Category: Michael Novakhov – SharedNewsLinks℠

While Americans are typically diligent in protecting their political and religious freedom, economists Phil Gramm and Donald Boudreaux observe in The Triumph of Economic Freedom that they often show less concern for defending their economic freedom—“control over their own livelihoods”—despite its essential role in securing their other rights. This is so, the authors maintain, because they “understand it the least.” Lack of appreciation for how the free-market system works leaves citizens vulnerable to misleading claims by politicians, interest groups, and ambitious intellectuals that induce them to accept restrictions on economic freedom that are detrimental to their welfare.

Gramm (who authored Ronald Reagan’s first budget and later chaired the Senate Banking Committee) and Boudreaux (who teaches at George Mason University) debunk seven “myths” about American economic history that have been used to support those false claims. These include, successively, the myths that the Industrial Revolution impoverished workers; that the growth of large corporations generated the need for Progressive Era regulations; that the Great Depression was caused by “a failure of capitalism”; that free international trade “hollowed out” American manufacturing; that the 2008 financial crisis was caused by deregulation; and that America’s free-market system causes both poverty and excessive income inequality.

The authors begin by exposing the mythical character of the claim, first adumbrated by socialists like Friedrich Engels (followed by a multitude of twentieth-century historians, but made most memorably by literary authors like Charles Dickens) that the industrial revolution had “catastrophic” consequences for working people. While mid-nineteenth-century factory working conditions undoubtedly looked unpleasant, the irony of the anti-industrial argument is that it was put forth at the beginning of “a golden age of material well-being—especially for workers.” What economic historian Deirdre McCloskey called “the Great Enrichment,” starting just over two centuries ago, ultimately raised living standards in industrializing countries including Britain, Japan, and the US, by anywhere from 3,000 to 10,000 percent. Those who lament the substitution of factory labor for the supposedly more pleasant life of farmers lack awareness of how impoverished human life, in terms of life expectancy, housing, nutrition, and health, really was in the countryside. (It was precisely the higher incomes that factories offered that lured workers from the countryside.)

In the United States, as the authors note, over just the three decades from 1870 to 1900, “inflation-adjusted gross national product tripled, [a]gricultural production more than doubled, and mining and manufacturing [output] grew eightfold and sixfold, respectively, rates of economic growth never before experienced in recorded history.” But the so-called Progressives, arising during this period, objected that the growth was achieved by large corporations or “trusts” whose owners retained most of the gains while “exploiting” workers. The consequence was antitrust legislation aimed at breaking up the trusts, while initiating a broad national regulatory system.

But while leading history textbooks still propagate the progressive myth that the trusts used monopoly power to restrict output and thus generate higher prices, the late nineteenth century was actually an era of price deflation, owing to rising production, particularly in the industries dominated by large corporations, thanks to the economies of scale they enjoyed, and the incentives they possessed to introduce innovative technology. Nor were trusts able to use their power to stifle competition: as historian Gabriel Kolko observed, the distribution of economic power was constantly being altered thanks to the introduction of new products, production methods, markets, and supply sources. Government intervention did not promote competition but rather impeded it, serving the interests of politically influential firms. Notably, when socialist Upton Sinclair publicized false claims about unhealthful practices in Chicago’s slaughterhouses, progressives in Congress passed the 1906 Meat Packing Act, which large meatpacking firms supported because they could afford the cost of government inspection more easily than their smaller rivals. Competition was similarly squelched by government tariffs on sugar, and by Interstate Commerce Commission regulations that fixed prices in rail transport, trucking, and shipping.

Gramm and Boudreaux refute the related myths that economic inequality in America is steadily growing, causing the impoverishment of millions.

Not until the 1970s, under the Carter administration, was this regulatory system partly disassembled, with the abandonment of anti-consumer federal price setting and the adoption of a new antitrust policy based on “consumer welfare.” Yet forty years later, the Biden administration sought to reimpose Progressive policies through executive orders and the appointment of regulators who were hostile to the free-market system.

The authors also tackle persistent myths about the causes of the Great Depression. According to “conventional wisdom,” it resulted from the stock-market “greed” that culminated in the Crash of 1929, combined with a supposed problem of “underconsumption” that Franklin Roosevelt endeavored to remedy through the “New Deal.” This myth begins with demonstrably false claims about the prosperity of the 1920s, to the effect that its benefits were (as Roosevelt hagiographer Arthur Schlesinger Jr. maintained) unequally distributed, owing to tax policies that favored millionaires, while businessmen refused to share profits with their workers, leading to a “relative decline of mass purchasing power.”

In reality, however, the 1920s witnessed an unprecedented gain in the average standard of living. (In his book Modern Times, historian Paul Johnson lists the widespread increase in the goods that ordinary people were suddenly able to enjoy, from automobiles and radios to life insurance policies.) Nor did the crash of 1929 have to produce anything like the lengthy depression that followed: it was preceded by what economist James Grant calls the “forgotten depression” of 1920–21, which lasted only some 18 months and ended without any application of the government spending policies adopted by Herbert Hoover and FDR starting in 1929.

As Gramm and Boudreaux observe, Roosevelt and his progressive advisers used the charges of underconsumption and maldistribution to justify policies they had favored long before the economic crisis: higher government spending and increased, more progressive taxation. Nor did Roosevelt’s policies do anything to curb the Depression; by 1939, his treasury secretary, Henry Morgenthau, admitted that the administration had “never made good” on its promises, with unemployment remaining as high as it had been six years earlier, even while incurring “an enormous debt.”

Gramm and Boudreaux join monetarist economists Milton Friedman and Anna Schwartz in blaming the Depression’s origins on the “blunders” of the Federal Reserve, which fueled a market “frenzy” in the late 1920s by keeping interest rates too low, then “overcompensated” by raising them too high, “making it harder for business people to borrow and invest” and thus add employees. But Roosevelt then prolonged the Depression, first by emulating his predecessor’s policies of increased (and more progressive) taxation, running large budget deficits, and trying to prevent prices and wages from falling; then by creating a hostile business environment, boasting of the enmity his policies had earned him; raising taxes still higher, and adopting wacky schemes like paying farmers to kill and bury their animals, at a time when the cities were filled with bread lines.

Contrary to the belief that the Depression ended only thanks to America’s entry into World War II (which solved the unemployment problem), leading economists like Paul Samuelson to urge the immediate restoration of “astronomical deficits” once peace returned (advice that was fortunately ignored), Gramm and Boudreaux attribute the country’s long postwar boom to “the restoration of a largely free market and an end to the extreme uncertainty regarding the sanctity of property and contract rights” that FDR’s policies had engendered. Though Harry Truman favored policies like national health insurance and opposed the Taft Hartley Act’s limitations on union power, polls showed that businessmen and professionals “felt much less threatened” by him than they had been by FDR.

Of more immediate relevance, given our current president’s professed “love” for tariffs, is that the authors also address the myth that international trade “hollow[s] out American manufacturing.” That myth rests on a longing (shared by presidents of both parties) to restore the “golden age” of the three decades following the end of World War II, when America ran a consistent trade surplus, unemployment stayed low, and wage growth was high. But the trade surplus was a product of the superior economic position with which the US emerged from the war, a position that was bound to end as Europe and Japan rebuilt and other countries like Taiwan and South Korea industrialized. Yet, the authors note, the end of the surplus did not entail any stagnation in the incomes of working Americans: “In real purchasing power dollars, 66.3 percent of all American households currently have incomes that would have put them in the top 20 percent of income recipients in 1967.” Nor has American manufacturing output declined, even as its share of global manufacturing decreased. But the recent slowing in the growth of industrial capacity is a worldwide phenomenon, which “coincided with the rise of the tech industry,” generating increased labor productivity.

Contrary to President Trump, the authors note, it isn’t true that when “foreigners are net investors” in the United States, causing us to have a trade deficit, they are draining our “lifeblood.” America “ran trade surpluses,” they point out, “in 102 of the 120 months of the 1930s,” the era of the Depression that began with the prohibitive Smoot-Hawley tariffs that devastated global commerce. By contrast, postwar America “has been a magnet for talent and capital,” fueling job creation and increases in household wealth. Raising tariffs can only damage our prosperity, even as it favors certain limited groups. One recent example: The tariffs Trump imposed on steel and aluminum in his first term “created” 1,000 and 1,200 jobs, respectively, while costing 75,000 manufacturing jobs overall because of the higher prices companies had to pay for the metals—and retaliatory tariffs imposed by other countries caused American farmers $22 billion in lost sales.

The authors go on to refute the myth, espoused by everyone from Barack Obama to Time magazine, that the 2008–09 recession was caused by the deregulation of mortgage bankers, who “concocted complex mortgage loans … to fool unsuspecting homebuyers” into borrowing more than they could afford to pay. In reality, it was the Clinton administration’s pressure on banks, under the 1977 Community Reinvestment Act, that compelled them steadily to lower their lending standards, in the name of promoting “affordable housing,” while pretending that subprime mortgage-based securities were “as creditworthy as US government debt,” that led to the market crash. (Clinton ally Barney Frank, then-chair of the House Banking Committee, openly professed his wish to “roll the dice” with the housing market. He got his wish, but the country lost his bet.)

Lack of appreciation for how the free-market system works leaves citizens vulnerable to misleading claims that induce them to accept restrictions of economic freedom.

Turning their attention to economic inequality, Gramm and Boudreaux refute the related myths, espoused by everyone from Pope Francis to French socialist economist Thomas Piketty to Disney heiress Abigail Disney, that economic inequality in America is steadily growing, causing the impoverishment of millions. The greatest flaw in these arguments (elaborated in Gramm’s previous co-authored book The Myth of American Inequality) is their reliance on Census Bureau figures that omit two-thirds of all transfer payments (e.g., food stamps, Medicaid, “tax credits”) from the definition of “income,” while also failing to adjust household income for the amount of taxes paid. When the necessary adjustments are made, the Bureau’s claim that members of the top income quintile receive on average 16.7 times as much as members of the bottom quintile is replaced by a ratio of 4 to 1. Additionally, so flat is the adjusted income distribution among the bottom three out of five quintiles that in 2017, those in the bottom quintile received an average of $49,613, compared to $53,924 for the second quintile and $65,631 for the middle. And after adjusting for household size, it turns out that “individuals living in the bottom 60 percent of American households all have roughly the same level of income … even though only 36 percent of prime working-age persons in the bottom quintile actually work, compared to 85 percent in the second quintile and 92 percent in the middle quintile.” In sum, the current combination of taxes and transfers serves to disincentivize work for many, leading to the social and moral problems documented by AEI economist Nicholas Eberstadt in his monograph Men Without Work.

While citing evidence of considerable economic mobility (that is, increases in income over time) among those born into the lowest quintile, the authors properly take collectivists such as Piketty to task for describing the incomes of higher earners as “what they ‘take,’ ‘claim,’ or ‘absorb’” from others rather than “what they earn or create.” While Bill Gates, for instance, “owns 0.53 percent of Microsoft,” they write, “his products enrich our lives, he created hundreds of thousands of jobs, and our pension funds are more valuable because we own many times more shares of Microsoft than he does.”

While Gramm and Boudreaux conclude that following proper adjustments to income, the rate of real poverty in America is only 2.5 percent, they add that far from that poverty being caused by “capitalism,” “poverty and dependence” are rather “the great failures” of federal policies, specifically the “War on Poverty” initiated by Lyndon Johnson—along with failing American public schools. Hence, they urge a reform of welfare programs to include “work incentives and mandatory work requirements for able-bodied working-age adults,” along with reform of our educational system, which might include adding charter schools, school choice, and—I add—breaking the power of teachers’ unions to block improvement.

As Gramm and Boudreaux remind us, although “in the richest countries in history’s most prosperous age, it is poverty, not affluence, that looks unnatural,” prosperity isn’t natural, but must be “continuously produced” by work, innovation, and investment. Yet currently, “the explosive growth of means-tested social welfare spending … absorbs 57.4 percent of general revenues in the U.S.,” putting at risk not only America’s fiscal soundness, but vital services such as defense, along with adequate capital investment in the nation’s future.

I wish that every American college and high school teacher of politics, economics, and history could be persuaded to read this invaluable book and to share its lessons with their students.

Just before the outbreak of war in 1939, the UK’s Ministry of Information—aware, like many Britons, of what was coming down the pike—designed and printed three posters to raise morale in the event of a major disaster. At the time, the possibility of attacks using poison gas was as feared as conventional aerial bombardment, whence widespread images of schoolchildren being issued with gas masks.

At the time, Freedom is in Peril, Defend it with All Your Might was best known of the three, in part because the (now) most famous one—Keep Calm and Carry On—was never released. Less well known is that the Ministry scrapped the entire campaign in October 1939. Feedback had revealed that many ordinary members of the public found the posters patronising and divisive. Art historian Susannah Walker once described the whole business as “a resounding failure,” noting that the posters were worked up by upper-class civil servants who failed to understand the very people they were trying to motivate.

Sound familiar?

These days, liberalism is in peril, and people across the European Union and wider Anglosphere are similarly disinclined to defend it with all their might. This is in part due to how it’s become wedded to establishment sensibilities, rather like the posters that failed to launch. As with the wartime Ministry of Information, an entire political ideology—arguably the most impressive of all ideologies, thanks to its economic successes coupled with avoiding the genocidal behaviour characteristic of its main rivals—has badly lost its way.

When called upon to explain how this has come about—last month, at an event held by Edinburgh’s Adam Smith Museum—I used a principle drawn from the rules of evidence in various jurisdictions, both common law and civilian: falsus in uno, falsus in omnibus. This translates, reasonably idiomatically, into “false in one thing, therefore false in all.” It arises when counsel puts a witness in the box and he lies about a fact in issue or relevant evidence around it, typically under pressure of cross-examination. This has the effect of casting everything else he says into doubt, although the rule is not irrebuttable. It just means the side for which he’s appearing must work much harder to restore his lost credit.

Liberalism, like our hypothetical witness—and for a range of reasons—has told a great many lies or at least acquiesced when adherents of other political ideologies have lied. I do take Andrew Doyle’s point—made in his latest book, The End of Woke: How the Culture War Went Too Far and What to Expect from the Counter-Revolution—that many of these lies did not originate with liberalism (although some did). The same evidentiary rule also has theological applications. Here, it suggests that when an ethical or religious system has an untruth at its heart, its wider social ramifications are also likely to be false and destructive. It’s akin to Helen Joyce’s observation that if you define 1=0 in a mathematical proof, you break everything and prove nothing. In other words, if you’re wrong about something significant, people are allowed to ask what else are you wrong about?

That’s the reason liberals are struggling to get a hearing on free trade.

The End of Woke is an extraordinary compendium of flim-flam—at one point Doyle admits that “it would make a decent doorstop”—but had he decided to provide a complete catalogue of the nonsense put about over the last two decades, it would run to several volumes. He’s also careful to define liberalism capaciously enough that it takes in left or “social” liberals like, say, Steven Pinker or Tony Blair, right or “classical” liberals like Margaret Thatcher or F. A. Hayek, and centrist liberals like Jonathan Rauch or Helen Joyce. This has the effect of exposing precisely when a bit of contemporary nonsense has genuine liberal roots and when it emerges from other ideological traditions.

Liberals are often unfair to liberalism’s critics or blind to liberal policies or legislation introduced by non-liberals.

All liberals have struggled of late when claims they’ve made are falsified and often seek to blame wokies for them. Doyle is no exception to this, but then, nor am I. A significant part of watching national populists bring the post-1990 liberal international order to an end has been the unpleasant and melancholy realisation that there are also untruths—attempts to make 1=0—at the heart of liberalism.

Take immigration, for example. We now know from the presence of that vast unsinkable aircraft carrier in the Indian Ocean, otherwise known as “Australia,” that it must be selective and carefully managed, or it has destructive social, cultural, and economic effects. However, the original claim that immigration’s marginal benefits exceed marginal costs for everyone in society was made by liberals, especially libertarians. Libertarians are as much part of the liberal tradition as Margaret Thatcher or Steven Pinker, and indeed share some of the same preoccupations as both those individuals, especially when it comes to freedom of speech and personal autonomy. Even the argument for open borders—often blamed on the woke with their “no-one is illegal, borders are a construct” signs at protests—did not originate with them. It was first made by libertarians.

The claim that human beings are sufficiently similar—that is, we all want roughly the same things—to make liberal universalism possible at a level above the nation-state is another untruth, one that underlies the failure of the “global rules-based order.” Recent laments have sought to pin the blame on one Donald J. Trump, but all he did was kick the rotting edifice, whereupon it collapsed. That it does not obtain at a level above the nation-state has been obvious for decades: see the UN or NATO’s military free riding. A belief in the fundamental interchangeability of human beings has led to Pollyannaish absurdities elsewhere, too. I’m old enough to remember free market liberals arguing that when China liberalised economically, it would liberalise politically. The same people often claimed that free trade and free movement would lead to global equalisation of incomes.

However—and this is more serious, because it involves matters of life and death—sometimes liberalism is not wanted: see Afghanistan.

Because regime change and nation-building are forms of colonialism, they are hard—but not impossible—to do well. I accept Nigel Biggar’s argument that colonialism can be done well, although most people—not just liberals—are unwilling to think through what that means.

Thanks to the Romans, for example, Europeans are monogamous, do not marry their cousins, developed the rule of law, and have had a rich tradition of civic nationalism upon which to draw. Never forget, however, the treatment these same Romans meted out to the conservative monotheists who lived in the province of “Judaea.” On top of two catastrophic military defeats—defeats that involved the sale into slavery of vast numbers of people and the scattering across Europe and the Near East of many others—Romans wiped out Judaism’s priestly caste and crushed those of its cultural traits they disliked. Think stoning people for religious or moral infractions, for example. Their signature tool in this endeavour was mass crucifixion. Recall, too, that the attractive civic nationalism their culture produced was born of necessity. If you have an all-volunteer citizen army and require vast numbers of soldiers to defend your empire, you cannot condition recruitment on ethnicity. In more modern times, regime change was effective in Germany and Japan at the end of the Second World War. The same point about catastrophic military defeats applies, however, along with a side-serving of Dresden, Hiroshima, and Nagasaki.

Thanks to this collective failure to think our thoughts through to the end, we are now faced with the reality that because regime change failed so spectacularly in Vietnam, Iraq, and Afghanistan, countries that do genuinely desire a liberal founding across much of their population—Ukraine is the most salient example—are now being abandoned to a form of Great Power politics not seen since the late nineteenth century. On this point, the situation for women and girls in Afghanistan is probably worse than it was in 2001. All the calls to “liberate” them, one sees—often coupled with bizarre attempts to boycott the country’s cricket team—require colonialism: not just any colonialism, but colonialism of an unusually fierce sort.

In their anxiety to defend liberalism from what really is ordnance on all sides, liberals are making two key mistakes. They’re often unfair to liberalism’s critics or blind to liberal policies or legislation introduced by non-liberals—particularly national populists like Trump. A vivid example of the latter is affirmative action, a bad idea with genuine liberal roots. It is convenient to blame Ibram X. Kendi for the cod claim that all differences in outcomes between groups are down to racism, but the doctrine of disparate impact—from which Kendi’s argument derives—became part of US law in 1971. Kendi was born in 1982. Meanwhile, intersectionality wasn’t even a twinkle in Kimberlé Crenshaw’s eye—she was 12.

It took humans centuries to learn that the law should punish individual wrongdoers rather than members of their immediate family or extended kin group for crimes or civil wrongs: one only need read some of the world’s great literature, both ancient and modern—from Njal’s Saga to The Godfather—to gain imaginative entry to a world where intergenerational vengeance is the norm. And yet for years, a US Supreme Court comprised of liberals punished whites or Asians (and sometimes both) who had never wronged blacks by making it harder for them to get into university or gain employment. This was done to compensate blacks who had not been wronged for wrongs committed by other white people to other black people in the past.

May I suggest that the world of medieval Iceland or a New York dominated by the Five Families are the sorts of places you probably only want to visit in fiction? We stopped basing punishments on vendetta—a long, slow process of legal evolution starting in early Republican Rome—for good reasons. Societies based on vendetta are places of violent horror and boiling intergenerational resentment.

Trump is doing all in his power—including by dint of judicial appointments—to ensure that educational and employment opportunities go to the right person for the job and aren’t based on some pre-installed identity characteristic. The national populist is doing a liberal thing. He is opposed in this by many people who call themselves liberals.

Better law and better policy are grounded in superior insight, and the way to garner that insight is talk among people who can engage in productive disagreement.

On the first point—liberals not taking liberalism’s critics seriously enough—I think Doyle is too dismissive of Louise Perry’s claim that liberalism is both corrosive of and parasitic on the moral guardrails necessary to preserve a functioning civic order. Perry draws some of her arguments here from radical feminism, a non-liberal ideological tradition. However, radical feminism has made itself worthy of attention because its adherents were right about transactivism before anyone else, even conservatives.

What else are they right about?

For my part, I suspect radical feminists are right about surrogacy. There are multiple immoral markets in the world, surrogacy is only one. Think alcohol, tobacco, gambling, cannabis, prostitution, pornography, contract killing, people. The solution in all such cases is not the libertarian’s “legalise, regulate, and tax,” because it may not be possible to manage a given immoral market justly. Some immoral markets should be illegal. Libertarians who think people should be allowed to sell themselves into slavery are a genuine lunatic fringe. Debate about the boundary between legal/regulated and illegal/prohibited in each case needs to happen, however, with no outcome foreclosed.

As part of this process, libertarian-leaning economists get to teach radfems about trade-offs, while radfems will teach economists that labour-market exploitation based on the physical differences between men and women is a real thing that exists. Better law and better policy are grounded in superior insight, and the way to garner that insight is talk among people who can engage in productive disagreement.

That said, the lies imported into liberalism from elsewhere make universal liberalism and open borders and commercial surrogacy look sane. Let us recall some of them.

A person with a penis can be a woman. There is no problem having someone who has gone through male puberty competing in women’s sports. The surgical and hormonal mutilation and sterilisation of minors for gender non-conforming behaviour represents care and compassion. Moralising racial differences is outrageous if you put whites on top but morally laudable if you put whites on the bottom. Words are violence, but silence is also violence. The lab-leak hypothesis was a racist conspiracy theory. Defunding the police would have no effect on homicide rates. A disease whose risks were overwhelmingly concentrated among the metabolically compromised demanded general lockdowns and closed schools. Jews are not indigenous to Israel, so can be treated as settler-colonialists, even when they are refugees from Muslim countries. Meanwhile, Arabs are indigenous to Palestine, despite arriving centuries later.

Some of the daftest ideas in that paragraph came from the universities and were developed by extraordinarily illiberal academics. That liberals followed them off an ideological cliff is bad enough, but even worse is the extent to which authoritarian brainrot has corrupted one of our major sense-making institutions—higher education.

I suggested to my Edinburgh audience that one way for liberalism to extricate itself from the mire—rather than apologising, which these days seems only to invite further dogpiling—would be a simple acknowledgement of wrongness. Accepting wrongness is a way to remind folk that no set of ideological commitments protects you from failing to think your thoughts through to the end. If you find those commitments get in the way of doing so, they are sabotaging your ability to think about how things really are. Doyle is scrupulous to avoid the “real liberalism has never been tried” argument, precisely because liberalism hasn’t been found out the way Marxism has. Liberalism not only can be but has been a better version of itself. That means it’s possible to use an imperative beloved of wokies and have it mean something.

Do better, liberals. God knows we’re capable.

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

Related Links

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

Transcript

James Patterson (00:06):

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

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

John McGinnis (01:32):

Delighted to be here.

James Patterson (01:34):

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

John McGinnis (01:51):

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

James Patterson (03:47):

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

John McGinnis (03:58):

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

(05:14):

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

(06:30):

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

James Patterson (07:27):

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

John McGinnis (07:40):

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

James Patterson (08:12):

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

John McGinnis (08:18):

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

James Patterson (09:20):

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

John McGinnis (09:32):

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

(10:49):

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

(12:05):

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

(13:08):

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

(14:12):

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

(15:16):

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

James Patterson (16:59):

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

John McGinnis (17:29):

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

James Patterson (19:14):

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

John McGinnis (19:46):

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

(21:01):

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

(22:03):

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

James Patterson (22:54):

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

John McGinnis (23:30):

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

James Patterson (25:23):

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

John McGinnis (25:38):

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

(26:55):

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

(28:10):

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

(29:22):

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

James Patterson (31:05):

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

John McGinnis (31:32):

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

(32:48):

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

James Patterson (34:20):

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

John McGinnis (34:50):

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

(36:14):

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

James Patterson (37:27):

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

John McGinnis (38:10):

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

(39:26):

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

(40:36):

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

James Patterson (41:59):

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

John McGinnis (42:24):

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

James Patterson (42:28):

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

Rutger Bregman, the Dutch historian and prolific author, is nothing if not imaginative. In his new book, Moral Ambition: Stop Wasting Your Talent and Start Making a Difference, Bregman lays out his vision to radically transform the world into a technocratic utopia.

His perfect society—let’s call it Rutger-land—is a much colder place (fossil fuels are banned), richer people are poorer (taxed into moral compliance), and poorer people get universal basic income. Rutger-land is tobacco-free, malaria-free, poverty-free, and meat-free. It’s a proudly vegan society: no cows grazing—just fields of kale and solar panels. All energy is renewable, abundant, and basically free, which naturally leads to an end to cancer, suffering, and pain. In Rutger-land, we’ve reached the apex of moral evolution: animal rights are enshrined, meat is history, and tofu reigns supreme. It’s everything good, and nothing bad—at least as Bregman defines those terms.

His approach is resolutely top-down, technocratic, and bureaucratic. He proposes activism, lobbying, policy reform, and nonprofit initiatives as his main vehicles of moral progress. Absent from his blueprint are for-profit businesses, religious institutions, and grassroots, community-led initiatives. Bregman places little faith in the decentralized forces that have historically driven sustainable change, from neighborhood associations to churches to enterprise. For him, meaningful change comes not from the messy, local work of ordinary people but from a centralized cadre of morally ambitious experts wielding policy, data, and urgency like instruments of salvation.

Some aspects of Bregman’s vision are rooted in admirable aims. He is deeply concerned about “the eight million people who die each year from smoke-related causes.” He notes that while “Big Tobacco” is losing customers in developed countries, it makes up for those losses—and even recruits more smokers—in the developing world, where current laws still allow tobacco companies to thrive. In response, Bregman wants to assemble “a squad team of morally ambitious individuals” to crack down on tobacco companies by enacting strict legislation that limits their room to maneuver in these regions. This is a good example of Bregman’s broader approach to change: he seeks to transform the world almost exclusively through legislative change, as well as nonprofit charitable initiatives. Both methods have their merits, but they are often insufficient to sustain the kind of society grounded in economic dynamism, a society marked by liberty, creativity, and social vitality.

A central pillar of Bregman’s vision is his belief that meaningful change must come through formal legislation—laws, mandates, and top-down reforms. One prominent example is his impassioned call to overhaul the tax code to substantially increase taxes on the wealthy. His rhetoric found global resonance during his now-famous outburst at the World Economic Forum in Davos, where he exclaimed: “Taxes, taxes, taxes! Everything else is bullshit!” Bregman (whose father was a Protestant minister and whose mother was a special-needs teacher) is especially irritated by wealthy individuals like Steven Spielberg, who—much to Bregman’s dismay—live a lavish lifestyle, with not one but several yachts. He fixates relentlessly on a narrow, highly visible sliver of the wealthy—those who flaunt their lifestyles on social media or red carpets. He is indeed so agitated by their excesses that, in his book, accounts of wealthy individuals appear alongside descriptions of Nazi atrocities, as if both represented comparable forms of moral evil.

Most wealthy Americans really aren’t much like Spielberg, as economists Owen Zidar and Eric Zwick have documented in their work. Their research and upcoming book, The Stealthy Wealthy, demonstrate that media caricatures of the wealthy are often inaccurate. Zidar and Zwick have analyzed comprehensive IRS and Census data to examine the full spectrum of American wealth, not only the conspicuous ultra-rich. It turned out there is a broader, often overlooked class of successful individuals who deliberately don’t answer surveys and remain out of the public eye. The typical wealthy American is not a celebrity or hedge-fund magnate, but the owner of a medium-sized enterprise in an unglamorous yet socially vital sector: someone who makes machines that rip up carpets in public schools, runs a car dealership, manages a beverage distribution company, or owns a local dental or legal practice. These Americans quietly build wealth by providing tangible value to their communities, prioritizing long-term capital accumulation over status signaling—precisely the kind of success that escapes Bregman’s radar. The “stealthy wealthy” are notoriously difficult to identify in conventional datasets. However, by leveraging rare and granular data, Zidar and Zwick managed to construct a more comprehensive and credible portrait of America’s wealth landscape. Contrary to Bregman’s claims, wealth in America is more often earned than inherited, and more frequently linked to service than to spectacle. In overlooking this quietly industrious segment of American life, Bregman’s fixation on the glamorous elite blinds him to the decentralized, entrepreneurial energies that have long powered America’s real and lasting progress. 

Indeed, Bregman largely ignores empirical economic realities, often invoking a fixed-pie fallacy in his view of the world. Consider this quote: “You have to keep asking yourself why you are so well off, when other people are so poor they don’t even have a few bucks for a mosquito net. Let’s see … Maybe it has something to do with our system of corrupt tax havens, unfair trade agreements, and neo-colonial exploitation by Western multinationals? The question then becomes: how do we get rid of the system?” Bregman’s idealism is sincere, and he has some real moral concerns, but he falls into Karl Marx’s zero-sum view of economics, failing to grasp that prosperity is not extracted from others but generated through innovation, trade, property rights, the rule of law, and economic freedom—precisely the institutions Bregman tends to neglect or vilify. Bregman seems to think that poverty exists today because the rich have unjustly taken too large a slice of a static pie. But this is a dangerous misdiagnosis of how wealth is created—and of what truly lifts people out of poverty.

Bregman’s technocratic vision is fundamentally flawed. It misunderstands wealth creation, underestimates the importance of decentralized local solutions, and dangerously romanticizes central authority.

Aside from legislation, Bregman’s other favored tool for ushering us into Rutger-land is nonprofit charitable initiatives. He devotes a large portion of his book to celebrating individuals who have left their “destructive” businesses and quit their “wasteful,” “bullshit” jobs to start yet another nonprofit. He praises such career changes as morally ambitious and redemptive. Yet Bregman’s strong advocacy for charity sits uneasily alongside his deep skepticism toward philanthropy. On the one hand, he urges readers to give until they are nearly destitute: “You have to keep giving until you’re nearly as poor as a refugee from Bangladesh.” On the other hand, he harshly criticizes wealthy philanthropists: “Let me be clear: most rich-guy philanthropy doesn’t amount to much. They generally donate a mere fraction of their net worth, and when they give, it’s mostly for vanity projects, like paying huge sums to stick their name on the wall of an already well-funded university or museum.” This contradiction lies at the heart of Bregman’s model: he elevates nonprofit charity as the preferred engine of moral ambition, while simultaneously distrusting many of the very people who fund such efforts. He dismisses philanthropy that emerges from business success, yet celebrates charitable work only when it’s detached from market-based institutions.

But nonprofit charities alone cannot serve as the foundation for meaningful, large-scale development. I’m not aware of any country that has advanced through charity alone. Consider Haiti, often dubbed the “Republic of NGOs.” Since 2000, it has had over 20,000 registered nonprofits—one of the highest rates of NGOs per capita in the world. Yet Haiti vividly illustrates the limits of charity-driven development. Despite decades of NGO presence, the country remains deeply impoverished, politically unstable, and verging on failed-state status.

By focusing narrowly on legislation change and nonprofit initiatives, Bregman overlooks the broader forces that sustain a flourishing society. There are many key elements absent from Rutger-land. From Bregman, you will never learn about Adam Smith’s “invisible hand” organizing the free market. You will never hear praise of a commercial society creating healthy incentives for innovation and growth. You will rarely see examples of charity and philanthropy working in unison. In Rutger-land, there is no room for Mother Teresa’s vision of a society “in which the rich save the poor, and the poor save the rich.” I also don’t recall Bregman ever mentioning what role churches or other religious organizations have to play in society. Nor does he seem to understand the Christian idea of vocation—that each individual may be called by God to fulfill a meaningful role through their ordinary work, whether in business, education, craftsmanship, or care.

In contrast to Rutger-land, Alexis de Tocqueville (in Democracy in America) celebrates robust local civil societies capable of addressing social issues effectively at the community level. Unlike Bregman, Tocqueville admires the efforts of ordinary individuals engaging in local associations, solving problems through grassroots initiative—neighbors organizing a school, repairing a road, or starting a lending circle. To be clear, Bregman’s book contains innumerable stories of civil rights activists, and, as a professional historian, he is a gifted storyteller. However, it only counts for Bregman when those activists reach the top levels of influence and codify change through legislation, policy, or institutional reform. Tocquevillian civil society—small, voluntary, often faith-based—is, in Bregman’s view, too invisible, too inefficient, and, to use his own phrasing, a waste of talent, a waste of time, and a waste of life. Bregman’s approach is antithetical to Tocqueville’s vision, displaying little regard for decentralized decision-making or local problem-solving.

Likewise, there are deficiencies in Bregman’s reliance on technocratic centralization that become evident in light of Abraham Kuypers’ concept of spheres of sovereignty. Kuyper, along with Johannes Althusius, viewed family, church, business, and government as distinct sovereign spheres and roles, whose interplay promotes a more vibrant society. Bregman, however, promotes just one sphere—his cadre of morally ambitious activists and experts—as superior, entitled to dominate through centralized power and dictate societal outcomes.

Bregman’s world is starkly binary. Society is sharply divided between the morally ambitious and the morally deficient: either you are actively fighting the great injustices of the day or you are complicit, a passive observer whose life is consumed by what he calls “bullshit jobs.” He labels most people (and, thus, his readers) as “noble losers,” and harshly dismisses many productive careers: “To this day, numerous attorneys, consultants, marketeers, programmers, managers, accountants, and bankers are stuck in well-paid but relatively useless or even harmful jobs.” This simplistic worldview not only undermines individual dignity and purpose but also dangerously elevates centralized decision-making by elites—precisely the technocratic mindset that every societal problem can be solved by experts wielding centralized authority supported by data and policy. Bregman is unabashedly technocratic. His solutions exclusively involve top-down interventions and are often underpinned by apocalyptic urgency. For Bregman, climate change, income inequality, and global poverty require immediate, large-scale, government-led solutions.

Yet history is replete with cautionary tales of technocratic ambitions gone awry. Urban renewal projects of the mid-twentieth century in America, driven by an exaggerated sense of urgency over a population explosion (that never materialized at anything close to the projected scale), displaced millions and devastated communities. Like the urban planners of old, Bregman employs similarly urgent rhetoric: “We have to get off fossil fuels and kick the habit of eating animals—now, in a crazy short timespan,” he declares, echoing the language of crisis that has so often been used historically to justify far-reaching power grabs.

In summary, while Bregman’s eloquence and idealism have garnered considerable attention, his technocratic vision is fundamentally flawed. It misunderstands wealth creation, underestimates the importance of decentralized local solutions, and dangerously romanticizes central authority. Genuine social progress and prosperity arise not from technocratic moralism imposed from above but from a vibrant civil society where local participation, economic freedom, and the quiet, dignified work of individuals and communities work in concert.

Rutger Bregman’s Moral Ambition should be read as a cautionary tale—a stark reminder of the seductive appeal and inherent dangers of technocratic thinking. The true moral ambition needed today lies not in the perilous utopianism of Rutger Bregman but in embracing decentralization, subsidiarity, and the enduring wisdom rooted in civil society.

The 1925 prosecution of Tennessee high school teacher John T. Scopes was a mixture of high drama, comedy, and outright farce. 

The laid-back, unassuming 25-year old had allegedly violated a recently-passed state law banning the theory of evolution from being taught in public schools. But Scopes himself, who never spoke a word until the final day of the trial, received little notice. The most important man at the trial was the special prosecutor, a man without whose participation “the trial of the century” may have only been a historical footnote: William Jennings Bryan. 

Bryan had spent years trying to prohibit the theory of evolution from being taught in public schools. Because of this, he was portrayed in his own time, as well as ours, as an ignorant, Bible-thumping fundamentalist who tried to ban science just because it wasn’t consistent with his literalist interpretation of Genesis. But if we dig further, we can see that Bryan’s arguments were more interesting and complicated than he’s commonly given credit for. By examining his motivations and actions in context, we can gain a deeper appreciation for precisely why the evolution ban was misguided, and what lessons Bryan’s story can offer us as we navigate our own cultural and academic controversies. 

Two recent books on the trial can help us through this fascinating history. The Trial of the Century, by attorney and Fox News host Gregg Jarrett and the sports journalist Don Yaeger, is a rollicking, highly informative history of the trial. Their book is mostly told from the perspective of Scopes’ lead attorney, Clarence Darrow. Gregg Jarrett even credits Darrow with inspiring him to become a lawyer, and his admiration for Darrow is evident throughout the book. Many of Darrow’s arguments shape the way Jarrett/Yaeger tell the story of the trial. They also provide an excellent defense of liberal education at the end of the book. Unfortunately, their description of Bryan is shallow and often slips into banal stereotypes.

Thankfully, Brenda Wineapple’s Keeping the Faith: God, Democracy, and the Trial that Riveted a Nation rectifies that by offering a more balanced version of events. A professional historian, Wineapple generally avoids the temptation to tell the story of the Scopes trial as a simple good versus evil narrative. Leaning less on the theatrical atmosphere of the trial, she devotes more space to the backstories of her central characters, as well as their political and cultural contexts, so much so that she doesn’t even get to the trial until more than 200 pages into her book. Reading Wineapple’s work alongside Jarrett/Yaeger’s allows a fuller picture of Bryan to develop, giving us a better idea about who he was and why his anti-evolution project failed. 

Known as the “Great Commoner” because he championed the cause of regular people against economic and political elites, Bryan had been a major player in American politics for decades. A staunch Progressive, he was the Democratic Party’s presidential nominee three times—1896, 1900, and 1908, losing each time. In the early 1920s, he began traveling the country and preaching against evolution, hoping to get it banned from school curricula. As a devout Christian, Bryan was concerned about rising levels of atheism in the West, fueled by the increasingly widespread acceptance of Darwinian evolution. 

His anti-evolution campaign got its first victory when, in March 1925, Governor Peahy of Tennessee signed the Butler Act, which forbade any public school, including state universities, from teaching “any theory [that] denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.” 

Shortly after the bill was signed, the American Civil Liberties Union (ACLU) jumped into action. Their attorneys argued that the Butler Act denied teachers and students their First Amendment right to religious liberty, and were eager to challenge the law in court. They put out an advertisement in papers around the state, asking for a volunteer to offer himself up for prosecution and promising to represent him. 

A group of businessmen in the little town of Dayton saw the advertisement and thought it could be a great opportunity to gain some publicity, which would hopefully rejuvenate the stagnant local economy. They reached out to their friend and local high school teacher John Scopes, who agreed to be charged. The local prosecutor, who was in on the scheme, contacted Bryan and invited him to serve as a special counsel. Bryan readily agreed. 

“America has taken another step back to the Dark Ages,” declared Clarence Darrow in response to the news about the Butler Act. Darrow was perhaps the most famous trial lawyer in America, having participated in some of the most high-profile cases of the late nineteenth and early twentieth centuries, where he defended labor organizers and black victims of racial violence. 

When he heard that Bryan would be serving on the prosecution, Darrow quickly volunteered his services to the ACLU. He saw the Scopes trial as an opportunity to “prove that America is founded on liberty and not on narrow, mean, intolerable and brainless prejudice of soulless religio-maniacs.” Darrow smeared Bryan before, during, and after the trial as an ignorant, bigoted, wanna-be theocrat, but as Wineapple shows, Bryan’s position was much more nuanced than Darrow gave him credit for. In the first place, he was hardly an opponent of science overall. In fact, he publicly recognized the vast benefits that scientific progress had afforded mankind. According to him, though, evolution was different. 

While the state can and should provide guidelines for what is allowed to be taught in public schools, those guidelines should be broad—certainly broad enough to include a major, evidence-based, mainstream scientific theory.

Like others in the nascent fundamentalist movement, Bryan believed that Darwinism contradicted the Bible’s account of creation. But it was the metaphysical and social implications of evolution that bothered him the most. Christianity taught that all human beings, regardless of their circumstances or abilities, had intrinsic value. Darwinism, on the other hand, taught that only the fittest survive. It wasn’t a far leap—and many people at the time did make the leap—to say that only the fittest should survive. If Darwinian evolution were accepted as fact, Bryan feared, the strongest of the human species might kill off the weak. Wineapple notes that Bryan also worried about the state regulating human reproduction, in the name of improving the human race. In Bryan’s words, the state may institute “a system of breeding under which a few supposedly superior intellects, self-appointed, would direct the mating and the movement of the mass of mankind—an impossible system!” This was social Darwinism in action.

Wineapple writes that Bryan “confused social Darwinism with the theory of evolution,” implying that since Bryan hadn’t read much biology, he simply couldn’t tell the difference between the science of evolution and the pseudoscience of eugenics. But the truth is that most of Bryan’s contemporaries, including the nation’s top scientists, believed that social Darwinism was the logical conclusion of the biological theory of evolution. As Nicholas Spencer writes in his book on the entangled histories of science and religion, “Virtually no one, whether adamant fundamentalist or evolutionary atheist, thought Darwinism was ‘mere’ biology.” 

Indeed, the very textbook used by Scopes in his classroom, G. W. Hunter’s A Civic Biology, explicitly says that social problems are essentially biological at their core. “If the stock of domesticated animals can be improved,” Hunter writes, “it is not unfair to ask if the health and vigor of the future generations of men and women on the earth might be improved by applying to them the laws of selection.” He goes on to write positively of eugenics, saying that if the “parasites” of society weren’t human, “we would probably kill them off to prevent them from spreading. Humanity will not allow this, but we do have the remedy of separating the sexes in asylums or other places and in various ways preventing intermarriage and the possibilities of perpetuating such a low and degenerate race.”

The idea that Darwinism would become the justification for eugenics wasn’t just an irrational fear dreamed up by Bryan. It was already becoming a reality. By 1925, dozens of states had passed forced sterilization laws. As Spencer notes, these states “sterilised criminals, drunks, promiscuous women, ‘morons’ and ‘imbeciles’ (‘scientific’ definitions of intelligence), as well as a number of unemployed, disabled and black citizens.” Between 1920 and 1970, as many as 70,000 Americans underwent compulsory sterilization. 

Bryan was horrified at the thought of governments forcibly sterilizing people in the name of “improving” the human species. Unfortunately, he threw the baby out with the bathwater. Though widely popular at the time, social Darwinism and its more evil twin, eugenics, weren’t the same thing as, or even a necessary consequence of, the theory of evolution. Bryan may not have confused these ideas, but he did see eugenics as the fruit of a rotten tree. If the West was to be saved from tyranny and moral decadence, the whole evolutionary tree needed to be hewn down. 

Bryan believed the common people could accomplish this by exercising their right to control what gets taught in public schools. In Keeping the Faith, Wineapple writes about how important the democratic ethos was for Byran. “The hand that writes the paycheck rules the school,” he said in one speech. It would be lunacy, he thought, for the people to pay teachers for the privilege of turning their children into atheists. And yet, this is exactly what schools were doing by teaching evolution as an incontrovertible fact. By this logic, it was the evolutionists who were limiting religious freedom, not the creationists. 

Scopes’s defense attorneys weren’t buying it, though. They pointed to the explicitly religious language of the Butler Act and noted that there was even a significant number of Christians who saw no contradiction between “the story of the Divine Creation of man as taught in the Bible” and the theory of evolution. By using a particular form of Christianity to shape school curricula, the state had effectively established a state religion. This was basically the same conclusion that the Supreme Court came to in the 1968 case Epperson v. Arkansas, when it declared that an Arkansas anti-evolution law, which used almost identical language to the Butler Act, had violated the Establishment Clause of the First Amendment.

In their concluding chapter, Jarrett/Yaeger argue that state anti-evolution statutes weren’t just unconstitutional—they were also antithetical to the purpose of education, which is to facilitate “the free exchange of ideas and information, however unpopular they may be.” Bryan’s great failure is that he thought he could save Western civilization through censorship. And while the state can and should provide guidelines for what is allowed to be taught in public schools, those guidelines should be broad, certainly broad enough to include a major, evidence-based, mainstream scientific theory.

Even when real science gets twisted by ideologues, like evolution was by the social Darwinists, using the ham-handed fist of government to snuff it out only deprives students of the opportunity to engage with the subject. Jarrett/Yaeger compare the anti-evolution statutes to modern-day policies forcing critical race theory (CRT) into classrooms. Teachers and students who dissent from these politically leftist curricula are sometimes punished. On the other hand, laws banning CRT often have an unintended chilling effect on teachers, many of whom are now afraid of teaching anything about the history of race relations, especially the most controversial parts, lest they be accused of breaking the law. Jarrett/Yaeger persuasively argue that the pro- and the anti-CRT side go too far by mandating the conclusions that students must come to, rather than allowing classrooms to be a “marketplace of ideas” where “information should be freely exchanged.” 

That just wouldn’t do for Bryan. He was, as Wineapple concludes, a “Christian utopianist” who firmly believed that he could use government regulation to create a better world. But by trying to impose his worldview by force of law, he tarnished his personal reputation and that of his movement, which was seen as illiberal, backwards, and repressive. Providentially, perhaps, he went to meet his Maker only a few days after the trial ended. Ultimately, Bryan’s final crusade against evolution is a cautionary tale about the practical limitations of state power. It is a tale well worth studying. 

The Great Gatsby is a book about America—its boundless promise, its callow follies, its wealth, moralism, restlessness, and even, as the title suggests, its greatness. Art reproduces experience, but it rearranges the pieces so that we see ourselves in a new light. The best literature is kaleidoscopic; read at different moments, it reveals different ironies and truths and makes us feel in different ways. F. Scott Fitzgerald’s masterpiece is just such a work. A tragedy, love story, farce, and morality play, in its final pages, it becomes a meditation on the republic that stretches from Long Island Sound to the far reaches of a continent still discovering itself.

Gatsby turned 100 this year. Next year, America will turn 250, and the novel still sheds light on the nation. The themes that Gatsby evokes—aspiration and class resentment, hope, the thirst for some kind of greatness—remain very much a part of American life today, though the vagaries of history have rearranged them into strange new forms. 

The light Gatsby sheds on America has always been ambiguous, like the green light across the bay that guides its hero to his tragic fate. Jay Gatsby—or James Gatz, as he seems to have been born—is that quintessentially American figure, the self-made man. But self-made, in Gatsby’s case, means also invented and unreal. Gatsby’s origins are swathed in rumor and innuendo, and the sources of his fabulous wealth are murky. The shimmering surfaces of the Roaring Twenties form the novel’s décor, and its ambiance is a little tipsy, so we are never quite sure what is real in Jay Gatsby’s story and what are mere refractions built into the narration. The novel’s liquidity of perspective—and prose that dazzles—are among Fitzgerald’s great literary merits. 

Rebelling against the poverty of his upbringing, James Gatz had been driven since adolescence by the desire for wealth. Jay Gatsby, Fitzgerald writes, “sprang from his Platonic conception of himself. He was a son of God—a phrase which, if it means anything, means just that—and he must be about His Father’s business, the service of a vast, vulgar, and meretricious beauty. So he invented just the sort of Jay Gatsby that a seventeen-year-old boy would be likely to invent, and to this conception he was faithful to the end.” 

The Allure of Green 

As his own invention, Gatsby has no Father but himself, and the book is replete with idolatries, both cosmic and darkly comic. Yet Gatsby, his smile glittering with youthful charm, is no mere slave of Mammon; what makes him sympathetic, even admirable, is that he is driven most deeply not by materialism but by youthful romance. Everything Gatsby does, from the mansion that he purchases to the lavish parties that he throws, is meant to win over Daisy, a beauty from Old Money whom he had loved as a penniless soldier on the eve of the First World War. Fitzgerald is painfully sensitive to Old Money’s capacity to exploit the poor and to protect its privileges against both the masses and the nouveau riche like Gatsby. Perhaps naively, Gatsby had expected that wealth would also bring him belonging. In the end, it only brings him notoriety. The same forces driving Fitzgerald’s novel—the condescension of elites and the mix of envy and resentment it provokes—continue to shape America’s social life and politics, dominated for the past decade by an improbable populist billionaire. 

The possibilities of the American continent, for all its vastness, are not unlimited. And the span of any human life is inadequate to its aspirations.

One could draw parallels between Jay Gatsby and the current president—both showmen given to extravagance—but their characters are starkly different. Though he tries to hide it, Gatsby is at root a Midwesterner. He has no real instinct for vengeance. He might be clad in gaudy suits, but it’s his hidden innocence that makes Gatsby great. Greatness and goodness are not synonymous, but the former requires at least something of the latter. Despite the squalor of his business dealings and the careless excess of those around him, Gatsby’s imagination retains a kind of purity, the “incorruptible dream” of Daisy and all that she has come to mean. 

In the end, Gatsby’s hope is disappointed. In truth, it was misplaced from the beginning. Desirable because she seemed just this side of unattainable, Daisy charms because of her superficiality, because there is not much to her beyond money, because Gatsby is able to project upon her, as if onto a blank screen, all the infinite and contradictory desires of his own imagination. While Gatsby was away at war, she had married the brutish and entitled—but rich and well-connected—Tom Buchanan. When he made his fortune, Gatsby would purchase the mansion across the bay from Tom and Daisy’s house and at night gaze out at the green light on the end of their dock, a symbol meaning everything and nothing.

In the end, Gatsby’s idealism asks too much of Daisy, and she balks before it. Tom Buchanan, with an instinct for cruelty that Gatsby lacks, is willing to play the libertine or the prig if it suits him and will use any means available to protect what is his. Fitzgerald’s verdict on the couple is devastating: “They were careless people Tom and Daisy—they smashed up things and creatures and then retreated back into their money or their vast carelessness, or whatever it was that kept them together, and let other people clean up the mess they had made.” 

There is something juvenile in both Gatsby and the Buchanans—the Buchanans’ self-absorption and Gatsby’s infatuation—but, for all its callowness, Gatsby’s naivete is one that aspires, charms, dreams, and builds. The novel’s narrator, Nick Carraway, identifies Gatsby’s defining characteristic as “an extraordinary gift for hope.” In him, ingenuousness combines with ingenuity in a characteristically American way. One hears echoes in Gatsby of Christopher Newman, the protagonist of Henry James’s The American, whose wealth proves no match for Old World cynicism. Even at the novel’s end, when his dreams of a future with Daisy lie in ruins, Gatsby seems willing to believe that in the morning, somehow, all will be better.

Beat On, Boats Against the Current

Perfection is not required for greatness. Gatsby’s promise is never fully realized, and in this, his cardinal virtue—hopefulness—mirrors America’s own. Fitzgerald makes the connection explicit in the novel’s haunting final paragraphs. Nick Carraway, ready to abandon the East and return to his own Midwestern roots, imagines the structures of New York fading away and the thick primeval forest of Long Island returning—the “fresh green breast of the new world.” The first Dutch sailors landing there, he imagines, beheld a continent that had promised man “for the last time in history […] something commensurate with his capacity for wonder.”

Critics might point out—with some justification—that this vision of a virgin continent is itself tinged with illusion and that those illusions would have tragic consequences in the interactions of Native Americans and European immigrants. Radical critics, such as the 1619 Project, label American ideals false from the beginning and the nation a “slavocracy.” Reading Gatsby, one feels the pull, but also the inadequacy, of such churlish ideology. 

A sense of divine justice and a self-indulgent tendency to forget about it are both characteristically American traits.

The novel’s critique of Gatsby’s idealism runs deeper than politics or economics and touches human nature. Gatsby makes us feel both the necessity of our dreams and their inherent illusoriness. Once structures are built on Long Island—whether log cabins or skyscrapers, churches or casinos—the place’s infinite possibility is gone forever. The nemesis who ultimately bests Jay Gatsby is time. Once he has reunited with Daisy and the enchantment of the thought of her inevitably begins to wear off, Nick Carraway warns, “You can’t repeat the past.” To which, the millionaire replies incredulously, “Can’t repeat the past? […] Why of course you can!” Like Ahab with his fist raised against the whale, Gatsby fights with heroic defiance, but in the end is mortal.

The possibilities of the American continent, for all its vastness, are not unlimited. And the span of any human life is inadequate to its aspirations. Theologians label the projection of man’s infinite longings onto finite objects “idolatry,” and, every once in a while, the stern categories of Christian moralism poke through the surface of Gatsby’s Jazz Age trappings. The foundation stones of American society, after all, were laid by Puritans, and young Scott Fitzgerald had no doubt been taught as a child by the Baltimore Catechism to both hope for and fear the final judgment. 

God’s judgment has haunted even Americans of unorthodox religious sentiments, like Thomas Jefferson and Abraham Lincoln, and it haunts The Great Gatsby, too. Among the novel’s most darkly comic images are a pair of all-seeing eyes—a faded billboard for the optometrist Doctor T. J. Eckleburg—that pass silent judgment on the happenings below. Unlike the monied “rotten crowd” that is indifferent to the lives it smashes up, Fitzgerald is capable of seeing the “valley of ashes” that American excess leaves behind and the “ash-gray men” who struggle through it. And the wages of sin are paid. Gatsby’s death is described with the sacrificial vocabulary of the Old Testament: “the holocaust was complete.” He is mourned only by Nick Carraway and the father he had abandoned. The Buchanans retain their wealth, but have to live with themselves.

A sense of divine justice and a self-indulgent tendency to forget about it are both characteristically American traits. Faith runs deep in our national consciousness—driving great awakenings, social reforms, and countless personal journeys—but none are more proficient constructors of idols than Americans. Fitzgerald seemed to sense that the 1920s, when Gatsby was published, was one of those moments in which the tides of American life flowed toward hedonism and away from God. Yet, perhaps despite himself, the author remained ever the Midwestern Catholic who, on some level, knew that the siren songs of wealth and romantic love can never satisfy our deepest longing. Hope, after all, is a theological virtue—one which will remain unfulfilled by anything less than the infinitude of God.

Americans will continue to remember and forget that lesson, like the rest of mankind, and in our own particularly American way. In its second century, The Great Gatsby still helps us to see ourselves doing so. Today, as in the Roaring Twenties, I suspect that our country could use a bit more Christian ballast and a bit less empty salesmanship, though Fitzgerald’s great novel offers no particular social manifesto for how we might do so. It is a tragedy in the classic sense, ending in the cathartic death of its hero. The novel’s genius is showing that the hero’s tragic flaw is precisely the American optimism that would seem to make tragedy passé. But it’s not a condemnation of that hopefulness; Fitzgerald’s final lines seem to invite us to keep hoping, to “beat on, boats against the current.” Even if we never reach that green light, something great might emerge in the process. America’s critics sometimes fault her for failing to live up to her ideals. But such failure is only possible when one dares to believe to begin with.

Perhaps no other work of literature captures that dynamic—national virtue and tragic flaw—like The Great Gatsby. Reading the novel again as we approach, with some unease, a quarter-millennium of the American experiment, I suspect—and I hope—that we are still capable of preserving, and rearranging, the pieces. We still have, as the novel puts it, “one fine morning—” before us.

It’s always a painful pleasure coming across a research paper that confirms one’s worst suspicions about reality. We all live in small worlds, and that’s how we like it. The agony lurking behind our day-to-day routines is intractable, and most people prefer to keep their eyes on the things they know. Philip Larkin has a grim couple of lines about a rabbit that’s dying in a rabbit pandemic: “You may have thought things would come right again / If you could only keep quite still and wait.” That rabbit is most of us, I’m afraid. Granted, the shrieking lunatics who populate the news cycle are more like demons than like rabbits, but a metaphor can only do so much.

The research paper I refer to is “They Don’t Read Very Well: A Study of Reading Comprehension Skills of English Majors at Two Midwestern Universities.” It goes to great lengths to confirm what every conscious English professor suspects, namely, that college students read little better than your average tuna—tuna being an apt comparison because they also meet in schools. Coauthors Susan Carlson, Ananda Jayawardhana, and Diana Miniel published their findings last year, in a respectable journal, CEA Critic (CEA stands for College English Association), which is run by people who value the traditional “close reading” method of examining literary texts. Their abstract is a good place to start: 

This paper analyzes the results from a think-aloud reading study designed to test the reading comprehension skills of 85 English majors from two regional Kansas universities. From January to April of 2015, subjects participated in a recorded, twenty-minute reading session in which they were asked to read the first seven paragraphs of Charles Dickens’ Bleak House out loud to a facilitator and then translate each sentence into plain English.

“Think-aloud” means just what it says: students verbalize the thought processes by which they understand or misunderstand what they are reading. The authors identify three levels of reading ability: problematic (58 percent), competent (38 percent), and proficient (5 percent). To be sure, 85 students is a small sample. And since the opening of Bleak House is Dickens at his most baroque, it is not shocking to learn English majors have a hard time with it. But we mustn’t fool ourselves. It seems all too likely that, for over a decade, millions of high school graduates have been faking their way through college with—as the authors show—boundless but unfounded confidence. To judge by the (mostly optional) ACT, the situation post-Covid has gotten worse. Techies take note: the study’s research subjects were given full access to their utopia-wired phones, and yet most could no more crack Dickens than a fog can crack an oyster.

The full dimension of this educational nightmare, or national coma, or systemic failure, or whatever we vainly want to label it, leaves one gasping for air. We are like the cancer patient who keeps sneaking smokes in the hospital stairwell. We have entered the reality of Flannery O’Connor’s Misfit: “She would of been a good woman … if it had been somebody there to shoot her every minute of her life.” For O’Connor’s manipulative hen of a grandmother, you can substitute the fall guy of your choice: teacher, admissions officer, principal, politician, bureaucrat, journalist, school board member. We have failed our youth, and they know it. Oh, they like their phones, all right, but they feel innocent in their bones, and their elders look guilty as Herod, and that’s why there’s no talking to them. Okay, boomer? 

Once we have absorbed the data, and consulted the national debt, and watched our shirking politicians, and stared at our screens until they sicken our blood, a feeling of hopelessness sets in. We have all the information we need, but we cannot act. We have enough knowledge to make contact with reality—rather like astronauts landing on the moon. But we lack the wisdom to put things in perspective and act accordingly. 

We are not the first to face a grave social problem demanding all the wisdom we can muster, but we may be the first to make wisdom impossible. Near the end of section II of The Waste Land, a London barman repeatedly tells his customers to drink up: “HURRY UP PLEASE ITS TIME.” The lost apostrophe suggests the inebriated atmosphere of a world at closing time. Beyond the rituals of alcohol, Eliot was sermonizing about the need to get our house in order before it collapsed. His multilayered use of myth, interwoven with the Hebrew prophets, Christian revivalism, and touches of Eastern asceticism, resonated for a society that hadn’t poisoned the wells. Readers still knew about and, if you will, believed in the sources of wisdom that Eliot drew on. Buddha, Augustine, Tiresias, Jeremiah, and the Grail myths tell tragic truths about who we really are. True justice, in their view of humanity, requires severe discipline.

It takes just a moment’s assent to the wisdom of humanity, a suppleness of spirit, a lighter step. Maybe we can do it.

If it is true justice to protect our children and guide them on the path of wisdom, why can’t we do so? I warn you, the answer is a dead cliché. It is the last thing you want to hear. It is not entertaining in the least.

What closes us off from the ancient sources of wisdom is our insurmountable pride. We are too proud to teach children how to read. By our own reckoning, we are much too important. Our teachers are too important (you will recall how the pandemic put the lives of healthy young teachers at risk, and how they courageously stood up for themselves). Gay pride (being doubly proud) is too important. Spreading the gospel of green energy, which will save the Earth for our children, is too important. Lessons in civics are imperative. Our cherished projects will not be pushed aside. They outrank and override anyone’s pedagogical concern for what Carlson, Jayawardhana, and Miniel call “the trap of translating metaphors and similes literally.” We are too proud—too competitive and too superior—to be troubled by undergraduates who, when met with the opening paragraphs of Bleak House, resorted to “oversimplifying,” “guessing,” and “commenting, that is, giving personal reactions.” We are too proud to bother about Bleak House, which has a bleak title and is nothing more than a long, long book, which is to say, an irrelevance. It hardly matters that, as the research shows, “high literacy rates in reading and math are a main indicator of professional and financial success.” We tolerate the reflex to dismiss such success as racist or patriarchal or dystopian, because we go with the flow. We lack the attention span to be liars.

When Joseph Conrad in Heart of Darkness described how Kurtz “kicked himself free of the Earth,” he prophesied our loss of instinctive humility. Hard baked into our clay is a fearful respect for limits, taboos, and laws. For humility is instinctive, and it takes tremendous social progress to lose all feeling for it. In this sense, we have made no end of progress. Our vestigial hold on limits, taboos, and laws is fading. They do not lecture us, these living fossils of prehistory. They don’t care if we remember them or not. They are not personal in that sense.

In the end, there are two enduring sources of moral authority: one is God, the other is Nature. Millions of Americans detest everything these idols stand for. Their suspicions are not ungrounded—God and Nature have been employed toward terrible ends. But if you accept the need for enduring authority, you must draw from these sources, preferably without whitewashing the hard conditions they impose. 

To return to the research findings before us, let us confess that the cost of repairing the problem is more than we care to pay. Like Everyman haggling with Death, we turn to Nature and bloviate. But Nature is deaf and pitiless, particularly toward mothers. Mothers will have to pay a steep price for getting our children back on track—educated mothers will pay the highest price of all. Fathers must play an integral part in their children’s enrichment and education. That is what true justice demands, more than it demands environmental justice, social justice, or economic justice, more than it demands a proper education in civics. 

Children are a living first principle. In the end, children will learn to read only if their parents read them books that fire their imaginations. Children come to hate books that have a palpable design on them. There is no other way to answer their real needs. More Larkin: “Get out as early as you can / And don’t have any kids yourself.” Government cannot come to the rescue, because the services required are beyond price. Libraries? Libraries are where the homeless and addicted rub shoulders with literary Drag Queens. I happen to respect Drag Queens and write about them affectionately in my first novel. The homeless and addicted have (most regrettably) a claim on me. But they do not come first. Your typical librarian comes first. I note the authors of “They Don’t Read Very Well: A Study of Reading Comprehension Skills of English Majors at Two Midwestern Universities” did not provide data on the home-environment of their subjects—yet one more exhausting task for three female authors who are already doing society a great service. It is all so unpleasant. We ask so much of women already; must they do everything? But still, if we really want our children to read, the implacable fact—I repeat myself—is that millions of mothers will have to relinquish or modify their aspirations. Nature doesn’t care. 

Would society recognize this maternal rescue operation for the good it is? Would pride allow that small token of appreciation? Pride will denounce such women as weak. It will protect itself by projecting its faults on others. I do it all the time. But who knows? Maybe labor-saving devices can help—do any robots know how to prepare a nice salad? Maybe we can cultivate ways of talking that respect our vaunted pluralism. When we encourage little breakthroughs, we are not following the rippling current of power. It takes just a moment’s assent to the wisdom of humanity, a suppleness of spirit, a lighter step. Maybe we can do it. It may help to remember that, strangely enough, there is more to life than the random arrangements of matter. For if we really believed that we would continue what we are doing and ignore the boring data of “They Don’t Read Very Well: A Study of Reading Comprehension Skills of English Majors at Two Midwestern Universities.”  

Few Supreme Court majority opinions have provoked such mirror-image approbation as Bostock v. Clayton County and United States v. Skrmetti. Bostock let progressives hail Title VII as a new charter of LGBT workplace equality. Skrmetti, by contrast, let conservatives cheer a state’s power to withhold puberty blockers from minors, preventing premature gender transitioning. Scratch the varnish, however, and both triumphs expose the similar flaw in reasoning, even though Skrmetti at least lands on the correct outcome.

Each majority assembled an elegant logical edifice while evading the question that the cases actually presented: what did the controlling words of the relevant enactments as understood by the people who passed them say about discrimination against the relevant group—homosexuals in the case of Title VII and transgender people in the case of the Fourteenth Amendment? The upshot is stark: Bostock misconstrued Title VII, and Skrmetti evaded addressing the meaning of the Fourteenth Amendment.

In both cases, Justice Samuel Alito showed the better ways, effectively confronting the meaning of the relevant enactment and determining whether it gave special protection to the class at issue. It is not enough for judges to be theoretical originalists in either statutory or constitutional interpretation. They need to put these theories correctly into practice.

Begin with Bostock. Justice Neil Gorsuch’s opinion offers an illusion of tight analytic logic applied to Title VII of the Civil Rights Law, which forbids employment discrimination “because of … sex.” Gorsuch’s logic hinged on a “replacement” concept: Imagine two otherwise identical employees, Gorsuch argues, one male and one female, who are attracted to men. Then fire only the man for that reason. That discharge thus is “because of … sex” and violates Title VII.

The syllogism is crisp enough for an LSAT prep book, yet it ignores the entire semantic context of Title VII. In mid-century legal English, “sex discrimination” meant treating women worse than men, such as through unequal pay or glass ceilings, while homosexual conduct still carried criminal penalties in many states. No committee report, floor speech, or press story hints that Congress conceived Title VII as a lever for regulating sexual orientation or transgender status. The majority effectively transports a twenty-first-century definition back into a mid-century enactment. It does not recognize that in law, as in fiction, the past is often a foreign country.

This opinion is not sound textualism, because it indulges instead in a kind of algorithmic literalism. From Blackstone on, sophisticated commentators have understood that context is key to understanding. Otherwise, like the majority in Bostock, one will lose the understanding to which the lawgivers aimed.

In his Bostock dissent, Justice Alito powerfully excavates Title VII’s meaning in its historical context. Dictionaries, EEOC rulings, and newspaper usage all confine “sex discrimination” to male–female inequality. Discrimination resulting from pregnancy fits because its burdens fall on women as women; sexual orientation and gender identity do not. Thus, Alito argues that the Court reaches its favored result only by discarding the statute’s original meaning.

The Skrmetti majority had a different ideological valence but also failed to do the necessary work of historical interpretation. Tennessee’s Senate Bill 1 bars puberty blockers and cross-sex hormones for minors when prescribed for gender dysphoria, and yet permits the same drugs for other pediatric conditions. Writing for the Court, Chief Justice John Roberts deploys a tidy logic designed to dodge the hard question: whether discrimination against transgender people warrants heightened scrutiny under the Fourteenth Amendment. By rebranding the law as a neutral “medical use” regulation, he tries to tuck it beneath Geduldig v. Aiello—a decision that treated a pregnancy exclusion as non-discriminatory precisely because not all women are pregnant. Similarly, Roberts argues that because the Tennessee statute does not affect all transgender people, rational-basis review suffices. Yet it can be persuasively argued that the statute is not neutral because it forbids the same medicines only when they aid a gender transition, an overt discrimination against a defined class. Only transgender adolescents shoulder the burden of the statute.

Of course, textualist analysis does not require us to deny that social norms can and do evolve. But forcing that evolution is emphatically not the role of the Court.

Alito, here as in Bostock, was the voice of common sense. He stated that the law prohibits medical procedures that are intended either to “enabl[e] a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex,” or to “trea[t] purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” Therefore, the underlying basis for the classification is a minor’s intent to express a gender identity different from the minor’s biological sex.” A court that insists the statute is neutral never has to ask the decisive question of whether the Fourteenth Amendment’s anti-caste principle forbids the burden in the first place.

But the concurrences supply what the lead opinion omits. Justice Barrett turns to Footnote 4 of Carolene Products. Heightened scrutiny under the Fourteenth Amendment, according to Barrett’s interpretation, is reserved for laws that adversely affect “discrete and insular minorities”—groups that are in a similar political and social condition as those the Fourteenth Amendment ratifiers primarily had in mind—African Americans in the nineteenth century. Each factor involved in that “discrete and insular minority” status—immutability, historical state-enforced oppression, political powerlessness, and irrelevance of the trait to civic competence—asks whether a modern claimant stands in the Freedmen’s shoes.

To be sure, it could be argued that the focus on whether a minority is discrete and insular as suggested by Carolene Products is not an originalist analysis. Critics sometimes paint it as a roving commission for modern values. But correctly used, the analysis focuses on whether a group has relevant characteristics similar to the freedmen who were the central objection of the Fourteenth Amendment’s protection. Such common features suggest that the equality principle in the Fourteenth Amendment provides the same special protection that they enjoyed. In short, the approach discerns the meaning of equality as an anti-caste principle and deploys historically based criteria to determine whether its scope sweeps to include other groups.

Justice Alito’s separate concurrence applies those criteria with even greater granularity. He notes that race is visible at birth and immutable. By contrast, transgender status becomes visible only after social transition and can shift with further treatment. The oppression of Black people under slavery and the Black Codes was total and state-sanctioned; mistreatment of transgender persons, though real, has never matched that systemic oppression from the state. Freedmen even lacked the franchise. In contrast, transgender Americans, though few, have accumulated protective statutes, executive orders, and corporate policies with remarkable speed. And Tennessee’s measure rests on contested medical judgments, not on claims that the affected group is unfit for civic life. On every axis, the analogy to the Freedmen collapses, so heightened scrutiny is unwarranted.

Lay readers may wonder why such historical analysis matters. The answer lies in the tiers of equal-protection scrutiny. Most laws sail through the rational-basis test: government needs only show a plausible connection to a legitimate purpose. If, however, a statute classifies or targets a suspect class, the Court applies “strict” or “intermediate” scrutiny and almost invariably strikes the measure down. Thus, the preliminary question determining the nature of the classification is generally decisive.

Seen in that light, both majority opinions illuminate the peril of logic without history. Bostock enlarged a statute through syllogism and produced a result progressives loved; Skrmetti risked shielding a targeted ban through verbal finesse. Original public meaning creates a more stable law that follows the judgments of the enactors.

Of course, textualist analysis does not require us to deny that social norms can and do evolve. But forcing that evolution is emphatically not the role of the Court. Congress could amend Title VII explicitly to cover gender identity; Tennessee could revisit SB 1 in the light of accumulating medical data. What courts must not do is avoid grappling with the past, because the law is part of our past. When justices try, they sow confusion that harms the very movements they mean to aid. Bostock’s leap invites critics to accuse textualism of opportunism, and Skrmetti’s initial dodge invited critics to call the Court indifferent to equality.

The parties who cheered these opinions for partisan reasons may yet rue their logic. Progressives who applauded Bostock’s elasticity may confront it again when a deregulatory majority uses a literal meaning to narrow the scope of an environmental law even if the historical context shows that the understanding was broader. Conservatives who welcome Roberts’s relabeling in Skrmetti would be uneasy if a future Court used it to avoid addressing claims of discrimination against a religious group. What drives such logical constructs may ultimately be less legal rigor than the lure of convenience. Such shortcuts spare judges the archival labor of uncovering what mid-century legislators or Reconstruction-era citizens meant—and spare them, too, the discomfort of obeying values now out of vogue. But if interpretation is to recover the meaning of the law that governs us, it must begin where the text began, in the history that provides signs of the meaning the words still carry.

For many Gen Xers, the greatest Saturday Night Live sketch of all time is “Sprockets,” a recurring piece in the late 1980s and early 1990s. It made genius use of our vague notions about the bleakness of German popular culture during the twilight of the Cold War. The sketch had black turtlenecks, celebrations of the macabre, and an inexplicable pet monkey. I remember reading that one of the sketch’s writers had never seen German television, but Sprockets is what he imagined it was like.

And that confident ignorance is what made it. None of us knew a lick about German television. Our sense of it was based on fragments of actual information stitched together by uncharitable speculation. The result was classic parody: Take something real, grossly simplify most of it, and ludicrously exaggerate the rest.

It’s time to admit that DOGE was the “Sprockets” of government reform. Elon Musk seemed genuinely enthusiastic about cutting government, but he didn’t know a lick about governing. He took bits of information, added some uncharitable speculation, and created a caricature of policy and public leadership. In the end, what he offered America was comic theatre. Sadly, too many conservatives gleefully tuned in, thinking this farce was real.

We will miss the most important lessons from DOGE if we look at it as a clumsily executed effort at cost-cutting. Instead, we must understand it as simply the latest failure of technocracy—another instance of the high price we pay for trusting supposed technical experts to do the work of republican governing. As I’ve written, there are two kinds of technocrats. The better-known variety comes from the left. They claim expertise because of their elite schooling and smarts. They promise to apply “scientific” methods and dispassionate judgment to make government rational and efficient. They almost always seek a larger role for this newly sensible, streamlined government; under their care, they believe, the wise state can expertly manage schools, the economy, social services, housing, and so on.

The less-discussed variety comes from the right. These technocrats typically claim expertise due to their private-sector chops. They’ve been consultants or run businesses. They are sure their organizational expertise, strong backbones, and agility with numbers can whip the government into shape.

All too often, what unites the two is confident ignorance. Neither type really knows anything about governing. They’ve generally never served in any meaningful governing capacity before, and they are unaware of most of the history, rules, and duties of the entities they presume to fix. When made aware of such things, they routinely dismiss them as hindrances. If pressed, both types of technocrats will betray skepticism about democratic decision-making and the habits, practices, and mindsets that generally go along with it (like humility, incrementalism, accommodation, and compromise). Technocrats believe they know best; that process stuff merely gums up the works. In sum, they lack practical wisdom in governing—the knowledge and disposition that come from years of time on task and accountability for results. Worse, they often believe their inexperience is a virtue—they have fresh eyes, they haven’t been corrupted, etc.

Of course, we should reduce the power and reach of Uncle Sam, but that won’t happen via a hastily assembled, short-term project led by someone whose only meaningful experience with government was getting contracts.

The life cycle of technocrats, whether from the right or left, is well documented. They enter with self-assurance and titanic promises. They bring along a cadre of like-minded (and like-limited) supporters to execute the plan. They swiftly alienate people. Others quickly see the technocrats’ shortcomings. But the technocrat perseveres, unwinding old ways and chalking up the growing opposition to others’ inadequate vision and skills. Results disappoint. Dysfunction grows. Eventually, the technocrats retreat, muttering that they would’ve succeeded but for the recalcitrance of the system. 

That pattern was on full display during the rise and fall of DOGE. Elon Musk knew virtually nothing about governing, our system, its institutions, its history, or its practices. Like the Sprockets’ writer with German television, he had a vague sense of what it was based on snippets of information, and then he filled in the vast gaps with uncharitable speculation: It’s all waste and abuse. Bureaucrats don’t do real work. These jobs and tasks are meaningless. Civil service rules can be ignored. And so Musk applied the right-technocrat’s playbook. “I know business. I know numbers. I have backbone,” he may have said. “I’ll cut and fire and whip this behemoth into shape.”

It should have been obvious from the start that this wouldn’t end well, that DOGE would suffer the fate of other high-modernist initiatives. I predicted this repeatedly. In fact, my biggest surprise early on was that so many conservatives believed Musk and DOGE were a godsend. Of course, we should reduce the power and reach of Uncle Sam, I thought, but that won’t happen via a hastily assembled, short-term project led by someone whose only meaningful experience with government was getting contracts. Moreover, Musk’s experience downsizing X—reducing a social-media company’s workforce by a few thousand people—wasn’t exactly a cognate of overhauling the federal government’s roughly $7 trillion budget and 3 million-strong workforce. But many on the right bought in fast. Maybe it was their longstanding anger about big government, or maybe it was their sense that this moment called for a congenital disruptor. Whatever the explanation, DOGE fever suppressed conservatives’ natural skepticism and prudence and rendered them unusually susceptible to a charlatan’s pitch.

Under Musk’s guidance, DOGE demonstrated just how similar left- and right-technocracy are in practice. Left-technocrats have long seen government reform as a technical enterprise: Progressive Era “experts” believed they were utilizing scientific management; Great Society-era figures believed the principles of engineering could solve stubborn social challenges; Obama-era nudgers had great faith in the “scientific” benefits behavioral economics would bring to policy. Similarly, Musk’s DOGE team was chock-full of engineers, and they had great faith in AI’s ability to identify and drive needed reforms.

Left-technocrats—from Progressive Era “best men” to Kennedy-Johnson Era “best and brightest” to today’s administrative-state experts—have wanted to replace politics and politicians with tough-minded rationalism. Similarly, Musk repeatedly warred with the political leaders in Congress and the cabinet who had different priorities than DOGE’s algorithms.

But the most striking commonality is the lack of experience or even interest in republican government. Left-technocrats typically enter public service from foundations or academia. They’ve viewed electoral politics as messy, even unseemly. Speaker Sam Rayburn’s famous exasperation at the ostensible whizzes surrounding President Kennedy speaks volumes: “I’d feel a whole lot better about them if just one of them had run for sheriff once.” It was the same with DOGE. Musk, himself astonishingly inexperienced in governing, filled DOGE with employees from his various tech companies and initiatives. These young whizzes brought experience in AI, start-ups, and finance, but none from the world of governing. Ultimately, DOGE’s senior leadership, empowered to rework key governing institutions, had no experience in key governing institutions.

Given all of this, it should have come as no surprise that DOGE would flounder. Very quickly, Musk crossed swords with several members of the cabinet—that is, those who knew something about their agencies and were ultimately responsible for that work. The president soon had to side with his secretaries and direct his chief of staff to better manage Musk. None of this, however, stopped DOGE from making a raft of ill-considered, even dangerous, cuts. A partial list includes air traffic controllers, NOAA scientists, staff at national parks, nuclear safety workers, and cybersecurity officials. Such decisions were so ineptly implemented that DOGE had to rehire dismissed workers several times, and the courts had to stop DOGE from abusing its authority.

But most damning is DOGE’s failure to accomplish what Musk promised: Unprecedented reductions in federal spending. He began by claiming that $2 trillion would be cut. This was laughable to anyone with even a passing familiarity with the federal budget: That figure would require Congress to decimate entitlement programs and defense spending. Indeed, Musk soon had to back down from those claims. But that came after repeated dubious claims about reductions and an error-riddled website. It’s still not clear how much DOGE actually saved. And contrary to the hope that this effort would shock Washington into a new era of parsimony, Musk’s blow-up with Trump about the “big beautiful bill” demonstrated that Uncle Sam will continue to spend to the hilt.

DOGE demonstrated just how similar left- and right-technocracy are in practice.

There is, however, one noticeable difference between DOGE and past left-technocratic efforts. Those progressive engineers may have been smug, but at least they were sober-minded. They were generally the humorless, green-eyeshade type. They saw their project as technical, often giving the impression that politics and publicity were beneath the work. DOGE, however, from the very start, had a juvenile air about it. Not only was it full of very junior staff—recall the 19-year-old “Big Balls”—Musk himself engaged in petty name-calling, went teenage goth with “dark MAGA,” wielded a chainsaw for laughs, and bounced around childlike on stage during a political rally. His reported drug use is undisciplined at best. Even President Trump, seldom the most measured person in the room, privately described Musk as “50% genius, 50% boy.”

As we seem to close the book on DOGE, it’s worth asking why Trump chose someone so unqualified to run such an important operation. If the President really wanted to reduce spending and streamline the federal workforce, he could have selected a host of experienced people who knew how to get the job done: for example, steely-eyed former directors of the Office of Management and Budget who’ve worked on these issues or scholars at Cato who’ve studied this for ages. They would have understood what to cut, what not to cut, how to avoid lawsuits, how to work with cabinet secretaries, how to draft rule changes for agencies, how to work with congressional appropriators on future rescissions, and much more. Why would President Trump go with Musk instead of one of these experienced hands who knows policy and governing?

For the same reason that Saturday Night Live didn’t hire someone who actually knew about German culture and entertainment to write “Sprockets.”

That wouldn’t have made for good television.

The glittering sheen of commerce masks a Janus-faced enigma, that parent of both war and peace, glory and ruin, freedom and despotism, progress and regress, virtue and hedonism. Accused by thinkers throughout the ages of inducing these wide-ranging and contradictory effects, commerce—and its role in conditioning the character of peoples and nations—is the subject of a delightful new Festschrift, Commerce and Character: The Political Economy of the Enlightenment and the American Founding, in honor of Ralph Lerner, the Benjamin Franklin Professor Emeritus of Social Thought at the University of Chicago and a distinguished scholar of political theory and American political thought for over sixty years. Edited by Steven Frankel and John Ray, the volume of essays offers keen interventions in scholarly debates over Enlightenment thinkers’ views on the intersection of commerce and statecraft. Its chapters, however, are also written with a level of clarity and concision that makes their arguments accessible to readers who may be unfamiliar with some of the books cited throughout the volume.

Commerce and Character uses Lerner’s pioneering 1979 article, “Commerce and Character: The Anglo-American as New-Model Man,” as a provocation for a series of essays from leading scholars in modern political thought on enduring themes of political economy that Lerner explores in his original essay. His thesis was that early modern thinkers such as Montesquieu, Smith, and Hamilton defended the idea of the commercial republic as a more plausible alternative to ancient republics grounded in civic virtue and as a more just political arrangement than the political-theological regimes of medieval Christian Europe. The protagonist of the commercial republic was what Lerner calls the “new man of commerce.” This novus homo exemplified the qualities of prudence, sobriety, and thrift, subduing the pretensions of glory, pride, salvation, and the public good extolled in various fashions by the preening aristocrats, kings, and pagan citizens of yesteryear. (One may detect resonances with Albert O. Hirschman’s The Passions and the Interests, though by Lerner’s own admission he deviates from Hirschman’s thesis in some respects.) Carefully drawing attention to the thinkers’ diagnoses of both the merits and limits of commercial society, Lerner concludes the essay by appealing to Alexis de Tocqueville’s cautious endorsement of the commercial republican way of life. This new social order did not merely enable man to tame and channel his baser passions, but it also prompted him to imagine new conceptions of greatness and happiness harmonious with the sweet flow of commerce.

The chief strength of this new volume is the nuance and care with which it examines the challenges commercial society has posed for understanding liberal and republican political thought, statesmanship, the moral texture of social relations, and religion. Commerce and Character thus delivers readers from the ravenous wolves of homo economicus and rational choice theory, two intellectual traditions eager to peel back the ethical and cultural layers of the market participant and narrow his mind to the cold motives of calculation and economic self-interest.

Consequently, the essays escape the tangle of ideology driving contemporary debates over the value of commerce in modern society, resisting Pollyannaish paeans holding that boundless wealth and GDP are always for the better but guarding against romantic notions of a pre-commercial age that subordinated lucre to glory. The book also serves as an instructive addendum to the aforementioned Passions and Interests, which traced the attempt by early modern thinkers, rooted in Machiavellian realism, to redefine the human passions as a productive instrument to preserve and beautify social order. Finally, the volume is a timely, if unintended, intervention in ongoing disputes over tariff policy, injecting much-needed philosophical and historical perspective into the debate over free trade that too often submits to the clutch of quantitative-drenched economists who flaunt supply-and-demand charts but no audible pulse.

Many features that enabled the rise of the commercial republic, including due process, property rights, mixed government, and Christian notions of equality, predated the eighteenth and nineteenth centuries.

The broader benefit of books such as Commerce and Character is that they stretch the field of vision of the economics discipline. Consider the recent exchange between Gene Callahan in Modern Age and David Hebert, here in Law & Liberty, over the role of economists in assessing tariff policy and conceptions of happiness. Hebert is correct to highlight how empirical evidence furnished by economists can puncture fanciful assumptions behind public policy, such as the conjecture that tariffs have a reliable track record of protecting the domestic steel industry.

But Callahan rightly emphasizes that the conventional economic worldview—which, we should add, thoughtful heterodox economists resist—often holds a cramped and unimaginative understanding of happiness and wealth. Hebert acknowledges that many people, including himself, choose to work in less lucrative jobs because these jobs endow them with a profound sense of meaning. This observation itself confirms the merit of Callahan’s judgment, for it dissolves the sacred tenets of homo economicus by weighing deeper factors essential to man’s happiness that cannot be measured, computed, and instrumentalized. Marx’s superstructure in this formulation is now the base, and his base is now the superstructure.

Cue the rational choice theorist: The decision to forego a higher-paying job for a lower-paying but more meaningful one maximizes individual utility, so Hebert’s example in fact underscores the persuasive power of the economic mindset. This logic is reductive. If happiness exceeds the accumulation of material riches, as Hebert seems to suggest, and if economists acknowledge this guiding principle as well, then they are veiled Aristotelians with judgment rather than scientific quantifiers with measuring sticks.

Because the essays in Commerce and Character embrace this larger view of human flourishing, they are able to take into serious account notions of greatness, political regimes, national identity, moral corruption, imagination, false consciousness, sympathy, patriotism, and family affections in their study of commerce. To wit: John Locke offered a more compelling defense of property than David Hume (Michael Zuckert); Smith and Alexis de Tocqueville envisioned the need to formulate new conceptions of greatness in the commercial republic (Ryan Patrick Hanley); Thomas Jefferson helped create a new national identity that envisaged an empire of liberty released from the grip of artificial hierarchy and privilege (Peter S. Onuf); and Rousseau detected a kind of false consciousness lurking within the commercial republican project (Clifford Orwin).

Regarding doux commerce, the essays on the whole paint a compelling portrait of early modern discourse on whether international trade tended to foster peace, with Montesquieu, Smith, Hume, and Thomas Paine endorsing this approach and Hamilton registering a notable dissent. In addition, Lerner’s and Onuf’s contributions shrewdly, if briefly, alert readers to the nuances in this argument. They highlight how the marriage of industrialization and commerce, rather than promoting global peace and stability, has frequently augmented the power of the state, a seductive steroid utilized by leaders to help incite unprecedented military conflict.

Yet there was scant discussion in Commerce and Character of Smith’s and Hume’s awareness of this phenomenon as well, which diminishes the subtle complexity of their views on the subject. Although both thinkers are considered proponents of doux commerce—an interpretation reinforced by the volume’s chapters—they were also alert to the novel features of commercial society, such as a growing industrial base and public debt, that created the devilish incentives to finance and wage war. “The more labour … is employed beyond mere necessaries,” Hume wrote, “the more powerful is any state; since the persons engaged in that labour may easily be converted to the public service.” Smith’s famous observation that the division of labor dissolved man’s “martial spirit” suggested the opposite conclusion but similarly underlined the connection between commerce and war: a commercial and industrial nation rearing docile pin makers and not valorous political animals did not adequately prepare its citizens to defend themselves, thereby rendering the nation weak—and thus prone to attack—unless remedied, at least in part, by other measures (such as, in Smith’s case, modestly funded public education and a standing army). As Maria Pia Paganelli and Reinhard Schumacher have shown, Smith also observed that “merchants and manufacturers” in a commercial nation possessed sufficient amounts of capital to underwrite wars. This is not to mention Smith’s more famous attack on the monopolistic spirit of self-interested merchants that bred national animosities toward foreign rivals. His defense of the older form of the Navigation Acts further suggested his intuition that doux commerce would struggle to calm the tempestuous jealousies between English and Dutch traders.

Like many festschrifts, at times there is a lack of methodological coherence and consistency among the different chapters. Particular essays directly engage with Lerner’s “Anglo-American as New-Model Man,” and others don’t, which occasionally makes for awkward transitions from chapter to chapter. Because the general spirit of the volume smiled favorably upon the ascent of commercial society, even given the authors’ judicious attention to the potential drawbacks of this development, an essay from a harsh critic of modern commerce—say a postliberal or even a Marxist—could have enhanced the flavor of Lerner’s dialectic with his contributors by expanding the terms of debate of the modern bourgeois ethic.

The protagonist of the commercial republic was what Lerner calls the “new man of commerce.” This novus homo exemplified the qualities of prudence, sobriety, and thrift.

The essay that does offer the best direct engagement with Lerner’s thesis, and one that initiates the sharpest disagreement between Lerner and his interlocutors, is Colleen A. Sheehan’s “The Good Republican: Madison’s Model Citizen.” Criticizing Lerner’s belief (as she understands it) that the American Founding was ultimately rooted in Hobbesian premises about the ineradicable nature of the human passions, Sheehan maintains that Madison put forth a vision of a civically conscious citizen who harbored the moral virtue and educational background necessary for republican self-government. Madison’s “model republican citizen” was, like Lerner’s “new man of commerce,” a man of modernity. But, unlike the modern commercial republic, the Madisonian republic in which Sheehan’s model republican citizen lived aspired toward “age-old political ends,” such as public virtue. Framed differently, this citizen embodied the qualities of a statesman, not a shopkeeper, a Pericles, not a Bezos.

Delivering a sharp jab at East Coast Straussian and Deneenite interpretations of the American Founding, Sheehan concludes that the Founding was not a low or vulgar episode but a noble moment capturing the civic republican heartbeat of Madisonian political thought. In response, Lerner questions Sheehan’s premise that Madison’s model republican citizen contravenes Smith’s and Benjamin Franklin’s (and hence Lerner’s) vision of the new man of commerce, noting the latter thinkers’ appreciation of character formation that leapt beyond an appeal to the bourgeois virtues. This zestful exchange was one of the highlights of the volume.

Additionally, a number of essays explicitly or implicitly accept Lerner’s contention, indicated in a footnote to his original essay, that the champions of commercial republics, due to their shared embrace of ordered liberty, sought to “emancipat[e] men from many modes of thought of the past.” This framing—the advocate of commerce in the early modern period, even if grounded in moral sensibilities, desired to liberate profit and self-interest from the thick rust of European custom, prejudice, and monkish superstition—is common among intellectual histories and political theory studies of the emergence of commercial society and capitalism. Yet there are at least two dangers with this Whiggish-tinged framing. First, it can understate the premodern roots of the modern economy. Many features that enabled the rise of the commercial republic, including due process, property rights, mixed government, and Christian notions of equality, as the authors of the essays well know, predated the eighteenth and nineteenth centuries.

Second, and more dangerously, this pleasing binary between premodern and modern notions of commerce can feed the assumption that such seemingly outdated modes of thought yield little insight into understanding political economy today. Lerner’s concluding essay in response to the contributors flirts with this temptation. Lerner maintains that the proponents of commercial republicanism rightly sought to displace premodern Europe’s older system of opinion and sentiment—the same system, he observes, Edmund Burke defended in his famous quip in Reflections on the Revolution in France lamenting the demise of the age of chivalry and attacking the “sophisters, oeconomists, and calculators” of the late eighteenth century—with an updated system guided by the qualities of the new man of commerce.

Wistful Don Quixotes may not be the answer to contemporary social ills, but the sophisters, economists, and calculators of today—the talking heads, tinkerers, and technocrats—who filled the vacuum left by the downfall of the aristocracy and clergy are certainly not either. The singular artistry of Ralph Lerner’s career demonstrates the resilient truth that the pursuit of the eternal builds the stable philosophical and aesthetic foundation for the restless activities of the sophisters, economists, and calculators—and even, dare we say, for those glitter-coated ventures of the new man of commerce.