Category: Michael Novakhov – SharedNewsLinks℠

The Diabelli Variations by Beethoven are “a wretchedly difficult work,” remarks Lawrence Perelman. That’s how he starts his book, and there will be more such details.

Recounting a friendship based on music, American Impresario: William F. Buckley, Jr., and the Elements of American Character is too specialized to deliver much on its grand subtitle. Yet it’s a gem, richly insightful on two of Buckley’s deepest qualities—his love of classical music and generosity as a mentor.

Admirers will be delighted to see how brightly these burned even in his fading last decade. Sam Tanenhaus’s recently published long biography, Buckley: The Life and the Revolution that Changed America, notes these qualities, but not emphatically or in much depth. Perelman does them full justice by thoroughly describing his years of warm contact with Buckley.

The son of 1970s-era Jewish immigrants from the Soviet Union, Perelman felt a visceral loathing of communism, so he had that special reason for admiring him: “Everything he had done … as a great Cold Warrior.” He was also inspired by Buckley’s recent short book In Search of Anti-Semitism. Serious reasons indeed. The importance of anti-communism in sparking and defining Buckley’s long career as the American right’s great articulator cannot easily be exaggerated.

The author began earning his friendship in the mid-1990s by offering, out of the blue, to perform something on the piano for him. Excited and nervous, the college-age Manhattan School of Music student, who aimed at a career as a concert pianist, brought two pints of freshly squeezed orange juice—and Dostoyevsky’s The Brothers Karamazov. “I was taking a Russian literature class at Columbia … and wanted to emphasize my intellectual side.”

The piano at the elegant, “magisterial” maisonette was a huge old high-quality Boesendorfer, but not in tune. Firmly instructed even on this point by his tough music teacher—whose family “survived the Siege of Leningrad by boiling the flour off wallpaper”—young Perelman believed in not complaining about a piano. He played a selection from Bach’s The Well-Tempered Clavier and finished with Liszt’s “hyper-virtuosic … Transcendental Etude, which ends like an intense blizzard fading to black.” Buckley and a young guest applauded after each piece; discussions of the music and the composer followed. After it all “sped by,” Perelman “walked out of that Narnian door” onto East 73rd Street and immediately “asked myself, ‘How do I get back in?’”

Their relationship grew with more such performances, then with Buckley’s offer to provide him with much-needed grant money to research the significance of students’ exposure to classical music—and especially the longstanding lack thereof—in the New York City schools. He wished to know what people missed in their adult lives by having learned nothing about it, by never hearing it. In a letter, Perelman had “declared boldly” that he wished to do for classical music what Buckley did for conservatism, and here was a possible start on that. (He eventually became founder and CEO of Semantix Creative Group, a strategic advisory firm specializing in business strategy, management, and communications “for a wide range of artists, institutions, and companies in the performing arts.”)

He found it difficult to reach definite conclusions about the amorphous question, also stated as: “What does the lack of art cost you?” But that didn’t matter greatly to Buckley, who graciously accepted the lack of solid results. More important was that someone who knew classical music had tried, that a worthy young man had the opportunity to research the point. It’s equally significant that Buckley wanted very much to know about this: what people in general, not just potential musicians, miss from having no musical education. 

Perelman also played repeatedly for National Review people, plus family members and social friends of Buckley’s, at the maisonette. The richly appointed palatial room, the outsider as star of the evening making exquisite music after so much practice, all suggest Western civilization at its finest. Perelman’s palpable delight in this setting, his refreshingly open enthusiasm for it, continued many years later. 

Buckley’s zeal for classical music is especially remarkable because it was originally imposed on him by a formidable parent. “My father enjoyed the kind of music he heard as a young man living in Mexico” in his years as an oil prospector. “He knew nothing about serious music except that it was serious. … His instructions to our teachers were to expose us to: serious music.”

Buckley’s ability to respond to all those letters, his commitment to playing and hearing classical music in his busy schedule, and indeed his whole adult life, demanded a striking efficiency in his use of time.

They learned on the five pianos at Great Elm, the Buckley estate. Weekly private lessons, practice 45 minutes daily, “listening sessions of great works of music curated by Penelope Oyen, one of the children’s tutors.” As Buckley later wrote: “Miss Oyen … would weep when listening … not for every composer; but almost always for J. S. Bach.” These sessions were four times a week for an hour, using a giant, advanced phonograph player. “The absolutely decisive feature of Miss Oyen’s system was very simple: Darkness … Too much light, and we’d have managed to read … anything to avoid just … sitting there.” There was “no escaping” the music. 

Perelman conveys the elder Buckley’s great success in this respect:

“For Bill and his nine siblings the sound of music … was ingrained early on, leading most of them to become classical music enthusiasts.” Bill and his sister Trish were “the most serious” in this, actually contemplating careers as musicians. “Bill even devised a new notation system … published in 1994 titled Getting Back to the Piano: Of Course You Can Play! … This quirky volume—now out of print—shows just how passionate he was about the instrument and encouraging people to learn it at any age.” He also loved playing the harpsichord.

More than half a century later, Buckley’s interest in classical music still thrived, even as his engagements with politics waned. For this reason, he let the unknown Larry Perelman into his busy life. Perelman frankly admits to dwelling, in the book, on the mere fact that Buckley made the effort to answer his letter and later ones. He dwells on it because he deems it a profound reflection of Buckley’s character:

“His first letter … in 1994 gave me so much belief in myself, in him, and in humanity. It was only an invitation to play piano … but it reverberated … [and] gave me an incredible amount of confidence.” The experience “also represented something very American.”

With sharp regret, Perelman notes that this practice, treating a would-be correspondent as something like an equal, now seems to be dying: “Today … one mostly writes into an abyss expecting no response and being shocked or heartened by a response. If there is a lesson to learn from Bill and the virtue of communication, it is to respect the time that someone took to write you. … I believe Bill felt a responsibility to answer any letter he received. That is a virtue which today is lacking in the American character … leaving the person on the other end questioning why there’s no reply. That emptiness and void, silence and selfishness, is something that begins to define a nation and its people.”

Buckley’s ability to respond to all those letters, his commitment to playing and hearing classical music in his busy schedule, and indeed his whole adult life, so quantitatively productive, demanded a striking efficiency in his use of time—a habit that easily could have spoiled his generous, aristocratically relaxed demeanor but didn’t. “Bill’s discipline was … known to all his friends and colleagues. He was up at 5 a.m. … How else could he have accomplished everything … without the gift of discipline? … He never could have built the movement and the following he had.” Buckley also retired at an earlyish hour, and a “conversation with him at a party was like a flash of lightning.”

Plausibly, Perelman speculates: “From where did this discipline spring? I believe that a major element was rooted in Bill’s quest to become as accomplished a musician as possible.” Even good amateur playing, as he shows when discussing his own extensive practice for the Buckley recitals, is hard work like the efforts of an accomplished athlete.

The Great Elm drill may also have enhanced Buckley’s “ability to speak and write melodiously, as a musician plays, sings, or composes. … Bill’s prose was musical. … Colleagues have commented on how words flowed from his fingers on a keyboard or typewriter much like musical notation flowed from Mozart’s mind, … already complete and edited into a score.”

Buckley thought classical music was among “the major achievements of our civilization,” Perelman writes, so he used his iconic television interview program to share its “importance to him and humanity”—taking “any excuse to bring up Bach, most notably with the Firing Line ‘jingle’ for many seasons … the opening of the third movement of Bach’s Brandenburg Concerto No. 2.”

“It is not necessary,” Buckley wrote in a column on the composer’s 300th anniversary in 1985, quoted by Perelman, “to believe in God in order to revel in Bach … though there is a need for such human modesty as Einstein expressed when he said that the universe was not explicable except by the acknowledgement of an unmoved mover.” Bach’s music “disturbs human complacency because one can’t readily understand finiteness in its presence.” The book shares a key observation by Perelman’s mother Celia after one performance: “how Bill sat behind me and reacted with amazement at each challenging bar of music. He was always the most involved member of the audience.”

Perelman notes, too, the centrality of classical music to Buckley’s social life. The fortnightly dinners at his city residence featured standard invitations to the National Review editors and included friends of Bill and his wife Pat, a pre-eminent socialite, with “guests of honor ranging from writers to politicians, musicians, and clergy.” Often they would hear classical pianists and harpsichordists. Through these performances that preceded dinner and its political discussions, “Bill aimed to convert those who weren’t musically attuned.” In the early 2000s, Perelman played there about once every six to eight months, later playing occasionally at Buckley’s home on Long Island Sound in Stamford, Connecticut.

It was here that Buckley died, after battles with emphysema and other ailments, on the morning of February 27, 2008, at work in his adjoining study—just hours before another scheduled performance. Perelman had asked to stay overnight so he could “get some good practice in” the next day. ”I woke up from a deep sleep,” Perelman recalls. “Ugh. 6:30 a.m. Footsteps in the hallway? It must be Bill going downstairs.” As he remained briefly awake, Perelman thought of “the glass as half-full. … As difficult as it was to watch him struggle to walk and breathe every few feet, it was still our Bill who was with us.”

He means at least partly this: “In Bill’s final two years … our interactions became more frequent and his requests for performances multiplied. In a particularly … unvarnished interview with Charlie Rose in 2005 … Bill conveyed … that he was ready to die … [and] seemed dejected,” yet that Buckley was “very different from the one I saw during musical encounters. There was something about music that gave him life, or the willingness to live.”

For this reason and more, a book with so much on his engagement with music provides a valuable part of the Buckley story. The American Impresario title, however, refers to far more than Buckley’s extensive contact with the music world. It’s about his strong, lasting instinct to build relationships among people who interested him or provoked his admiration—and to assist them.

“The goal of these pages,” Perelman explains, is “to shine a light on the importance of Bill the impresario. … That role was actually where we as a society can still learn from him.” Buckley was “the great connector always bringing people together and letting the sparks take on a life of their own”—always seeking “the opportunity to create opportunities for others.”

“As we wander in this age of uncertainty,” his friend and protégé urges, “we should look to Bill as an example of what to emulate.”

On December 26 (O.S. December 14), 1825, a group of idealistic, young army officers, commanding about 3,000 soldiers, staged a coup in St. Petersburg with the aim of forcing the Senate to adopt a liberal constitution for the Russian Empire. Badly led and organized, it was easily crushed by the new Tsar, Nicholas I. An uprising by an allied group, operating in what is today Ukraine, met a similar fate days later.

These young officers, members of a number of different secret societies, subsequently came to be known collectively as the Decembrists, and their abortive coup as the Decembrist Revolt. Although it failed and its leaders were severely punished, the revolt was enormously important to the subsequent socio-political evolution of Russia. Following the revolt, Nicholas instituted an authoritarian regime that stifled any sort of free thought or intellectual inquiry that might remotely challenge his absolute power.

In her excellent book, The First Russian Revolution, fortuitously released in time for the revolt’s bicentennial, Susanna Rabow-Edling, a professor of political science at the Institute for Russian and Eurasian Studies at the University of Uppsala, Sweden, presents a detailed picture of the Decembrists themselves, their fellow-travelers, and their wives and girlfriends. Her focus is quasi-biographical; she asks why so many young noblemen, army officers with promising careers ahead of them, risked everything to build a liberal social and political order in their country. After introducing us to them, she recounts their actions in their short-lived attempt at revolution and their subsequent arrests, interrogations, and punishments. Finally, she acquaints us in great detail with their lives in Siberian exile, where most of them were joined by their wives. What emerges from the book is thus a work of political and intellectual history, enhanced by often extremely moving portrayals of human bravery, devotion, and love.

So who were these so-called “Decembrists?” As Rabow-Edling describes them, they were a small group (around 200 at any given time), though their ranks fluctuated and they always had large numbers of supporters who were not officially members of any of their societies or clubs. Almost all of them were young junior military officers drawn from the ranks of the aristocracy. Besides these professional and demographic characteristics, they shared two other extremely important traits: they had all received decent educations, including training in foreign languages, and almost all of them had taken part, to one extent or another, in the wars against Napoleon.

The ramifications of these last two aspects of their biographies are stressed by the author, who sees them as the foundation of the entire Decembrist saga. Armed with their knowledge of French (and usually German as well), and an intellectual curiosity whetted by their educational backgrounds, these young officers found the unaccustomed intellectual atmosphere in post-Napoleonic Europe to be exhilarating and immersed themselves in it to every extent possible. Often, this also meant joining the Freemasons, through which they imbibed additional Enlightenment ideas, besides providing a model for their subsequent establishment of their own secret societies in Russia. According to Rabow-Edling, the entire experience left them deeply impressed and committed to the central ideas of classical liberalism as it was emerging in post-Napoleonic Europe. Among others, these included republicanism (especially its insistence on constitutional government), the rule of law, equality, and patriotism.

An important related point, which Rabow-Edling mentions a number of times, is that the Decembrists had the courage of their convictions to advocate policies, especially the abolition of serfdom and the institution of representative government, which would have been detrimental to the material and political dominance of their socio-economic class.

Rabow-Edling goes into the intellectual background and interests of the Decembrists in great detail, providing lists of authors who influenced them, including the usual suspects of classical liberal thought. For example, one list she provides consists of such luminaries as “Smith, Bentham, Say, Rousseau, Nicholas de Condorcet, Cesare Beccaria, Louis de Bignon, Benjamin Constant, Jean-Louis de Lolme, Benjamin Franklin, Germaine de Stael, Antoine Destutt de Tracy, Gaetano Filangieri, Niccolo Machiavelli, Voltaire, and Montesquieu.”

Ideas, especially great, eternal ideas like freedom, justice, and equality, have no nationality. They are available to people everywhere. The Decembrist leaders recognized this.

This is a very diverse group, and unfortunately, Rabow-Edling does not go into detail about which authors were particularly important to the Decembrists and for what reasons. In general, in her extensive discussion of Decembrist ideology (such as it was), she stresses their advocacy of liberal political economy (especially private property rights and free trade), constitutionalism (occasionally expressed as republicanism), and the rule of law (particularly equality before the law).

Despite mentioning these authors frequently in general terms, Rabow-Edling only mentions one specific case where one of the Decembrists’ key leaders, Pavel Pestel, was “particularly inspired” by a liberal philosopher, in this case Destutt de Tracy. His famous book on Montesquieu (A Commentary and Review of Montesquieu’s “Spirit of Laws”) was apparently the major influence in Pestel’s draft of a constitution for a (republican) Russia. Rabow-Edling’s list of intellectual influences on the Decembrists is also interesting because of the complete absence of German names, whereas intellectual histories of Russia at the time usually highlight the importance of German philosophers, especially Friedrich Schelling and Hegel, at Russian schools and universities.

A main point in reviewing the Decembrists’ intellectual pedigree is that all of their major influences were Western Europeans. This becomes very important after their revolt, as their enemies sought to portray them as “alien” and anti-Russian. While Rabow-Edling freely admits, and even relates in great detail, the European influences on the Decembrists, she emphasizes that “these young Russian officers saw themselves as Europeans and Russia as part of Europe,” but also “they were committed patriots. They wanted what was best for Russia and for the Russian people, which in their mind was freedom, representative government, and the rule of law.”

Significantly, the Decembrists also went to great lengths to argue that their modern, “European,” ideas were, in fact, rooted in Russian history. They pointed to the medieval city republics of Novgorod and Pskov, with their popular representative institutions, as alternatives to the narrative of traditional Russian autocracy. Kondrati Ryleyev and Alexander Odoevskii, two prominent Decembrists, wrote poems and stories glorifying the republican histories of these cities, and in the draft constitutions they drew up for their future Russia, they named their parliament the Narodnoe Veche, after the assemblies of Novgorod and Pskov. 

It is important to understand that these young officers were hardly operating in a vacuum. Liberal ideas were clearly in the air and seemed to be advocated by none other than the Tsar himself, the young(ish) Alexander I, known after 1815 as the “Liberator of Europe.” He was genuinely interested in liberal ideas and eagerly accepted his role, established at the Congress of Vienna, as king of a constitutional kingdom of Poland (known as the Congress Kingdom). He hinted frequently that he saw the Polish experiment as a forerunner to a future constitutional monarchy for Russia itself. He oversaw the abolition of serfdom in the Baltic provinces, instituted a number of reforms in the structure of the imperial government, and began work on a constitution. For the future Decembrists, this was all exciting stuff indeed, and Tsar Alexander, besides being their commander-in-chief, was their intellectual and political hero. They looked to him as a leader in their (admittedly somewhat vague) project for the liberalization of the Russian Empire.

Alas, this was not to be. Liberal revolutions in Spain and Naples rattled the conservative Concert of Europe established by the Congress of Vienna, and Klemens von Metternich, its architect and guardian, stoked Alexander’s growing fears of liberal agitation. A mutiny of disgruntled soldiers in 1820 apparently shook Alexander badly, as did increasingly vociferous grumblings from the Polish parliament (the Sejm). By 1821, Alexander had retreated from most of his erstwhile liberalism and reasserted himself as an autocratic absolute ruler.

Undeterred, the young officers now decided that the only hope for Russia was a revolution. But, as Rabow-Edling describes in great detail, their planning was complicated by intellectual divisions and disagreements about strategy. By 1825, the various secret societies and clubs to which they had belonged coalesced into two allied branches called simply the Northern Society, based in St. Petersburg, and the Southern Society, in the garrison town of Tulchyn (now in Ukraine). Besides the challenges posed by this geographic division, there were intellectual differences between the two societies, with the more radical Southerners, for example, hankering for a republic as soon as possible, while the Northerners were more open to a constitutional monarchy.

As the officers drew closer and closer to formulating their plans for an uprising, they were faced with an unexpected and unwelcome challenge: Tsar Alexander died unexpectedly on December 1 (O.S., November 19), 1825. He was only 47 years old. To make matters even more turbulent, he died childless, and the heir apparent, his brother Constantine, had, without any publicity, sometime earlier had renounced his claim to the throne, leaving their younger brother, Nicholas, as the heir. Unlike his more liberal minded brother Alexander, Nicholas had never made any secret of his autocratic conservative tendencies and he was broadly unpopular not just with the future Decembrists but, importantly, with large numbers of the common soldiery as well, who saw him (rightly) as a supporter of their frequently cruel commanding officers (not including, of course, our young Decembrists!).

The leaders of the Northern and Southern Societies realized that this was a revolutionary moment and, though hardly ready for action, they realized that if they did not seize it, and Nicholas were able to come to power, their cause would be lost. Since Constantine had renounced his claim to the throne while also not making this public, the situation in the capital was extremely unclear. The Decembrists decided to take advantage of the confusion by convincing as many troops as possible to swear their allegiance to the new Tsar Constantine, portraying Nicholas as a usurper. They would then occupy the Senate building and call for a Russian constitution. By the time the dust had settled, they hoped, Nicholas would be confronted with a fait accompli and would have either to abdicate or agree to rule as a constitutional monarch.

The actual events of December 26, 1825, proved to be just as chaotic and, ultimately, disastrous for the Decembrists as the above description of their plans hints, and Rabow-Edling recounts the events of that day in minute detail. Despite being plagued by weak leadership, poor planning, and bad luck, she suggests that the Decembrists might just have been able to pull off their coup. As things turned out, however, by nightfall, Nicholas and his loyal troops dispersed the Decembrists’ forces with great loss of life and crushed the revolt.

The Decembrists also went to great lengths to argue that their modern, “European,” ideas were, in fact, rooted in Russian history.

Rabow-Edling spends the rest of her book, almost half, recounting the sad aftermath of the failed revolt. The Decembrists were all tracked down within a few days, arrested, and imprisoned under differing conditions, in the (in)famous Peter Paul Fortress. Nicholas, by now fully ensconced in power and recognized as the new Tsar, oversaw the investigation into the attempted coup personally. The many pages of testimony collected by the investigating officials show the continued defiance, courage, and idealism of the imprisoned Decembrists. While clearly prepared for severe punishments, many of them nevertheless seemed to have hoped for clemency; they were from good, aristocratic families, after all. As a result, the severity of the sentences came as a huge shock to most of them.

The majority were sentenced to some combination of imprisonment with hard labor followed by exile in Siberia. But five were sentenced to death, originally by quartering, but reduced to hanging, ostensibly by order of Nicholas himself to spare the young aristocrats such a gruesome execution. The death sentences stunned not only the unfortunate Decembrists but much of Russian high society. Capital punishment had not been used in Russia since the end of the Pugachev Rebellion in 1775, and its return, used against people from noble families no less, created an atmosphere of fear and dread. Tsar Nicholas, eventually dubbed “the Policeman of Europe,” of course, knew exactly what he was doing. He wanted to make sure that everyone, especially any uppity nobles, would think very carefully about making any sort of trouble in the future.

In fact, Nicholas very quickly instituted a regime that actively discouraged any sort of philosophizing at all. Although Rabow-Edling does not go into this in any great detail, any sort of organized or academic intellectual life, to say nothing of overt political activity or even philosophizing, in Russia came to a halt until after Nicholas died in 1855. Philosophical and intellectual discussions and writing, such as they were, continued to be carried out more or less as hobbies by various gentlemen or exiles (or both), especially people like Alexander Herzen, who as a teenager witnessed the Decembrists’ revolt and was profoundly moved by it and its aftermath.

The effects on Russian intellectual history were immense. As Rabow-Edling explains, Nicholas introduced in 1832 what became known as “Official Nationalism.” She describes how in this new doctrine, “The new conception of the nation as a unique people was employed as a substitute for the radical idea of the nation as a sovereign people advocated by the Decembrists. It allowed the regime to create a narrative in which the Russian autocracy was tied organically to the Russian nation, intrinsic to Russian nationality, and rooted in Russian traditions.” In part this was achieved, she argues, by the regime’s portrayal of the Decembrists’ ideals as “alien” and “an infection imported from the West.”

Despite the obvious parallels, Rabow-Edling is very careful not to draw too many explicit comparisons between the days of the Decembrists and current events in the Russian Federation. One exception is her reference to a 2019 movie on the Decembrist Revolution, sponsored by the Russian state, which “presents the Decembrist leaders as fanatical, power-hungry egoists or foolish romantics, who aspire to introduce ideas alien to Russia … and who threaten to undermine the unity between the tsar and the people.” Observers of the latest pronouncements coming from the Kremlin might be forgiven for seeing some parallels with Nicolas’ “Official Nationalism.”

Yet, the tragic tale of the Decembrists, while a crucial episode in Russian history, also suggests an important observation about intellectual history in general. Ideas, especially great, eternal ideas like freedom, justice, and equality, have no nationality. They are available to people everywhere. The Decembrist leaders recognized this, as did the thousands of soldiers who followed them, and the great number of civilian bystanders who came out in their support in Senate Square on that cold December day. Perhaps this is the real legacy of the Decembrists and their revolt.

Writing in the thirteenth century, Thomas Aquinas never used the term “textualism” in his discussions of law in the Summa Theologica. He did, however, basically discuss the issue in two different treatises in the Summa and commends a pretty straightforward textualist approach to reading “written law.”

In his “Treatise on Prudence and Justice” in the Summa, Aquinas discusses the question “Whether we should always judge according to the written law?” (ST II-II, Q. 60, a. 5). In his “Treatise on Law,” Aquinas discusses the question “Whether he who is under a law may act beside the letter of the law?” (ST I-II, Q. 96, a. 6). While overlapping, the two questions address different people in different roles. In the former question, Aquinas addresses judges as they interpret law in their official capacity. In the latter question, Aquinas addresses common folk who are “under a law” regarding their personal obligation to obey that law.

Whether anachronistic or not, why might we care what anyone opined about textualism over 750 years ago? As an initial matter, due to Aquinas’s continued visibility, commentators and scholars arguing about textualism often invoke Aquinas to support their views. Former Supreme Court Justice Stephen Breyer cites Aquinas in his recent book for the claim that judges have asked “purpose-oriented questions” when interpreting laws “for hundreds if not thousands of years.” So, too, Harvard Law Professor Adrian Vermeule invokes Aquinas in his book Common Good Constitutionalism, distinguishing a classical version of textualism, which he identifies with Aquinas, from what he styles as the modern textualism of Justice Scalia and textualist justices currently on the Supreme Court.

More generally, it is because Aquinas discussed textualism 750 years ago that his arguments might be helpful to survey today. Whatever his private motivations might have been for discussing the issue in the thirteenth century, he couldn’t have been carrying water for one side or another in today’s legal debates; his view of interpreting legal texts couldn’t be a proxy for a set of substantive legal positions in twenty-first-century America.

Aquinas and the Sine Qua Non of Textualism

Aquinas orients his discussion in the Summa’s “Treatise on Prudence and Justice” to judges and others who have “authority” (ST II-II, Q. 60, a. 1, ad. 4). Here Aquinas affirms the sine qua non of textualism:

Since judgment should be pronounced according to the written law[,] … he that pronounces judgments, interprets, in a way, the letter of the law, by applying it to some particular case. … Just as a law cannot be made save by public authority, so neither can a judgment be pronounced except by public authority, which extends over those who are subject to the community. (ST II-II, Q. 60, a. 6)

We can draw on Aquinas even here to underscore a fundamental point about textualism that often gets lost in the debate: textualism, properly speaking, is not a theory of interpretation; it is a theory about what gets interpreted.

The first move of textualism is what Ronald Dworkin terms a “preinterpretive” move. That is, it is a stage at which a legal text is “identified and distinguished” from other texts. This may seem so obvious that it does not really merit notice, let alone comment. After all, the thought goes, “of course everyone agrees what it is that is being interpreted.”

But I’m not sure as a practical matter that everyone agrees on what texts are being interpreted. Even at an ostensibly preinterpretive stage, there can be some slipperiness in what in fact it is that is being interpreted.

It is because Aquinas discussed textualism 750 years ago that his arguments might be helpful to survey today.

In Cooper v. Aaron, for example, the Supreme Court includes its own decisions interpreting the Constitution and federal statutes along with these latter two texts as “the supreme law of the land.” The Court seemingly lists its decisions as a part of “the Constitution” that it interprets. Because of the significance of the issue at stake, and the Court’s (understandable) exasperation at southern states attempting to delay implementing its Brown decision, the Court slips around just what texts are the supreme law of the land. Equating its own decisions as the supreme law of the land means that the written text of the Constitution (as amended) is not a privileged textual dimension in the interpretive process; the text is not identified at a distinct “preinterpretive stage” and then is interpreted by subsequent decisions.

Rather, in the decision, “the Constitution” is part of a textual stew that not only includes the original text but also includes the text of subsequent decisions that interpreted the written text.

So, too, in his book, Reading the Constitution, former Justice Stephen Breyer treats the written text of the Constitution as just one ingredient of a constitutional stew:

The language of the Constitution will sometimes help [with interpreting the Constitution], say by setting boundaries for the interpreter. So will history and practice. Precedent may prove useful[,] … values (or purposes) matter; and so do consequences[,] … which of the relevant matters—e.g., text, values, consequences—the judge should emphasize will vary depending on the circumstances.

Listing a legal text as one of a set of equally “relevant matters” obscures identifying text as a distinct stage that precedes interpretation. Consider whether we would apply Breyer’s methodological approach in another interpretive context. Think, for example, of an English class studying a Shakespeare play. It is difficult to think the teacher would talk about “the language of the play will sometimes help.” To be sure, there may be numerous additional sources that students might draw on to help interpret the play, but it is the text of the play that these other sources are drawn on to interpret. The text is the material for interpretation; it is not one of a set of sources that might be helpful to interpretation. Like the lexicographic ordering of a dictionary, the text is an initial, privileged dimension that cannot be interpretively traded off against ways subsequently to interpret the text.

The problem doesn’t pertain only to critics of textualism. In moving too quickly to identify textualism with “original public meaning” (or some other interpretive approach), textualists can also invite conflating what is being interpreted with how one approaches the text to interpret it. To be sure, how one interprets the text is critically important. But rushing to that step can gloss over the distinct preinterpretive move of identifying exactly what text it is that we are interpreting. In Aquinas’s approach, he commends that we first identify “the letter of the law,” then move to a subsequent stage of providing a reasonable reading of that text.

Textualism and Equitable Interpretation

Justice Breyer cites Aquinas for the proposition that courts have applied “purpose-oriented” interpretation for “hundreds, if not thousands of years.” Aquinas, he writes, “understood the letter of the law to yield to ‘natural right’ and ‘equity’ where an overly wooden interpretation would frustrate the aims of the law.”

Breyer’s reading of Aquinas, however, has Aquinas’s exception swallowing Aquinas’s rule. Aquinas’s main proposition, after all, is that “it is necessary to judge according to the written law.” Breyer skips over Aquinas’s discussion of this main thesis and instead cites Aquinas’s reply to an objection as though it were his main point. In fact, Aquinas’s reply to this objection is accommodated in the modern era by judicial doctrines such as rationality review and “necessity,” doctrines that even textualists accept and apply.

Before getting to Aquinas’s reply to the objections he articulates, we should note Aquinas’s main thesis. In his reply to the question “whether we should always judge according to the written law” (ST II-II, Q. 60, a. 6), Aquinas first quotes Augustine:

In these earthly laws, though men judge about them when they are making them, when once they are established and passed, the judges may judge no longer of them, but according to them.

The quotation from Augustine draws on the distinction between an official acting in a legislative capacity and an official acting in a judicial capacity. While not a separation-of-power argument, it is certainly a separation-of-role argument.

Next, moving beyond the quotation from Augustine, Aquinas sets out his own view, observing first that there is both natural right and positive right, and that “laws are written for the purpose of manifesting both these rights.” Written law “manifests” these rights “in different ways,” given that written law “contains” natural right but does not establish its authority—nature does—while a written law both contains and establishes the authority of positive law. (The authority of positive law is established by human agreement or custom rather than by nature.)

From these starting points, Aquinas concludes, “Hence it is necessary to judge according to the written law, else judgment would fall short either of the natural or of the positive right” (emphasis added). Significantly, for Aquinas, natural law implies that textualism is a requirement for judges.

Aquinas’s approach to interpretation would reject both Breyer’s purposivism and older forms of “original intentions originalism” (this as opposed to textualist originalism).

Aquinas then discusses two cases in which judges should not apply laws as written. Importantly, when we translate these cases into modern jurisprudential categories, the two cases Aquinas discusses are not exceptional. Today’s textualist judges typically read texts consistent with Aquinas’s provisos.

The first case Aquinas discusses is when the law itself is unjust. The second case is when a particular application of the written law produces an unjust and harsh outcome.

Breyer cites Aquinas’s discussion in the second of these cases as supporting his view of purpose-oriented interpretation.

Aquinas quotes Justinian on this point: “By no reason of law, or favor of equity, is it allowable for us to interpret harshly, and render burdensome, those useful measures which have been enacted for the welfare of man.”

We can glimpse what Aquinas means here by looking at his related discussion in the Summa’s “Treatise on Law.”

A word of caution, however, before proceeding. Aquinas’s “Treatise on Law” is often treated as though it were an abstract discussion of law. It is not.

Unlike his discussion of judgment, which Aquinas aims primarily at officeholders, Aquinas’s “Treatise on Law” speaks primarily to those “under law.” Within the broad intellectual agenda of the Summa, Aquinas intends the “Treatise on Law” to speak to law as an “extrinsic principle” by which God instructs humans for good (and God then enables humans to do that good by grace).

While the first quarter of Aquinas’s “Treatise on Law” receives the most attention in discussions of jurisprudence (Questions 90 through 97), that section only develops the framework for the major work Aquinas does in the treatise, which is his discussion in Questions 98-108 of Old and New Testament laws. The bulk of Aquinas’s discussion in the treatise is focused on providing an answer to a pertinent Biblical question Christians face: identifying what aspects of the Old Testament law continue to oblige Christians and what aspects do not.

With that cautionary word, let’s consider Aquinas’s discussion of written law in his “Treatise on Law.” In Question 96, Aquinas provides an example of interpreting a law in the “harsh” and “burdensome” manner that Justinian discusses:

For instance, suppose that in a besieged city it be an established law that the gates of the city are to be kept closed, this is good for public welfare as a general rule: but, if it were to happen that the enemy are in pursuit of certain citizens, who are defenders of the city, it would be a great loss to the city, if the gates were not opened to them: and so in that case the gates ought to be opened, contrary to the letter of the law, in order to maintain the common weal, which the lawgiver had in view. (ST I-II, Q. 96, a. 6, co.)

Aquinas’s specific application in this Treatise is that law does not oblige obedience in this situation. We can apply Aquinas’s discussion to a judge overseeing a trial of a person accused of breaking this law in the situation Aquinas describes. Aquinas would presumably have the judge allow the accused to assert a defense of necessity, as presumably a modern American judge would as well. To be sure, today we would not call a defense an interpretation of the statute, but that’s not a problem regarding the point Aquinas makes.

Or in the alternative, a judge today might conclude that the prosecution’s construction of the statute is an “absurd result.” This is an interpretive doctrine admitted by the late textualist Justice Scalia.

So, too, Aquinas provides that if there be any doubt regarding the effect of a law, a person must resolve the doubt to “act according to the letter of the law, or consult those in power.”

Again, Aquinas’s immediate point concerns the person “under” the law, which a judge is not (at least not in the same way). Nonetheless, Aquinas’s insight that the law should be applied as written if there is any “doubt” whether the law would result in harm maps onto the minimal rationality test that modern US judges apply to laws. That is, that a law must be sustained if it can plausibly be understood to be rationally related to a legitimate governmental objective.

Aquinas’s approach to interpreting legal text would seem to side with Scalia’s criticism of the Supreme Court’s unanimous decision in Church of the Holy Trinity v. United States when it wrote, “It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Aquinas’s approach to interpretation would reject both Breyer’s purposivism and older forms of “original intentions originalism” (this as opposed to textualist originalism).

The point is that modern-day textualist judges apply approaches similar to Aquinas’s as a matter of course. But that’s not really a surprise. Aquinas defined law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated” (ST I-II, Q. 90, a. 4, co.). In reading and applying a legal text, this approach would seem to invite the judge to apply Scalia’s essential textualist approach: “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”

Philip Wallach’s lead essay extends his analysis in other notable writings on Congress, especially his wonderful book Why Congress and his National Affairs article “Congress Indispensable.” His analysis is characteristic of his other essays on Congress: both ambitious and nuanced, historically informed, and relevant to the critical problem our republic currently faces. 

After briefly summarizing what is novel and important about Wallach’s argument about Congress, my response poses a few questions about Wallach’s framework for analyzing the branch. First, I ponder how extensive the so-called “Secret Congress” is, and whether its existence complicates the standard account of congressional irrelevance. I then question whether Wallach’s goal of weakening partisan loyalty and enabling cross-cutting policymaking would actually revive Congress. Finally, taking Wallach’s side on those questions in spite of my hesitations, I suggest some specific (albeit radical) reforms that might advance the kind of Congress Wallach seems to envision. 

Why Congress Is Indispensable

One of Wallach’s key insights and arguments over the years, also advanced in his lead essay, is that Congress is the only institution in our system that reflects the diversity of our extended republic and allows our different interests and opinions to confront each other, deliberate, bargain, and compromise towards durable solutions to the nation’s major challenges. As he puts it, he wants Congress to engage in “the kind of broad coalition-building needed if policy investments are to endure for generations.” Those durable policy investments tend to produce greater peace and trust among citizens who disagree with each other, because they tend to settle big questions on a relatively permanent basis—think the Civil War Amendments, the New Deal, the Great Society, and Civil Rights legislation.

The key problem he confronts in his essay is Congress’s passivity and irrelevance, a problem that leads to narrow coalition-building and winner-take-all presidential elections. That style of politics fails to generate durable policy investments and tends to result in policymaking by executive orders—orders which are frequently reversed in four or eight years by a new president with a similarly narrow majority. 

Congress is creeping towards the decrepitude that Wallach foresaw as a possibility in his latest book. In part, it is on this path because it is a clunky, inefficient body with many different voices, operating in an age that demands managerial efficiency. But as Wallach has argued, Congress’s “inefficiencies” are actually the very virtues that our republic most needs. Its plurality and inefficiency promote compromise, trust, and accountability, if it serves the role our Framers intended for it. 

The Extent of “Secret Congress”?

One big question Wallach hints at, but does not fully address, is just how far Congress has actually gone down the path of decrepitude. The overall tone of his essay suggests that Congress has become irrelevant. But periodically, he acknowledges that Congress still matters, more so than people today think it does. He writes, for example, that Congress’s “irrelevance is now probably overestimated by most casual observers of American politics.” He notes that Congress’s factions did play a significant role in crafting various provisions of the “Big Beautiful Bill.” Even in foreign policy, where the president has traditionally been more of a forceful actor, members on relevant congressional committees are able to “steer presidential conduct” to a degree. 

These statements depict a Congress that still determines policy outcomes, where committees still matter, and where bipartisanship still exists on lower-salience issues. They resemble the writing on the so-called “Secret Congress.” In my experience, teaching various undergraduate and graduate students with experience on Capitol Hill, this version of Congress is more prevalent than people think. Vitriol and drama are good for media consumption, but still, much of the real work of legislating is happening in committees, across the aisle, on low-salience issues. It just goes largely unnoticed. 

Case in point: the GENIUS Act, the first major legislation on cryptocurrency in the United States, recently passed with over 300 votes in the House and 68 votes in the Senate. While President Trump was generally supportive of the bill, most of it was hashed out by legislators and their staff. In short, I think our picture of Congress’s irrelevance would be clarified significantly if we could get a handle on how much of this kind of activity still happens in Congress today, and how much it actually matters in comparison to the soap-opera performances that tend to get the most media attention.

Cross-Cutting Policies vs. Partisan Loyalty

But set that question aside for the sake of the argument and assume that Congress is perilously far down the road to decrepitude or irrelevance, which I take to be Wallach’s central point. Wallach writes that it would take “some shock to the system, big enough to make members prioritize politically cross-cutting policies rather than partisan loyalty.” 

My interpretation of this statement is that Wallach wants members to follow local constituencies, which tend to be rooted in interest, more than they follow national partisan identities, which tend to be more ideologically rooted. Historically, the tension between these two views of representation has driven congressional development. If members were to be freed up from their parties, it seems that they would necessarily have to become more closely tied to local constituents who re-elect them. Similar to the bipartisan and decentralized Congress of the mid-twentieth century, members would be defined not by their party brand but by their locality.

My main concern is that this would exacerbate Congress’s weakness rather than alleviate it. Historically, decentralized structures and procedures such as open amendment processes, leadership shorn of committee assignment and agenda control powers, and powerful committees, have tended to fragment Congress and render its collective action more difficult. As James Curry and Frances Lee have recently explained, today’s centralized procedures are the means by which Congress has remained active, given the nature of the political environment, rather than contributing to its irrelevance. 

I’m interested to know why Wallach would expect this time to be different. In other words, even if we freed members from their national parties and enabled them to prioritize cross-cutting policies, would bipartisanship flourish again? Would that, in turn, lead to a more assertive and relevant Congress? I’m not so sure.

The expansion of national authority over the past century has made our political contests more acrimonious because more is at stake.

Wallach acknowledges that the external environment, rather than its internal structure, plays a critical causal role in Congress’s irrelevance. He speculates, “perhaps [decrepitude] is inevitable in a historical moment when more Americans see their political adversaries as actual enemies unworthy of being political bedfellows on any cause. Why should one seek to persuade and accommodate people who wish to destroy one’s whole way of life? If we do not believe in reasoning together, there is no need for Congress to make a comeback as an institution.” In other words, Wallach seems to understand that Congress’s current polarization and centralization are symptoms, not causes. They are effects of the way the American people think about engaging in politics with each other. Reducing partisan loyalty and incentivizing cross-cutting policies may simply be out of touch with the mood of the people, and perhaps no amount of institutional reform within Congress can change that. 

Reforms to Unleash Cross-Cutting Coalitions

One response to my skepticism might be that Americans seem to be more divided today than they actually are, because of distortions in the way public opinion is shaped and understood by members of Congress and others inside the beltway. The loudest voices tend to be the most amplified on social media, and those tend to be on the extremes. Those who furnish contributions to campaigns also tend to come from the extremes, and they tend to have the ears of the members. Wallach’s proposal for weakening partisan loyalty and unleashing cross-cutting policy coalitions, it might be argued, would put members more in touch with the more numerous and more moderate (if quieter) constituents that they should be representing.

I’m sympathetic to this view. But this leads to the question: how to get members to better represent them? What kinds of institutional reforms would help to strengthen members’ attachments to their constituents on the ground, and advocate for their interests as opposed to following orders from congressional leaders—thus leading to the more bipartisan and more assertive Congress for which Wallach hopes? 

I think the necessary reforms would be quite radical, and I would be interested in whether Wallach shares this view. These radical reforms for conserving Congress should be openly avowed and defended. Here are some possibilities that might support Wallach’s project:

• Dramatic expansion of the House of Representatives: Members today represent around 750,000 constituents. If that number were reduced to a ratio of 1:250,000, members would be closer to their constituents, and presumably more able to buck party leadership and still win reelection in their home districts.
• Abolish the direct primary: The direct primary was originally justified as a means of ensuring that candidates would be accountable to local communities. Paradoxically, primaries are today a chief means of nationalizing candidate behavior. One of the key ways in which presidents have dominated their parties in the past century, from FDR’s purge campaign in 1938 to Trump’s threat to oust Republican Thomas Massie, is the intervention in primary elections. Presidential interventions tend to nationalize campaigns. Moreover, in today’s era of partisan sorting into deep-red and deep-blue districts, primaries also incentivize members to avoid compromise and moderation. 
• Overhaul campaign finance: House and Senate races are often nationalized because so much of the money spent on advertising comes from outside the districts. These advertisements highlight national issues over local issues and arguably give people outside of congressional districts a greater voice than the voters within them. Party leadership PACs give congressional leaders leverage over rank-and-file members who are reliant on those dollars for reelection. 
• Abolish the presidential veto on policy matters: In an era of tight majorities, mustering a two-thirds vote in both houses of Congress is extremely heavy lifting. It was once a key plank of the Whig Party platform that their presidents would not use the veto to advance a policy agenda. Instead, the veto would be limited to measures that violated the Constitution. Presidents today, paradoxically, sign legislation that they object to on constitutional grounds, and veto (or threaten to veto) legislation on policy grounds. If Congress could legislate without the threat of a presidential veto, it could be much more assertive than it is today. 
• Revive the legislative veto: Until the Court’s monumental decision in INS v. Chadha, Congress delegated power but retained the ability to reverse administrative decisions without requiring the president’s signature. The Court did away with hundreds of these legislative veto provisions in Chadha, and this has certainly correlated with Congress’s decline and the emergence of presidentialism. I think that Chadha was wrongly decided and should be reversed, but whether Wallach agrees with me or not, I wonder whether he would support a constitutional amendment to revive the legislative veto. 

The Challenge of Political Nationalization

One additional reform to our political system as a whole might be more effective than any of these in restoring a functional and effective Congress. Our system was not designed to solve all policy problems at the national level, one-size-fits-all. Our ability to compromise and to live peaceably with each other was probably a result, at least partially, of the fact that the stakes of national policy were lower throughout most of American history. The expansion of national authority over the past century has made our political contests more acrimonious because more is at stake. 

It may be too late, and perhaps inadvisable, to return to the balance of state and federal authority that existed for most of American history. But either way, we should acknowledge that the centralization of power has put strain on the political system’s ability to manage conflict and generate durable coalitions, and that Congress has been the institution most dramatically affected by the consolidation of power in the hands of the national government. None other than James Madison himself understood this problem—as early as 1791.

This doesn’t mean we should stop looking for solutions to the problem of congressional irrelevance. To the contrary: conserving and reviving Congress is the most critical challenge of twenty-first-century American politics. But it should clarify the scope of the challenges Congress faces and encourage us to advance reforms that are sufficient to meet those challenges. Wallach has laid the groundwork for these reforms in his lead essay, and I hope he takes the next step and sketches a path to conserve or return to congressional relevance.

In the past, Walter Lippmann was virtually a household name. Today, it is the rare household that knows him. Some people may associate him with the phrase “American century.” But it was Henry Luce, the media magnate, who said that the twentieth century would be “the American century.” (That was in 1941.) So why the association with Lippmann? In 1980, Ronald Steel published his biography Walter Lippmann and the American Century.

What Lippmann is responsible for is the common understanding of the word “stereotype.” He took the term from the printing trade. (The word “cliché” also comes from that trade.) Also, Lippmann popularized the term “cold war” to describe the competition between the United States and the Soviet Union after World War II. In 1947, he published his book The Cold War.

Steel’s biography won every award under the sun, with the exception of the Pulitzer. It won the National Book Award, the Bancroft Prize, the National Book Critics Circle Award, etc. In a new biography of his own, Tom Arnold-Forster calls Steel’s book “classic” and says that it is “still indispensable.” So why the new biography? In his subtitle, Arnold-Forster identifies his book as “an intellectual biography.” He will concentrate on Lippmann’s writing and ideas, not his life per se—although Lippmann’s life was certainly consumed by writing and ideas.

Walter Lippmann was a New Yorker, born in 1889. His family was German-Jewish and well-off. Lippmann entered Harvard at 16 and graduated in three years. He stayed on for a fourth, to assist Professor George Santayana. Arnold-Forster quotes a freshman essay titled “Who I Am and Why I Came to Harvard.” Young Lippmann wrote, “I have always taken a deep interest in the great issues of the day.” He always would.

It is interesting to know that this young man—whose name would become a byword for journalism, of the most exalted kind—failed to land a spot on the undergraduate newspaper, the Harvard Crimson. It could not have helped to be Jewish, as Ronald Steel notes in his book.

In the first sentence of his own book, Arnold-Forster says, “Few writers had more influence on American politics in the twentieth century than Walter Lippmann.” That is a normal sentence—hedging, cautious, unobjectionable—that any of us might have written. But consider: Did any writer have more influence on the politics of the previous century? H. L. Mencken? William F. Buckley Jr.? Who? An equally safe sentence, I think, would be, “Few writers had as much influence on American politics …”

When Lippmann died in 1974, the Crimson’s obituary said that he was widely regarded as “the dean of 20th-century American journalism.” He had a career “that saw him attain almost the status of an oracle in the course of publishing over 4,000 columns.”

In a somewhat mystical but apt sentence, Arnold-Forster says that Lippmann “has an omnipresence but is hard to place.” He goes on to say that Lippmann “appears in so many contexts and moments that he can seem chronically peripatetic and inconsistent, always changing his mind, moving on elsewhere and everywhere.”

Several years ago, I heard Richard Brookhiser, the journalist and historian, make a point: The word “day” is embedded in “journalism” (jour). In a sense, “daily journalism” is a redundancy. (So is “daily diary,” in light of día.) You take note of what seems most important or truest on that day. As the times shift, you may well too, while retaining a general outlook.

“For all of his networked globetrotting,” writes Arnold-Forster, “Lippmann spent most of his days sitting at his desk, reading a book or writing a column.” I think of what George F. Will, the veteran columnist, told me in a podcast last year: “If someone said, ‘What do you do, Mr. Will?,’ I’d say, ‘I’m a writer,’ but actually I’m a reader. I have to read four or five hours a day—journalism, books, etc.—to get the material.”

Walter Lippmann worked “at the intersection of daily news and democratic theory,” says Arnold-Forster. “He was not a system-building philosopher, nor an ur-liberal archetype, but a political writer engaged in controversies with his contemporaries.” This makes me think of Bill Buckley’s habitual title for a speech. He was often booked far in advance. The title of his speech was “Reflections on Current Contentions,” allowing him to talk about whatever was in the air.

Arnold-Forster says that Lippmann’s career was “a six-decade commentary on the vicissitudes of politics.” So was Buckley’s; so has Will’s been. You can find inconsistencies in the writings of all of these men, and certainly different emphases, depending on the day, or the era. This is only natural.

Walter Lippmann believed that good journalism was essential to liberal democracy. Bad journalism went hand in hand with bad politics and bad government.

Lippmann had a huge audience, with his syndicated newspaper column, and various articles in Life, Ladies’ Home Journal, Reader’s Digest, etc. His books were available through the Book-of-the-Month Club. This landscape was described, and scorned, as “middlebrow.” Where I sit, however, that landscape seems to me of a higher brow: serious, decent. Enviably so.

I got a kick out of a tidbit in Arnold-Forster’s book, and you may, too. In the 1960s, Lippmann began appearing on CBS television for annual interviews. He had a proviso, though: no ads for dog food or deodorant. Such ads, apparently, were gauche. (In her 1997 autobiography, Katharine Graham, the owner of the Washington Post, would write that Lippmann was “very intelligent” but also “a prima donna.”)

What was Lippmann, politically? Arnold-Forster writes that his subject “took the well-trodden path from young liberal socialist to old conservative liberal.” Arnold-Forster’s final chapter is titled “American Conservative Liberal.” Nehru, speaking in his country’s parliament, called Lippmann “an American conservative liberal.” (It says something about Lippmann’s importance that the prime minister of India was engaging with him.)

In a 1955 book—The Public Philosophy—Lippmann “suggested that liberalism had lost touch with ‘man’s fallen nature.’” (I have quoted Arnold-Forster, quoting Lippmann.) That is, of course, a common conservative critique of a liberalism of a certain kind.

When it came to foreign affairs, Lippmann was—depending on the day, depending on the emphasis—an “internationalist,” a “realist,” an “interventionist,” a “non-interventionist.” In other words, he was not a dope. Nor was he a dogmatist. By and large, he dealt with the world as it was, and the world was messy, as usual.

It was communism and fascism, writes Arnold-Forster, that pushed Lippmann into constitutionalism—that landed him on constitutionalism as the guardian of liberty. Here is a healthy passage from the new biography:

He argued in 1934 that, both in Russia and in Germany, the rulers of the state were “subject to no law. There are no customs, contracts, constitutions, or ancient usages which limit them.” He claimed in contrast that law ruled in America, where the Constitution was “undoubtedly the greatest attempt ever made consciously by men to render popular rule safe for the nation as a whole, the local community, and the individual.” Celebrations of the American Constitution became routine aspects of Lippmann’s political writing in the 1930s. What he wanted to construct were clear divisions between rule-of-law liberalism and lawless totalitarianism.

Some of this biography seems ripped from today’s headlines, as issues perdue. What is the interest of the United States in the security of Europe? How to contain, or counter, the expansionists in the Kremlin? On the domestic front, what are the limits of free speech, if there are any? Are there “real Americans” and a “real America,” as opposed to false ones?

Arnold-Forster writes that, after the 1960 presidential election, in which Kennedy beat Nixon by a hair, “Lippmann stressed that democratic life depended on accepting election results.” In 1968, that overheated year, Lippmann himself wrote, “We are suffering not from communism and radicalism but from nihilism.” In 1971, Lippmann worried about extreme polarization: “a party system in which the two parties were diametrically opposed.” You could even get a “civil war.”

If you will indulge a self-reference, I wrote, some years ago, a history of the Nobel Peace Prize. One of the pleasures of writing this history is that it allowed you, or me, to survey the twentieth century. A biography of Lippmann allows you to do the same (to a large degree). Tom Arnold-Forster has done very well with his.

I have complaints, of course. He paints Bill Buckley as a McCarthyite, a racist, and an illiberal. (Let me disclose that WFB was a beloved friend of mine.) Left and Right like to do this: freeze Bill in the early stages of his career, not allowing for the last 40 years of his busy, evolving, magnificent life. At the same time, Arnold-Forster quotes Noam Chomsky uncritically. Of the many questions one could ask, here’s one: Who was wiser about the Khmer Rouge? Buckley or Chomsky?

Nevertheless, this new biography is a pleasure for anyone interested in—well, just about anything, where politics and history are concerned.

Walter Lippmann believed that good journalism—sound journalism, honest journalism—was essential to liberal democracy. Bad journalism went hand in hand with bad politics and bad government. Talking about journalists, Lippmann said, “We do what every sovereign citizen is supposed to do but has not the time or the interest to do.” And “that is no mean calling.”

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

Related Links

“Fight Bias and Legalize Meritocracy,” by Robert VerBruggen

Transcript

James Patterson (00:06):

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

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

Robert VerBruggen (01:38):

Great to be here.

James Patterson (01:39):

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

Robert VerBruggen (02:54):

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

James Patterson (04:06):

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

Robert VerBruggen (04:19):

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

James Patterson (05:07):

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

Robert VerBruggen (05:45):

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

James Patterson (07:01):

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

Robert VerBruggen (07:20):

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

(08:15):

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

James Patterson (09:11):

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

Robert VerBruggen (09:46):

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

James Patterson (10:37):

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

Robert VerBruggen (11:46):

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

James Patterson (12:40):

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

Robert VerBruggen (13:04):

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

James Patterson (14:01):

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

Robert VerBruggen (14:19):

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

James Patterson (15:03):

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

Robert VerBruggen (15:27):

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

James Patterson (16:17):

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

Robert VerBruggen (17:29):

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

(18:28):

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

James Patterson (19:41):

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

Robert VerBruggen (20:22):

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

James Patterson (21:10):

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

Robert VerBruggen (21:28):

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

James Patterson (21:52):

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

Robert VerBruggen (22:33):

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

(23:31):

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

James Patterson (24:03):

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

Robert VerBruggen (24:36):

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

James Patterson (25:30):

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

Robert VerBruggen (25:52):

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

James Patterson (27:00):

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

Robert VerBruggen (27:32):

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

(28:24):

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

(29:20):

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

James Patterson (29:53):

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

Robert VerBruggen (30:28):

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

(31:11):

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

James Patterson (32:06):

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

Robert VerBruggen (32:40):

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

James Patterson (33:19):

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

Robert VerBruggen (33:31):

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

James Patterson (33:36):

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

Robert VerBruggen (34:38):

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

James Patterson (35:48):

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

Robert VerBruggen (36:32):

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

James Patterson (37:03):

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

Robert VerBruggen (37:19):

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

(38:12):

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

James Patterson (38:56):

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

Robert VerBruggen (39:59):

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

James Patterson (40:53):

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

Robert VerBruggen (41:57):

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

James Patterson (42:44):

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

Robert VerBruggen (43:25):

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

James Patterson (44:12):

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

Robert VerBruggen:

Thank you for having me.

James Patterson:

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

Zohran Mamdani, the self-proclaimed democratic socialist, set off a flurry of commentary after upsetting Andrew Cuomo in the Democratic primary for New York City’s mayoral race. He may be the beginning of a wave of radical socialist sentiment. While a certain amount of political physics seems to be at work, with the Trump-MAGA vibe-shift setting off an opposite reaction, we should look deeper at why there seems to be so much energy behind collectivism on both sides of the political aisle. Collectivism is a kind of “political junk food” that people crave in periods when they are particularly hungry for community and solidarity.

Collectivism means socializing things through force, rather than through voluntary community. Collectivism demands forced redistribution of wealth and uses this or that version of the “common” interest to undermine individual ownership, choice, and rights. In housing policy, collectivism takes the form of subsidizing home ownership through the government-sponsored enterprises Fannie Mae and Freddie Mac. It also looks like NIMBYism preventing housing and land development for the sake of the “community.” 

It can give rise to specific policies; with Mamdani, for instance, it means explicit rent control. The public school system, especially its school lunch and after-school programs, forces everyone to contribute financially to feed and teach some people’s (the “community’s”) kids. And our national entitlement programs—Social Security and Medicare—require everyone to participate and, supposedly, benefit everyone.

The legacy of entitlement programs from FDR to LBJ has been largely framed in terms of charity, solidarity, and community. Many people on the left, and even some on the right, laud these programs for creating a social safety net and for contributing to the fabric of society. Some have hailed these collectivist programs for reducing poverty. 

But collectivism is not charity. Nor does it generate true solidarity. Nor does it constitute civil society. It pretends to be and to do all these things. Collectivism wears the mask of charity and camaraderie. Though collectivism always brings tragedy, pointing out past failures doesn’t fully unmask it. It continues to capture people’s imaginations because it feeds their desire to belong and to participate in community. Like a pastry or a box of french fries, it seems particularly appealing when citizens are ravenously hungry, though those may really be the moments when solid sustenance is most sorely needed.

Aristotle argued that human beings are political animals. We are social creatures that must live in communities. And as rational creatures, we must engage in governance and participation in those communities. Tocqueville noted how the genius of the United States was its unleashing of voluntary associations for any and every problem and goal. Robert Nisbet famously argued in Quest for Community that Americans’ ability to form new voluntary associations as old ones became obsolete has been severely hampered by the rapid growth in the size and scope of government.

Collectivism is junk food for the body politic and for civil society. It superficially and temporarily addresses issues of belonging and participation. In collectivism, we have an unhealthy civic diet. Instead of the leafy greens, lean proteins, and healthy fats of civic associations, under collectivism, the body politic feeds on the hydrogenated oils and sugary starches of forced socialization. We’ve replaced a largely (classical) Mediterranean diet with the modern American diet. 

Collectivism also masquerades as the means to living justly and generously. After all, are we not a noble and generous society because we spend billions of dollars to care for poor children with school lunches and the SNAP programs, to care for poor adults through welfare, to care for the sick through Medicaid, and to care for the elderly through social security and Medicare? Are we not “just” when we ensure every kid gets an education, or when we create government programs to “right” past racial or socioeconomic discrimination? 

The people campaigning and voting for Zohran Mamdani certainly believed they were advancing justice and generosity by backing a candidate who promised greater collectivism. For them, participation in political action to advance government social programs fulfills their obligation and desire to do something good for others and to belong to a “community.” Yet the collectivist policies proposed by Mamdani are deeply coercive and will undermine the health of civil society.

Getting rid of collectivist junk food is a start, but we also must reintroduce healthy food to the body politick again.

Consider again the young college graduates who drove Mamdani’s radical candidacy to electoral success. They engaged, for a time, in political advocacy. But what do they do after the sugar rush fades? Do they return to building their families? Most are not married, and those who are likely don’t have children. Do they return to building up their churches, synagogues, or mosques? Most are not part of these institutions. We can be forgiven for wondering whether they engage in real civic associations at all.

Collectivism also seems to answer many people’s cultural insecurities. On the political left, many wealthy, educated people feel deeply uneasy about their success and blessings, which they label “privilege.” And others, who have not done so well economically and are saddled with five, sometimes six, figure debt from their college years, resent the hand they were dealt and how they have played it. Collective government programs of welfare, redistribution, and rent control look like appealing solutions.

The political right has different cultural insecurities. Many worry about declining labor force participation among working-age men, about the opioid crisis, about falling birth rates and falling family formation, about declining manufacturing employment, and about reduced national defense capabilities. They suggest a naïve free trade, free market, and limited government philosophy allowed corporations to wipe out communities and their corresponding civic institutions, especially in middle America.

Collectivist policies seem to soothe these anxieties: restrictions on international trade, promotion of labor unions, large government spending programs, modifications to the tax code to engineer social results—all have been advocated by Republican officials over the last few years. Collectivist “solutions” also exist to address more general anxieties about corporate “bigness” and “foreign” competition.

Finally, collectivism is difficult to combat and to reverse because it builds a self-reinforcing cronyism around itself. As ever greater sums of tax dollars are used to fund collectivist endeavors, more people, companies, and industries stand to lose from reform and reduction of government spending. The outcry over DOGE when federal funds were frozen revealed just how extensively federal dollars reach into society—seemingly everywhere. 

Special interest lobbyists and everyday Americans are not likely to let their taxpayer-funded livelihood disappear without a fight. So what can advocates of freedom and civil society do to combat collectivism?

We can work to build private institutions that promote belonging, participation, and meaning. Religion remains the essential bulwark of civil society. Voluntarily associating with others to worship God and to do His will has animated many of the greatest and most widespread acts of charity and civilization-building. There are many hopeful signs on the religious front from rising church attendance among young men to a leveling off of the growth in “Nones.”

There has also been a sea change in the legal landscape for the free exercise of religion. People of faith can increasingly bring their religious beliefs and commitments into the public square. What’s more, the explosion of school choice programs across the country has broken the collectivist government school monopoly, thereby creating more space for educational innovation and decentralized voluntary institution-building.

We should relearn and reinvigorate the American penchant for forming voluntary associations. Conservatives ought to direct more of their attention to local politics rather than national politics. People have to choose to go to city council, school board, and county commissioner meetings. They have to be willing to join commissions and committees. This requires effort, thought, and deliberation. It can’t be done while binge-watching Netflix or taking long vacations. 

And, of course, combating collectivism involves kindly but firmly calling out collectivists’ misappropriation of justice, charity, and solidarity. Language matters, and we should not cede words to be redefined or allow people to throw inaccurate labels on things. We should make the case that collectivism replaces healthy voluntary association with unhealthy coercive socialization.

Finally, we can all practice cultivating wisdom and self-governance in our lives. Rightly ordered souls contribute to rightly ordered families, which contribute to rightly ordered societies. Getting rid of collectivist junk food is a start, but we also must reintroduce healthy food to the body politick again. And we need to train ourselves and others to find such food appetizing. 

That is the surest way to keep collectivism at bay.

The meaning of American conservatism is perhaps more hotly contested today than at any other point in the movement’s history. In his book, Religious Liberty: A Conservative Primer, John Wilsey argues on behalf of what he calls “aspirational conservatism”—an approach that stresses an allegiance to the permanent things over and against populist rage and postliberal ideology. For this symposium, Wilsey presents his case for aspirational conservatism in a new essay, and two Law & Liberty contributors review his book.

Why would anyone, of any age, want to be a conservative? When I was a younger man, my thoughts were mostly preoccupied with the future. I was a cash-poor Christian school teacher right out of college, and I thought about how my career would advance. I was a single man when I graduated from college, and I looked forward to meeting a girl who would become my wife. I thought about fatherhood, what it would be like to own a home, and all the sorts of things people think about when they first get started in life. Why would young people be attracted to conservatism?

Now that I am in my fifties, I think more about the past. Since I likely have more days behind me in this life than ahead of me, what is the use of aiming for lofty goals in my family or in my career? My children are wonderful, and they are on the cusp of leaving home and starting their own families and careers. I have reached all of my career goals, and have no further professional ambitions, other than to finish my teaching and writing career with dignity. If statistics have any reliability as a guide, I have maybe thirty more years of life left. When I am gone, the vicissitudes of life will no longer be my problem. Why care about conservatism?

Maybe I’d want to be a conservative because I want to see my political party in power. Or maybe I want to win arguments on social media, and my conservative politics can help me own the libs. Or perhaps I can only be happy when I’m miserable, particularly when things change. Apparently the restaurant chain Cracker Barrel is making some changes to their restaurant ambiance, decluttering and brightening up the dining rooms with white paint. Horrors!

What is the point of conservatism? Is conservatism only relevant for politics and partisanship? Is it only the neighborhood crank, the peevish uncle, or the lunatic on Facebook that has an interest in being a conservative? Or is being a conservative like being a traditionalist, resisting change for no better reason than, “we’ve always done it this way”?

In other words, can we think of any good reason to be a conservative other than politics, culture wars, or traditionalism?

Of course we can! When conservatism is only about tradition for tradition’s sake, maintaining the status quo, or fleeting partisan power mongering, it is repellent, not attractive; it is boorish, not classy; and it is misanthropic, not humanistic. In my recent book, Religious Freedom: A Conservative Primer, I attempt to lay out an alternative vision.

American conservatism is as old as the Republic, and that conservatism has always been far upstream of politics. Politics is important to conservatives, but cultivating the permanent things—the good, the true, and the beautiful—is of primary importance. Conservatism is a temperament, a disposition, an attitude that looks to conserve those things in humanity that make life worth living.

I also think of conservatism as aspirational. Conservatives do not value the permanent things like Aesop’s dog in the manger, or as a miser who stuffs a hoard of cash in the mattress. We seek the conservation of the permanent things for the sake of the freedom and flourishing of individuals, societies, and the nation. Aspirational conservatism aims for an ever-higher destiny for persons, guided by the best of American tradition, while always acknowledging human limitations, the inevitability of change, and the ubiquity of imperfection. In this way, conservatism was made for man, not man for conservatism.

Aspirational conservatism is a standpoint looking up to the eternal, behind to the past, around about in the present, and ahead to the future.

The best way to explain aspirational conservatism is to point to concrete examples, rather than rely on the theoretical or the abstract. The best man, the greatest man, I have ever known in my life is my grandfather. Jasper N. Dorsey (1913–90) was a husband, father, and grandfather, an Army officer in World War II, and a loyal citizen of his home state of Georgia. His career began in 1936 after graduation from the University of Georgia: he climbed telephone poles for the phone company, earning twenty-two dollars a week. He retired from AT&T in 1978 as CEO of all operations in Georgia. He spent his last years, 1978 to 1990, as a syndicated columnist for forty newspapers across Georgia. We called him “Papa.”

Papa was a devoted Christian, a conservative of the William F. Buckley school, and an indefatigable optimist. His optimism was not of the overbearing or annoying sort, nor was it based in naiveté. Papa came of age in the depression. He worked his way through college by finding employment at a rock quarry, loading rocks on wagons. His hands were so rough, he said, he could strike a match on his palm to light a cigarette. As a college senior in 1935, he came close to death from malaria; he and my grandmother lost their firstborn baby days after his birth; and they lost their twenty-one-year-old son, who died in a car accident driving home in a rainstorm.

Nevertheless, Papa was full of joie de vivre. He loved animals—dogs, cats, pigs, and mules. He loved food. He relished feasting on tomatoes, cucumbers, collard greens, turnip greens, okra, radishes, sweet potatoes, and all kinds of vegetables. He loved the thrill of bird hunting, loved the Georgia Bulldogs, loved Coca-Cola, loved his native town of Marietta. He loved his wife of fifty-one years, his daughter (my mother), and my brother and me. He read history, literature, and political philosophy, and especially enjoyed the ancient Greeks and Romans. His columns sparkled with his wit and eloquence on all these subjects, including politics and economics.

In his weekly columns, Papa overflowed with gratitude for people he loved and admired, places he’d had the opportunity to visit, and the inestimable pleasures of reading good books. “The best memories,” he wrote in 1985, “are often the simple things that are beyond price; a letter of encouragement, a book earned as a reward, a note of thanks for a small kindness, praise for an early achievement, or an award of recognition which required self-denial and hard effort.”

He loved books like no one person I have ever known. I have many of Papa’s books, and the notations in his old books are a lasting and living connection I have with him, even though he is gone. “With the marvelous world of books,” he wrote, “we own the magic carpet. We can visit all the ancient, exotic seas and shores. And everyone can go—rich and poor alike. As a child I was greatly blessed by my initiation into the world of books. With them, there is no boredom or monotony. The world is before you.”

Papa loved animals, and wrote about them in his columns. He wrote about the dog they owned when they bought their first house in 1947. He was a German Shepherd named Booger, who quickly “took possession of us and the neighborhood.” Booger was a fine guard dog against magazine salesmen and mailmen, and was always accompanied by a big Doberman, whom Papa called Booger’s “assistant dog.” “These two dogs loved children and neighbors but terrified deliverymen and peddlers.” He also wrote about a cat they named Mama. After acquiring Mama in 1968, she delivered thirty-four kittens by 1971! They brought a Schnauzer dog named Jackson into the home to keep Mama company, and she “raised him like a kitten.” Mama disappeared for over two weeks at one point, and we all thought she was dead. She limped back home having been run over by a car, but the vet fixed her up, and she lived till the ripe old age of fifteen, “doing all the cat work on a large lot, and without any help at all, except from her dog.” Papa closed that column with these memorable words: “If people ask for divine guidance, work real hard and are lucky, they can be as good as dogs and cats.”

To close the year 1986, Papa wrote his audience a benediction as they looked forward to a new year. His words summed up his whole personality and his love of life. He wrote,

I wish you old friends and new, to share your pleasures, to rejoice with you in your triumphs and to stand with you when life knocks you down. Friends to lift the ache of loneliness and dull the edge of grief; friends who’ll listen to your stories with a smile and laugh at your jokes, even when they aren’t funny.

I wish you a mind unafraid of mental adventure, a mind tickled by curiosity and awed by the wonder of small things; a heart that trusts beyond reason, even when faith is assailed by overwhelming odds.

I wish you work to do that has meaning and value both to you and others, work that challenges and inspires and offers the unique human thrill of accomplishment beyond expectation.

I wish you an abiding sense of humor, the power to see the ridiculous in life and in oneself, to be entertained rather than shamed by it. And the mysterious, wonderful ability to make others laugh.

I wish you a consuming desire for justice tempered by mercy, a sense of responsibility leavened by lightheartedness, the grace to forgive without rancor and the humility to be forgiven without resentment.

I wish you the capacity to see beauty not only in grandeur in great mountains, in great symphonies, but in small things in unexpected places, to hear music in common sounds, to see art in common sights and to retain forever a zesty appetite for the hors d’oeuvres of life; the stranger’s smile, the meaningful touch, the lingering sound, the scent of nostalgia, the piquant flavors of the stew of existence.

I wish you a new year filled with accomplishment, good health, and the warm relationships that so often come to those who embrace life instead of rejecting it.

Auntie Mame said it: Life is a banquet, and some poor fools insist on starving to death. God bless you and keep you in the hollow of His hand.

Papa was a great humanist, but his humanism was tempered by his strong belief in the reality of human sin and fallenness. He was a critic of anti-human ideologies and practices, such as abortion, the sexual revolution, corruption in government, disarmament in the face of the Soviet threat, and the trivialization of education. He could mock shady politicians with an acid wit, like when he wrote of the liberal Georgia senator Wyche Fowler that “he has all the qualities of a dog, except loyalty.” He was committed to the American tradition of self-government and individual liberty, to religious freedom and freedom of religious expression in the public square, and was a great defender of the unborn.

What is the point of being a conservative? Being a conservative means that, like Papa, you aspire to a greater destiny as a human person. Aspirational conservatism is looking to the best of American tradition in the interest of improvement as individuals, as families, as societies, and as a nation. Aspirational conservatism is not utopian, because it is realistic about human limitations. But limitations are not constraining, they are liberating. Freedom, for instance, is made true by the constraints provided by just law and order. Limitation of resources teaches us the value of patience, thrift, and stewardship for the benefit of ourselves and of those who would come after us. And limitation of mortality helps us remember that we will not live forever, so we must make the most of the opportunities we have before us in the present. We can then do what we love, but also come to love the things we have to do. Therein is the key to contentment in a life of limitations.

Americans have always been a people of aspiration. Christians are also people of aspiration. Christ commanded us to be perfect, even as our Father in heaven is perfect (Matthew 5:48). We all know what it means to strive for improvement in our physical, moral, and spiritual lives. To be an aspirational conservative is to heed the call of Jewel the Unicorn in C. S. Lewis’s The Last Battle: “Come farther up, come farther in!”

My grandfather was the best and greatest man I have ever had the pleasure and privilege of knowing. If I could be half the man he was, I would consider my life a success. For my whole life, his life legacy has been goals for me to strive to attain, like a high peak on the horizon to navigate to, to scale and climb, and perhaps one day, to reach the summit. Though dead, he still speaks to me, and I aspire to model him, to steward his legacy, and to hand his legacy down to my children. They never knew him, and yet, I hope their lives are animated by his voice and example so that they may benefit from his generous, wise, and hopeful spirit.

Aspirational conservatism is a standpoint looking up to the eternal, behind to the past, around about in the present, and ahead to the future. Such a standpoint is not merely to enjoy the scenery, although the scenery is breathtaking. We are informed by such a standpoint as we seek for, find, and cultivate the good and the freedom of the human person.

The American Right seems intent on proving John Stuart Mill’s infamous remark that “conservatives are the stupid party.” Not only is the populist movement in Washington foundering because of infighting and general boorishness, its intellectual equivalent in the so-called “postliberal” movement also seems to be descending into anger and what Lionel Trilling once called “irritable mental gestures.” Neither force seems to be the engine of cultural renewal that they promised to be.

John Wilsey’s new book, Religious Freedom: A Conservative Primer, offers a beautiful alternative: a vision to which conservatives might genuinely aspire. At the very outset of the short treatise, he turns to the wisdom of Alexis de Tocqueville. And rightly so—with the possible exceptions of Publius and Abraham Lincoln, no other political thinker has more fully understood the deepest meaning of America. Wilsey highlights especially his contention that our civilization is the result of a productive tension between two spirits: the spirit of religion and the spirit of liberty.

At present, both of these spirits are at great risk of vanishing altogether. Religion has been in decline for quite some time, and what Robert Nisbet called the “omnicompetent state” continues to grow unabated. Wilsey’s book, however, is useful precisely because it can help us understand the civilizational resources we still possess. In this slim volume, he teaches us that we cannot conserve Permanent Things such as religion or liberty by seizing power or imposing our will on either our friends or our enemies—rather, their preservation depends above all on love.

Wilsey’s treatment of Tocqueville’s “two spirits” put me in mind of something similar that the Frenchman’s great mentor, Edmund Burke, once wrote. In the Reflections on the Revolution in France, the Irishman too claimed that “all the good things which are connected with manners, and with civilization, have, in this European world of ours, depended for ages upon two principles; and were indeed the result of both combined; I mean the spirit of a gentleman, and the spirit of religion.” To his conservative mind, it was the gentleman who could defend liberty by embodying everything that was best about his society.

For Burke, the gentleman enjoys a kind of “exalted freedom” through the cultivation of the moral imagination. The Western literary and philosophic tradition furnishes his mind and heart with certain chivalric concepts, perhaps most poetically described as the “unbought grace of life,” according to which he can govern himself. The French Revolution was dangerous insofar as it sought to banish this chivalry from public life and extinguish the glory of Europe. Burke hoped instead that the rule of the best men could be united with an elevation of sentiment which could prevent abuses of power.

Although to American ears this defense of the gentleman may sound hopelessly aristocratic, there was in fact something deeply democratic about Burke’s vision. “Without force, or opposition,” Burke wrote, the spirit of chivalry “subdued the fierceness of pride and power; it obliged sovereigns to submit to the soft collar of social esteem, compelled stern authority to submit to elegance, and gave a domination vanquisher of laws, to be subdued by manners.” The generous aristocracy Burke and his followers prized was founded, as a matter of fact, on the Christian doctrine of universal equality before God.

Wilsey’s own term for this way of life is “aspirational conservatism.” He holds—rightly—that this kind of vision can “defend the best of the American character” because it can help us see the fundamental harmony between religion and liberty. But it is unfortunately manifest that there is very little aspirational about the entity we call the “conservative movement” today. Despite their leaders’ endless claims that we are on the precipice of a “new golden age,” the dominant factions have proved time and time again that they are incapable of conserving anything at all. As Wilsey puts it, “The rightism of contemporary times is populist, obsessed with politics, and fueled by social-media-inspired outrage in a similar style as their leftist counterparts.” Reactionary rage is no substitute for genuine cultural renewal.

Secular ideologues have sought to degrade our perception of the divine, but the structure of American freedom itself revolts against their efforts.

Wilsey’s finest explication of this problem with contemporary rightism is his critique of Stephen Wolfe’s Case for Christian Nationalism. Although he concedes Wolfe and other Christian nationalists are right to perceive growing forces of tyranny and immortality, he also explains that their attempt to construct an ideology to fight it is misguided at best. Whereas aspirational conservatives seek to preserve and enjoy the Western heritage, Christian nationalists and other right-wing ideologues instrumentalize and weaponize it.

At one point, Wilsey quotes Wolfe’s precise definition of Christian nationalism: “a totality of national action, consisting of civil laws and social customs, conducted by a Christian nation as a Christian nation, in order to procure for itself both earthly and heavenly good in Christ.” These kinds of hyper-logical systems emerging right-wing ideologues construct tend to reduce religion into a mere weapon to beat back modernity. Theirs is a deeply rationalistic approach to politics, which undermines sentiments at the heart of the institutions they claim to be defending.

And that is precisely why Wilsey criticizes it. Rather than upholding the aspirational conservatism at the heart of American civilization, Wolfe and others attempting to create a rightist ideology embrace the same kind of totalitarian impulses that our country stood against in the twentieth century. They may profess to love “the nation” as an abstract category, but they are hardly patriots who love our republic’s particular history or principles—that kind of love is too complicated to withstand their totalizing vision. Christian nationalists have far more in common with philodoxers and ideologues such as Hegel and Marx than statesmen and philosophers such as Lincoln or Plato. As Wilsey writes, “There is not much daylight between Wolfe’s counterrevolutionary method of statecraft and leftist revolutionary models.”

The errors of ideology also explain why the contemporary right has become so vulgar and ungentlemanly. Content to play in the realm of what Richard Weaver called “god-terms and devil-terms,” they utterly lack the virtue of humility Burke saw as essential to civilized life. Their demagoguery may, on occasion, secure them a little temporary power in elections—but it does not inspire the genuine conversion of the heart needed to turn enemies into friends for the sake of the common good. Hyper-rationalized moralism cannot maintain what Lincoln described as “our bonds of affection” or restore “the better angels of our nature” he spoke about so eloquently—nor revive a sense of our common nationhood. Look no further than the faction’s behavior on social media; rather than persuading anyone of the goodness of their vision, they spend their time typing away at insults and ephemeral arguments no one can win. In short, the ideologues of the right have destined themselves to play the role of not-so-beautiful losers in American politics.

What is most necessary in this hour of decline, then, is a conservatism that can help citizens aspire to be gentlemen again. At its best, the twentieth-century movement achieved this. William F. Buckley Jr.’s courtly social graces on Firing Line captivated audiences and inspired imitators. Russell Kirk’s romanticism cast a spell over the minds and hearts across Middle America—including Ronald Reagan’s. The genuine renewal these figures promoted is possible again, and it is to Wilsey’s great credit that his book draws our attention back to this prospect.

In good Burkean fashion, imagination is the heart of Wilsey’s conservative project. Citing the example of George Washington—America’s finest gentleman-statesman—he argues that we need to find better ways of “catechizing” citizens and statesmen alike. The General was able to achieve all he did because he was “formed by books” of the Western canon that taught him something about “the relationship of the eternal to the temporal.” He came to inwardly possess a series of images that informed the sense of the Good Life that guided his political action. Aspirational conservatism seeks to remind the people of these “internal philosophical foundations,” rather than promote “an external pragmatism” which values power above all else.

Throughout the book, Wilsey looks to the oft-neglected Peter Viereck as an exemplar of this aspirational conservatism. Unlike the activists who would largely determine the direction of the postwar Republican party, Viereck was a historian and poet—a man of letters first and foremost. He wrote to move his readers’ hearts. Aspiring to be a gentleman in the Burkean sense of the term, Viereck understood his own conservatism not as a tool to win elections but rather as a way of life. In this sense, we might encourage young people to look to thinkers like Viereck as models to imitate.

Viereck was also, admittedly, an eccentric. He rarely showed up to teach his classes on time, wore a scarf year-round, and could be prickly in ways that made him difficult to work with. But Wilsey sees this strangeness as an important aspect of aspirational conservatism:

[Viereck’s] eccentricities, bizarre as they were, reflected the emphasis he placed on the individual personality over mindless conformity, which is deeply important to the conservative disposition. In our own culture, which is too often obsessed with mindless conformity, a professor like Viereck probably would just be fired, and that would be that. Our times are blander and our skies greyer in the absence of such eccentric geniuses, people of personality. Alas we are the poorer.

Aspirational conservatism, then, aims at redeeming personality from the prevailing culture of dehumanization. Its goals are bigger than politics, even a politics of freedom. In Reflections, for example, Burke acknowledged that “liberty in the abstract may be classed amongst the blessings of mankind,” but he also warned that he could not judge it a good if it were “stripped of every relation, in all the nakedness and solitude of metaphysical abstraction.” We must, therefore, place the first emphasis on preserving a culture of elevation.

That is not to say, however, that Viereck entirely avoided politics in his own day, or that aspirational conservatives should avoid it altogether now. Wilsey explains that his political engagement was largely a “fight for a private life.” He wanted to contend against the choking consumerism of a godless culture and the despotism of the total state, to create a space in which human beings had the liberty to flourish according to their created purpose. For the aspirational conservative, politics is not merely a contest for power but rather a contest for dignity.

Religious Freedom is a serious work of scholarship from a true gentleman—something our movement sorely needs in such desiccated times.

The Southern agrarian M. E. Bradford once articulated this well in an essay of his own on the Duke of Wellington as “The Last Great Englishman.” Like Washington, the Anglo-Irish soldier consciously shaped his life according to a gentleman’s perception of the Permanent Things. “Indeed, because he was an antique Englishman, because Napoleon and imperialism hidden under rhetoric offended his inmost self,” Bradford wrote, “Wellington was able to recognize his campaigns as ‘war to the knife’ and therefore, with grace and quietude, to communicate his own inflexible view of their desperate significance to the men who marched beneath his banner.” When freedom is at stake and dignity is on the line, the gentleman is willing to fight.

This is perhaps why conservatives have seen the most success in recent years fighting for religious liberty. Secular liberalism poses genuine threats to our natural right to worship freely—the most overt recent example, of course, being the government-mandated shutdown of churches during the coronavirus pandemic. The good news, of course, is that the foundations of the American political tradition are strong enough to resist those threats. As Wilsey puts it, “We support the separation of church and state, not because we want to empower the state against the church or redefine religious liberty as a tame and lifeless ‘freedom of worship,’ but for the sake of free religious exercise resulting in the security of liberty for all.” In recent years, at least, the Supreme Court has consistently upheld Americans’ First Amendment rights against the most aggressive abuses, and public opinion generally opposes them as well. Even the pandemic-era restrictions were widely opposed and eventually rolled back. Whatever extremisms lurk in the background of American politics, the foundational principle of religious liberty remains strong.

To put it another way, recent victories on these issues prove that aspirational conservatism just works. Unlike the brittle electoral wins and media bluster of populism, these are concrete successes conservatives can fully celebrate. This realistic politics of freedom—not the rationalistic politics of authoritarianism that too many on the right now embrace—provides the space aspirational conservatives need to go about the business of cultural renewal. It enables us to reform institutions that are straying from their missions or build new ones altogether.

But in a larger sense, as I believe Wilsey would acknowledge, conservative victories against secularism in these religious liberty issues have a metaphysical import. As he puts it towards the end of the book, “the consciousness of God is vital to human nature.” Secular ideologues have sought to degrade our perception of the divine, but the structure of American freedom itself revolts against their efforts. “In a democracy where equality of conditions is the norm, religion is necessary to liberty because it reminds citizens that they are not laws unto themselves,” Wilsey writes, summarizing the central insight of Democracy in America. “Put simply, Tocqueville found that the consciousness of God and the recognition of human fallibility and limitations contributed to ordered liberty by restraining political passions.”

As conservatives continue the fight for religious liberty, and for the life of the republic, we would do well to look to John Wilsey and Religious Freedom: A Conservative Primer as a model. This is a serious work of scholarship from a true gentleman—something our movement sorely needs in such desiccated times.

This essay is adapted from remarks delivered at a panel on the book during the 2025 meeting of the Academy of Philosophy and Letters.