Without offering a precise definition or measure of poverty, Desmond laments that America, the world's richest country, has "more poverty than any other advanced democracy." (That the United States is also by far the most populous advanced democracy might itself help to explain this alleged fact.) Relying chiefly on a report he had published in 2015, along with statistics issued by the Census Bureau and the OECD, Desmond asserts that "almost one in nine Americans" live in poverty, with over 38 million unable to "afford basic necessities" and another 108 million "getting by on $55,000 a year or less," "stuck in that space between poverty and security."

Of course a large majority of the world's population—including India, Pakistan, Indonesia, China, most of Africa, and much of Latin America—would envy an individual or even a family with an income half that large. And as Desmond acknowledges, the official definition of poverty, developed by Mollie Orshansky, an economist for the Social Security Administration in the 1960s, was a seat-of-the-pants calculation. Since poverty meant lacking enough income to cover life's basic necessities, with food the greatest need, she judged that because food expenditures (at the time) consumed roughly a third of an average family's budget, the poverty threshold as of 1965 should be set at $3,000 a year (assuming the family would need to spend $1,000 on food). This entailed that in 1965, 50 million Americans, including 22 million children, were poor. As Desmond observes, the government's Official Poverty Measure (OPM) is still based on Orshansky's calculations, adjusted for inflation, so that the poverty line in 2022 was set at $13,500 for a single person and $27,750 for a family of four.

Continued reliance on Orshansky's calculations, as economists like Nicholas Eberstadt and Phil Gramm have pointed out, has led to increasing distortions—for instance, higher agricultural productivity has reduced the proportion of income needed for food, and the national figure abstracts from wide geographic differences. And as Orshansky herself acknowledged, the OPM greatly overestimates poverty by counting only cash income, excluding such forms of public aid as housing assistance, Medicaid, and the "refundable" Earned Income Tax Credit (all of which have expanded since the 1960s).

While the OPM has been accompanied since 2011 by a Supplemental Poverty Measure, with a national panel of "experts" proposing an update last May that would supplant it, the panel's proposal itself suffers from serious problems of ideological bias, as explained in a recent analysis by Scott Winship of the American Enterprise Institute.

Another deficiency is that the OPM gives a misleadingly static impression of poverty, as if the same people remained at the lowest level throughout their lives. As Eberstadt noted in an essay on "The Mismeasurement of Poverty," given the dynamic character of the American economy, long-term rather than temporary poverty "appears to be the lot of only a tiny minority of the people counted as poor by the official U.S. poverty metric." Consider the fact that mostly poor immigrants are regularly arriving to fill bottom rungs of the economic ladder, while others move up—and many penurious graduate students will certainly rise in economic status once they complete their studies.

While Desmond uses the OPM to deny that there has been any lasting reduction in poverty over the past half-century, his own long note cites evidence that belies that claim. Notably, he cites research using an "anchored" poverty measure (that is, one based on actual living standards, rather than cash income), showing that poverty fell by roughly 40 percent over the past 50 years, and a "widely cited" report by a nonpartisan organization that found child poverty had declined by 59 percent just between 1993 and 2019. Desmond even acknowledges the evidence that government antipoverty programs have thus "borne fruit." But he carps that the progress took place mostly during two periods totaling 15 years rather than being steady, and adds his "feeling" that what really matters is that urban poverty has grown proportionately since 2000 (which means that non-urban poverty declined by even more than the overall average). Clearly, Desmond is grasping at straws to find statistics that justify his feeling.

In reality, the data that Desmond cites to estimate the extent of poverty are thoroughly flawed, as is demonstrated in the 2019 AEI "Report on U.S. Consumption Poverty" by economists Bruce Meyer and James X. Sullivan. This report corrects the "official" poverty measure by relying on patterns of consumption rather than far less reliable estimates of income. The OPM exaggerates the extent of inflation from 1980 to 2018; as already noted, it excludes non-cash sources of support such as housing vouchers, Medicaid, food stamps, and tax credits; and it ignores the underreporting of income by those classified as poor. By contrast, Meyer and Sulllivan conclude, between 1980 and 2018 the consumption poverty rate fell by over 10 percentage points—from 13 percent in 1980 to only 2.8 percent in 2018. (This despite the fact that the "official" rate fell by only 1.2 points during that period.)

The core of Desmond's argument, however, doesn't depend on statistics, but on the claim that Americans as a whole are engaged in "exploiting" the poor, a practice that will not end until we resolve to become "poverty abolitionists." Unlike most social scientists, Desmond rejects attributions of the persistence of real poverty to factors like the rise of single motherhood (an issue identified by Daniel Moynihan in his 1965 report The Negro Family—a problem that has greatly increased since then among African Americans, even as it has spread among the white lower class as well). Nor does he concern himself with the rotten state of inner-city schools: He discusses public education only to lament the insufficient degree of racial integration, rather than recommending the expansion of charter schools and school-choice programs, which offer poor families a real alternative to union-run public schools. (Instead, he favors policies to increase unionization throughout the economy.)

Desmond justifies his attribution of poverty to "exploitation" by viewing the economy as a zero-sum game, in which every gain by people in higher economic classes must have been won by depriving poor people of some good to which they were entitled. He accuses better-off people of hoarding wealth through their "excesses"—for instance, by buying "cheap goods and service" produced by "the working poor," investing in companies that produce such goods, enjoying free checking accounts that are "subsidized" by overdraft fees paid by others, and electing officials who "fabricate stories" about not making the poor dependent on government, "sinful[ly]" warning that "proposals to reduce poverty … would cost too much." (Actually, "cheap" goods sold by stores like Walmart and Costco are far more likely to be purchased by the less well-off; overdraft fees are easily avoided by balancing one's checkbook; and Desmond offers no remedy for the real problem of dependency.)

Disregarding the vast scope of programs at all levels of government that already serve the poor, Desmond is confident that much larger such programs could be financed by "crack[ing] down on corporations and families who cheat on their taxes" and compelling the well-off to "take" less from the government. To do this, he recommends "bump[ing] up the top marginal [federal] tax rate … to 50 percent, as it was in 1986; or 70 percent, as it was in 1975," while jacking up the corporate rate to 46 percent, "as it was from 1979 through 1986."

Desmond seems unaware of the many deductions from taxable income that were eliminated by the 1986 Tax Reform Act—unlimited medical deductions; liberal home-office deductions; tax averaging; and so on, which made the "official" top rates merely nominal. And he denies that any "serious social scientist" thinks that raising taxes on the rich or international corporations would have a disincentivizing effect, reducing national wealth and the resources to raise everyone's living standards. Note, however, that Ronald Reagan's 1981 tax cut, the 1986 reform, and Donald Trump's 2017 cut all unleashed economic booms, with African-American poverty falling to a record low in the Trump years. Do "serious social scientists" ignore these facts?

Another of Desmond's proposals, taxing capital gains at the same rate as regular income, ignores the fact that since the former aren't indexed for inflation, seeming gains may not constitute actual increases in wealth—and the tax code allows only limited opportunities to balance them against capital losses. And he endorses broadening the scope of antipoverty programs so as to benefit the middle class as well, just to make it politically difficult (as FDR planned with regard to Social Security) to repeal them. But Desmond refuses to call his proposals redistributive, since he "hate[s] the word." Instead, they are simply compensation for the government's considerable "effort" devoted to enriching "the American aristocracy."

Other elements of Desmond's agenda include such conventional left-liberal proposals as indexing the minimum wage for inflation or even making it illegal for companies to pay "degrading wages." (Currently, only 2 percent of American workers earn the minimum wage, and raising it would reduce the opportunity for teenagers and recent immigrants to obtain needed work experience.) To his credit, Desmond criticizes "snob zoning" laws, a point on which advocates of free markets agree.

But perhaps the most striking aspect of Desmond's argument is his claim that people who object to expanded government welfare programs are hypocritically ignoring the fact that they themselves "benefit most from government largesse" in the form of tax "breaks" like the mortgage-interest deduction (greatly reduced by the 2017 Tax Cut and Jobs Act), while also enjoying "employer-sponsored health insurance." In effect, Desmond starts with the premise that all wealth belongs in principle to the government, so that any reduction in the taxes one pays, or any benefits one receives on the job, amounts to "taking" sums, part of which rightfully belong to other people. This is the opposite of the liberal principles articulated in the Declaration of Independence.

Near the end, citing the nation's "bounty," Desmond expresses agreement with an "ecologist" who advocates "an economy of abundance … in which wealth means having enough to share," and "where the gratification of meeting your family needs is not poisoned by destroying that possibility for someone else"—as if that is what non-poor Americans were currently doing. While "poverty," according to Desmond, "is the dream killer," he concludes that "[w]e don't need to outsmart this problem. We need to out-hate it." This statement helps explain many of the intellectual flaws of Poverty, by America. Whether it justifies the cost of a Princeton education I must leave to tuition-paying parents to decide.

Poverty, by America
by Matthew Desmond
Crown, 304 pp., $28

David Lewis Schaefer is a professor of political science at the College of the Holy Cross.

The post Poor Logic appeared first on Washington Free Beacon.

In Plato Goes to China, Bartsch explains her aim to escape the "hall of mirrors" generated by Westerners taught to believe in the universal validity of such concepts as the superiority of democracy and the notion of individual rights. Bartsch’s outlook is one of cultural relativism: She refrains from making derogatory comparisons between Chinese and Western cultures—despite the belief of some prominent Chinese scholars that their civilization would benefit from imbibing elements of the Western classical tradition. (Oddly for a classicist, Bartsch ignores the self-critical character that typified the Western tradition of philosophy, poetry, and historiography starting in antiquity—as if all its contributors regarded democracy as the best regime or conceived philosophy as essentially deductive rather than empirical and dialectical. At the same time, she initially downplays the transformation that Western influences such as Marxism have already made in "Chinese" ways.)

Bartsch describes the unsuccessful endeavor of 17th-century Jesuit missionaries to introduce elements of classical thought (blended with Christian theology) to China, which left the Chinese still thinking that their culture was superior. Only after the emperor’s 1912 overthrow did the opportunity arise for China’s "young intellectuals and reformers," many of them foreign-educated, to establish a republican government, led by Sun Yat-sen and influenced by the reading of Western thinkers like Montesquieu, Rousseau, and Aristotle. But both the republican enterprise and the freedom of thought that encouraged it ended with the Japanese occupation of the 1930s, followed by the victory of Mao’s Communist forces.

The Maoist triumph cut off any continued study of the Western classics. Bartsch cites only one individual who retained interest in ancient Athens under Mao, a "dedicated communist" and economist named Gu Zhun, who looked to the Greek polis and to Aristotle’s political thought to resolve "problems inherent in socialist economics," being appalled by the "famine and cannibalism" generated by Mao’s Great Leap Forward. He "paid dearly" through imprisonment for his heretical suggestion that such Greek institutions as democracy, individual rights, and the rule of law demonstrated the superiority of Western culture and power to that of China.

During the economic liberalization under Mao’s successor Deng Xiaoping, Gu Zhun’s thought achieved wider visibility with the posthumous (1982) publication of his book celebrating the polis. In turn, his thought helped inspire the production, "during the period of maximum openness and freedom of the press," of a six-part, government-sponsored TV series titled River Elegy (1988), which called for democracy and (Western) science, along with greater openness to the outside world, and was seen by over 200 million viewers. The series culminated in the ill-fated 1989 Tiananmen Square pro-democracy demonstrations by students and workers, suppressed by the army at the cost of hundreds or thousands of lives.

As post-Tiananmen party leaders purged reformers and "disciplined" dissidents, Bartsch recounts how Chinese classicists either turned their study in a purely apolitical direction or else tried to accommodate the regime by representing "the classical past … as supporting its values." Hence they cited Thucydides’ portrait of Athens’s fate in the Peloponnesian War to dismiss the supposedly "universal value of American democracy" (this in a 2012 op-ed in the New York Times). Others ahistorically blamed Plato and Aristotle for "brainwash[ing]" citizens into believing it was their duty to strive for virtue, thus "denying them independent thought" and emphasizing "consensus" at the expense of "individualism" (as if greater intellectual and personal freedom were offered in China!). Still others criticized Aristotle’s (misunderstood) doctrine of "natural" slavery and even his calling non-Greeks "barbarians" (following Greek usage)—at a time when the Chinese began imprisoning some million Uyghurs in conditions worse than those of Greek domestic slaves. One party editorial blamed the West for "hog[ging]" the term "democracy," when the world’s largest democracy is actually China. It also faulted the United States for having slavery until 1865 and denying women the vote until 1920.

As Bartsch observes, Chinese propagandists "have their moon cake and eat it too": denouncing democracy while claiming that their country best merits that title. All this illustrates "the somewhat depressing fact that the classics tend to be appropriated by those in power" in China, as they have been elsewhere.

Bartsch, however, is insufficiently critical of the use of classical texts by China’s rulers to justify suppressing dissent. She notes in particular the broad use of Plato’s Republic by post-Tiananmen classicists because of the similarity between several devices and institutions proposed by Socrates in that dialogue—communism, hierarchy, the "noble lie" designed to fortify that hierarchy and exclude foreign attachments—to those actually embodied in the Chinese regime.

Like those ostensible Platonists, Bartsch consistently fails to distinguish between Socrates’ proposals and the thought of the Republic’s author, a distinction stressed by a scholar whose work she will subsequently misrepresent, Leo Strauss. Thus she entirely misses Plato’s point.

Bartsch shows how Chinese academics have borrowed from such Western social theorists as Max Weber to find another ground for condemning the West, its allegedly "soulless" reliance on "instrumental" rationality, supposedly the cause of the Holocaust. Given their aims, she notes, it isn’t surprising that Chinese commentators "with an anti-western animus" have seized on such criticisms. (No mention here of Mao’s mass murders.) In turning to such "Weberizing," Bartsch laments, "the Chinese are doing themselves a disservice," since they might have found indigenous grounds, inherent in their own pre-Marxian tradition, for providing an alternative to what she depicts as "the abstract life of rational contemplation praised by Plato and Aristotle," the concept of ren or benevolence. But whatever may have been true in the past, she sensibly observes, "there’s little reason to suppose that the west is more of a hotbed of instrumental rationality these days than China." Hence, the West does not need to receive "Chinese spirituality" any more than China needs to receive "western rationality." So what has become of Bartsch’s quest?

In view of the dead end in which Bartsch’s endeavor to transcend a parochial worldview has culminated by the end of the fourth chapter, it is regrettable that she proceeds to dismiss the most profound quest among contemporary Chinese scholars for such a transcendence: their consideration of the thought of the German-Jewish philosopher Leo Strauss (1899-1973), who spent the better part of his career teaching in America (mostly at the New School for Social Research and the University of Chicago). To begin with, Bartsch makes the crucial error of representing Strauss’s endeavor to promote the serious reconsideration of classical thought so as to question the premises underlying modern political philosophy, in view of the problems in which it had culminated, as an endeavor somehow to restore the world of the polis, something he deemed neither possible nor desirable.

Bartsch herself had touched on the dissatisfaction with modern rationalism expressed by 20th-century thinkers like Weber, members of the Frankfurt School, and Martin Heidegger that generated the intellectual crisis to which Strauss’s return to its classical counterpart was intended as a response. Central to that enterprise was Strauss’s rediscovery of a fact known to serious thinkers as late as the 18th century (Lessing and Rousseau) and even the 19th (Nietzsche): the practice by philosophers of "esoteric writing," or the concealment of their deepest thoughts from all but the most careful (literally philosophic) readers, both to spare themselves from persecution and to avoid undermining religious, moral, and political beliefs that might be essential to the well-being of nonphilosophic readers as a whole.

While the 18th-century Enlightenment brought great benefits to hundreds of millions of inhabitants of the Western world in the form of constitutional-liberal governments—exemplified by the United States—that aimed to secure the equal rights of all, while engendering vast economic prosperity, it did so at a cost. It engendered a sense of malaise among intellectuals and youthful "idealists" in the 20th century, dissatisfied with the meaninglessness of a "bourgeois" life, bereft of serious religious belief or the pursuit of earthly glory.

It should not be surprising that Chinese scholars, reacting against a form of totalitarian despotism derived from 19th-century Western thought, yet also repelled by the sort of materialism that flourished among the "oligarchs" who came to power under Deng and Xi, should find the intellectual alternative proposed by Strauss appealing. At the same time, the fact that Strauss took issue with the Enlightenment’s overt hostility to both religion and traditional morality facilitated the endeavor to reconcile classical Western philosophy, at least at the political level, with elements of the Confucian tradition. (Following Strauss’s death, one of the students closest to him, Werner Dannhauser, wrote that "he made proverbs seem wise again," meaning that philosophy as Strauss understood it took genuine proverbial wisdom seriously despite its "unscientific" character, even as the philosophic enterprise required ultimately going beyond it.)

Contrary to Bartsch, none of this has anything to do with basing government on a "noble lie." Despots hardly needed to learn the art of lying from Plato, Machiavelli, or Strauss. If anything, by reopening the possibility of philosophizing as a pursuit of truth, rather than (as Bartsch conceives it) just a reflection of the cultural "walls" of one’s society, Strauss assisted his serious readers to see beyond those walls and become more thoughtful, if sober and moderate, critics of the regimes they lived under.

As Bartsch observes, "Straussian" scholars in China ultimately took various intellectual and political paths, some of them unfortunately anti-American. Much as he may endeavor to instill moderation, a philosopher cannot control the direction in which some may take his thought. (Strauss rarely wrote or said anything about contemporary political issues but stated unambiguously his loyalty to the liberal-constitutional order, even as he sought to enrich and fortify it through genuinely liberal education founded in the study of great books both ancient and modern. Incredibly, however, Bartsch buys into the myth that "Straussian" influence somehow underlay the Iraq war, three decades after his death.)

Readers seeking a more instructive guide to Strauss’s role in contemporary Chinese thought should consult the volume edited by Kai Marchal and Carl K.Y. Shaw, Carl Schmitt and Leo Strauss in the Chinese-Speaking World: Reorienting the Political. It might incite them to contemplate, as Chinese scholars have done, Strauss’s studies of the history of political philosophy, as an entry to just the transcendence of one’s cultural horizon that Bartsch originally sought but failed to achieve. In other words, it would induce them to join in Plato’s (and Strauss’s) quest to discover those things that are by nature true, rather than merely reflecting one partial cultural perspective or another.

Plato Goes to China: The Greek Classics and Chinese Nationalism
by Shadi Bartsch
Princeton University Press, 304 pp., $33

David Lewis Schaefer is a professor of political science at the College of the Holy Cross.

The post Why the Chinese Are Reading Plato, Aristotle, and… Leo Strauss? appeared first on Washington Free Beacon.

In his newest tome, Not Accountable, Howard traces the lack of government accountability to what he concludes to be its underlying source: the rise of public employee unions. Whereas his earlier studies described "a flawed governing philosophy" that overemphasized procedural rights at the expense of the public good, "applied by people acting in good faith," this one "is a story of raw power and democratic disloyalty."

Howard opens by citing the case of Derek Chauvin, the Minneapolis policeman who killed George Floyd in 2020, setting off a wave of protests and riots throughout the country. Chauvin, it turned out, was the subject of a long stream of citizen complaints and was said to be "tightly wound"—"not a trait ideal for someone patrolling the streets with a deadly weapon." Nonetheless, the city’s contract with the local police union prohibited the commissioner, in response to those complaints, from dismissing or even reassigning Chauvin.

Such a lack of accountability, Howard observes, is endemic in American government, with many public managers reporting that they’ve "never seen a public employee dismissed for poor performance." For instance, of the 2,600 complaints that the Minneapolis police department received during the decade prior to Floyd’s arrest, only 12 led to any disciplinary sanction, of which "the most severe was a forty-hour suspension."

In 2019, Howard reports, a New York school principal was found to have "created a fraudulent system of school achievement" in order to boost his record. Though he was dismissed, thanks to his union contract, "he will get full salary and benefits of over $265,000 annually for the next seven years." And at the federal level, an EPA employee found to be surfing porn sites in his cubicle "was paid for almost two years until he made a deal to retire." Finally, returning to New York City, Howard notes that "no detail" of municipal operations "is too small to be vetoed by a union entitlement," with a Parks Department employee filing a grievance against his supervisor for asking him to straighten his nameplate. And "rigid job categories" written into union contracts "substantially raise maintenance costs" at New York’s Metropolitan Transit Authority, with the size of work crews being bloated by "the need to assign workers for each job category even if that part of the work is incidental"—for instance, asking a signal repairman "to cut an overhead branch."

These tales of union-protected malfeasance or abuse are all too familiar to anyone reasonably attentive to the way that public business is often conducted in the age of public employee unions. This is not to deny—nor does Howard deny—that a large majority of police, firemen, school teachers, and other government workers are competent and devoted to doing their jobs well. (In fact, he observes, many public employees, especially those holding important responsibilities, such as judges and well-qualified teachers, are underpaid under the current system, by comparison to what they might earn in the private sector.)

But to take a couple of examples from the city I inhabited for 46 years, Worcester, Mass., there was a tenured elementary school teacher decades ago who was widely known to be suffering from severe, and continuing, mental illness. So scandalous was her on-the-job behavior that the city went to the expense of attempting to dismiss her. But so strong was her union protection that removing her took several years and cost Worcester hundreds of thousands in legal fees. That fact served as a deterrent, in a city of fewer than 200,000 residents, to undertaking such a process again. (Unlike college faculty, whose records are commonly assessed for tenure during their sixth year, Worcester school teachers must be evaluated by their third year—hardly enough time, in many cases, to make an adequate assessment of their work.)

Another abuse guaranteed by a union contract: Massachusetts is the only state whose municipal contracts require that any road-reconstruction site be manned, not by civilian "flagmen" (who elsewhere earn barely above the minimum wage), but by uniformed policemen, who not only receive their regular hourly salary, but are guaranteed four hours of pay, even if the job takes half an hour. Service on these much-coveted "police details" commonly boosts the salaries of senior members of the force so as to place them among Worcester’s most highly paid public employees. (As a benchmark, in the town of Brookline, those who serve on the details are paid $62 per hour on weekdays, $71 on weekends.)

Howard attributes such "endemic failures of modern American government" as bad schools and unaccountable police to the legalization, beginning in the early 1960s, of public collective bargaining, which has enabled unions to impose ever-more-restrictive limitations on the capacity of government managers to do their job. These have included limits on "reassigning" (or dismissing) incompetent personnel, "allocating responsibilities for projects," and such "mundane managerial prerogatives" as "dropping in on a classroom" or informally asking employees "how to improve things."

So how did organized public employees acquire such a controlling role over governmental operations in the first place? "Until the rights revolution" of the 1960s, Howard observes, "the idea of negotiating against the public interest was unthinkable," even to AFL-CIO leader George Meany and progressive president Franklin Roosevelt. The reason is simple. In private business, while union representatives are expected to bargain aggressively on behalf of their members, their demands will have to be limited, in the end, to what the company can afford to pay—rather than driving costs so high as to drive it out of operation, or else to move to another state.

By contrast, public employee unions are under no such constraint. It simply isn’t possible for the entirety of a city’s—let alone a state or nation’s—population to pick up stakes and move to another location. And not only can union demands, however unreasonable, always be "satisfied" at least for a number of years by simply raising taxes to finance them; public officials commonly have a strong interest in caving to those demands because union members vote in high numbers and offer "in-kind" assistance at election time by campaigning for favored candidates. In place of the adversarial bargaining that transpires in the private sector, as the website of the American Federal, State, and City Municipal Employees, one of the nation’s largest public unions, boasts, "We elect our own bosses, so we’ve got to elect politicians who support us and hold those politicians accountable." (As Howard asks, when New Jersey governor Jon Corzine shouted out to a rally of public employees in 2006, "We will fight for a fair contract!" whom was he going to fight against?)

The party that is least likely to be represented at the bargaining table is the taxpayers, who pay for the employees’ benefits as well as the inefficiencies that union rules introduce into government. Owing to a form of what economists call the "collective action problem," the average voter is less likely to concern himself with the cost of public giveaways or inefficiencies than is the average union member, to whom the benefits of those giveaways and rules are all-important. Hence, while public employees constitute only a limited fraction of the electorate, they are often able to twist candidates’ arms so as to get their way. As Howard notes, members of the teachers’ unions constitute a substantial fraction of the delegates at every Democratic National Convention. Unions’ relative power is even greater at the municipal level, where overall voter turnout tends to be small.

The original impetus for public collective bargaining came at the local level, when politicians like former New York mayor Robert Wagner saw union support as a way of breaking their dependence on the established political "machine." What Howard calls "the big break," i.e., former president John F. Kennedy’s executive order authorizing collective bargaining at the federal level, was similarly payback for union political support, rather than being motivated by a concern for "efficiency" as the order stated. Contrary to the implicit quid pro quo that in return for bargaining rights, public unions would not strike, amid the wave of ’60s’ activism, the country was soon swept by a wave of paralyzing strikes. As Howard observes, Kennedy himself underestimated the effects of his executive order by initially excluding "compensation and other budgeting issues from bargaining," not anticipating how soon the scope of collective bargaining would expand to include them.

The truly novel aspect of Howard’s argument is his contention that public employee controls on government should be declared unconstitutional based on two provisions in the Constitution: Article II, which vests "the executive power" in the president, and the clause in Article IV that guarantees to each state a "republican form of government." The president’s executive power has particularly been undermined, he observes, by the provision in the Civil Service Reform Act of 1978 that codified into law previous executive orders that required the president to bargain with public unions. It also dictated that any impasse in the negotiations must be resolved by an independent panel or by an arbitrator it selects. These provisions impinge on the president’s executive authority, Howard argues, in a way that turns the executive branch into an "accountability-free zone."

Among the absurd consequences: When the Veterans Administration sought to assign personnel based on their performance rather than seniority, its request was rejected by the arbitrator in favor of the union’s insistence on the latter criterion. Nor, Howard adds, can executive-branch officials leave candid assessments of their subordinates’ performance in their personnel files, without subjecting them to a lengthy legal process. That’s why "over 99 percent of federal employees receive a ‘fully successful’ rating." (When the IRS sought to dismiss an employee who repeatedly denied benefits to African immigrants, made discriminatory remarks at work, and "tried to run another employee off the road," the union lawyers who represented him successfully demanded a "clean personnel record" as the price of his removal, enabling him to take a new job with the U.S. Forest Service.)

Not surprisingly, barely a decade after enactment of the Civil Service Reform Act, the original Paul Volcker National Commission on the Public Service (1989) "found that federal agencies suffer from ‘an erosion of performance and morale,’" while its 2003 successor "found deep resentment" at the way poor performers impede the successful performance of the agency’s duties. In opposition to such practices, Howard cites the mandate in Article VI of the Constitution that executive as well as judicial employees be bound to support that document (over and against partisan loyalties), as well as the federal statute specifically dictating that all public employees "place loyalty to the Constitution, laws, and ethical principles above private gain."

At the state and local level, Howard finds plausible judicial precedents for the courts to declare the controls exercised by public employee unions to be a violation of the people’s rights to self-government. (He cites the Supreme Court’s 2012 decision in Knox v. Service Employees International Union, addressing the constitutionality of mandatory union political assessments, quoting fliers distributed by the Service Employees International Union’s "Fight-Back Fund," describing how the union was raising "extraordinary" funds to defeat political incumbents with officials "who support public employees.")

Howard’s demand that the courts restrict not only public-union political activity but also collective bargaining rights is a tall order. But in its decisions in Knox and then in  Janus v. AFSCME (2018) the Supreme Court has already moved strongly on the former issue, holding on First Amendment grounds that public employees cannot be coerced to contribute to union political actions. (It must, however, be mentioned that unions, as in a California state university where a friend of mine works, often find ways of circumventing Janus.) But Howard’s bill of particulars is so strong that even judges who normally shy away from what may be perceived as judicial "activism" ought, in my opinion, to be persuaded by it. How else will the American people be liberated from the unaccountable system that President Kennedy, Mayor Wagner, and their successors thoughtlessly unleashed on us?

Not Accountable: Rethinking the Constitutionality of Public Employee Unions
by Philip K. Howard
Rodin Books, 160 pp., $21.99

David Lewis Schaefer is a professor of political science at the College of the Holy Cross.

The post Unfireable Offenders appeared first on Washington Free Beacon.

Sandel lamented the failure of the "prevailing political agenda" to address such concerns. The failure resulted, he maintained, from the dominance of "neutralist" liberalism (shared by self-described liberals and conservatives alike), which identified government’s goal as securing citizens’ freedom "to choose our ends" or "values" without interference or restraint, beyond what was required to preserve others’ right to do likewise. He contrasted this understanding of freedom (expressed in the right to the "pursuit of happiness" guaranteed in the Declaration of Independence) with the "republican" conception of liberty that entails "sharing in self-government" or political liberty. While that view is not incompatible with "liberal freedom," it requires that government inculcate in citizens certain "civic virtues," rather than remaining neutral toward their ends or ways of life.

In the revised edition of Democracy’s Discontent, whose subtitle refers to the "Perilous Times" in which Americans now live, Sandel makes the following changes. First, he drops the entire first part of the first edition, which addressed the American constitutional tradition and the manner in which it evolved toward moral neutralism. He now focuses on the history of economic debates, hoping thereby to illuminate the sources of our present crisis. Second, beyond a brief preface and an introduction highlighting "democracy’s peril," along with a new chapter on "The Political Economy of Citizenship," Sandel adds a lengthy epilogue titled "What Went Wrong: Capitalism and Democracy Since the 1990s."

In between the short new chapter and the epilogue Sandel simply reproduces the last five chapters plus the conclusion from the previous edition without (so far as I have been able to ascertain) altering a word. (Evidence of this lack of change can be seen in his repeated citation of a 1972 book by Mark Green on the supposedly narrow extent of stock ownership among Americans that was already 24 years old, outdated and inaccurate at the time of the first edition.)

In his new introduction, Sandel lists as evidence of America’s civic decay the January 6 attack on the Capitol; continued disputes not only about the 2000 election but also regarding masks and vaccines adopted in response to COVID; "public outrage at police killings of unarmed Black men"; and the widespread enactment of state laws allegedly making it harder to vote. According to Sandel these controversies "did not begin with Trump" nor end with his defeat, since his original election was already "a symptom of frayed social bonds and a damaged democratic condition."

Sandel identifies the source of the foregoing ills as the deepening "divide between winners and losers" engendered by the "neoliberal globalization project" of "governing elites" starting in the 1980s that produced "massive gains for those at the top but job loss and stagnant wages for most working people." While globalization’s advocates promised that the winners’ gains could be used to compensate its "losers," "the compensation never arrived." Instead, the winners used their wealth to seize control of government, ending its function as "a counterweight to concentrated economic power."

Earning bipartisan congressional support for deregulation of Wall Street through their campaign contributions, the financial titans then induced government to respond to the resultant financial crisis by "bail[ing] out the banks" while leaving "ordinary homeowners" unable to maintain their mortgage payments "to fend for themselves." According to Sandel, the Occupy Wall Street and Tea Party movements, Bernie Sanders’s "surprisingly strong challenge to Hillary Clinton in 2016," and anger among Trump supporters can all be traced to "four decades of neoliberal governance." This, in turn, engendered "inequalities of income and wealth not seen since the 1920s," the decline of labor unions, a continuing reduction in the share that workers received from increasing productivity, and the direction of investment toward "speculative activity" rather than in "new productive enterprises." (The reader may wonder how productivity kept increasing without investment being directed toward it and may note that the decline in union membership aside from public employees began well before the 1980s.)

Sandel cites his previous forecast that "to the extent that contemporary politics puts sovereign states … in question," it might "provoke reactions" from people who would advocate "harden[ing] the distinction between insiders and outsiders" and seek to "take back our culture" and country "with a vengeance." But that "vengeful backlash" failed to alleviate "democracy’s discontent," as "the scale of economic life" exceeded "democratic control," and civic bonds weakened as "the credentialed elites who flourished in the new economy were discovering they had more in common with their fellow entrepreneurs, innovators, and professionals around the world than with their fellow citizens."

In 1996 Sandel had foreseen that "important transnational projects—environmental accords, human rights conventions," and the European Union "would founder for their failure to cultivate the shared identities and civic engagement necessary to sustain them." (Were such "identities" ever possible, on Sandel’s own grounds, even leaving aside the EU’s well-known "democratic deficit"?) Hence both Trump’s promised border wall and Brexit "symbolized a backlash against a market-driven, technocratic mode of governing that had produced job loss, wage stagnation, rising inequality, and the galling sense among working people that elites looked down on them."

To "revitalize American democracy," Sandel contends, we must "debate" how to "reconfigure the economy" so as to subject it to democratic control, and how to "reconstruct our social life" to reduce polarization and enable Americans to "think of themselves as participants in a shared public life." Even though he implausibly contends that our reliance on "big pharma" raises the cost of lifesaving drugs (only big pharmaceutical companies have the capacity for the research that generates such drugs), while "having just a few big airlines means paying more to fly to Cincinnati" (the Carter administration’s airline deregulation has long been recognized to have lowered the cost of air travel), the greater problem of what Louis Brandeis called "the curse of bigness" is that it "obstructs our capacity for self-government."

Sandel’s chapter on "the political economy of citizenship" reiterates his distinction between "voluntarist" liberalism, focused on individual freedom, and "republican theory," which identifies liberty with "sharing in self-government." While granting that the two conceptions have historically coexisted, Sandel maintains that "since the mid-twentieth century, the civic or formative aspect of our politics has largely given way to a liberalism that insists on neutrality toward competing conceptions of the good life," a conception that "lacks the civic resources to sustain self-government."

Here, a correction is in order. It is certainly true that beginning in the mid-20th century an erosion has occurred in the notion that free government presupposes the inculcation of certain moral virtues (justice, honor, patriotism, compassion, for instance). But the erosion did not originate with greedy capitalists. The belief that government must be neutral as between religion and irreligion, or the encouragement (through its policies) of marriage over single-parent childbearing, the redefinition of marriage to include single-sex couplings, and the invention of a constitutional right to abortion, originated rather in the academy, in tandem with the Supreme Court.

Once the Court began in the 1950s to "incorporate" the Bill of Rights into the Fourteenth Amendment’s "due process" and "equal protection" clauses so as to apply it against the states, it not only (laudably) outlawed racial segregation in schools and other public facilities, but read the First Amendment’s religion clauses so as to ban the posting of the Ten Commandments outside a courtroom, as well as the recitation of a (nondenominational) prayer at a middle-school graduation, and interpreted the freedom of speech and the press to cover pornography, along with the right to burn the flag. It also imposed new rules regarding state police procedures, including the "exclusionary rule," which obstructed local decisions regarding law enforcement and encouraged popular resentment at seeing criminals go free thanks to legal technicalities. In all these respects, citizens were indeed made to feel that local government’s capacity to support the moral preconditions of self-government had been eroded.

Strangely, none of the remaining six chapters that Sandel copies from his first edition addresses these issues. Instead, he is exclusively concerned with the history of debates over the relative moral consequences of agrarian and commercial/manufacturing ways of life during the early decades of the republic, followed by the endeavor of progressives to rein in the power of large corporations in order, ostensibly, to protect the common people.

In his account of the earlier debate, Sandel freely borrows from the arguments of agrarian defenders of "civic virtue" against the corruption supposedly engendered by commerce including Jefferson, John Taylor, Jackson, and even Calhoun, downplaying the fact that they were slaveowners aiming largely to protect their own freedom, while resenting the Northern bankers from whom they were compelled to borrow. Nor does he adequately consider all the opportunities for advancement that commerce and industry made available to free laborers in the Northern and Midwestern states, drawing tens of millions of immigrants. Nor, finally, does Sandel take account of the vast improvements in living standards, including health and longevity, that commercial and industrial expansion have brought to the American people as a whole. Is he implying that the immigrant workers who helped engender those improvements lacked civic virtue?

It is undeniable that the growth of large-scale banking, commerce, and industry called for enhanced national regulation to protect Americans against fraud, pollution, the sale of unhealthful foods and medicines, and unsafe working conditions. But no such reasons can justify the vast increase in the number of federal cabinet departments that has greatly increased our tax burden, or the unchecked regulatory expansion made possible by a largely inattentive Congress, over the past century. It is the removal of the people’s capacity to regulate their lives from the local level to unaccountable judges and bureaucrats, far more than the political influence of large corporations, that has encouraged extremists on both left and right to express alienation from our country’s political system.

Sandel’s epilogue is deficient in several ways. First, although the book went to press late in 2022, its narrative on "what went wrong" since the 1990s essentially concludes with Joe Biden’s election and his initial legislative triumphs—not their consequences. Instead, Sandel treats as the ultimate proof of the failure of globalization the economic crisis of 2008-09, brought on by the collapse of the housing market, followed by government bailouts of Goldman Sachs and General Motors. While Sandel applauds Biden’s $1.9 trillion COVID-relief package and his $1 trillion "infrastructure" bill, he says nothing about the runaway inflation that resulted, depleting the retirement savings of those ordinary folks that Sandel professes to care about, while enlarging the class of nonworkers who prefer lives of dependency.

In fact, Sandel praises Biden’s distrust of economists, whom Biden blames for subordinating politics to economics, rather than the other way around. Both parties had plenty of blame for the 2008-09 market collapse, but it was precisely political pressures aimed at currying favor with certain voting blocs that were the proximate cause: the 1977 Community Reinvestment Act, which compelled banks to lower their home-lending standards, followed by further legislation with the same intent enacted in 1992-93 and championed by Democratic representative Barney Frank, who expressed the wish to "roll the dice" with the mortgage market. (See John Allison’s The Financial Crisis and the Free Market Cure.)

In other respects as well, Sandel exhibits a lamentable disregard for economic facts. For instance, he repeats assertions about how free enterprise and globalization have depressed workers’ wages for decades. As noted earlier, he relies on a 1972 claim by politician Mark Green regarding the narrow scope of stock ownership, even though only four years later the noted management consultant and economic analyst Peter Drucker published The Unseen Revolution: How Pension Fund Socialism Came to America, addressing the widespread ownership of business corporations by pension funds. As of April 25, 2017, according to State Street Global Advisers, institutions (pension funds, mutual funds, colleges and universities) owned about 78 percent of the market value of the U.S. Russell 3000 stock index, and 80 percent of the large-cap S&P 500 index. As for the tales Sandel endorses regarding the stagnation of wages and growing economic inequality, these are thoroughly refuted by three distinguished economists, including ex-senator Phil Gramm, in The Myth of American Inequality: How Government Biases Policy Debate.

Most problematically, echoing the theme of a previous book, Sandel concludes by denouncing the inequality that results from "meritocracy." Here he does not merely mock the pretensions of pseudo-meritocrats like Hillary Clinton, who thinks that her degrees from Wellesley and Yale entitle her to disparage those who wouldn’t vote for her as "deplorables." (Obama, of course, similarly disparaged his nonsupporters as racists who "cling to guns or religion" owing to their lack of intellectual sophistication.)

Instead, echoing the theme of his last-published book, Sandel denounces actual meritocracy, i.e., the rise of the most talented individuals to positions of prominence and power, since "encouraging people to believe that their success (or failure) is their own doing generates hubris among the winners and humiliation among those left behind." What better way could be found to discourage those born to lower economic and social status from striving to improve their lot than teach them that success in America is the result of "structural inequalities" that can be overcome only by political activity aimed at income redistribution, rather than through effort and (developed) talent?

To the extent that Democracy’s Discontent influences readers, including Sandel’s "privileged" students, to adopt his views, it will only exacerbate ordinary Americans’ discontent, including their resentment of highfalutin Harvard professors telling them what to think and how to live.

Democracy’s Discontent: A New Edition for Our Perilous Times
by Michael J. Sandel
Belknap Press, 384 pp., $24.95

David Lewis Schaefer is a professor of political science at the College of the Holy Cross.

The post Michael Sandel: Elitist in Democrat's Clothing appeared first on Washington Free Beacon.

That image has changed drastically in the quarter-century since Peterson wrote his introduction. Stains on Jefferson's liberal and egalitarian reputation had already appeared following Peterson's original book, starting with constitutional historian Leonard Levy's 1963 challenge to Jefferson's (self-created) image as a nonpartisan defender of civil liberty in Jefferson and Civil Liberties: The Darker Side (1963) and Fawn Brodie's Thomas Jefferson: An Intimate Biography (1974), which dwelt on his relationship with his slave Sally Hemings (which Peterson had treated as doubtful). These were followed by Joseph Ellis's ambivalent American Sphinx: The Character of Thomas Jefferson (1996) and Conor Cruise O'Brien's The Long Affair: Thomas Jefferson and the French Revolution, 1785-1800, which persuasively interpreted Jefferson's perverse enthusiasm for that revolution, well after it had devolved into anarchy and terror, as a psychological compensation for feelings of guilt about his slave ownership, which contradicted the principles he had so eloquently expressed in the Declaration of Independence and Notes on Virginia.

Despite the foregoing works of scholarship, until a few years ago the Democratic Party was proud to trace its lineage to Jefferson, terming its annual fundraiser the Jefferson-Jackson Day Dinner. (The title was itself ironic, in view of the elitist Jefferson's contempt for Jackson's vulgarity.) But the turn in Jefferson's popular reputation suddenly reached 180 degrees in today's "woke" revolution, with the Virginian's name regularly being stricken from schools and other public institutions around the country owing to his having been a slaveowner (and, secondarily, to his hypocritical coverup of his relationship with Hemings). That turn (seen also in the "1619 Project") threatens to obliterate recollection of the great goods Jefferson accomplished for his country, taking a leading role in the movement for independence, subsequently representing it ably as minister to France in the 1780s, authoring not only the Declaration of Independence but also the draft of what became the prohibition of slavery in the Northwest Territories, and undertaking the Louisiana Purchase during his presidency.

In His Masterly Pen: A Biography of Jefferson the Writer, Fred Kaplan, emeritus professor of English at Queens College and the author of 12 previous books, adopts a more balanced approach that is neither hagiographic nor unappreciative. Borrowing his title from the phrase that Jefferson's friend-enemy-friend John Adams used to describe his literary brilliance, Kaplan traces his subject's life and career from youth to old age by relying chiefly on an examination of his words—both his public addresses and his public and private correspondence.

A recurring theme in Kaplan's portrait, however, is Jefferson's remarkable capacity for self-contradiction and outright self-forgetting: issuing continual exhortations on behalf of liberty while disregarding his slave ownership, and even his determination to see the slave rebellion in Haiti crushed; his extravagance, which kept him perpetually in debt, even as he celebrated the virtues of the independent, sturdy yeoman farmer; his "fantasized" recollection of the American Revolution as a time of general happiness, just because of people's supposed freedom from debt; his dishonest treatment of the Indian tribes, espousing a conciliatory but patronizing attitude toward them while really intending the forced removal of those who refused to assimilate to the area west of the Mississippi; his willingness as president to take strong actions, in contrast to his longtime "preaching" in favor of small government.

But unlike Jefferson's contemporary detractors, Kaplan repeatedly reminds us of his virtues: above all, his ardent devotion to public service, the range of his intellectual curiosity, and his remarkable mastery of English prose. (This does not prevent Kaplan from pointing out the failure of some of the policies Jefferson favored, such as the reliance on embargoes instead of a navy to protect American interests against foreign depredations—prefiguring contemporary American exponents of "soft" power to ward off foreign aggressors, in place of undertaking the expense of necessary enhancements of our military capacities. But as that last example illustrates, today's detractors of Jefferson’s policy errors are not necessarily in a position to crow over their own successes.)

Aside from some minor stylistic blemishes (occasional repetitiveness and irrelevant speculations, such as that Jefferson's beloved daughter Martha was probably a virgin when she married), and one major substantive problem addressed below, Kaplan succeeds brilliantly at his task. The book is written in a style that will be accessible to general audiences: While thoroughly annotated, and obviously reflective of extensive scholarship (the bibliography, besides a comprehensive listing of Jefferson's books and correspondence, includes a 13-page listing of secondary works), Kaplan's notes are placed at the end, without annoying superscripts to interrupt the narrative.

The one major difficulty in Kaplan's treatment of Jefferson's thought is his misreading of the Declaration of Independence. Following a line of argument pioneered by Chief Justice Taney in his infamous Dred Scott decision (1857), Kaplan denies that Jefferson and his colleagues truly meant that "all men" (that is, all human beings) are created equal, and hence equally entitled to the protection of such inalienable rights as life, liberty, property, and the pursuit of happiness. His scanty evidence for that denial is that while members of "the Anglo-American world" at the time believed that "all Englishmen were created equal" in their entitlement to such rights, "to eighteenth-century Englishmen" the phrase supposedly "did not even include non-Englishmen," since the typical Brit "would not have thought that any Frenchman" was his equal—let alone slaves, members of "other races or colors," or even, "for most Anglo-Americans," Catholics. According to Kaplan, despite Jefferson's appeal to nature as his standard, he really meant only "that all white Englishmen and Europeans" were born with the rights he lists.

This is an appalling misrepresentation of the Declaration, one that had already been refuted by the vice president of the Confederacy, Alexander Stephens, in his 1861 "Cornerstone" address, which acknowledges that America's Founders indeed believed that all people are equal in their possession of the crucial inalienable rights, a consequence of their equal membership in the human species (although Stephens maintained that modern "science" had subsequently refuted that belief).

Even while terming Jefferson's claim "radical" and reflective of "certain schools" of "seventeenth- and eighteenth-century political philosophy" (the example of John Locke, from whose Two Treatises Jefferson cribbed much of his theoretical argument, comes first to mind), Kaplan severely underestimates the real radicalness of Jefferson's thought—and, indeed, that of many Americans of the time, already schooled in Lockean principles by dissenting Protestant clergy as well as by their own reading—owing to his determination to subsume Jefferson within the supposed constraints of 18th-century practice and prejudice.

Kaplan's goal, of course, is to rescue Jefferson and his colleagues (as Taney professed to do) from the charge of outright hypocrisy or self-contradiction: How could they seriously maintain that all human beings are naturally equal in their entitlement to certain fundamental rights, even while many of them continued to practice slavery? And how could they even regard Frenchmen, let alone the inhabitants of less cultivated nations, as their equals, given their pride in their own superiority?

This argument rests on two sorts of confusion. First, it denies the possibility (which in other respects, as already noted, Kaplan readily acknowledges) that a man may hold certain principles to be true, even while he knowingly continues to violate them, either out of apparent practical necessity or from seemingly irresistible passion or greed. (Kaplan himself later cites the dilemma, as Jefferson described it late in life, of Americans' having "the wolf [of slavery] by the ears," unable either to keep him or safely "let him go.") Much as Jefferson may be faulted for failing, in his later career, to do anything to effectuate his liberal principles (most egregiously in the same "wolf by the ears" letter, in which he expressed opposition to the Missouri Compromise prohibition on slavery in most of the Louisiana Territory, on the ground that it would deepen divisions among the states), he never reneged on his hope that emancipation would ultimately be achieved. (See his warning in the Notes on Virginia that Americans would ultimately suffer divine punishment should they continue their evil practice indefinitely.)

Second, Kaplan's argument obscures the differences (emphasized by Jefferson) between natural and purely conventional inequalities (e.g., between the British and French), and also between those natural inequalities that enable some people to be greater thinkers, artists, or statesmen than others, and those which have (wrongly) been held to exist such that the few (allegedly) superior individuals are entitled to rule others without their consent. (See Jefferson's letter to John Adams of October 28, 1813, distinguishing radically between the natural and conventional aristocracies, and C. Bradley Thompson's brief but astute discussion of the Declaration in his recent book America's Revolutionary Mind.)

It is regrettable that Kaplan marred his otherwise admirable work of scholarship with this serious misunderstanding. But it is nonetheless a book that merits applause as well as a wide readership for its combination of meticulous scholarship, balanced judgment, and what I am tempted to term a masterly style.

His Masterly Pen: A Biography of Jefferson the Writer
by Fred Kaplan
Harper, 672 pp., $35

David Lewis Schaefer is a professor of political science at the College of the Holy Cross.

The post Judging Jefferson appeared first on Washington Free Beacon.

Considering his august academic standing, Chemerinsky is also, as the title of his latest book indicates, remarkably opinionated and sometimes rabidly partisan: I know of no other respected contributor to the debate over whether interpretations of America’s fundamental law should be guided by the intent of its authors or ratifiers who has gone so far as to dismiss his learned opponents’ views as "worse than nothing."

Before proceeding, a word of explanation is in order. The term "originalism," reportedly coined by one of its previous academic critics, Paul Brest, in the 1980s, refers to a movement that developed among conservatively inclined legal scholars in the last decades of the 20th century as a reaction against what were perceived as the abuse of the Supreme Court’s power of constitutional interpretation under chief justices Earl Warren and Warren Burger (continuing at a slower pace under chief justices William Rehnquist and John Roberts) so as to read into the Constitution all sorts of rights that had no evident grounding in its text—and which were seen by many Americans as destructive of the moral foundations of our civic life.

Take, for example, Roe v. Wade’s inventing a constitutional right to abortion; the 2015 ruling in Obergefell v. Hodges establishing a right to same-sex marriage; earlier decisions providing constitutional protection to pornographic materials, treated as forms of "speech"; others transforming the First Amendment’s prohibition on the establishment of religion into a requirement of strict government neutrality between religion and irreligion, such that the reading of a nondenominational blessing at a public middle-school graduation was banned (lest it offend the sensibilities of agnostics or atheists); and the expansion of the rights of accused criminals, including the application of the "exclusionary rule" to state and local proceedings, weakening the ability of courts to convict and punish them.

Rather than a novel theory, originalism reflected what most judges had traditionally thought their duty to be, in accordance with the role assigned them by Alexander Hamilton in Federalist 78: to defend the Constitution against depredations by the elected branches of federal and state governments. As Hamilton explained, such an authority presupposed that the Constitution has a fixed, if broad, meaning; without such a meaning, judicial overriding of the policies of elected officials would be incompatible with republican self-government.

The debate over originalism went public in an exchange during the 1980s between Attorney General Edwin Meese, explaining the Reagan administration’s determination to restore Supreme Court jurisprudence to its constitutional role, and Justice William Brennan, who assailed the "presumption" of anyone who thought he could determine a single meaning or intent in the Constitution’s text, and who held that, in any event, it was up to successive generations of judges to reinterpret the Constitution in a way that adapted it to changing mores—for instance, by ruling capital punishment unconstitutional under the Eighth Amendment’s ban on "cruel and unusual punishments," despite the fact that its practice is assumed elsewhere in the Bill of Rights.

Chemerinsky’s latest book—following previous tomes adopting a similar orientation—takes up where Brennan left off. Its publication was provoked by Donald Trump’s having named three originalist judges to the Supreme Court, giving it an originalist majority for the first time since before the Warren era. (The most celebrated, or notorious, outcome of that development, anticipated by Chemerinsky, was the Court’s Dobbs ruling, overturning Roe for its lack of textual grounding, and effectively turning the abortion issue back to the elected branches of the state or, possibly, the federal government.)

Chemerinsky devotes five chapters to the "problems" of originalism: the "Epistemological Problem" (the impossibility of determining a fixed meaning or intent to many constitutional provisions); the "Incoherence Problem" (the fact that the constitutional text nowhere explicitly authorizes federal courts to judge the constitutionality of national legislation, even though originalists want courts to retain that power); the "Abhorrence Problem" (the fact that if it weren’t for the Court’s flexible interpretation of the Constitution, all sorts of abhorrent policies ranging from racial segregation to the punishment of "seditious libel" and religious heterodoxy might still be with us); the "Modernity Problem" (the need to go beyond the Constitution’s text in order to adapt it to a changing world, e.g., extending the Fourth Amendment’s ban on unreasonable searches and seizures to cover wiretapping); and the "Hypocrisy Problem" (the fact that justices who profess originalism depart from it, in Chemerinsky’s view, when doing so conforms to their ideological beliefs).

The first problem with Chemerinsky’s argument is that he turns originalists into practitioners of a mechanistic jurisprudence that denies any need for the exercise of judgment, or room for debate, in interpreting the Constitution. But this is far from the case. It is true that nowadays, both Republican and Democratic nominees to the Court have to portray their views in that way during Senate hearings, to avoid being labeled "activists." (Hence, Justice Sonia Sotomayor’s pledge to rule purely on the basis of the text of the laws and Constitution, and Chief Justice Roberts’s representation of a justice’s role as purely that of a neutral "umpire"—to say nothing of liberal justice Elena Kagan’s claim that "we are all originalists now.")

But informed observers recognize these statements as temporary, rhetorical window-dressing. Throughout our nation’s history, judges (and commentators) have appreciated that the process of constitutional interpretation requires an exercise of deliberation and judgment, about which reasonable persons may disagree. What is in question—and what has provoked the originalist challenge—is whether there are any limits to what judges are entitled to read into the text. Certainly, numerous rulings by the Warren, Burger, Rehnquist, and Roberts courts, including those mentioned above, made that question plausible.

Another flawed argument made by Chemerinsky against originalism is the stock observation that it is impossible to discern a single intent underlying many of the Constitution’s provisions, whether one looks to the text itself, to records of the Constitutional Convention or the congressional debates leading to the 14th Amendment, or statements made in the state-ratifying conventions. This, too, is a straw man. No serious originalist ever claimed that there is a single, unequivocal intent behind every clause of the Constitution—especially the Bill of Rights and the 14th Amendment (which are typically framed in broader language than the document’s unamended text).

Just as in legal interpretation, judges who adhere to originalism (or more precisely, textualism) will often disagree about the text’s meaning in a particular case, especially in the light of changing circumstances. (For instance, to choose one of Chemerinsky’s examples, how does the First Amendment’s free-speech guarantee apply to electronic communications?) Such devoted originalists as justices Clarence Thomas and Antonin Scalia—Chemerinsky’s bêtes noires—differed over whether the First Amendment invalidates laws prohibiting flag-burning, treated (by Scalia) as a form of "expressive" speech.

But there is a world of difference between such necessary inquiries into the contemporary meaning of the Bill of Rights, in light of technological changes, or changes in common modes of political protest, and the Burger Court’s outright invention of a (practically unlimited) constitutional "right" to abortion, grounded in a previously asserted "right to privacy" that was said in Griswold v. Connecticut to derive from "penumbras" formed by "emanations" from various amendments. (Such a claim recalls the language of medieval Scholasticism more than that of legal interpretation. If the Constitution guarantees me a right to privacy, how come I have to report my annual income to the government?)

To take another illustration of how even "conservative" justices have bought into the vastly expanded mandate of the courts to limit the legislative authority of the people’s elected representatives: In Dickerson v. United States (2000), Chief Justice Rehnquist, speaking for a Court majority, acknowledged that the exclusionary rule lacked any constitutional foundation, but upheld it on the ground that it had become part of our accepted "culture."

Rehnquist’s position brings to mind another of Chemerinsky’s complaints about the originalist position: the fact that originalist decisions sometimes entail overturning previous Court precedents, which normally merit respect on the grounds of stare decisis. But here Chemerinsky neglects an important distinction between legal and constitutional interpretation, articulated by University of Chicago legal scholar Edward Levi in An Introduction to Legal Reasoning (1948): Whereas, for the sake of stability in people’s expectations, stare decisis, except in the case of outrageous precedents, must normally be followed, the same rule does not apply in constitutional interpretation, since the Constitution is our supreme law, and judges always have the authority to reconsider settled precedents in light of its text. (Chemerinsky has no objection to overriding previous constitutional readings when they favor his own political position, as in Brown v. Board of Education.)

Only in Chemerinsky’s penultimate chapter, defending "non-originalism," does his real concern come out. The very term "non-originalism" is a neologism that lacks any clear meaning. But Chemerinsky defends it on three grounds: the desirability of considering "many different sources," including foreign laws as well as domestic "social traditions," in interpreting a constitutional provision; the claim that the Constitution should "be a living document that evolves by interpretation" as well as amendment; and the desirability of making constitutional decisions "with candor and transparency." Under the first heading, he cites, pejoratively, Justice Thomas’s contention that justices "should not invoke stare decisis to uphold precedents that are demonstrably erroneous" interpretations of the Constitution’s text. On the other hand, given Justice Stephen Breyer’s argument "that the United States does not have a monopoly on wisdom about governance," Chemerinsky would encourage reinterpreting the Constitution on the basis of foreign legal practices. In turn, the notion of a living Constitution enables the Court to take account of changes in "society’s needs." (Chemerinsky does not explain why it is the function of courts, rather than elected officials, to adapt the laws to such changes.)

But the greatest benefit of non-originalism, in Chemerinsky’s account, is its "candor" about the "value choices" that all judges make in interpreting the Constitution. For instance, when originalists deny that the First Amendment’s religion clauses were intended to prohibit nondenominational support of religion, since "the historical record is unclear," they are really misrepresenting their "values" as grounded in the text. The real function of judicial opinions, Chemerinsky explains, is to promote "open discussion about values," since "constitutional law is ultimately a discourse about what values should be protected from majoritarian decision-making, why, and how." According to him, "the Constitution is where society states its most important values about how governing is to be done and how individuals are to be protected," a task that should be directly addressed by the courts without encumbrance by judgments that originalists locate in a text composed centuries ago.

"The primary objection to non-originalism," Chemerinsky observes, is its "indeterminacy." But he denies that non-originalism grants judges any more freedom of interpretation than originalism does, since it is in either case up to judges to "choose the level of abstraction" at which constitutional provisions like "equal protection" will be understood, and "determinacy is impossible" because almost any decision will require "balancing" competing interests—for instance, regarding the constitutionality of racial quotas in college admissions.

With that last argument, Chemerinsky gives the game away. As political scientist Christopher Wolfe observed in The Rise of Modern Judicial Review (1994), balancing competing interests is properly a task for the elected branches of government—not for judges aiming to impose their particular "value choices" on the rest of us. Indeed, Chemerinsky’s very use of the Nietzschean term "values" signifies the essentially subjective nature of the choices he wants judges to make for us. Why should a self-governing people submit to rules explicitly based on judges’ personal feelings, rather than on the constitutional text?

In his concluding chapter Chemerinsky warns of the "devastating" consequences an originalist majority will inflict on the American people—at least, those who aren’t conservatives. These include the overturning of abortion rights, "the right of parents to control their children’s upbringing" (actually, a right that has been denied by educational officials backed by the Biden administration, determined to impose curricula embodying transgenderism and "white privilege" ideology on the nation’s schools), abolition of the "wall" between church and state (a Jeffersonian metaphor found nowhere in the Constitution), the freedom of bakers to refuse to make wedding cakes for same-sex couples, and a "prohibition on affirmative action."

Of course, even with the repeal of all such judicially sanctioned rights, Chemerinsky’s parade of horribles will occur only if elected officials representing voters allow it. His real fear is that a majority of voters may not share his views on racial quotas, abortion, same-sex marriage, the exclusionary rule, the latitude currently given to administrative agencies under the Chevron rule, and so on. How can they be allowed to write their opinions, rather than those of enlightened jurists like him, into law?

Complaints like Chemerinsky’s about the consequences of an originalist Court majority have already inspired some academics and politicians to urge President Biden and a Democratic Congress to "pack" the Court with additional justices, so as to restore a non-originalist, liberal majority. In the face of such partisan pressures, anyone who believes in genuine constitutional government can only pray: God save this honorable Court!

Worse than Nothing: The Dangerous Fallacy of Originalism
by Erwin Chemerinsky
Yale University Press, 264 pp., $28

David Lewis Schaefer is a professor of political science at the College of the Holy Cross.

The post Original Sins appeared first on Washington Free Beacon.

In Part I of The Death of Learning, John Agresto acknowledges the force of each of the foregoing criticisms. But the greatest value of his book lies in its second part, devoted to the theme of "Redeeming and Reconstructing Liberal Education." While scolding the snobbery of societal elites toward fellow citizens who don't pursue a college degree, instead entering the working world directly, Agresto aims to defend the value of a genuinely liberal education, not only for the individual who receives it, but for his country. But to do this requires reconceptualizing the nature and meaning of liberal education.

Agresto is uniquely qualified to undertake this task. Having taught political philosophy at several prominent colleges and universities and authored five books (some dealing with the American constitutional tradition and the role of the Supreme Court), he held a senior position at the National Endowment for the Humanities before serving as president for 11 years at St. John's College in Santa Fe (one of two campuses of America's premier "great books" school). He capped his formal academic career by serving as senior adviser for higher education to the Coalition Provisional Authority in Iraq, where he held the positions of dean, provost, and chancellor of the American University there.

In his preface Agresto identifies several incidents that provided the impetus for this book. The first was his dissatisfaction with the contributions to a volume he once edited on the "uses" of the humanities. Those essays suffered from the "conceit" that "the liberal arts have no 'uses'" and lack any purpose than themselves; that they have no role, in particular, in promoting good citizenship; and that "true" humanistic scholarship must be "narrowly focused and academic" rather than broadly accessible. A second impetus was the widely publicized 1998 dismantling of Stanford University's Western Culture curriculum (required of all freshmen) in favor of a new course "capitulating to the self-aggrandizing … demands of student radicals," the content of which would conform to the dicta of "ethnic and gender proportional representation." A third was a challenge the author received from William F. Buckley on his Firing Line television show to the notion that all young people, whatever their intended vocation, "should be given the opportunity to be exposed to great literature," science, and history (since some find those studies neither interesting nor useful).

But the final stimulus Agresto mentions suggested the opposite of Buckley's position as well as that of the art-for-art's-sake humanities scholars and Stanford radicals: a question posed to him by three freshmen at the Iraqi university he helped to found, who had been studying Thucydides' History of the Peloponnesian War: Were the Americans "Spartans" rather than "Athenians"—that is, would they betray their allies as the Spartans had done? The students' challenge exemplified the way that a serious education in the humanities may benefit all young people, regardless of their nationality, their ethnic, economic, religious, or racial background, or their likely future careers, that might not arise without the study of classic, transhistorical texts, and which might be crucial to their enjoyment of a meaningful life and their role as thoughtful citizens.

Agresto summarizes the reasons for the growing loss of respect for liberal education in America in two phrases: the "denigration of the high" and the "stigmatization of the ordinary." The first phrase refers to the suicidal destruction of the liberal arts by "radicalized" teachers of fields like history, literature, philosophy, and classics who, in the name of "equity," replace nonideological courses on the history of Western civilization or American history with those devoted exclusively to the history of the oppression of women and minorities; allow arts requirements to be satisfied by courses on rock and roll; and incorporate courses devoted to comic books ("graphic novels") into the literature curriculum (I offer the last two examples based on personal observation).

To add to Agresto's point, I would note the replacement of the political and diplomatic history that used to constitute the core of the history curriculum with "social" issues focusing not only on oppression but more generally on how ordinary people lived, as in their diets and clothing fashions. This change illustrates a point made by Alexis de Tocqueville in Democracy in America: Whereas in aristocratic times, historians emphasize and even exaggerate the influence of great individuals in shaping events, democratic historians adopt the view that history is determined by impersonal forces operating on the masses. Tocqueville's aspiration was to encourage democratic people to think more highly of their capacities, rather than succumb to fate.

By the "stigmatization of the ordinary," Agresto means the view common among today's academics "that it is not merely the highest expressions of our culture that need to be toppled but this culture's more ordinary manifestations … the common views of right and wrong" held by most people, including national pride and the ethical beliefs that are supported by "conventional Western religious understandings."

In response to the disparagement of most Americans as bigots and racists by academic movements like "critical race theory," Agresto observes that people "across the political spectrum," regardless of their race, ethnicity, or economic status, regard "slavery and racism as betrayals of our founding principles of liberty and equality," while also believing "that merit, achievement, moral responsibility, and character are all to be assessed" on an individual basis, not any "collective identity," and that "no special status, no entitlement or punishment, should be bestowed simply by virtue of identity-group membership."

In the second, affirmative part of his book, Agresto opens with a chapter titled "Liberal Education in Its Fullness," which addresses the benefits a true liberal education offers for the individual's happiness as well as that of others. From the outset he stresses that his defense of the liberal arts will be "tough-minded," not a mushy one that promotes qualities like sensitivity and humaneness. As he observes, most of the great Western writers were "tough-minded and challenging" rather than (usually) "sentimental."

Agresto is himself no sentimentalist when it comes to the recent prehistory of liberal-arts instruction. Citing C.S. Lewis (he might have added Nietzsche), Agresto objects to the tendency of the professariat to focus on the historical context or biography of a great writer rather than assessing the truth of an authorial claim. By rejecting "the opportunity to see the world as a great author saw it," we make the study of his writing not only valueless, but boring. Agresto adds, "Only second-class books are truly captives of their times," rather than having transhistorical value. (As an example, he cites the way that Hawthorne's Scarlet Letter was written not for the sake of historical analysis, but to raise fundamental issues of "character and morals" for readers to contemplate.)

The plausible, nonhistoricist assumption that great writers from antiquity onwards made that "human nature doesn't change all that much over time" entails that they may raise major questions we might not have contemplated from within the intellectual confines of our own society. (Recall the query posed by those Iraqi students.) At their core, as Agresto puts it, "the liberal arts are a way of understanding the most important human questions through reason and reflection."

Turning, more specifically, to the reasons for studying "Western civilization and its American annex," Agresto first answers: "Because that tradition is ours." Regardless of one's country of origin or ethnic background, if you live in a Western nation, you become part of a common culture, shaped by a common set of great and good books—which is not incompatible with also studying works that are specific to your specific religious or ethnic background.

A particularly astute insight of Agresto's is his challenge to the often-asserted claim that the value of liberal-arts instruction lies in encouraging "critical thinking." As he observes, "too often radical questioning" of the sort espoused by today's "politicized professariat" is just an excuse not for learning but rather for "dismissing" books that don't agree with the current conventional wisdom. As Hegel and Nietzsche had observed, professors who approach great books, or historical figures, in this way are really just "puffing [themselves] up": Even if I'm not as wise as Socrates, the professor is saying, at least I'm free from his (supposed) prejudices. Rather than rely on a scholarly tradition or current doctrines to tell us how to read classic books, Agresto urges a return to "an older understanding of the liberal arts as the home not of sophistication but of naiveté," or open-mindedness.

In contemplating the value of the liberal arts for the individual, Agresto acknowledges that while studying classic books may help engender the virtues of intellectual courage (in "grappling with some of the greatest minds") and humility (knowing that we are seekers more than possessors of knowledge), there is merit to Cardinal Newman's point (and Aristotle's) that knowledge cannot in itself engender the sort of "command over the passions" that moral virtue requires. But he emphasizes another virtue, much undervalued by political partisans today, that liberal education can also generate: moderation, reflecting awareness of the limitedness of our knowledge, in contrast to the "elitist sanctimony" toward other people's moral, religious, and political beliefs that underlies much of the public's alienation from the liberal arts. Properly taught, the great books "can keep us from being ruled over by slogans," and even to confront secondhand (not only firsthand) "the baser parts of our nature," as well as its nobler potentialities.

At this point Agresto shifts focus from how liberal education benefits the individual to how it serves his country. As he observes, such learned members of America's founding generation as Jefferson, Madison, and Princeton's John Witherspoon would not have accepted the claim that such education serves no purpose beyond itself. He concludes that as the recipients of the learning of men like Shakespeare and Milton, we can repay them only by keeping their thought alive.

In his concluding chapter, "Where Do We Go from Here?" Agresto cites several promising models of the sort of education he has proposed. These include (besides St. John's College) the Core Texts program at Assumption University; the Jack Miller Center, which "has built a community of professors and teachers dedicated to teaching American history, principles of democratic government, and constitutional law and history"; and the "comprehensive" American University of Iraq, founded only 14 years ago in the Kurdish area (but with an enrollment that has grown from 45 to over 1,600). Its curriculum and mode of instruction, he observes, are the direct opposite of the narrow curriculum and "draconian" emphasis on memorization that prevailed under the Saddam Hussein regime.

While spreading this liberal-arts model will be costly, Agresto, ex-college president, has useful advice on how to address the costs, citing the multiple donors to the soon-to-open University of Austin; offering adult education in the great books to supplement regular tuition, including the Summer Classics and Executive Seminars programs at St. John's; and the need to recruit allies in graduate programs in medicine, law, and the sciences to the cause.

Limits of space prevent me from discussing the six useful appendices to this volume, which address (among other topics) Lincoln's self-education in the classics; the case for studying Latin and Greek; and "The Politics of Reading." The book concludes with "messages" to high school teachers and principals and to high school seniors preparing to choose a college.

This is a splendid book that deserves to be read by every professor and academic official who seeks to restore liberal education; by every student (and prospective student) sharing that interest; and by the parents who'll be paying the tuition. In fact it should be read by every public-spirited citizen.

The Death of Learning: How American Education Has Failed Our Students and What to Do About It
by John Agresto
Encounter Books, 256 pp., $30.99

David Lewis Schaefer is a professor of political science at the College of the Holy Cross.

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