machine politicians, but they still generally regarded the governments of smaller-scale communities and towns with a measure of trust and appreciation. Mayor Vaughn, as the product of small-town America, a secluded island community seemingly insulated from the corruption of the great urban centers and the machinations of Washington politics, should be immune from the temptations that befell controversial figures such as Lyndon B. Johnson, Richard Nixon, and Richard Daley. Mayor Vaughn reveals, however, that the problems facing American politics do not reside simply in distant capitals or great financial cities. They touch the very heart of the nation. Even a small town as romantic and isolated as Amity Island can be moved, by the power of self-interest, apathy, and excessive individualism, to elect to high offices persons of low character.

Predictably, the decision of Mayor Vaughn to keep the beaches open leads to still more tragedy. The young boy Alex Kitner is killed by the shark in broad daylight, and the town finds itself unable to ignore the problem any longer. The islanders convene in that most ancient of American democratic symbols—the New England town meeting—and they demonstrate a lack of respect for the seriousness of their situation. Making light of the shark attacks and focusing primarily on their hope to win the bounty attached to killing the shark, we can here see that the rot of corruption has afflicted not only politicians but also ordinary citizens, threatening that most American of practices—democratic self-government. Set during Independence Day in a New England town that evokes images of Pilgrim democracy, the local self-government of Amity Island has been hallowed from its original purpose of religious, democratic community and has instead become self-absorbed, defined by idleness and money-seeking. Jaws reflects a reverence for the old America—the America of the Founders and of the Pilgrims—but it also suggests that the threats it faces penetrate its core so deeply that it cannot be saved by the typical practices of liberal government, such as democratic elections, governmental legislation, or economic programs. A shark can never be mollified through the ordinary procedures of liberal democracy.

It is in this important scene that a very unordinary man, Captain Quint, is introduced. Obsessed with the shark, Quint is Jaws’ answer to Captain Ahab of Moby Dick fame. But while both seamen share an obsession with hunting and killing great maritime beasts, Captain Ahab and Captain Quint are more different than first meets the eye. Ahab was said to have had “the blood of the American fathers in their veins,” suggesting an ancient lineage and a powerful sense of rootedness in the nation’s history and traditions. Quint, however, is not noticeably animated by a concern for traditional values or patriotic loyalty. His appeal to the townspeople of Amity to enlist his services to kill the shark appeals not to patriotism or to the common good, but to their self-interest: “Gonna stay alive and ante up,” he queries, “Or ya wanna play it cheap, be on welfare the whole winter?” Throughout the film, Quint is abrasive and pragmatic. He is single-minded in his obsession with sharks, and he makes a living as a sailor hunting and killing them. He is an individualist, with no visible attachments to kin or family, or even to the community of Amity Island to which he belongs. Even his love of the American national community, which he served with valor during World War II, was perhaps shattered by his experience on the USS Indianapolis. Abandoned by his own government because the secrecy of its mission to deliver the Atomic Bomb was deemed more important than the survival of the Indianapolis sailors, Quint comes away from the sinking only with a single-minded desire to enact vengeance by hunting down those sharks who once hunted him.

Quint’s pitch to the townspeople, however, falls on deaf ears, at least initially, as the mayor promises to take his proposal “under advisement.” Chief Brody decides, however, to call upon his aid. It is shortly thereafter that we are introduced to Matthew Hooper, a scientist from the Oceanographic Institute who has spent his life studying sharks. As the citizens of Amity Island embark on a failed attempt to hunt down and kill the shark, and as Brody and Hooper uncover clues as to the species of shark that is on the prowl, still more death mounts on the beach. As the islanders look on helplessly, with three people dead—all young—and with still more threatened, it becomes clear that only a skilled shark hunter such as Quint will be up to the task. Even Mayor Vaughn comes to recognize the precarious situation of the town, signing his name to the contract to enlist the services of Quint for a pretty penny. What changed his mind was the near-death of his own son, who was within striking distance of the shark when it devoured its third victim. “My children,” he says, “were on that beach too.” It is because the shark’s primary victims are teenagers and children that even its most corrupt officials are stirred to act. Threats to the family must be neutralized.

Naturally, the final half of the film focuses on the hunt for the shark that is undertaken by our three main cast members: Quint, Hooper, and Brody. Each person represents a different aspect of American civilization. Quint is a quintessentially democratic man—individualistic, committed to equality, and devoted to liberty, especially the freedom represented by the seas. He looks at Hooper with a very suspicious eye, considering him to be a college-educated city boy and a man of privilege and wealth rather than a true sailor who is attuned to nature. Hooper is a scientific man, one whose expertise and life of study of sharks has brought him wealth and status, but that has left him—Quint suggests—dangerously uprooted from nature. The two men initially clash, for they could not be any more different in class, temperament, and background. The populist Quint regards himself as a “working class hero” against the urbane experts and elites such as Hooper. Hooper is called from outside the town, while Quint is a local—albeit a hermit and a loner. Hooper is a man of great wealth, whose yacht would not be out of place in the nation’s wealthiest communities, while Quint prides himself on his spartan and simple sailor’s life. And yet, despite their vast differences, they ultimately develop a mutual respect for one another. The two connect over a shared fascination with sharks as well as common experiences, such as manly adventures on the sea. What began as a socialistic depiction of inevitable class conflict between a working-class populist and a wealthy elite soon becomes an illustration of how unity of purpose and sympathy of interest can transcend class divisions and cause friendships even in the most unlikely of places.

Let us remember, with Chief Brody, that while local self-government and ordered liberty have their difficulties, in the end they create a civilization worth fighting for.

And yet, it is neither Hooper nor Quint who plays the most decisive role in the demise of the shark. It is Chief Brody, the film’s greatest embodiment of traditional republican values. As a police chief, he represents in his very profession the Founding intention to create a “nation of laws, not of men.” He is an upholder of law and order and, as depicted in his earlier clashes with Vaughn over whether to keep the beaches open, a man who sincerely wishes to protect his community. And yet, the Americanism of Brody lies deeper still, for of all our characters, he expresses the most concern for the ideals of the American Dream. Brody is not obsessed with sharks, or even a lover of the water. Neither scientist nor sailor, he is a happily married man who came to Amity Island seeking a better life for his family. He fled from the violence and corruption of New York City and found an American Arcadia in Amity Island. It was, as he explains, a place where “one man can make a difference,” a place where his wife and children could live in safety without fear of murder, theft, or rape. It was, in short, a place that seemingly embodied the very best of the American values that are celebrated on Independence Day: local democracy, individual liberty, and civic virtue.

Now, with these values threatened, both by the killer shark and by the corruption of Amity’s politicians, Chief Brody has to face his fear of the water in order to defend the American way of life. While Hooper’s effort to slay the shark using the power of science comes up short in the finale, and while Quint finds himself devoured by the very creature he had hoped to display as his greatest trophy, it is Chief Brody who ultimately—through his resourcefulness and persistence—brings the shark to heel. Perhaps it is the case that Brody was the only one who could have killed the shark. His battle was waged not because of personal fascination or fanatical obsession, but instead because it was motivated by a simpler yet still more powerful desire to sustain his community’s way of life, to restore ordered liberty to the town of Amity Island, and to make it a place that would be safe for his family and community once more.

Jaws ends not on a pessimistic note but on a hopeful one. It was a film that explored the tendency of democratic politicians to act in the name of self-interest rather than the common good; that depicted local democracy in the New England town meeting not as a particularly deliberative event but instead as facetious; that showed how the representatives of democratic equality and scientific expertise alike were unable to defeat a powerful force of nature such as the shark. Though we pride ourselves on the advancements of our civilization, sometimes the threats that are closer to nature—both human and beastly—are the ones that most threaten us. Just as the shark is motivated only by nature’s call to “swim and eat and make little sharks,” so too do the humans of the story, such as the mayor and many of the townspeople, often exhibit traits that are in-keeping with the darker, more Machiavellian aspects of human nature, such as self-interest and hedonism. Like the American Founders, Jaws recognized that these qualities are not up to the task of sustaining a free society that depends upon more virtuous qualities such as selflessness and spiritedness.

As Chief Brody triumphs over the Great White, and as he and Hooper swim to the safety of the scenic Amity beachfront, we are left to consider not only the threats posed to American democracy and its serious limitations, but also the capacity of ordinary citizens like Brody to confront them and to preserve what is best in their traditions. Today, the nation is beset by many threats—political, economic, and cultural—that, like the shark, sometimes lurk invisibly beneath the surface of the waters. While we often turn to our elected officials, intellectuals, specialists, and obsessives to solve our problems, Jaws reminds us that, in the end, it is often those of more ordinary virtues such as Chief Brody, embodying qualities such as personal responsibility, family devotion, and self-sacrifice, that do the brunt work of upholding our civilization. The 50th anniversary of Jaws comes at a moment when the benefits of American republicanism are less apparent than they used to be. Let us remember, with Chief Brody, that while local self-government and ordered liberty have their difficulties, in the end, they create a civilization worth fighting for.

It is always rather thrilling to be around for the birth of a new movement. To watch a fresh crop of intellectual leaders emerge, the publication of exciting new ideas, and the creation of institutions designed to make the movement’s vision a reality. The preceding decades have witnessed a steady stream of newly minted schools of thought. Some of these—such as national conservatism and integralism—have gained a great deal of public attention. Others have flown a bit more under the radar. Perhaps none more than the movement to revive classical architecture.

Spearheaded by the National Civic Art Society, this movement aims to upend the contemporary architectural landscape by waging total war on modernism. Their greatest achievement to date has been to convince the Trump administration to issue a blanket ban on the construction of any federal building that is not in the neoclassical style. As is too often the case with new intellectual movements, groups like the National Civic Art Society apprehend a genuine problem—the simple ugliness of most public buildings—but their solution is reactionary and reveals a shockingly superficial understanding of art.

The classical architecture movement locates the fountain of all artistic darkness in a little-known set of federal regulations called “the guiding principles for federal architecture.” Drafted in the early sixties by the future senator Daniel Patrick Moynihan while he worked as an assistant to the Secretary of Labor, the report states, in short, that the government should pay significant attention to the architecture of the buildings it commissions—constructing interesting, beautiful buildings that reflect both our democratic nation and the very best of contemporary architecture. Almost no one protests that buildings should be beautiful rather than bland, but the advocates of classical architecture reject, in principle, Moynihan’s idea that public buildings should be constructed in the very best examples of contemporary architecture.

To understand the federal architecture guidelines as an uncritical, unthoughtful attack upon traditional buildings is a grave mistake. Moynihan did not hate classical architecture, nor was Moynihan uncritical of some modernist buildings that failed to live up to his aesthetic standards. When the Hart Senate Office Building was unveiled in 1981, Senator Moynihan cheekily proposed: “Whereas in the fall of 1980 the frame of the new Senate Office Building was covered with plastic sheathing in order that construction might continue during winter months; and Whereas the plastic cover has now been removed revealing, as feared, a building whose banality is exceeded only by its expense; and Whereas even in a democracy there are things it is well the people do not know about their government: Now, therefore, be it resolved, That it is the sense of the Senate that the plastic cover be put back.”

Moynihan did not see the guidelines as an attempt to quash classical architecture—as some of its opponents argue—but as an attempt to bolster and expand the offerings of American civilization. As others have eloquently articulated, Moynihan believed that a nation incapable of advancing in architecture was a nation in decline. Put another way, the only reason to continually reuse the same model for buildings without any alterations is if we are incapable of producing anything new. This does not mean that traditional architecture is bad or should never be used. But it does mean that America should be making its own contributions to architectural history and building upon the past rather than just repeating it. As an example of the wonders America has already produced, Moynihan would point to such achievements as prairie style architecture and the invention of skyscrapers.

There is a great deal of truth to Moynihan’s sentiments. Architectural puritans who prefer a strict adherence to pre-modern buildings neglect the beauty of many more contemporary structures. They also display a frightening inability to appreciate America’s many unique contributions to the world of art. The Empire State Building, Falling Water, and the US Air Force Academy Cadet Chapel—these are our Westminster Abbey, Versailles, and St. Peter’s Basilica. They enliven the world of art and give America a place of its own in the pantheon of great civilizations.

Yet the critics of the guiding principles of federal architecture are not entirely wrong. Though modern architecture is not inherently bad, it is also not inherently good. Nor should we build all new government buildings in a modernist style just to promote contemporary design. Instead, we should set out clear standards for what makes a building truly beautiful. For some, buildings being new and breaking with the past is the whole point of a building. These designers artfully construct great concrete slabs that do not look so much like architecture as some sort of post-apocalyptic bunker. Such structures break every pattern and taste and are no more worthy of artistic glory than a toilet placed on a pedestal in an art gallery.

The mistake of the classical architecture movement is to think many of our public buildings are ugly simply because they are modern.

However, this does not mean that advocates of classical architecture offer a robust aesthetic alternative to modernism for the sake of modernism. For many devotees of classical architecture, the key to a good building is simple—it is traditional. Slap some ionic columns on a noble Roman edifice or some stained glass on a great stone cathedral, and you have a beautiful building. Like most simplistic formulas, this is simply wrong. To see and understand the true heart of good architecture, traditionalists would do well to turn to the ideas of the greatest American architect of the twentieth century, Frank Lloyd Wright.

Born in 1867 and living through most of the following century, Wright is responsible for many of America’s greatest modern architectural marvels. In addition to his practical output, Wright was a serious writer and thinker. His writings reflect an appreciation not just for the practice of architecture but its theory—chiefly, what is the purpose of a building? Wright provided a two-part answer to this question. First, a building must be useful. At first blush, this may sound a touch utilitarian, but there is a simple truth to it: a house is meant to be lived in, an office is made for working, and an art gallery is designed to look at art. These structures must be constructed in such a way as to make possible and even enjoyable the activities they contain.

The second key purpose of a building is to be beautiful. This is a harder criterion to understand since the exact meaning of the word beauty is hotly contested. Wright uses this deep philosophical question to advocate for what he calls organic architecture. For Wright, the chief component of human-produced beauty is that it reflects nature. In other words, no human is capable of creating something beautiful that purposefully diverges from the world around it. Just as importantly, a building should not only complement the environment in which it is built, but the various components of the building must flow seamlessly into one another. Though perhaps unintentionally, Wright provides the firm foundation necessary to condemn modern buildings that seek purposefully to contrast with their surroundings or to be in some way unsettling.

The idea of organic architecture led Wright to invent the Prairie School of architecture. A style characterized by open floor plans, large glass windows overlooking natural landscapes, and the use of organic materials in construction. Though these concepts have impacted all of modern American architecture in tremendous ways—almost no newly constructed home has a closed floor plan—the guiding principles of prairie architecture can easily be applied as a standard for all good architecture, not just more modern work.

To prove this point, let’s take the example of one of America’s great traditional architects, Thomas Jefferson. Though better known as a politician and thinker, Jefferson-designed buildings are scattered across the rolling hills of Central Virginia. The most famous examples of his work are his private residence, Monticello, the University of Virginia, and the state capital of Virginia. All of Jefferson’s designs meet Wright’s criteria for good architecture, even if they are stylistically quite different from the Prairie School. Jefferson built his noble edifices with a clear purpose in mind that altered every aspect of their construction. For Jefferson, a university must have certain features conducive to learning, just as a home must have stylistic additions that provide comfort. In addition, Jefferson worked hard to blend his preference for Palladian architecture with the local material of brick. This helped ensure that his buildings blended seamlessly into the surrounding community. Likewise, Jefferson sought always to make sure that his buildings took into account the natural environment around them, adding to a landscape rather than disrupting it.

Though Frank Lloyd Wright and Thomas Jefferson designed entirely different sorts of buildings, they both met the principles of organic architecture. Thus, their buildings are both beautiful and worthy of adulation and repetition in American public architecture. However, the advocates of classical architecture are not wrong to notice that something has gone wrong with American public architecture. Many of our buildings are ugly, and the government seems to be building such structures with increasing frequency.

The mistake of the classical architecture movement is to think that many of our public buildings are ugly simply because they are modern. This is not the case. They are ugly because they are inorganic, because they purposefully clash with their immediate surroundings, and consist of elements almost designed to disrupt the flow of a room. Quite often, this ugliness is intentional, as with many contemporary forms of art, some architects have lost sight of the truth that a building is supposed to be beautiful. Instead, they argue that art should “disrupt” and “unsettle” the comfortable bourgeois lives of those who view it.

More often though, contemporary public buildings are not intentionally ugly. They are ugly because they are the product of a fast, lazy society that prioritizes speed and utility over beauty. Blockish heaps of glass and concrete are not often the products of prominent modern architects like Frank Gehry and I. M. Pei—they are produced by public officials’ desire to prioritize every aspect of a building over its aesthetics. Thus, much of the problem with modern architecture today stems from the malaise that has gripped the whole culture of the West. The proper response is not to paper over our problem, to force the construction of nice buildings using misguided approaches to architecture.

Instead, we must give a new generation the inspiration to construct beautiful buildings in whatever style moves their heart. The architectural theories of Daniel Patrick Moynihan and Frank Lloyd Wright give us some idea of how such a revival can be brought about. Though innovation for the sake of innovation must always be discouraged, there is nothing wrong—and perhaps something very noble—about striving to forge a civilization that builds upon the artistic glories of the past. But, as Wright shows, such advancement must always be organic. New styles and modern buildings must strive to blend with the world around them rather than disrupt creation. Above all, we must revive a sense of the great and the magnificent. In the end, it is this alone that can save us from the mundane visual world we now inhabit.

The recent rupture between Donald Trump and Elon Musk occasioned dark chuckling in many corners. Nearly everyone saw this coming. Both men are used to running the show. Neither plays well with others. But the Trump-Musk fracture was more overdetermined than most realize. The personality conflicts mask deeper ideological tensions with implications beyond two oversized egos.

The right now hosts a strange blend of populism, Catholic postliberalism, and techno-optimism. These elements don’t mix well, as recent tensions in the conservative movement show us. No one embodies this unstable synthesis better than our vice president, one of the most philosophically sophisticated figures to hold the office. Vance’s intellectual journey began long before his political career, and each influence entered his thinking at different times. But the same tensions visible in his thought can be seen in the political right more broadly. The instability of those alliances could have significant implications for the right, and the country.

Rome, Silicon Valley, and Populism

Many years before Elon Musk and Donald Trump united in their brief alliance, the right found a techno-optimist spokesman in Peter Thiel. Thiel publicly criticized political correctness in the ’90s and platformed Ann Coulter in 2010. In 2011, Thiel gave a speech at the Yale Political Union on how “Higher Education is a Bubble,” arguing that chasing prestige would not lead to fulfillment. Talented people should throw themselves into valuable projects that improve the world. In attendance was a young J. D. Vance, who would become a protégé of Thiel’s.

Thiel believes that the forces of creative destruction, if appropriately organized, are on balance a good thing for humanity, and that one can generally count on technological advances to be good for humanity. Disruption creates more than it destroys, progress requires radical acceleration, and talent must flow freely across borders. Stagnation is death. Only technology can solve humanity’s greatest problems.

This brand of techno-populism found a more significant foothold on the right after Thiel supported Donald Trump in 2016 and eventually attracted more support from Musk and others. It tends to be harshly critical of the woke left and favorable to a libertarian approach to technology.

Meanwhile, in another corner of the political right, one finds a very different set of thinkers: Catholic postliberals. They represent a strain of thought that is both new and quite old. The Catholic Church has usually had an antagonistic relationship with liberalism, yet most American Catholics have come to believe that their faith can flourish within a liberal democratic order. But with the legalization of same-sex marriage and the rapid progress of LGBT rights, that belief came under pressure. Catholics had come out of the shadows and had fought to be treated as equals in the ’60s, ’70s, ’80s, and before. Then their views on LGBT issues, however, once more made them beyond the pale of American politics.

Catholic intellectuals have always influenced the American Right, going back to Bill Buckley. These Catholics generally sought reconciliation with the American constitutional order. But a newer generation of Catholic intellectuals has argued that there is something fundamentally wrong with the American liberal order and that it has to be replaced. That viewpoint now has a high-profile spokesman in Vance. Following his conversion to Catholicism in 2019, Vance befriended some of those intellectuals, despite being less skeptical of the American project than they were. These figures today include Patrick Deneen and Adrian Vermeule, among others.

Often referred to as Catholic postliberals, they oppose state neutrality in moral and religious matters, favor the common good over a stress on individual rights, and emphasize the primacy of the spiritual in political life. We should not leave the spiritual to private affairs, as it is an inherently public concern.

These two groups seem like unlikely allies, given that one is deeply traditionalist, while the other looks optimistically towards a bright (but radically transformed) future. But they have been brought together to a great extent by populist and nationalist sentiments of the Trumpian right. The convergence can be seen in a particularly interesting way in Vance’s 2020 essay, “How I Joined the Resistance,” in The Lamp, where he declared that he had come to understand the Trump phenomenon. He was very critical of Trump early on, describing him as an opioid, someone who cures the pain of the working class but doesn’t solve it. By the time he penned the essay, Vance had completely changed his tune. He began to give talks such as “The Professors of the Enemy,” which are very anti-elite.

The techno-optimists are elitist; Catholic postliberals are elitist; populists are not elitist. But all three are now recognizable influences on the right, to the point where Vance seems eager to reconcile them in a single view.

Central to populism is the idea that the majority of the population is fundamentally good and their interests conflict with those of a corrupt elite. Populists have stressed nationalism, trade protection, immigration restrictions, and a focus on the struggles of the American working class, particularly in the Rust Belt regions.

Economic Tensions

A populist concern for American workers does not mesh easily with the techno-optimist embrace of disruptive technologies, particularly artificial intelligence.

Vance, for instance, endorses populism and nationalism, which led him to support high domestic wages for American workers. This remains a consistent theme throughout his political awakening, even as his views change on Donald Trump. He argues that we must create high domestic wages for families to maintain stable families and communities. The deindustrialization of the Rust Belt has created many social maladies.

The same man, however, was able to give a speech to the EU, attacking them for AI regulation. One would think a MAGA adherent would have worries: this is going to disrupt the whole economy, change everything, automate jobs, and take away employment.

Vance recognized the contradiction when people challenged him and tweeted that he must write up his resolution. He then gave a speech at the American Dynamism Summit, where he attempted to square the circle. He argued that there are ways to organize public policy without regulating AI so that it works to the advantage of American workers. How do we get AI to maintain high domestic wages? It must amplify the productivity of the people using it rather than substituting for them.

It would seem obvious that the tech elite hold views of human nature that fundamentally conflict with Catholic teaching. Given these fundamental differences, one would expect postliberals to be wary of unregulated AI.

Vance also proposes incentivizing tech companies to hire American workers through deregulation and tax breaks. “If you’re trying to employ workers,” he contends, “we’re going to deregulate you, we’re going to cut your taxes. And if you start going overseas, we’re not going to do that.” He favors immigration restrictions so that wages will be bid up instead of letting everyone compete for the same jobs.

This view appeals to many people on the right today. The alliance validates them. Finally, the “smart people” aren’t all on the left. Tech titans join their cause. The right can win via creation and innovation rather than the accumulation of political power. American greatness comes through technological dominance. For those tired of being cast as backward traditionalists, Silicon Valley gives them cultural credibility.

But the tension is plain: techno-optimists embrace creative destruction while populists fear it. The tech right preaches “move fast and break things,” but populists say we must protect what we have. Several concerns emerge. It’s not automatic that more productive firms will pass those gains in productivity to their workers. One factor that passes on those gains arises from competition between firms for labor. However, Nationalist policies might reduce competition for labor by reducing the number of employers. With less competition among employers, wages could lag. This isn’t some trivial possibility given the many foreign multinational companies that come here and compete for American workers.

Moreover, most economists believe that restricting trade and immigration will lower productivity generally. The market dynamics are complicated, and no one knows how they will unfold, but if Vance is correct, it would be a happy coincidence. Concerning AI, the uncertainty increases dramatically. After all, no one knows what this technology can do, how good it will get, or how fast it will improve. It may automate knowledge work, hurting the upper class more than the American poor. But that could easily not occur.

Anthropological Tensions

A second and perhaps more fundamental tension exists at the level of philosophical anthropology—the understanding of human nature itself. Philosophical anthropology is the theory of the human person and the person’s function, the person’s ultimate end.

The philosophical anthropology of Catholicism holds that we are spirit-matter: embodied souls whose aim is to be united with God and other human beings in love forever. We’re incomplete without the spiritual dimension. The assumption is that there is a fixed human nature that tends to manifest itself over time.

People working within the tech sector tend to have wildly different views of humanity, and their techno-optimism is driven by that different philosophical anthropology. A Silicon Valley post-humanist views the person as a digital program. They dream about gaining the ability to upload from one’s body into the cloud.

For any Catholic, the human person is a compound of soul and body, forming a single entity that Aristotle called a hylomorphic unity of soul and body. God created and ordered your spiritual nature, and your biological nature is part of your nature, fixed and immutable. Together, they combine to make a human person.

It would seem obvious that the tech elite hold views of human nature that fundamentally conflict with Catholic teaching. Given these fundamental differences, one would expect postliberals to be wary of unregulated AI. But now, in light of this new landscape, postliberals have grown relatively quiet about the dangers of techno-populism, occasionally even exploring techno-optimist stances themselves.

Deneen, for instance, recently wrote a Substack post where he tried to explore the potential compatibility of MAGA and DOGE (the Department of Government Efficiency), indicating that in some cases, postliberalism countenances spending cuts, and not in other cases. The broader commitments of postliberals give them every reason to criticize the tech right that pushes these ideas and supports strong regulation of AI. However, this hasn’t happened to anything like the extent one would expect.

Today, a contingent of the right embraces techno-optimism and opposes AI regulation, one of the most significant policy positions in the history of the human race. Yet many of the same people claim to favor the working class and to support policy and political institutions that focus on creating virtuous people and preserving social cohesion. For Vance specifically, it seems like the techno-optimist is in the driver’s seat, while the postliberal has receded. But as recent events have shown, things can change quickly. These new alliances are unstable, incorporating many deeply conflicting influences. Unsurprisingly, we would see some ruptures when the influences genuinely conflict. It is hard to adopt both postliberalism and techno-optimism simultaneously, especially in a populist moment.

The current conflicts are only the beginning. As AI advances, along with social change, the tensions between these camps will only expand. What will the right do? Will it embrace creative destruction, protectionism, or postliberal “First Things”? The right cannot have it all. The synthesis will not hold.

The unitary executive is one legitimate answer to a fundamental challenge of American republicanism: How do we protect liberty and popular sovereignty while giving the state sufficient authority and efficiency to govern well? There are illegitimate answers, like contemporary federal arrangements that allow for a collection of muscular, independent agencies that sit above or between the branches. That approach violates republicanism by expanding government authority and efficiency at the expense of a limited state and democratic control.

A more interesting question, in my view, is whether there are other legitimate systems that are as good or even better than the unitary executive at responding to America’s unique characteristics. I think there may be. This is why I see the unitary executive as an answer, not the answer, to shaping the executive branch in a democratic republic.

Designing a Republic

Imagine you’re entirely new to issues of governing. If your instinctual priority was the preservation of liberty, and your only knowledge of political theory came from some of the most famous Federalist Papers (say #37, #39, #47, #48, #51), you would likely want to maximize the separation of powers and ensure all state authority could be checked by the people. Unaware of the possibility of a bill of rights, you’d believe that democracy and the wide distribution of power are the keys to maintaining freedom.

If you were then shown the structure of state governments today, you’d be optimistic about the state of liberty. Government authority is allocated among a variety of officials directly elected by the people, preventing a single demagogue with authoritarian proclivities from consolidating power. Depending on the state, the list could include legislators, governors, judges (including state supreme court justices), attorneys general, treasurers, state superintendents, agriculture commissioners, state board of education members, secretaries of state, comptrollers, insurance commissioners, public university regents, and more. Moreover, states’ use of initiative, referendum, and recall further democratizes and distributes authority. And in many states, executive-branch regulations (a way authority could be centralized and insulated from democratic forces) are subject to legislative oversight. State governments, you’d conclude, must take liberty seriously because they sure take the separation of powers and democracy seriously.

But if you were then shown the US Constitution, you’d probably conclude that liberty was constantly threatened by Uncle Sam. The federal government’s authorities, by comparison, are barely separated, and democratic control is attenuated. Members of one house of Congress get six-year terms. Federal judges aren’t elected; they’re appointed and confirmed through an insulated process. A single president (a “unitary executive”) has all of the executive-branch authority, potentially enabling the rise of a demagogue. Moreover, the president is picked indirectly by a curious electoral college. There’s no initiative, referendum, or recall, and there’s no requirement of legislative approval of agency rules.

After considering the enormous powers of the federal government, you’d probably start to imagine all of the ways federal authority could have—actually, should have—been further separated and democratized. That is, Washington has powers that states don’t, especially those related to war, treaties, international trade, interstate commerce, and currency. And Washington, thanks to the Supremacy Clause, the Commerce Clause, and the Necessary and Proper Clause, would be able to constantly expand its reach. You might find yourself in favor of adding new houses to Congress, for instance, to focus solely on international matters or appropriations. You might argue for electing federal appeals court judges or Supreme Court justices; maybe splitting Article III into multiple independent court systems, for example, demarcating different verticals responsible for civil, criminal, original-jurisdiction cases, appellate cases, state-originated cases, and so on. And you might believe that the US attorney general, secretary of state, and secretary of the treasury should be elected. 

This list of structural changes is the way, you’d probably reason, to ensure American liberty at the federal level: Maintain the three-branch structure but distribute authority among a wider array of entities controlled by the people.

Lastly, imagine you were told that during the Progressive-New Deal era, federal arrangements had, in fact, been altered via statute. You’d probably smile and wonder which of the reforms you’d envisioned had been adopted. Think of your shock when told that, no, Uncle Sam had gone in an entirely different direction: He created a genus of entities floating between the branches and insulated from democratic control. 

It would be nearly impossible to understand how this happened. Unless you then learned something about republicanism and technocracy.

Reifying Republicanism

The framers of state constitutions and the US Constitution were not just liberals. They were republicans. They believed in preserving freedom, of course. But they also understood that the common good of the people required entrusting democratically legitimate officials with public duties and meaningful public authority. This is made clear, as Professor Rogers notes in his very good essay, across the Federalist Papers; those statesmen, Hamilton in particular, were aware of the need for governing energy. Harm would be done by the state’s doing too much and too little. As such, constitutions were not merely a list of limits on governmental power; they also included lists and assignments of responsibilities and authorities. Individual liberty could be protected largely, they believed, by smartly arranging strong institutions.

Populism arises when the people believe that those in power care about their own interests and not those of the public.

In this context, we can see that the difference between the high level of democracy and power-separation in state constitutions and the lower level in the federal constitution is a simple matter of reifying republicanism in different ways. Both wanted governments strong enough to accomplish public goals. State constitutions were willing to give governing power to a wider variety of entities (including via a “plural executive” model), believing the fragmentation of authority, plus the direct democratic power of the people, would prevent despotism. Rogers aptly describes this as “horizontally” partitioning executive power. The federal constitution was structured with fewer loci of power, but these strong branches would check each other and could directly or indirectly be checked by the people.

Said another way, there is not a single “republican” method of arranging governing institutions. But republicanism does require that institutions check one another and that the governed are in control. As such, American republicanism, I believe, would not be violated by a constitutional amendment that allowed the people to recall the president, or one that subjected US Supreme Court justices to retention elections, or one that made the US attorney general an elected position. Those may not be wise, but they are not anti-republican. 

What is anti-republican, however, are democratically unaccountable governing entities that sit above or between our branches of government. Here, I believe Rogers and I are simpatico.

Technocracy’s Cure

The Progressive-New Deal period was America’s least republican era. For a host of political, cultural, and technological reasons, many leaders soured on democracy and political experience and became enamored with an elite understanding of education and expertise. This turn to technocracy wasn’t limited to installing a different type of official inside our existing system. It aspired to change the system itself. Indeed, the creation of that era’s independent agencies can’t be understood in republican terms. They weren’t devised to protect liberty or strengthen popular control. Quite the opposite. They were designed to enable ostensible experts to lead swaths of public life independent of the voters and often the president. (Rogers, I think, would agree with this assessment, and I think we both believe this turn was bad for America.)

For these reasons, the application of the unitary executive theory to today’s federal government should be seen as a practical, republican response to the misguided technocratic impulses of a century ago. My assessment here is meant as a two-cheers endorsement of that theory. It addresses two major problems. It properly identifies as unconstitutional Congress’s creation of entities that sit between the branches and exercise quasi-legislative, executive, and judicial powers. Second, it recognizes that the people must be able to hold government entities accountable, and since the president is the electorally accountable official of the executive branch, agencies with executive functions must be accountable to the president. I believe Rogers and I agree on these points; in fact, I share his commitment to democratic accountability, the core of his essay.

I withhold one cheer from the unitary executive theory because while it is an appropriate response to this particular federal problem, I’m not convinced that it should be applied any more broadly. That is, I don’t believe American republicanism requires all executive power to be invested in a single figure. In other words, a unitary executive is a legitimate republican form, not the legitimate republican form. Rogers might disagree. 

However, in full disclosure, as a practical matter, I’m not a big fan of the plural-executive model used by many states—where executive functions are parceled out among an array of elected officials. My experience is that this can hinder, even debilitate, the executive branch. As just one example, an elected state superintendent, an elected governor, and an elected attorney general can take different positions on an education matter, which can confuse educators and families, and worse, end up in a years-long court battle. Rogers may agree. 

Then why would I not, as a practical matter, wholeheartedly support the unitary executive? Because what I see as the plural executive’s messiness and inefficiency might well be a natural antidote to populism. And populism is bedeviling American society and governing.

Populism arises when the people believe that those in power care about their own interests and not those of the public. Populism sustains and grows when the people have limited capacity to set things right. I believe we are in an era of perpetual populism because a suite of factors (changes in the economy, technology, culture, governing, etc.) have caused the people to feel powerless. Rogers and I both see a link between governing arrangements and populism; he writes, “One driver of modern populist politics, particularly on the right, is the feeling that vast sections of the national bureaucracy are immune to electoral outcomes.” 

I’m in favor, at least in this unusual moment, of enabling voters to engage in more debates about more public policies and hold more public officials accountable. So, as it stands today, I would not invoke the unitary executive model at the state level as a way of consolidating power in the hands of fewer state officials and reducing the number of democratically elected state offices. 

I would, however, happily invoke the unitary executive model at the federal level to enable the democratically accountable president to control any currently unelected, unaccountable independent agencies.

Tori Tinsley’s recent essay, “When Social Media Obscures Truth,” laments the state of public discourse, warns against government overreach, and celebrates John Stuart Mill’s faith in the individual reader. But in drawing a direct line from Mill’s nineteenth-century critique of mass media to today’s content moderation debates, the piece blurs critical distinctions—chief among them, the difference between moderation and censorship—and misrepresents how modern information systems actually work.

At the heart of Tinsley’s argument is the claim that “government and private entities” have become modern-day “super-regulators” of speech, threatening the intellectual autonomy of the individual. She invokes Mill to argue that truth should be determined by individuals, not institutions. But her framing then conflates very different actions within today’s social media infrastructure—removing content, choosing not to promote it, and selecting what to surface. It misunderstands who the First Amendment protects in the content moderation debates and equates moderation with telling the public what is true. And it misrepresents my own work, turning a defense of editorial freedom and a call for increased user agency into a strawman for top-down control.

Let’s begin with the basics. Moderation is not censorship. As law professor Kate Klonick details in her foundational article “The New Governors,” content moderation refers to the suite of policies and enforcement practices that online platforms use to shape the user experience of their services. Some are straightforward: removing illegal material like child sexual abuse content or explicit incitement to violence. Others involve value judgements: rules for addressing “lawful but awful” content such as spam (which, yes, is technically “speech”), harassment, hate speech, and viral hoaxes and misinformation. Platforms set their rules based on a mix of their own individual business incentives, community norms, and moral priorities. Rumble, for example—a video platform that brands itself as a free speech alternative to YouTube—uniquely prohibits content that promotes or supports Antifa. It is rare to find an online community ecosystem that does not have some speech guidelines against bullying and harassment; most people do not actually find free-for-alls pleasant to spend time in.

Moderation is not a binary between removing content or leaving it up. Enforcement typically falls into three buckets: remove, reduce, or inform. “Remove” is most akin to censorship (for those who apply the term to private companies enforcing their own rules); the content or account under question is deleted. “Reduce” throttles distribution; the content stays up, but may be shown to fewer users. “Inform” refers to labels or pop-ups placed atop a post to let users know the content is disputed in some way. This is adding more speech, or context, to the conversation.

The First Amendment protects the platforms’ right to set these rules. It protects Rumble’s Antifa rule. It protects YouTube’s choice not to promote videos claiming that vaccines cause autism. It protected Old Twitter’s right to label President Trump’s tweets alleging election fraud, offering a link that users could click to visit a third-party site with facts about mail-in ballots. Platforms have editorial and associational discretion—the government cannot force them to host or amplify speech that they don’t want to carry. They choose when and how they use that discretion; the growing number of platforms in the market, ranging from Bluesky to Truth Social, make distinctly different choices.

Separate from moderation rules are curation decisions—what platforms choose to amplify, recommend, or highlight on their front pages or within algorithmically-ranked feeds. Platforms are not neutral conduits. Their choices—whether determined by recommender systems or editorial teams—shape what people see. Here, too, the First Amendment applies. Platforms cannot be compelled to promote particular content any more than newspapers can be told what to print on their front pages.

That said, both moderation and curation represent significant concentrations of private power. And they are opaque. I study these systems; it is often extraordinarily difficult to determine why particular content decisions were made, or how recommendation algorithms are shaping what we see. Platforms exert real control over what information rises to the surface. When Mill wrote about the risks of public opinion overwhelming individual reasoning, he could not have imagined the automated and attention-optimized information systems we contend with today. But his concern remains relevant—perhaps even more so now.

If we want to solve the “indolent man” problem Mill identified, we need to equip individuals to think for themselves within the structure of modern media.

This context helps clarify the difference between editorial judgment and suppression. Tinsley, however, collapses that distinction in her treatment of my work. She cites a single fragment of a sentence from my book Invisible Rulers: The People Who Turn Lies Into Reality—that platforms have no obligation “to promote false content on all surfaces, or recommend it to potential new followers, or run ads against it”—and claims this means that I “want social media companies to limit the reach of false speech on their sites.” But those are not the same thing.

That sentence appears in a section laying out the principle of “freedom of speech, not freedom of reach”: the idea that platforms can enable expression by hosting and allowing access to controversial content, without being required to amplify it or accept money to promote it. It is a defense of editorial discretion with a nod to ethics: a platform does not have to accept ad dollars to promote claims that juice cures pediatric cancer, or weight a recommender system to boost sensationalism. It may choose to—and again, different platforms make different choices, as they appeal to different segments of the market—but liberty means it doesn’t have to. Any given content producer is not entitled to an algorithmic boost. This principle, which social media ethicist Aza Raskin and I first laid out in 2018, has become X’s moderation policy.

Tinsley reinterprets this argument as a prescriptive call for suppression and frames it as incompatible with Mill’s view that even falsehoods can illuminate truth. In reality, my position keeps ideas on the table while insisting that platforms are not compelled to place every idea at the top of the stack in modern communication architecture. It is precisely because platforms enjoy First Amendment protections—and because, as I emphasize in the section she selectively quotes, governments have no business writing content policies—that they are free to exercise discretion. Flattening my distinction is not analysis. It’s misdirection.

Tinsley’s confusion about how infrastructure shapes discernment continues in her next claim: “Some platforms, such as Facebook and Instagram, took action to combat fake news by installing misinformation features, perhaps to DiResta’s partial satisfaction. X, formerly known as Twitter, has a ‘Community Notes’ feature on its platform, and now other companies, like TikTok, have adopted similar features.” I’m not sure what “[my] partial satisfaction” is meant to imply—it’s a vague dig masquerading as insight—for user-controlled tools that promote discernment. Community Notes is exactly that. Although the platform rolled it out, it enables users to collectively flag misleading content, contribute context, and see that context surfaced transparently to others. It’s individually- and community-led deliberative infrastructure—precisely the kind of human-centered judgment Mill called for.

Community Notes complements other labeling systems that fall under the “inform” category. These are not coercive tools. They are interventions designed to support users in forming their own judgments, rather than leaving them entirely at the mercy of virality and opaque algorithmic decisions.

Indeed, just a few lines after the fragment Tinsley quotes, Invisible Rulers includes a section titled “Put More Control in the Hands of Users.” That’s a throughline of my work. If we want to solve the “indolent man” problem Mill identified—and that Tinsley rightly raises—we need to equip individuals to think for themselves within the structure of modern media. That means, for example, developing middleware: tools that give users more control over what they see. It means pushing platforms to offer transparency, choice, and appeals. And yes, it also means investing in facilitating an informed public. Invisible Rulers additionally explores ways we might learn from the historical efforts like the Institute for Propaganda Analysis, which emerged at a time when the mass media disruption was influencer-propagandists on the radio.

Tinsley and I agree: we don’t want the government—or platforms, for that matter—to declare what is true. But we must also recognize that the infrastructure of amplification has changed. Any serious defense of free speech today must contend not only with the law but with the architecture that determines which speech is seen.

In their dissent in Dobbs v. Jackson Women’s Health Organization, Justices Breyer, Sotomayor, and Kagan observed that the Constitution “puts some issues off limits to majority rule.” Everyone agrees with that. The argument comes over which issues are part of the “some” that are off limits to majority rule and which are subject to majority rule. The Court determines, as a practical matter, where the Constitution draws the line between policies that popular and legislative majorities can constitutionally enact and policies that those majorities cannot enact.

United States v. Skrmetti, the recent case in which the Supreme Court held that a Tennessee law restricting sex transition treatments for minors did not violate the Fourteenth Amendment’s Equal Protection Clause, is the most recent entry in the necessarily iterative process of deciding just where those lines are drawn.

The central legal dispute between the justices in Skrmetti may sound dauntingly technical to the layperson. It concerns the level of scrutiny that lower courts (and the Supreme Court) should apply to review the Tennessee law. “The only question this Court must decide,” Justice Sotomayor wrote in her dissent, “is whether the Constitution required” lower courts to apply “intermediate scrutiny” when reviewing Tennessee’s law.

At stake in what may seem to be formalistic legalities, however, is the matter of whether the great contentious questions of our day will be decided by state legislatures and democratic institutions, or by lawyers and judges. Insofar as courts contrive new categories for heightened scrutiny, they take more and more substantive questions of policy debate out of the hands of the people and their representatives. While today we commonly pit individual liberty against majority rule, for much of US history, collective self-government was understood to be a crucial element of what it meant to be free.

To understand the Skrmetti arguments, we need first to take a step back to view the larger jurisprudential canvas on which the justices are painting.

The Court’s Equal Protection Framework

As a baseline matter, states have “police powers” under which they legislate to advance the health, welfare, safety, and morality of the people. The trick, of course, is that these powers actually be used to advance the general welfare rather than to allow majorities (or minorities) to advance their own interests by oppressing others. Both the national and state constitutions place limits on state government action, seeking to channel state laws to advance the common good. Among these are the Fourteenth Amendment’s requirements, including the Equal Protection Clause.

The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” While the Clause at first reads as a duty for states affirmatively to protect people equally—a reading that Justice Thomas has recently begun to float in concurring opinions, including in Skrmetti—the traditional interpretation of the Clause requires that laws have reasons for the way they classify individuals and treat them differently.

The inquiry into whether a statutory classification is consistent with the requirements of the Equal Protection Clause examines the match between the trait that the law regulates and the mischief the law seeks to remedy.

All state-level legal classifications must pass constitutional muster under the Equal Protection Clause. But judges apply different levels of scrutiny depending on whether the challenged law triggers application of a heightened standard of review.

Given how determinative the level of review can be for the outcome of a case, the main bone of contention between the majority and dissent in Skrmetti circles around whether the classification used by the Tennessee law triggers some level of heightened review.

The Court currently applies three basic levels of scrutiny in its Equal Protection jurisprudence. The lowest level of scrutiny, which is the easiest level for a law to survive, is termed “rationality review.” The highest level of review, which is the hardest level for a law to survive, is termed “strict scrutiny.” Skrmetti hinged on the less-well-defined middle level of “intermediate scrutiny.”

Laws can trigger heightened review by touching on rights the Court has identified as fundamental, by regulating ordinary democratic political processes, or by evincing prejudice against “discrete and insular minorities” such as race, religion, or nationality. Classifications based on sex, however, receive intermediate review, because some but not all classifications based on sex reflect invidious gender-based prejudice.

For both forms of heightened review—intermediate scrutiny as well as strict scrutiny—the government bears the affirmative burden of proving that the law serves a real purpose and that the means the statute employs will achieve the actual legislative purpose.

In arguing that the operative category is “medical treatment,” rather than transgender identity, Roberts avoided the more contentious questions of whether the latter category might trigger heightened scrutiny in other contexts.

Under rationality review, the law enjoys the presumption of constitutionality, and those attacking the law must demonstrate that there is no conceivably legitimate or rational basis for the law. Under heightened review, the law is presumed unconstitutional, and the government bears the burden of providing proof that the law serves an important or compelling governmental purpose and that the law will actually achieve that purpose or is necessary to achieve that purpose.

Winning the argument over which level of review judges should apply when reviewing a law often will determine which side wins the case. As Justice Brennan pointed out in a 1958 decision, “In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome.”

Indeed, the highest and lowest levels of scrutiny imply almost pro forma judicial outcomes. As the late Gerald Gunther’s snide rule-of-thumb put it, rationality review is deferential in theory and non-existent in fact, and strict scrutiny is strict in theory but fatal in fact.

Applying the Court’s Equal Protection Jurisprudence to Skrmetti

The plaintiffs in Skrmetti argued two independent reasons the Tennessee law should receive heightened scrutiny from judges. First, they argued that the Tennessee law classifies on the basis of sex and should, therefore, receive intermediate scrutiny. Secondly, they argued that the law classified on the basis of transgender status, and laws that classify using transgender status should be added to the type of laws that receive some form of heightened review.

The Court rejected both of the plaintiff’s arguments and subsequently upheld the Tennessee law after applying the deferential rationality standard.

Before rehearsing the Court’s arguments rejecting any form of heightened review and therefore applying the rationality standard to review Tennessee’s law, it bears noting that it’s not entirely obvious that the Tennessee law would have failed to be held constitutional if intermediate review had been applied. Indeed, Justice Sotomayor suggests that possibility in her dissent (a point Justice Kagan refused to join). More pointedly, Tennessee argued the physical effects of gender transitions for minors are certain; it is the benefits of the procedures to minors that are uncertain. As a result, the legislation would be justified even under intermediate scrutiny.

Nonetheless, if heightened review applied, Tennessee would have to provide what the Court has termed an “exceedingly persuasive justification” for the law’s classification. And this is more difficult for states to meet than the rationality standard. As a result, the plaintiffs argued that Tennessee’s law discriminated on the basis of sex, and therefore merited at least intermediate review. They argued that the law “creates facial sex-based classifications by defining the prohibited medical care based on the patient’s sex.”

The Court rejected the plaintiff’s argument, holding that the Tennessee law classified only on “the basis of age” and on “the basis of medical use,” as opposed to the perceived “category” of persons who would be seeking that medical treatment. Neither of these classifications triggers heightened review by courts.

The plaintiffs undoubtedly held at least a reasonable hope that the Court would agree that the Tennessee law classified on the basis of sex, given the outcome of the Bostock case in 2020. With votes including those of Chief Justice Roberts and Justice Gorsuch (who wrote the opinion in Bostock), the Court held that the prohibition of employment discrimination on the basis of sex in Title VII of the 1964 Civil Rights Act applied to discrimination based on sexual orientation and gender identity. The Court controversially concluded that employers fired the plaintiffs in those cases for engaging in behavior that the employers would have accepted had a member of the opposite sex engaged in the same behavior. In other words, if one “substituted” a person of the opposite sex in the circumstances, their treatment would have been different.

The Skrmetti Court responded in two ways to the claim that the Tennessee law discriminated on the basis of sex. First, the Court argued that the substitution test from Bostock simply did not apply to the Tennessee law. Rather, the law classified on the basis of medical usage rather than on the basis of sex:

The plaintiffs and the dissent … contort the meaning of the term “medical treatment.” … For the term “medical treatment” to make sense, … it must necessarily encompass both a given drug and the specific indication for which it is being administered. …

When, for example, a transgender boy (whose biological sex is female) takes puberty blockers to treat his gender incongruence, he receives a different medical treatment than a boy whose biological sex is male who takes puberty blockers to treat his precocious puberty. … The [Tennessee] prohibition does not turn on sex.

Roberts and Gorsuch, both of whom joined the majority opinion in Bostock, rejected the claim that an analogous argument applied to application of the Fourteenth Amendment to the Tennessee law in Skrmetti.

The plaintiffs further argued in the alternative that the Tennessee law discriminated against transgender people and that the Court should expand heightened judicial review to legal classifications relating to transgender individuals.

For the same reasons as he concluded that the Tennessee law did not classify on the basis of sex, Roberts’ opinion for the Court denied that the Tennessee law classified on the basis of transgendered identity: the law classified by age and by medical treatment, Roberts insisted. In arguing that the operative category is “medical treatment,” rather than transgender identity, Roberts avoided the more contentious questions of whether the latter category might trigger heightened scrutiny in other contexts. It also continues the Court’s decided reticence to add to the set of constitutionally protected classes that receive heightened review.

Neither Justice Alito nor Justice Barrett were entirely satisfied by Roberts’ more limited argument. As a result, both wrote concurring opinions arguing that transgender individuals did not meet the requirements of being a “discrete and insular” minority group sufficient to merit heightened review under current law. Transgender activists, after all, emphasize gender “fluidity,” and the reality of detransitioners challenges the idea that transgender status is an immutable characteristic. And it is hard to argue that transgender individuals are politically powerless, another characteristic traditionally used to identify suspect classifications.

Because the Tennessee law did not trigger heightened judicial scrutiny, the Court applied rationality review to the law with the almost inevitable implication that the majority upheld the state’s law.

Outside of the nod at the possibility that the Tennessee statute might survive intermediate scrutiny, Sotomayor’s dissent is a mirror image of the majority’s arguments. Sotomayor writes:

In addition to discriminating against transgender adolescents, who by definition “identify with” an identity “inconsistent” with their sex, that law conditions the availability of medications on a patient’s sex. Male (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls.

Sotomayor devotes much of her dissenting opinion to arguing that the Tennessee law classifies on the basis of transgender identity, and that the class of transgender individuals should be included as a discrete and insular minority group.

It is easy to get lost in the levels-of-scrutiny weeds. Beneath them, however, is the perennial and inescapable issue of where the Court draws the line between questions subject to majoritarian resolution and questions immunized from majoritarian resolution. It is clear that the current Court is refusing to extend the line further, if not moving the line back in the direction of deferring more to democratic decision-making relative to earlier Courts.

Nonetheless, it is important to emphasize that, contrary to some of the overheated criticism regarding the jurisprudential trend of the current Court, it is merely adjusting where the line is drawn that “puts some issues off limits to majority rule,” it is not remotely close to erasing the line. Skrmetti represents only an incremental adjustment in the continuing and inescapable process of judicial line drawing between collective self-government and individual rights in America.

For too long, the history of race relations in the United States has been misrepresented as a battle between “progressive” liberals, supposedly partisans of policies that benefited racial minorities, and “conservatives” trying to block their advancement. Jonathan Bean’s Race and Liberty, of which the first edition appeared in 2009, constitutes an invaluable corrective to that portrayal. A partisan of the “classical” liberal tradition—the liberalism of the American Founders, who believed in the Lockean doctrine of limited government, aimed at securing the equal rights of all individuals—Bean (history professor at Southern Illinois University) provides a collection of over 75 documents, accompanied by helpful, brief editorial commentary, which correct the record. The readings cover not only relations between “whites” and racial minorities, but also immigration policy.

Besides an introduction and conclusion, Race and Liberty contains eight chapters, chronologically arranged, from 1776 to the present. As Bean explains, the classical liberal tradition “dominated the civil rights movement” from the outset. Classical liberals “fought slavery, lynching, segregation, imperialism, and racial distinctions in the law,” while defending what Bean calls the “’natural right’ of migration to America.” Yet contemporary academics misrepresent this tradition, even denouncing the classical-liberal goal of color-blindness in government policy as “objectively racist.” In place of the individualistic outlook of classical liberals, today’s racial “progressives,” such as Ibram X. Kendi, favor “group rights” (which incidentally favor the interests of the particular individuals who espouse them).

Bean rightly begins with early, eloquent American denunciations of slavery, on behalf of the principles of the Declaration of Independence as well as Christianity, by free blacks, including James Forten (1813) and David Walker (1829), along with Northern ministers. This chapter also contains the successful courtroom statements on behalf of the liberation of the slaves on the captured Spanish ship the “Amistad” (1841) by the evangelical businessman/abolitionist Lewis Tappan, by three of the slaves themselves, and by their legal spokesman John Quincy Adams. The chapter concludes with Frederick Douglass’s celebrated 1852 Fourth of July Oration.

The next chapter, “The Republican Era (1854–1876),” includes the libertarian Lysander Spooner’s 1860 speech asserting the unconstitutionality of slavery; excerpts from the Republican Party platforms of 1856 and 1860 opposing slavery’s extension (a theme repeated in Lincoln’s First Inaugural Address), and Douglass’s 1863 statement on “The Mission of the [Civil] War.” (In the last case, however, one must correct Douglass’s charge that Lincoln’s response to Horace Greeley that his primary aim was to preserve the Union with or without slavery indicated a lack of “moral feeling.” Douglass failed to acknowledge Lincoln’s political situation, needing to preserve support for the war among the Union population, not all of whom were abolitionists, and the fact that Lincoln never reneged on his commitment to preventing the extension of slavery on account of its wrongness, a stand that had originally set off Southern secession. And Lincoln had to know that a Union victory would end slavery (witness the Emancipation Proclamation).

Bean then provides documents illustrating the controversy over emancipation immediately after the war: an excerpt from the infamous Mississippi Black Code of 1866; editorials from Harper’s Weekly that helped impel Congress to enact the Civil Rights Act that same year, aimed at overturning such codes; and the Ku Klux Klan Act of 1871, accompanied by testimony before Congress and a letter to President Grant portraying the horrors inflicted by the Klan.

As Bean reports in his third chapter, “Colorblindness in a Color-Conscious Era (1877-1920),” following the withdrawal of Federal troops from the South after the 1876 election, the former Confederate states imposed (in Douglass’s words) “slavery by another name” on nominally emancipated blacks, even as spokesmen for freedom like Douglass, Massachusetts Republican Senator George Hoar, Booker T. Washington, and NAACP president Moorfield Storey insisted on securing equal rights for all individuals. (Repeatedly, Federal legislation to effectuate that goal was blocked by Southern Democratic filibusters.)

In this chapter, Bean broadens his focus to highlight Republican-Libertarian opposition to exclusionary laws aimed at Chinese immigrants, as well as to imperialism (the Spanish-American War) and the denial of Native Americans’ property rights, along with actions designed to secure the property rights of American Indians. He stresses how classical liberals such as Douglass, Storey, and Louis Marshall (self-made Jewish businessman, founder of the American Jewish Committee, critic of Harvard’s quotas on Jewish admission, and lawyer for the NAACP), dismissed by progressives as “reactionaries,” favored the policy of self-help and therefore sided with business, in opposition to racially discriminatory labor unions, seeing in “capitalism” (as Howard University dean Kelly Miller put it) the means of Negro advancement. In a point that Milton Friedman would echo decades later in Capitalism and Freedom (quoted by Bean), businessmen as such have no interest in discrimination; they just seek to hire the best-qualified, most industrious workman at the most reasonable price. (To illustrate, Bean cites letters from a Georgia railway company to public authorities opposing Jim Crow laws as an inconvenience to its business, followed by letters from white citizens making the same complaint.)

A number of documents Bean selects further exhibit Republican support for black equality. These include addresses in the next chapter by Warren Harding (speaking in Birmingham!) denouncing lynching and the KKK and favoring equality of educational opportunity (1921); by Calvin Coolidge opposing white racism (1924), emphasizing blacks’ military service in World War I; and Herbert Hoover’s desegregation of the Commerce Department (1928). (By contrast, it was “progressive” Democrat Woodrow Wilson who had imposed segregation in Federal offices.)

Classical liberals’ fight for genuine equality did not end with the Civil Rights Act. In subsequent decades, they battled new race-based policies to secure equal rights for all.

Further, in the following chapter on “The Roosevelt Years,” Bean goes on to note the ostensibly “liberal” (in a new, “pragmatic” sense) Franklin Roosevelt’s failure to support anti-lynching laws; his refusal to authorize any increase in the immigration of Jewish refugees from Europe, consigning millions to death at the hands of the Nazis; and his discriminatory internment of Japanese-Americans once World War II began, despite lacking evidence of any disloyalty on their part. (Back in 1925, Roosevelt had published a newspaper column warning that having Japanese immigrants in California was a “nightmare” and expressing “repugnance” at the resultant danger of interracial marriage.)

Meanwhile, it was the anti-New-Deal Republican representative Hamilton Fish, mocked by Roosevelt, who repeatedly championed anti-lynching bills in the House, the African-American and Republican journalists (respectively) George Schuyler and R. C. Hoiles who opposed the internments, and the cantankerous libertarian H. L. Mencken who denounced both lynching and the internment and even advocated opening America to all Jewish refugees. (As the noted black writer Zora Neale Hurston observed, Roosevelt won black support, despite his unconcern about lynching, largely by increasing federal welfare programs.)

Republicans did not abandon their pro-civil rights stand after the New Deal era. Bean includes speeches by the conservative Republican leader Robert Taft, plus a minority report by Republican senators Styles Bridges and Bourke Hickenlooper, calling (successfully) for the Senate to refuse to seat the outrageously racist, demagogic Mississippi Democrat Theodore Bilbo. Those selections are followed by a magazine article by New Deal opponent Hurston, praising Taft’s record of legislative action promoting the rights of African-Americans, and (through the Taft-Hartley Act) “protect[ing] Negroes’ right to work regardless of … discriminatory union rules.” Applauding Taft as a liberal in the original sense, Hurston denounced FDR’s policies for promoting dependency, while “leaving Government in the hands of a few.”

While referencing pioneering judicial decisions from this period, including Brown v. Board of Education and Loving vs. Virginia, striking down state laws banning interracial marriage, Bean also includes a 1956 speech by anti-New Deal baseball executive Branch Rickey, who had integrated the major leagues by signing Jackie Robinson, calling the practice of colorblindness “a call from God.” He also includes an excerpt from Martin Luther King’s 1963 “I Have a Dream” speech, frequently quoted by “classical liberal opponents of race preferences,” expressing the hope that his children would live “in a nation where they will not be judged by the color of their skin but by the content of their character.”

Although so-called progressives often accuse their libertarian opponents of racism, Bean’s documents prove otherwise. For example, he includes Barry Goldwater’s speech explaining why he voted against the 1964 Civil Rights Act on constitutional—not racial—grounds, since the senator foresaw that the law would (as Bean summarizes) “enable bureaucrats and judges” to use it to justify “treating members of certain government-designated groups more equally than others.” Though that was a consequence denied by the Act’s leading senatorial sponsor, Hubert Humphrey, it didn’t take long for Goldwater’s prophecy to be fulfilled (as described in an excerpt from Harvard sociologist Nathan Glazer’s 1975 book Affirmative Discrimination). Goldwater, Bean emphasizes, was no racist: a longtime member of the NAACP and the Urban League, as Arizona governor, he had integrated the state’s national guard and supported integration of Phoenix’s public schools.

For a different example of how purportedly benign progressive policies injured blacks, Bean prefaces Goldwater’s statement with an excerpt from (future Reagan adviser) Martin Anderson’s prescient 1964 book The Federal Bulldozer, which describes how “urban renewal” policies—championed by reformist Democrats—destroyed respectable working-class neighborhoods, whose residents were channeled into monstrous “housing projects” that became cesspools of crime and disorder (and often later had to be torn down).

Of course, classical liberals’ fight for genuine equality did not end with the Civil Rights Act. In subsequent decades, they battled new race-based policies, starting with the Equal Employment Opportunity Commission’s 1965 demand that employers report the race of their employees. Although this requirement was ostensibly designed to facilitate “affirmative action” against racial discrimination, it was initially opposed, Bean notes, by the NAACP and other civil-rights groups because of its echoes of Jim Crow. But ironically, Republican President Richard Nixon’s Labor Department, seeking to overcome the effects of longtime labor-union discrimination against blacks in the construction industry, institutionalized a new definition of affirmative action, requiring Federal contractors to report “deficienc[ies]” in their “utilization of minority groups and women,” underutilization being defined as “having fewer minorities or women than would reasonably be expected by their availability,” and to institute “goals and timetables” for remedying such deficiencies.

Nixon’s policies were a foretaste of what later was called “disparate impact theory,” the notion that if the proportion of minorities or women in a given occupation were lower than those in the “available” population, such disproportion must be assumed to be the consequence of discrimination, and hence subject to executive or judicial correction. And Bean then quotes Justice John Paul Stevens’s opinion in the 1978 Bakke case, a “tortured” decision that purportedly banned “benign” racial discrimination in medical school admissions but “encouraged institutions to wrap their discriminatory practices in the new mantle of ‘diversity.’”

One of the best responses to the Bakke ruling, included by Bean, is black, libertarian scholar Anne Wortham’s dismissal of it as “a decision against meritorious achievement.” Her case for rewarding individual accomplishments rather than group accomplishments has been seconded by other prominent contemporary African-American writers that Bean cites (most notably Thomas Sowell). The recent “triumph of the color-blind Constitution,” as Bean terms it, at the judicial level, was the Supreme Court’s 2023’s Students for Fair Admissions v President & Fellows of Harvard College ruling, from which he quotes the opinion of Chief Justice John Roberts (“the way to stop discrimination on the basis of race is to stop discriminating on the basis of race”) which followed Justice Clarence Thomas’s ruling in the 2007 Seattle School District case.

Bean’s last chapter also includes solid arguments against “black reparations” by African-American writers Coleman Hughes and Wilfred Reilly. And it provides defenses of liberal (legal) immigration as beneficial to the United States, so long as that is combined with policies aimed at assimilation rather than ethnic separatism. In this connection, however, Bean makes one error, claiming that classical liberalism authorizes “a natural right to immigrate.” While all individuals have a right to emigrate, nobody has a natural right to immigrate. Though humane, liberal nations should aim to accommodate refugees fleeing serious persecution, every nation has the authority to decide whom to admit.

Last week, the Senate Judiciary Committee held a hearing on the Biden administration’s last-minute pardons, many of which appear to have been signed by autopen. Although autopens are used regularly by politicians for all sorts of reasons, the pardons raise profound constitutional questions because of lingering concerns about Biden’s competency. The issue most commonly discussed is whether he understood what was being done in his name. But there is an even more fundamental question about delegation: When the Constitution says that the president “shall have Power to grant … Pardons for Offenses against the United States,” does it require the president himself to make the decision? Or can he leave it to others?

The pardon power developed for centuries among the English, prompting Chief Justice John Marshall to observe in 1833 that we must “adopt their principles respecting the operation and effect of a pardon.” Most central of those principles was that the pardon power was an absolute prerogative, meaning it was a power so personal to the monarch that it couldn’t be delegated.

This personal character of the prerogative was recognized by the English judges in a 1604 resolution on dispensations. A dispensation and a pardon were so closely related that they were often considered variations of the same power. Whereas the one was a retrospective exercise of mercy, the other was a prospective exercise of mercy—the key point being that they both were non obstante grants, meaning grants made notwithstanding the law.

Although the prerogative to pardon offenses or dispense with the law was personal in the monarch, Queen Elizabeth, in her desperation to raise money, she sold part of it—to be precise, she sold the power to dispense with a penal statute. The purchasers could determine who would get a dispensation, and the Lord Chancellor, or Keeper of the Great Seal, would then issue a dispensation as directed. This privatization, however, impinged on the personal authority of the monarch, so, in 1604, the judges were asked to consider the grant’s validity.

The judges unanimously resolved that the grant was “utterly against law.” The dispensing power involved a “confidence and trust” that was “inseparably joined and annexed to the royal person of the king in so high a point of sovereignty.” So “the king cannot commit the sword of his justice, or the oil of his mercy, concerning any penal statute to any subject,” and that these powers “cannot by law be transferred.”

The president must make the decisions, and the courts can hold pardons void if the decisions are made by others.

Chief Justice Edward Coke similarly explained that “the royal power to pardon treasons, murders, rapes, &c. is a prerogative incident solely and inseparably to the person of the King.” At the end of the century, Chief Justice Holt said: “The power of pardoning all offences is an inseparable incident to the crown and its royal power.”

Of course, the king, like a president today, did not personally draft pardons; consequently, there was ample room for deception. In response, medieval statutes and common law doctrine sought to ensure that the king himself made the decision and did so without being misled. As summarized by the leading eighteenth-century law dictionary, a statute of Edward III required that “the king should be fully inform’d before he pardon’d any felony” so that “he himself might be apprised of the matter.” Although the statute already was defunct, it was a reminder that the decision belonged to the king alone.

Can a pardon made by the wrong person be held void in the United States? A powerful hint comes from the 1782 Virginia case of Commonwealth v. Caton et al. Although the three defendants had briefly joined the British and had therefore been convicted of treason, the House of Delegates pardoned them.

The Virginia Constitution permitted a statute to locate the pardon power in the House of Delegates—this already being a hint that when a constitution permitted a transfer of the power, it said as much. The problem for the defendants was that the Treason Act, under which they were convicted, provided for a pardon only by both legislative houses. Although the House pardoned the three traitors, the Senate concluded that, under the Constitution, it shouldn’t add its approval. The high sheriff in Richmond therefore, found himself in a quandary. He had a court rule ordering him to execute the prisoner and a pardon resolution from only the House.

When the case eventually reached the Court of Appeals, Attorney General Edmund Randolph dramatically abandoned his prosecutorial posture to support the claim of the prisoners that the treason statute was unconstitutional for transferring the pardon power to both legislative houses. Believing that “my office does not extinguish that respect, which I shall owe to the constitution,” Randolph declared “that every law against the constitution may be declared void.”

The court ultimately upheld the statute, apparently on the theory that the Constitution merely set a minimum level of legislative approval, without barring a statute from setting a high level. The Court’s President, Edmund Pendleton, emphasized, however, that if the statute locating the pardon power in both houses had been “repugnant to the Constitution,” he would have held it void. It was a question “from which … I will not shrink, if ever it shall become my duty to decide it.” Any transfer of the pardon power was entirely justiciable.

The history confirms that the Constitution’s location of the pardon power is significant. The president must make the decisions, and the courts can hold pardons void if the decisions are made by others.