The Law — as It Was and Is
Michael S. Swisher
Ladies and gentlemen — honored guests — welcome to the annual St. Croix Review Panel Discussion.
Our topic this year is the Law. No matter what subject we choose to address, it inevitably comes back to the law. Law affects our social, economic, and political lives. It both reflects and shapes the consensus of the society it governs.
Ancient peoples revered their lawgivers. Not only Moses, who brought the Ten Commandments down from the mountain, but also figures like Lycurgus and Solon, are still familiar to us. We do not, however, view our contemporary legislators with such regard. Perhaps some of the present attitude can be attributed to the observation made by Otto von Bismarck, who said that anyone who wishes to retain his respect for laws or sausages should never witness either being made. We can now turn on C-SPAN and watch the process of lawmaking any time we wish. Bismarck’s quip applies à fortiori in the present electronic era.
There is another good set of reasons for the dubious sentiments of American citizens about the law and its uneven application. Both the process and the character of legislation have changed markedly — and not for the better — in our lifetimes.
Those who remember their high school civics will recall the description of the legislative process. A bill is introduced into one of the houses of the legislature (be it federal or state), made up of the voters’ elected representatives. It is referred to the appropriate committee, where it may be revised, and may be voted up or down. If voted in the affirmative, it proceeds to the floor, where it is again debated, possibly amended, and put to a vote. If it passes, it proceeds to the other house, where it undergoes a similar process. If passed without amendment, it goes to the executive for his signature or veto. Should there be any amendments, resulting in a difference between the bill passed by either house, a conference committee reconciles the two versions and the final revision goes to the executive for signature or veto.
These formal procedures reflect the way the Framers of the Constitution expected the legislative process to function. They still exist, and legislation is proposed, passes, or fails to pass, and is signed or vetoed, but the procedure outlined does not accurately describe the situation as it prevails in most cases today.
The most obvious illustration of this at the federal level is the repeated failure of Congress to pass its appropriations bills on time. Since the system provided by the 1974 Congressional Budget Act for appropriating federal revenues has been in place, Congress has passed all the required measures in time only on four instances: fiscal years 1977, 1989, 1995, and 1997. The ongoing spectacle of continuing resolutions and cliff-hanger votes under the threat of government shutdown is an illustration of the system’s chronic dysfunction.
Putting this to one side, we must acknowledge that many of the substantive rules that govern how Americans live and go about their many daily tasks do not follow the civics-book legislative path at all. Instead of being made by elected representatives, proposed rules are devised by unelected bureaucrats working in agencies described by a scramble of initials: FTC, SEC, FAA, IRS, ATF, NLRB, CPSC, CFPB, and many others too numerous to list. When a proposed rule is completed, it is published in a compendium of such rules, the Federal Register. The page count of this collection of documents hit an all-time high in 2016, amounting to 95,894 pages. The current year’s running total is over 70,000.
Once a proposed rule is published in the Federal Register, a period for public comment, typically 90 days, is allowed before it is promulgated. Unless responses have been voluminous, and objections dominant among these, the regulation is adopted as written. It then has the force of law and is law in all but name. The distinction between law and regulation is all too often one that makes no difference.
Moreover, the alphabet agencies that effectively exercise the legislative function in this manner all too often act as executives — enforcing their own regulations — and even as judges, in special administrative tribunals. While these tribunals — so far — do not have the authority to send violators to prison or condemn them to death, they can and do levy fines, which can be very substantial. This makes a travesty of the separation of powers.
What I have just described is called the administrative state. This is not the same thing as the so-called “deep state” often spoken of by conspiracy theorists. It is an effective fourth branch of government not provided under the Constitution. How did it come into existence? Largely by virtue of the refusal of our elected legislature to do its job. Rather than engage in legislation in detail, according to Constitutional procedure, Congress has delegated its legislative authority to unelected officials in one after another sphere of activity. This authority is used in ways the Framers of the Constitution could scarcely have imagined. Where, in the powers delegated to Congress under Article I, section 8 of the Constitution, could Congress itself (let alone some agency created by it) find the authority to dictate the types of lightbulbs or flush toilets that citizens might buy? Yet, this is the reality in 21st century America.
The agencies comprising the administrative state are nominally parts of the executive branch, but in practice the elected executive has little, if any, ability to direct their activities. To provide independence from the executive, some agencies (e.g., the FTC and SEC) are structured as commissions, the members of which must be even, or near-even, numbers of Democrats and Republicans so that, in theory, they are non-partisan. Terms may be staggered to avoid allowing a president to fill too many vacant positions. In practice, partisan battles go on within the commissions routinely. Sometimes when a commission member reaches the end of his term, the position is allowed to remain vacant; in some cases, a commission loses enough members that it cannot form a quorum and is prevented from acting.
Most of these agencies, whether they follow the bipartisan commission model, or are headed by one presidential appointee, obtain their operating funds through Congressional appropriation. One interesting example of an effort to circumvent any Congressional attempt to constrain the actions of an agency via the appropriations process is Elizabeth Warren’s brainchild, the Consumer Financial Protection Bureau. Rather than receiving an appropriation from Congress, the CFPB receives its funding from the Federal Reserve System. Since the Federal Reserve System has its own revenues that are not subject to the Congressional appropriations process, this insulates the CFPB from any change in the composition of Congress, which might result in a majority hostile to the bureau.
As an illustration of the hostility of the technocratic class to genuine democracy, the CFPB is an especially egregious example. Those who remember the real estate collapse of 2008 and its effects on financial institutions will recall the many bank failures and the controversial “bail-outs” that followed. The history of these events is complicated, but the principal problem at hand was that many banks had made bad loans or bought unsound securities.
The failures or near-failures of those institutions resulted from conditions that should have been discovered during traditional safety-and-soundness bank examinations of a type that has been familiar for many decades. All of the affected institutions were already regulated by at least three of the following agencies: The Federal Reserve System, the Federal Deposit Insurance Corporation (FDIC), the Office of the Comptroller of the Currency (OCC), the Office of Thrift Supervision (OTC), and the state banking commission in whatever state may have issued a bank’s charter. Since none of these entities prevented the failures, what was government’s decision? It could not be something so simple and rational as reviewing the functions of the existing regulatory bodies, eliminating duplications and inefficiencies — no, it was to create yet another regulatory agency — and one which, by its charter, was to have nothing to do with safety and soundness. Rather, the CFPB concerns itself with various social engineering goals, the elimination of alleged discriminatory activity in the financial industry, and in general the advancement of Elizabeth Warren’s economic and political agenda. None of these would have done anything to keep depositors’ money safe or to prevent future failures. It was a simple opportunistic use of the moment — “never let a crisis go to waste” — to embed ideological goals in a bureaucracy immunized against the oversight of elected officials.
Federal courts have been as much a contributor to the growth of the administrative state as have Congress and the Executive Branch. Two examples will have to suffice for the present brief summary.
The first is the Supreme Court’s decision in a case titled Wickard v. Filburn, 317 U.S. 111 (1942). This decision markedly increased the Federal government’s regulatory power by its expansive reading of the Constitution’s Commerce Clause, to the present day. The U.S. Department of Agriculture had, under a New Deal enactment, set limits on wheat production based on the acreage owned by a farmer, with the intention of stabilizing wheat prices and supplies. Roscoe Wickard, a farmer in Ohio, grew wheat on his land in order to feed his livestock. He grew more than he was permitted to do under this rule and was fined. He argued that because the wheat he grew for this purpose was not sold, it was therefore not in commerce of any kind, whether inter- or intra-state. The Court ruled that Wickard’s use of wheat he grew to feed his animals reduced the amount of wheat he would buy on the open market. Therefore, since wheat is traded on national commodities markets, his reduction in wheat purchases affected interstate commerce and was subject to the regulation — even though none of the wheat he grew ever left his property. Wickard v. Filburn gave the federal government essentially unrestricted power to regulate economic activity, which it exercises vigorously to this day.
The second is a concept enunciated by the Supreme Court in Chevron U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837 (1984). It established a legal test by which a court might determine whether to defer to a regulatory agency’s interpretation of a statute that it administers. The Court’s decision outlined a doctrine that has come to be known as “Chevron deference.” Chevron deference involves a two-part test — first, has Congress addressed the precise question at issue, and second, “whether the agency’s answer is based on a permissible construction of the statute.” This effectively requires lower courts to defer to the interpretation of the agencies, which under Chevron deference enjoy the benefit of any doubt.
While two cases now before the Supreme Court now challenge Chevron deference, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Dept. of Commerce, it remains to be seen what the court will do. Abandonment of Chevron deference would be a small step toward restraining the administrative state.
I will not comment much more on the role of federal courts other than to point out that we’ve seen an odd new development in the assertion of power by the lower Federal courts, wherein a federal district judge issues what amounts to a nationwide injunction of a broad category of actions, rather than one confined to the litigants in a particular case before the district court, or even to the circuit in which the district court is situated. This encourages judge-shopping, and has featured in several prominent cases in recent years.
In essence, both the development of the administrative state and the rise in the political consequences of court decisions arise from the abdication by Congress of its proper legislative role. On the one hand, it is happy to delegate much of its legislative authority to regulatory agencies, letting them deal with the details it can’t be bothered to address. On the other hand, it is relieved to be able to kick “hot button” issues, such as abortion, immigration, or gun control, up to the federal courts, where judges serve for life and never have to face voters who may object to their decisions. Having disposed of these troublesome responsibilities, Congress still holds tenaciously onto its power of the purse, but even in this it does not exercise wisely or even on time.
The student of medieval history will recall France’s rois fainéants — the do-nothing Merovingians — who were trotted out for ceremonial functions until the last one, Childeric III, was deposed by Pepin the Short, the mayor of the palace, who was the real ruler and who decided he might as well be king in name as well as in fact. Congress ought to reflect on Childeric’s fate.
At the state level, the legislatures have not ceded so much of their authority as has Congress, but perhaps the reason is that they haven’t had as much to begin with. There are certainly state regulatory agencies, but they have not burgeoned to the extent federal ones have. Despite this, similar signs of legislative sloth and regulatory or executive ambition can be found at the state level.
An example of the former is in the writing of certain types of routine legislation. Many states and localities have fire codes. Did their legislatures write the fire codes? They did not. Instead, they have adopted a pre-packaged fire code written by a private organization, the National Fire Protection Association, headquartered in Quincy, Massachusetts. The NFPA has written thousands of pages of fire codes covering every imaginable issue related to fire prevention. The organization was founded in 1895 by representatives of several fire insurance companies and a manufacturer of pipes used in fire sprinkler systems. If any jurisdiction incorporates NFPA Code by reference into its statutes, it not only accepts it as now standing, but automatically accepts any revisions the NFPA may subsequently make.
Is this a good or a bad idea? It’s pretty hard to find fault with the desire to prevent fires, but “the devil is in the details” as always. Whatever might be said about the NFPA and its codes, what state and local legislative bodies do when they incorporate them by reference in their statutes and ordinances cannot be called democracy.
The propensity of the federal government to attempt to constrain state governments to do its will is another familiar practice. As an example, we may recall the Carter Administration’s effort to force states to adopt a 55 mph maximum speed limit, ostensibly in the interests of energy conservation, by threatening to withhold federal highway funds from states that refused to do so.
Recently, we have seen efforts by some states to compel other states to act in certain ways. California is a leading practitioner of such compulsion. While it has apparently abandoned this particular effort, at a time of great public controversy over so-called gay and transgender rights, California banned state-funded travel to a number of other states that did not follow its dictates.
More prosaically, in 2018 California approved a referendum, Proposition 12, providing that pork producers had to provide their pigs with pens having square footage equal to or greater than a prescribed minimum. No one disputes the right of a state to regulate animal welfare, but the novel part of California’s law prohibits pork from animals raised outside the state under conditions not conforming with Proposition 12 from being sold in California. California’s supermarkets and restaurants use approximately 255 million pounds of pork a month, but its farms produce only 45 million pounds. Therefore, producers in other states — Iowa, for example, the nation’s principal pork-producing state — would thereby be required either to conform with the California regulation or forgo doing business in that state. Obviously, this imposes significant costs on pork producers. One study found that bacon prices would rise 60 percent were this measure to be enforced. Thus, a $6 package of bacon would cost $9.60. Does this pass muster Constitutionally under the Commerce clause? The Supreme Court of the United States, in a fragmented ruling in which five of the Justices wrote their own opinions, rejected an appeal, although implementation of the Proposition has been stayed pending separate litigation in a state court.
My final point will touch very close to home. Governor Tim Walz acted under Minnesota law to assume emergency powers during a so-called peacetime emergency arising from the COVID-19 pandemic. He held these powers for approximately 16 months, protracting the term by repeated 30-day extensions.
The idea of emergency powers is not a new one. Minnesota’s provision for emergency powers was enacted at a time when travel was more difficult than it is today, and to assemble a special session of the legislature might have taken weeks. The idea of granting an official such powers has ancient precedents. The laws of ancient Rome provided for a magistrate who in grave emergencies might be elected for a period of six months, on the recommendation of the consuls. The title of this official was dictator.
The famous Cincinnatus was dictator twice, saving his country, then laying down the office and returning to his plough after only a few days during periods of acute military crisis. Romans let the office lapse until the early first century B.C., when Lucius Sulla revived it, and was appointed dictator rei publica constituendae, i.e., for an indefinite period. He laid down the office and retired to private life in 79 B.C., dying the next year. Julius Caesar was made dictator four times, the last for life. The office was abolished after his death.
Walz assumed emergency powers for a longer time than the six months originally permitted to a dictator of Rome, and followed the practice of Caesar in contriving extension after extension. He was backed in this by his party.
The next time you hear someone on television prating about “our democracy,” reflect on that. Are we truly a republic of laws, or do substantial numbers of people in positions of authority regard our Constitution and the rule of law as window dressing? *
What Do Conservatives Wish to Conserve?
Michael S. Swisher
The subject of discussion today is conservatism — what is a conservative, and what does a conservative wish to conserve?
Our estimable publisher and editor, Barry MacDonald, has attempted to answer this in concrete terms by proposing a number of concepts and policies that self-identified conservatives support. This is a good step toward an operating definition.
In their comic opera Iolanthe, Gilbert and Sullivan place the following words in the song of Private Willis, a Grenadier Guard on sentry duty outside the Palace of Westminster, where Parliament is meeting:
“When in that House M.P.’s divide,
If they’ve a brain and cerebellum, too,
They’ve got to leave that brain outside,
And vote just as their leaders tell ’em to.
But then the prospect of a lot
Of dull M.P.’s in close proximity,
All thinking for themselves, is what
No man can face with equanimity.
Then let’s rejoice with loud Fal la, – Fal, lal, la!
That Nature wisely does contrive – Fal lal, la!
That every boy and every gal
That’s born into the world alive
Is either a little Liberal
Or else a little Conservative!
Fal, lal, la!”
The notion asserted there, to wit, that we are born liberals or conservatives, may actually have some scientific merit; the effect of birth order, or even the presence of some genetic markers, are held by some to be predictive of political and social viewpoints. But what are those viewpoints?
One can have an epiphany anywhere, and some years ago I had one while shopping at a local supermarket. As I was looking at a shelf of pickles, savories, and condiments, one stuck out — it was a jar of French cornichons (what we would, I suppose, call gherkins) — all labeled in French, and prominent on the label was the indication “PAS DE CONSERVATIVES.” Did it really say, “no conservatives”? I puzzled over this for a moment before I remembered that the word conservative in French does not refer to a person who holding a particular point of view but, rather, means what in English we would call a preservative. .
There is a kind of conservatism that is properly described as preservative. When we speak, in a non-political sense, of a “conservative” investor, we mean one who is concerned primarily with preservation of capital and avoidance of loss — such a person would prefer a cautious investment, such as well-rated general obligation bonds, rather than taking a flyer in the latest tech stock, even though that meant settling for a low and steady return as opposed to vast potential gains. A “conservative” business owner avoids debt and plays his cards close to his vest, while a “conservative” banker prefers to make loans to customers with excellent credit ratings, solid revenue streams, and ample collateral.
In terms of public policy, the standard type of conservative was for years characterized as one who wished to “maintain the status quo,” in contradistinction to the liberal, who favored “change.” Ambrose Bierce, in his usual corrosive manner, proposes the following definition:
“CONSERVATIVE, n. A statesman who is enamored of existing evils, as distinguished from the Liberal, who wishes to replace them with others.”
Rudyard Kipling expresses this sentiment concisely in “The Gods of the Copybook Headings”:
“When the Cambrian measures were forming, They promised perpetual peace.
They swore, if we gave them our weapons, that the wars of the tribes would cease. But when we disarmed They sold us and delivered us bound to our foe,
And the Gods of the Copybook Headings said: ‘Stick to the Devil you know’.”
And William F. Buckley, Jr., famously wrote:
“A conservative is someone who stands athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it.”
The British political philosopher Michael Oakeshott remarks as follows, contradicting Buckley:
“Americans, even ultra-conservative ones, have not given up on the idea of progress; English conservatives wish (or used to wish) to retard, even stop, progress. Evelyn Waugh once remarked that he would never again vote for the Tories: They had been in power for more than eight years and hadn’t turned back the clock one minute.”
The conventional wisdom that conservatives wish to maintain the status quo, if it ever was true, doesn’t typify my views, or those of most self-identified conservatives with whom I am acquainted. At best, it might characterize a few so-called conservatives, for example, George Will, who has expressed his hope that Joe Biden wins the upcoming presidential election, which Will hopes will herald a return to “normal politics.” That, I fear, will prove a vain hope.
The status quo is not now — and was not even in 1951, when Buckley published God and Man at Yale — something about which conservatives find much to sympathize. Indeed, the situation has become worse in many ways. While the decades since have seen one great victory — the collapse of the Soviet Union — most of conservatives’ other victories have been transitory. The other side has gained steadily. Indeed, “liberal” is now an old-fashioned word, and our adversaries have increasingly dropped it in favor of “progressive” or even “socialist.”
The academy, with a few scattered exceptions, is overwhelmingly on the left, to an extent that Buckley could not have dreamt in 1951. It could be said with more justice that young people today receive a college indoctrination than a college education. The news media are similarly disposed. ABC, NBC, CBS, their cable affiliates, and CNN, along with newspapers all over the country, from the New York Times and Washington Post down to your local fish wrapper, all peddle the leftist line. The conservative holdouts are Fox News and the Wall Street Journal, and even these may be lost to us when Rupert Murdoch shuffles off this mortal coil. Popular entertainment and sports now toe the leftist line uniformly. Considering today’s culture, we might well sympathize with William Ralph Inge, dean of St. Paul’s Cathedral during the 1920s:
“Ancient civilizations were destroyed by imported barbarians; we breed our own.”
Most alarming has been the recent rise of “woke capital.” Big business at one time had a respectable contingent of conservatives. Those whose memories go back far enough may remember Lemuel Boulware, the General Electric executive who became the mentor and backer of Ronald Reagan, and made him the company’s spokesman. There is no one like Lemuel Boulware today. Small-business owners are generally conservative because they have to deal every day with the tax and regulatory burdens of government, but larger businesses can hire lawyers and lobbyists to deal with these problems. Many see acquiescing to the demands of the social-justice-warrior left as either the price of being left alone, or find rewards in rent-seeking opportunities made available to them as a benefit of “crony capitalism.”
It is not surprising that these developments have led to dissatisfaction and disagreement among conservatives. These have manifested themselves most recently in the 2016 Republican primary and the subsequent general election victory of Donald Trump, to the horripilation (among others) of the editors of Buckley’s old magazine, National Review. I do not mean to involve that in this discussion, other than to point out that the turmoil that surfaced then, and continues to preoccupy the commentariat, had by then been going on for two or three decades. The late Sam Francis, who died in 1995, pointedly remarked:
“For most of its history, the American conservative movement has been an oxymoron: it doesn’t move anywhere and has never conserved anything.”
It is interesting to note how long a similar sentiment has been felt. The theologian and scholar Robert Lewis Dabney wrote this in 1897:
“This is a party which never conserves anything. Its history has been that it demurs to each aggression of the progressive party, and aims to save its credit by a respectable amount of growling, but always acquiesces at last in the innovation. What was the resisted novelty of yesterday is today one of the accepted principles of conservatism; it is now conservative only in affecting to resist the next innovation, which will tomorrow be forced upon its timidity and will be succeeded by some third revolution; to be denounced and then adopted in its turn. American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition. It remains behind it, but never retards it, and always advances near its leader. . . . Its impotency is not hard, indeed, to explain. It is worthless because it is the conservatism of expediency only, and not of sturdy principle.”
Is today’s conservatism one of “expediency only, and not of sturdy principle”? And does basing it on “sturdy principle” mean that it must necessarily be ideological?
I have heard some conservatives (or self-styled conservatives) answer that question in the affirmative. Jonah Goldberg, formerly of National Review, is one who has, something that is somewhat amusing in view of his NeverTrumpism, which is so rabid that it makes him willing to see all that conservatives have achieved in government over the last four years replaced by a Biden victory, which will quickly undo as much of it as it can.
Russell Kirk, on the other hand, argued strenuously that conservatism was not an ideology, but rather a philosophy of prudential governance. The word “ideology,” it should be pointed out, is an artifact of the French revolution, coined by one of its exponents, Antoine Destutt de Tracy. The enormities of the French revolution, like those of the Russian revolution and other subsequent revolutions, represent the products of ideology, in which abstract ideas prevail over organic social and economic arrangements, most often at the expense of considerable bloodshed.
Kirk’s view (and that of Edmund Burke, his exemplar) was that experience is a better guide than reason — that man as an individual may be foolish, but that as a species is wise, and that tradition represented the collected wisdom of generations, garnered through harsh experience. Chesterton, in like fashion, described tradition as “the democracy of the dead.” Conservatism, Kirk held, was tradition plus prescription (as embodied in Christianity) and prudential judgment.
The conflicts between conservatives often boil down to whether the disputant views conservatism as an ideology, or rejects that view. Thus, we have a significant contingent among conservatives that views this as a “propositional nation,” characterized by a set of ideas rather than by “blood and soil.” The latter phrase is chosen by the propositional ideologues for its sinister sound, and of course it evokes the Nazi ideology of “Blut und Boden.” Yet there is, somewhere between the two, an unacknowledged element, which is common culture. I, and I think many people who call themselves conservative, seek to conserve our historic common culture.
That common culture is, first of all, Western Civilization. Those who can remember the political activism of college students a generation or two ago may recall the demonstrations at Stanford (among others) in which they chanted “Hey, hey, ho, ho, Western Civ has got to go!” This was understood at the time to refer to the one-year survey course, once required of first year students, in the History of Western Civilization. As we’ve seen more recently, it seems like today’s social justice warriors want to dispense with Western Civilization itself.
The destruction of statues is emblematic of this ambition — the mobs moved on quickly from Confederate monuments to those of the Founding Fathers, several of Abraham Lincoln (including one paid for with funds collected by emancipated slaves), Theodore Roosevelt, then an immigrant abolitionist Union soldier in Wisconsin, now Frederick Douglass, Fray Junipero Serra, Miguel de Cervantes, Saint Louis, and even (in Portland, Oregon) an elk. It is hard to know what the mob found offensive about some of these, other than perhaps they were representational art created in accordance with classical principles of design. All have fallen to an ideological furore that rejects and demonizes our past and characterizes anyone who admires, defends, or feels even a little bit of nostalgia for it as racist, sexist, homo- or trans-phobic apologists for the purported genocide of indigenous peoples, etc., etc.
Apart from Western Civilization in general, a part of our common culture here in the United States is that we share it with the rest of the English-speaking world. In particular, I would cite our heritage of Magna Carta and the English common law.
It is commonplace in discussing the American Founding to point to political philosophers such as Hobbes, Locke, and Montesquieu as its intellectual sources. People who study political philosophy tend to think that political currents are impelled by political philosophers. However, as we look at them in more detail, we find that the movers and shakers at any given moment do not reflect what contemporary political philosophers wrote — rather, the political philosophers reflect what the political actors of their time were already doing. Hobbes searched about in the days of the English civil war for some principle on which government could be organized; he found what he thought were suitable strong leaders, first in Charles I, and then in Cromwell. Locke wrote after the English civil war at a time when the claimed absolute authority of kings was yielding to a division of power in which the will of Parliament prevailed. Montesquieu idealized the separation of executive, legislative, and judicial powers, but he was in fact looking across the English Channel at the practical compromise the British had developed following the “Glorious Revolution.” This he contrasted with the residual feudalism and theoretically absolute, but practically decrepit, Bourbon monarchy under which he lived in France.
A much more substantial influence was exerted on the patriots of the American Revolution and the Framers of the Constitution by English common law than by any contemporary political philosopher. Of our earliest presidents, John Adams was a lawyer; Thomas Jefferson was a lawyer; and James Madison was a lawyer. And where had they learnt their law? Not from the relatively recent works of Blackstone, which Jefferson disparaged, but from the Institutes of Sir Edward Coke, Lord Chief Justice of England at the time of Charles I. Coke it was who wrote the Petition of Right, protesting the levying of ship-money by Charles I without an act of Parliament. The Petition stated:
“Your subjects have inherited this freedom, that they should not be compelled to contribute to any tax, tallage, aid, or other like charge not set by common consent, in parliament.”
The Long Parliament of 1640 effectively ended extra-parliamentary taxation. After the “Glorious Revolution” of 1689, it was formally prohibited by the English Bill of Rights.
All of this history was much more familiar to the Founders in 1776 than it is to Americans today — and of course, it was their history. They were closer to it in time than we are to them, and they believed that taxation without representation was a violation of their rights as Englishmen. Coke, not Hobbes, Locke, or Montesquieu, provided the rallying cry of the Founders. The Declaration of Independence is in a sense Jefferson’s homage to Coke. In similar fashion, the provisions contained in our Bill of Rights forbidding bills of attainder and ex post facto laws reflect the Framers’ determination that such legislative actions, which had often been abused by English Parliaments, should not be within the power of Congress.
Returning to the subject of common culture, any propositionalist who doubts its importance need only compare the similarities and differences between the United States and any of the countries south of the Rio Grande. Both this country and every country from Mexico to Tierra del Fuego were settled by European colonists. They faced very similar challenges dealing with hostile terrain and a hostile indigenous population. They all at some point threw off colonial rule and declared their independence, using very similar arguments to justify so doing.
Why, then, is the United States so different from Mexico, or Colombia, or Argentina? The differences in common culture explain it. We benefited in particular by our common law tradition, and by traditions of representative government that dated back to the Anglo-Saxon witan. It is easy to forget, reading Jefferson’s aspersions against George III in the Declaration of Independence, that by the late 18th century, Britain was already a functional constitutional monarchy with an active system of Parliamentary government and an independent judiciary. Under the common law, trials were adversarial, the accused enjoyed a presumption of innocence, and were entitled to be represented by counsel — as were, for example, the British soldiers tried for the Boston Massacre, who were defended by John Adams.
By contrast, the former Spanish colonies to our south had a system of Roman law, under which trials were inquisitorial, and there was no presumption of innocence, nor any right to confront one’s accuser. There was no tradition of elective local government to compare with what colonists enjoyed in British North America, but rather a centralized bureaucracy run on a top-down basis on the principles of Bourbon Spain.
Many ideologies, and all utopian ones, rely on a secularization of what was originally a religious belief — namely, that history follows a timeline. In the Christian tradition, the timeline begins with God’s creation of the heavens and the earth, and ends with the events described in the Book of Revelation, the result of which will be, to quote a learned father of the church, that:
“Jesus Christ shall have rendered up to God the Father his kingdom in a peaceable condition, out of all danger and contamination of sin . . . [and] the so much desired peace shall be attained unto and enjoyed, and that all things shall be brought to their end and period.”
This is called the Eschaton, the conclusion of the timeline. All self-styled progressives propose, in some way or other, that such an end can be attained without the spiritual or religious component of the original — that we can somehow redeem ourselves without the need for a Redeemer, and institute a paradise on earth. The political philosopher Eric Voegelin described such utopian systems as seeking to “immanentize the eschaton,” a phrase made famous by William F. Buckley.
Apposite here is the warning of Dean Inge, 100 years ago:
“The votaries of progress mistake the flowing tide for the river of eternity, and when the tide turns they are likely to be left stranded like the corks and scraps of seaweed which mark the high-water line. This has already happened, though few realize it. The praises of Liberty are mainly left to Conservatives, who couple it with Property as something to be defended, and to conscientious objectors, who dissociate it from their country, which is not to be defended.”
What conclusions may conservatives draw from all of this? I suggest these principles:
Michael S. Swisher
Order: Prerequisite to Liberty
Looking out on the placid natural beauty of the St. Croix Valley, it takes some effort to imagine that a mere half-hour’s drive to the west, violent rioting in Minneapolis following the May 25 death of George Floyd caused an estimated $500 million in damage from looting, vandalism, and arson. The left-wing mayor of Minneapolis, Jacob Frey, ordered the Minneapolis Police Department to abandon its third precinct station, which the rabble burnt to the ground. Numerous small businesses along Lake Street, one of the city’s principal east-west thoroughfares, and some others elsewhere in the city, were ransacked and burned.
The response of the Minneapolis City Council to this mob violence was to vote on June 26 to abolish the city’s police force. To put the icing on the cake, the Democrat-Farmer-Labor governor of Minnesota, Tim Walz, on July 2 asked for federal aid to help pay for the destruction that he assiduously refused to prevent. The Federal Emergency Management Agency (FEMA) — rightly, in my opinion — declined his request. Even though Minnesotans outside Minneapolis (of whom I am one) will likely end up footing a significant part of the bill, there is no reason why we should expect the rest of the country to pay for the mis-, mal-, and non-feasance of Minnesota politicians.
How — or whether — the devastated areas may be rebuilt is, in any event, unlikely to be affected by the denial of Governor Walz’s request. The $16 million he wanted “would have been used to reimburse local governments for debris clearing, repair, and rebuilding.” It comes nowhere near the cost of replacing what has been destroyed. That money, if it is to be spent, will have to be raised from other sources.
The great majority of construction is financed by mortgage lenders. Real estate mortgages are traditionally considered safe investments, but that is a qualified assumption. Is the collateral safe? It must be covered by fire insurance, for example. How many insurers will care to cover properties in an area where there has been widespread arson? Policies, if available at all, will be very expensive. If a property should be in a floodplain, it must be covered by flood insurance. Flooding is so unpredictable, and the damage it causes so great, that no private insurer in the United States will carry it. There is a federal flood insurance program, and the amount it will cover is strictly capped. Shall we have a federal riot insurance program as well?
How Minneapolis, or any of the other cities where rioting has taken place, from New York to Seattle, can recover from their self-inflicted wounds, is a conundrum that we shall see resolved slowly, over many months, or even years. It will be a harsh lesson in the dependence of liberty on the enforcement of order.
Liberty is not license. It is not, in other words, the ability to do as one pleases, without thought of its consequences for others, as the riotous crowds in cities from coast to coast have done. Liberty is the ability of ordinary citizens to go about their lawful business without fear of losing their lives or property. It is the freedom of the small retailer, restaurateur, or tavern keeper to feel secure in his person and about his premises. It is the confidence of the tenant of an apartment above his shop that he will have a place to sleep at night and that his belongings will not be reduced to ashes.
All of these aspects of liberty are dependent on an order of society that prevents such things from happening, by moral suasion if possible, but by force if necessary. It is no favor to poor people, or to those of racial and ethnic minorities, to allow riot and crime to run rampant through the vicinities where they live and work. The notion that lenience towards lawlessness somehow benefits such people is a romantic fantasy of the intelligentsia, who conceive of the criminal as a victim of oppressive capitalism, and of his offences as acts of resistance against it. No person who had actually lived in a crime-ridden district would be so foolish as to believe such twaddle.
Moreover, this is historically a foreign attitude, brought here by European Jacobins and Marxists. Alexis de Tocqueville contrasted American and European attitudes toward crime in his famous work Democracy in America. Tocqueville observed that in Europe, “the criminal is an unfortunate who fights to hide his head from the agents of power; the population in some way assists in the struggle. In America, he is an enemy of the human race, and he has humanity as a whole against him.” Tocqueville recounted an incident in which “the inhabitants of a country where a great crime had been committed spontaneously form[ed] committees for the purpose of pursuing the guilty one and delivering him to the courts.”
A remarkable illustration of this once-characteristic American approach can be found in Theodore Roosevelt’s early book Ranch Life and the Hunting Trail (1888), in a tale that rivals any Western to grace the silver screen. During the bitter March of 1886, Roosevelt and his ranch hands looked out on the Little Missouri River at a treacherous winter landscape in which ice had jammed as it was breaking up. They had kept their horses on the side opposite the ranch house, requiring them to ferry themselves across in a small boat. One day they discovered the boat missing, the rope mooring it cut cleanly through with a knife. They found a red woolen mitten with a leather palm on the ice, which left no doubt that the boat had been stolen.
TR and his men suspected that the thieves were a group of “three hard characters” who had already attracted the unfavorable attention of other neighboring cattlemen. Roosevelt wrote:
“They belonged to a class that always holds sway during the raw youth of a frontier community, and the putting down of which is the first step toward decent government. . . .
“The three men we suspected had long been accused — justly or unjustly — of being implicated both in cattle-killing and in that worst of frontier crimes, horse-stealing; it was only by an accident that they had escaped the clutches of the vigilantes the preceding fall. Their leader was a well-built fellow named Finnigan, who had long red hair reaching to his shoulders, and always wore a broad hat and a fringed buckskin shirt. He was rather a hard case, and had been chief actor in a number of shooting scrapes . . .”
Not disposed to suffer this theft without resistance, Roosevelt and two of his hands, Bill Sewall and Wilmot Dow, built a flat-bottomed boat from available materials and chased the villainous three downriver. After three days they discovered the stolen boat, and then the thieves’ camp. Roosevelt, Sewall, and Dow surprised and placed them under arrest (TR being a deputy sheriff of Billings County). After re-provisioning at a nearby ranch they decided to split up, with Sewall and Dow continuing downriver and Roosevelt taking the thieves to the jail at Dickinson. TR hired a local settler to drive his prisoners in his wagon, while Roosevelt followed on foot. The settler was incredulous that Roosevelt and his men had not simply lynched the rogues — but drove on, and after three hundred miles, they arrived and turned them over to the sheriff.
Do we lack such people today — or have they simply retreated? Unparalleled numbers of policemen are today filing for retirement or disability benefits. Law enforcement is a difficult job, and not particularly well-paid. It requires an officer to make life-or-death decisions quickly under extremely stressful conditions, with the risk of spending years thereafter being second-guessed by lawyers, judges, and (worst of all) journalists, who are never answerable to anyone for the harm they do.
We need to rediscover the old American determination to uphold order so that liberty might flourish. As Eric Voegelin memorably observed, the history of order is the order of history.
The Word We No Longer Hear
Many people are still living who remember the civil rights movement of the 1950s and ’60s. Today’s tumults resemble those of that period in superficial respects, but differ in an essential way.
Sixty years ago, the focus was not on demolishing Confederate monuments or “defunding” the police. It was, rather, on ending the separate but unequal treatment of blacks that enjoyed the force of law in one-third of the United States — and not just the former Confederate states. It was on securing the franchise for black citizens that had been guaranteed them by the Fifteenth Amendment.
The asserted and widely popular aim, was not merely the end of the racial segregation that had enjoyed the approval of the courts since Plessy v. Ferguson (1896), but the establishment of a colorblind society, in which (to borrow the words of Martin Luther King), people would not be judged by the color of their skin, but by the content of their character.
The word used to describe this was integration. Integration derives from the Latin integer, meaning “whole.” Integration was expected to bring the negro into, and make him an integral part of, the whole society, where he might cooperate and compete with persons of other races on a basis of objective standards of ability and character — in short, on merit.
Today, integration can only be called a failure. We do not hear the word integration any longer. It has proved a failure not least because blacks themselves appear not to want integration. Today, we read that black college students demand separate residence halls (at Yale, Columbia, MIT, Brown, Williams, and other universities. In some cases they have demanded — and received — separate commencement ceremonies. More than 75 schools, including Harvard, Stanford, Berkeley, and Yale have acquiesced.
What explains this fashion for “neo-segregation”?
It is easy to forget in this day and age when Martin Luther King has well-nigh been canonized, but by the year of his death, his advocacy of peaceful protest had become distinctly passé. His position of leadership had been effectively challenged by younger, more militant blacks such as Stokely Carmichael and H. “Rap” Brown, who had little or no connection to black churches (as older negro leaders did) and fewer scruples about violence. “Black power” was then the message rather than integration, and “burn, baby, burn” replaced civil disobedience. More than 300 race riots took place between 1965 and 1968, killing 250 people and destroying property worth hundreds of millions of dollars.
Mike Gonzalez, writing in The Wall Street Journal, outlines the sequence of events that took place:
“Militants intimidated politicians, college administrators and midlevel bureaucrats into laying the foundation for the identity politics that rankle our lives today.
“In response to the activists’ demands, the policymakers of the past blessed the federal bureaucracy’s creation of racial and ethnic categories and the related use of racial preferences for university admissions, employment, and government contracting. . . . The Civil Rights Act of 1964 was intended to cure problems like segregation. Instead, by creating an incentive system based on grievances, the architects of identity politics all but assured victimhood would never end. . . .
“McGeorge Bundy was President Kennedy’s national security adviser. No Boston Brahmin was more representative of the elite set. By the time he left Camelot and took the helm of the Ford Foundation in 1966, the era’s riots were fully underway. . . .
“Bundy and his team believed in a staggering stratagem that [historian Karen] Ferguson calls ‘developmental separatism.’ The theory held that only after a period of ethnic separation could assimilation take place at some time in the future. One could say that they invented modern identity politics.”
This combination of violent black ideologues and have white liberal intelligentsia assured that King’s dream of a nation where people would not be judged by the color of their skin but by the content of their character remains as much a dream in 2020 as it was in 1963.
Systemic Racism (?)
We have heard much in recent weeks about the “systemic racism” that is supposed to pervade American society. What is it?
Tom Sowell, who at the age of 90 has lived through the era of de jure racial segregation and the heyday of white supremacist politicians like Sen. Theodore Bilbo (D-Miss.), Governor Orval Faubus (D-Ark.), and Governor George Wallace (D-Ala.), has recently said that systemic racism does not exist. In substance, he is right. Today there is no de jure segregation. Race-baiting white supremacy like that of Bilbo, Faubus, and Wallace is a thing of the distant past.
Yet even a fictitious idea has a sort of existence. Consider astrology, which claims that the position of the planets and stars at the time of a person’s birth foreordains the course of his life. There is no evidence to support this, yet vast numbers of people believe in it, and it sustains a sort of industry that brings some of its adherents economic benefit. In this sense, astrology exists. In the same sense, so does “systemic racism.”
Systemic racism exists in this way because it is the only politically correct explanation for the persistent underachievement of lower-class blacks. We should not deceive ourselves — there is a large black middle class. It is almost invisible to the general public that relies on the mass media. There we see only the culture of the black lumpenproletariat, which just can’t seem to get ahead, which is beset by higher rates of unemployment than any other ethnic group, which features prominently in hostile encounters with the police, and which is disproportionately represented in prison populations.
There are, of course, other explanations for these phenomena than systemic racism. It is well known that more than half of all homicides and robberies are committed by black offenders, even though blacks make up only 13 percent of the population. Moreover, most victims of their crimes are their neighbors. Naturally, police pay more attention to black communities. Noticing such things, however, raises the suspicion that the person who notices them is “racist.”
Likewise, more than fifty years ago, Daniel Patrick Moynihan, who was then an academic sociologist, drew attention to the high rate of illegitimate birth in the black community, then around 30 percent. He was roundly derided at the time for “blaming the victim.” Today, the rate is over 70 percent. The decline of stable, two-parent families has come about because government has replaced the man of the house as breadwinner, and many young males gravitate to gangs because fathers are not present in their lives. The situation has become steadily worse since Moynihan’s study, but noticing it again runs the risk of branding the noticer as a racist.
One need not even bring up the subject of race to be called a racist. Amy Wax, a professor at the University of Pennsylvania Law School, published an op-ed article in the Philadelphia Inquirer in 2017 in which she lamented the decline of “bourgeois culture.” 
“That culture laid out the script we all were supposed to follow: Get married before you have children and strive to stay married for their sake. Get the education you need for gainful employment, work hard, and avoid idleness. Go the extra mile for your employer or client. Be a patriot, ready to serve the country. Be neighborly, civic-minded, and charitable. Avoid coarse language in public. Be respectful of authority. Eschew substance abuse and crime.
“These basic cultural precepts reigned from the late 1940s to the mid-1960s. They could be followed by people of all backgrounds and abilities, especially when backed up by almost universal endorsement. Adherence was a major contributor to the productivity, educational gains, and social coherence of that period.”
For her temerity in publishing such arguments, and for later defending them on the grounds that her ideas were about culture and not about race but acknowledging that different cultures had different racial compositions, Prof. Wax became the subject of a campaign to fire her. A petition to do so garnered 4,000 signatures. A local Black Lives Matter leader threatened to disrupt university classes if she were not fired within the week. Ultimately, she was relieved of her duties teaching first-year law students.
Clearly, any attempt to explain any misfortune, reversal, or failure on the part of any black person in any way that assigns any responsibility for it to his own behavior, is likely to lead to censure and possibly worse consequences. The only acceptable explanation is one that absolves him of any blame for his own situation, and that is “systemic racism.”
Eric Holder, Attorney General in the administration of Barack Obama, once said that the United States needed an “honest conversation about race.” A conversation, ordinarily, has at least two sides — but events like those described make it obvious that only one side is allowed. That’s not a conversation — it’s a lecture. How long will citizens sit still for it? *
 We may recall that the landmark 1954 case Brown v. Board of Education originated in a lawsuit against the public school system of Topeka, Kansas – a city and state that had not participated in the secessions of 1861.
 Mike Gonzalez, “We Might Get Fooled Again,” Wall Street Journal, Friday, July 10, 2020, p. A15.
 Jason L. Riley, “The Full Truth About Race and Policing,” Wall Street Journal, Wednesday, June 10, 2020, p. A17.
viding that immigrants should not become “public charges” to include non-cash welfare benefits such as Medicaid, SNAP (food stamps), and subsidized housing. In addition, those of us on the right quite appropriately should be concerned what changing demographics will do to our chances of maintaining limited government, low taxes, and other longstanding conservative principles. The left wants more third-world immigrants mainly because it sees them as future voters for its policies. We need to take the threat of that seriously. *
Michael S. Swisher
Michael S. Swisher is chairman of the board of Religion and Society, the foundation that publishes The St. Croix Review.
Bugaboos of the Chattering Class — Anti-Americanism
Fergus Falls is a small Minnesota city of some 13,000, about 3 hours’ drive north and west of The St. Croix Review’s offices in Stillwater. It rarely attracts the attention of newspapers in the twin cities of Minneapolis and St. Paul, much less that of the international press. Yet this past December, Fergus Falls became the focal point of a journalistic scandal having repercussions half-way around the world.
Claas Relotius, a writer for the German weekly news magazine Der Spiegel, was sent by his employers in 2017 to Fergus Falls to report on the attitudes, manners, and mores of a town in “flyover country” that voted in the 2016 presidential election for Donald Trump. He did not disappoint either his masters at Der Spiegel, a publication which, according to The Atlantic, “has long peddled crude and sensational anti-Americanism”, nor German readers, eager for confirmation of their antipathies.
Relotius reported that upon arrival in Fergus Falls, he “was greeted by a sign that read ‘Mexicans Keep Out.’” He described the movie “American Sniper” as a popular long-running picture at the local movie theater; it hadn’t been playing during the time Relotius was there. The city administrator, Andrew Bremseth, was described as “wearing a pistol holstered to his belt while at work.” Yet the city administrator indicated that he doesn’t carry a gun at city hall.
Other Fergus Falls residents were also falsely characterized. Relotius also wrote about Bremseth watching the Super Bowl at a brewery, but the brewery was closed on Sundays. A Western-themed party that the reporter described never occurred, and neither did a high school field trip to New York, where Relotius said students skipped the Statue of Liberty to visit Trump Tower.
Some individuals on whom Relotius supposedly reported were completely fictional. He described a local coal miner named Neil Becker. There is no coal mine anywhere near Fergus Falls, nor any Neil Becker.
All of this, and more, was exposed by two local bloggers, Michele Anderson and Jake Krohn. They write:
“Not only did Relotius’ ‘exposé’ on Fergus Falls make unrecognizable movie-like characters out of the people in my town that I interact with on a daily basis, but its very basic lack of truth and its bizarrely bleak portrayal of the place I love left a very sick, unsettled feeling in the pit of my stomach.
“There’s really nothing like this feeling — knowing that people in another country have read about the place I call home and are shaking their heads over their coffee in disgust, sharing the article on Facebook and Twitter, and making comments on the online article like ‘creepy,’ and ‘these are the people who don’t believe electricity exists.”’ 
Relotius was forced to resign from Der Spiegel after the exposure of his hoax. Investigation by another Der Spiegel reporter, Juan Moreno, found evidence that numerous other news articles published by Relotius were partly or wholly fabricated.
Journalistic fraud is an old phenomenon. There have been many examples, ranging from the humorous and harmless, such as the “Great Moon Hoax” of 1835, to the evil of Walter Duranty’s whitewash of Stalin’s genocide in the Ukraine. The purpose in each case may vary widely. The Moon Hoax was intended to sell newspapers; Duranty’s fraud, to spread Soviet propaganda. The intent Relotius had was both commercial and ideological, and reflects the rise of “narrative journalism” in which facts are secondary to the “narrative,” an explanation of events that satisfies the prior opinion of its consumers. One German editor wrote of the Relotius case that “the imaginative author simply delivered what his superiors demanded and fit into their spin.”
Readers, no less than editors, have prejudices and confirmation bias. There is a strong vein of anti-Americanism in Europe. It goes beyond disagreement with the policies of the United States government to contempt and even hatred of the American people, reflecting a mixture of envy for America’s material wealth and snobbery about Americans’ presumed crudity, ignorance, and socially retrograde attitudes.
Europeans of this stripe are the kind that make snarky comments about how the United States is alone among “industrial democracies” because it doesn’t have socialized medicine — but then, when they are sick, the same people waste no time and fly (in private jets if possible) to the Mayo Clinic or a similar American facility rather than entrust their care to their own inefficient and understaffed national health services.
The European mixture of envy and snobbery with respect to America is quite similar to that found on many college campuses, where professors decry capitalism for a variety of recondite reasons, but in reality, mainly because a free economy rewards people they consider their intellectual and moral inferiors better than it does themselves.
Communism, socialism, “social democracy,” and similar manifestations of the same ideas are endemic among the intelligentsia because they appeal to their moral vanity and sense of unrewarded virtue. Of all kinds of envy, that of intellectuals — or people who fancy themselves intellectuals — is the most pernicious.
Do not our domestic intelligentsia have their own preconceptions, their own confirmation bias, and their own contempt and hatred of their fellow countrymen, quite as virulent as the anti-American sentiment that is rampant in Europe?
One recent example we’ve witnessed in 2019 is the case of a group of young students from the Covington, Kentucky, Catholic High School. While attending the 2019 March for Life in Washington, D.C., they were confronted at the Lincoln Memorial by an alleged “tribal elder,” one Nathan Phillips, who claimed to be a Vietnam War veteran. The boys were wearing red baseball caps embroidered with the slogan “Make America Great Again.” Phillips began beating a drum close to one boy’s face, as a group of so-called Black Hebrews verbally assailed them.
Yet, as this was presented to the public, the boys were the offenders. They were pilloried by the mainstream media and even defamed by the bishop of the Diocese of Covington — all before the circumstances had been thoroughly investigated. Most disturbing was the reaction of the pundits at National Review, a nominally conservative magazine known for its hatred of President Trump. One of the magazine’s writers, Nicholas Frankovich, compared the behavior of the boys as akin to “spitting on the cross.”
As the facts began to be discovered it became apparent that the boys did nothing improper; that Phillips, the self-described Vietnam vet, had never seen combat, but served stateside as a refrigerator mechanic, went AWOL on more than one occasion, and may have received a less than honorable discharge. National Review took down the original Frankovich piece and published a lukewarm and incomplete apology to the boys.
Of course we know what Barack Obama thought of “bitter clingers,” and what Hillary Clinton thought of the “basket of deplorables.” At this point, can it really be doubted that the soi-disant intelligentsia at National Review share the disdain that their left-wing Acela-corridor colleagues feel for the red-hatted members of the conservative base? It is not just Trump they detest, but his supporters as well. They are of the same mentality as the avid readers of Claas Relotius’s purple prose, and just as ready to believe fabrications about half of their fellow citizens.
As an example of how they view their countrymen, here’s Max Boot:
“If only we could keep the hard-working Latin American newcomers and deport the contemptible Republican cowards — that would truly enhance America.”
Here’s Bret Stephens:
“Bottom line: So-called real Americans are screwing up America. . . . Maybe they should leave, so that we can replace them with new and better ones: newcomers who are more appreciative of what the United States has to offer, more ambitious for themselves and their children, and more willing to sacrifice for the future.”
And here’s Bill Kristol:
“Look, to be totally honest, if things are so bad as you say with the white working class, don’t you want to get new Americans in?
“Basically if you are in a free society, a capitalist society, after two, three, four generations of hard work, everyone becomes kind of decadent, lazy, spoiled, whatever.
“Then, luckily, you have these waves of people coming in from Italy, Ireland, Russia, and now Mexico, who really want to work hard and really want to succeed, and really want their kids to live better lives than them, and aren’t sort of clipping coupons or hoping that they can hang on and, meanwhile, grew up as spoiled kids and so forth. In that respect, I don’t know why this moment is that different from the early 20th century.”
The contempt and disdain of these people for Americans of old stock is breathtaking. American history, and the historic American people, are valued at nothing. We are inured to this from the left, but it is exceedingly disheartening to hear almost the same thing from persons calling themselves conservative. *
 Taylor, S.J. Stalin’ s Apologist: Walter Duranty, The New York Times’ Man in Moscow. 1990: Oxford University Press.
Michael S. Swisher
Michael S. Swisher is chairman of the board of Religion and Society, the foundation that publishes The St. Croix Review.
Bugaboos of the Chattering Class — Egalitarianism
No phrase has ever been more cruelly torn from its context — and with malice aforethought — than the claim of the Declaration of Independence that “all men are created equal.”
Quoted more fully, the Declaration’s assertion is “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness . . .”
A fuller reading makes it clear that the Declaration advances claim that all men are created equal in ability or character. The Founders recognized that they were not, and that ordinary social and economic inequalities, due to innate differences in ability or character, were natural, normal, and inevitable.
The Declaration is first and foremost a legal document. It claims equality of — a claim, not a sociological, anthropological, or psychological one. Moreover, the rights are — that is, they cannot be alienated — sold, bartered, or given away — because someone entitled to them shall have moved from old England to the New World.
The grievance of the colonists was that taxes — the stamp tax, the tea tax, etc. — had been imposed upon them by the parliament at Westminster, an assembly in which they were not represented. Hence the slogan, “no taxation without representation.” It was a principle based on the main non-religious issue of the English civil war (1642-1649). Charles I had attempted to levy “ship money” by royal prerogative, without the consent of Parliament. Unlike previous levies, which had been confined to coastal towns and were raised only in time of war, he did so in peacetime and extended the tax to inland areas. This provoked strong resistance; some local officials refused assistance to collection of the tax. The Petition of Right, written by Sir Edward Coke, complained:
“Your subjects have inherited this freedom, that they should not be compelled to contribute to any tax, tallage, aid, or other like charge not set by common consent, in parliament.”
Extra-parliamentary taxation was effectively ended by the Long Parliament of 1640. After the “Glorious Revolution” of 1689, it was formally prohibited by the English Bill of Rights.
All of this history was much more familiar to the Founders in 1776 than it is to Americans today. The point of the claim that “all men are created equal” was simply to argue that Englishmen, under English law, were equally entitled to representation in any assembly that levied taxes on them, whether they were resident in England or in its colonies.
The argument for levying taxes on the colonies was that they were needed to pay for the defense of the colonies during what we call the French and Indian War, which was in fact just the North American theatre of what in Europe is known as the Seven Years’ War. That they may have been needed for this purpose was not in dispute. Englishmen in England were taxed to pay for the Seven Years’ War, but they were represented in the Parliament that levied the tax. Colonists in America were not. From their point of view the taxes levied on them were as objectionable as ship money had been to the people of England in the time of Charles I.
The Declaration is therefore a sort of American version of the Petition of Right. Jefferson was an admirer of Coke and undoubtedly saw the parallel. His high-flown language about equality was meant to make the case against George III on behalf of English subjects in North America in the same way that Coke’s Petition of Right made the case against Charles I on behalf of English subjects in England. The colonists’ objection was that English subjects, wheresoever domiciled within English jurisdiction, should have equal rights under English law.
Jefferson has often been ridiculed for proclaiming equality while himself being a slaveholder. This argument was made even in his time; as Samuel Johnson wrote in his pamphlet, Taxation no Tyranny (1775), “How is it that we hear the loudest yelps for liberty from the drivers of negroes?” In the present climate of cultural warfare there have been calls to remove statues of Jefferson from university campuses as Hofstra and the University of Missouri, among others.
The plain historical fact, however, is that Jefferson never intended to proclaim the equality of negro slaves or “Indian savages” with free whites. Jefferson’s observations in his make quite clear that he did not believe them to be equals with whites in ability or character. The Indians he regards as primitives, having some admirable and some frightful qualities, but above all, as formidable enemies. He despairs of the intelligence of blacks; he faults black slavery principally because it brings out lamentable tendencies of laziness and petty tyranny among whites. These remarks are striking for their candor, and no more flattering to Jefferson’s own class than they are to other races. The only sensible view is that he was a man of his own time and not of ours. It is a pity he could not have had a conversation with Thomas Sowell or Clarence Thomas, which might have changed his mind.
Levelling egalitarians use the unfortunate history of American race relations as a pretext to inflame envy and to promote the belief that true justice requires an equality of outcomes. The rejoinder of some, even on the right, is to call instead for “equality of opportunity.” Yet this, too, calls for a levelling — it is merely an insistence on all having the same starting line, rather than all ending at the same goal. Individual differences — never mind race, creed, color, etc. — make it impossible for all to have equal beginnings. All that equality of rights means is that everyone must observe the same rules. Any levelling, at any point, is an abridgment of liberty. As the disillusioned French socialist Alphonse-Louis Constant wrote in 1870:
“Liberty, Equality, Fraternity! Three words which seem to shine and are in fact full of shadow! . . . Liberty necessarily manifests inequality, and equality is a levelling process that does not permit liberty, because the heads that rise higher than others must always be forced down to the mean. The attempt to establish equality and liberty together produce an interminable struggle . . . that makes fraternity among men impossible.”
Rather than paying mindless lip service to egalitarianism, as (for example) the followers of Harry Jaffa do, those of us on the right should heed the wisdom of Russell Kirk:
“Throughout history, progress of every sort, cultural and economic, has been produced by the desire of men for inequality. Without the possibility of inequality, a people continue on the dreary level of bare subsistence, like Irish peasants; granted inequality, the small minority of men of ability turn barbarism into civilization. Equality benefits no one. It frustrates men of talent; and it reduces the poor to a poverty still more abject. In a densely populated civilized state, it means near-starvation for the poor. For inequality produces the wealth of civilized communities . . .” *
 Les Portes de l’avenir (unpublished manuscript, 1870; quoted by Christopher McIntosh, Eliphas Lévi and the French Occult Revival (London, 1972: Rider & Company), p. 142.
 Russell Kirk, The Conservative Mind from Burke to Eliot. (2001: 7th ed., Gateway Publishing).
Michael S. Swisher
Michael S. Swisher is chairman of the board of Religion and Society, the foundation that publishes The St. Croix Review.
Bugaboos of the Chattering Class — Nativism
After populism and nationalism (discussed in the two previous columns of this series), nativism ranks prominently as a bugaboo of the chattering class. Webster defines nativism as a “policy of favoring the native inhabitants of a country as against immigrants.” This very poorly describes the actual sentiments the chatterers try to describe by the word, which may range from an outright hostility towards immigrants (which is relatively rare) to the wish to see current immigration laws actually enforced, to a desire for revision of those immigration laws in a way that would be more selective. Such nuanced analysis of the various positions taken by critics of the present state of immigration (which is seriously dysfunctional) does not occur to the chattering class – they prefer to dismiss all such criticism as motivated by xenophobia and racism.
We must note that xenophobia denotes an irrational fear and hatred of foreigners, and that there are circumstances in which such fear is both rational and warranted. Moreover, accusations of racism are now so broadly made that anyone from a bedsheeted Ku-Kluxer to a public speaker who has the temerity to say that “all lives matter” may be subjected to them. Calling someone a “racist” has become little more than verbal abuse.
Similarly, critics and opponents of uncontrolled immigration are often accused of being “blood and soil” nationalists. Since this is a literal translation of the German Blut und Boden, a slogan of nineteenth-century German romantic nationalism later adopted by the Nazis, it is barely less blatant slander than accusing them of outright Nazism. Open-borders advocates lecture them that “this is not who we are” [i.e., good Americans], and cite the Emma Lazarus poem affixed to the plinth of the Statue of Liberty, as if it were part of the U.S. Constitution.
The economically developed world is at present experiencing a massive influx of people from poorer, less developed areas on a scale not seen since the fifth century A.D., when barbarous peoples from northern Europe and the Asian steppes swept down upon the exhausted remnants of the western Roman Empire. As was the case then (when Rome invited its dubious allies, the Ostrogoths, into its territories), the invasion is not necessarily one achieved by force of arms. Indeed, it is occurring with the encouragement of the politically and economically powerful.
Several influential political and economic factions cooperate in the promotion of untrammeled immigration, legal and illegal. They may be distinguished as follows:
First are politically self-serving actors who expect immigrants to skew future elections in their favor. This includes almost the entire Democratic Party in the United States, and similar Left-wing parties in other countries. Once upon a time, such parties opposed loose immigration laws because labor unions, prominent among their supporters, opposed them. One need only recall the liberal Rep. Barbara Jordan (D-TX), who wrote in 1994 that “As a nation of immigrants committed to the rule of law, this country must set limits on who can enter and back up these limits with effective enforcement of our immigration law.” That Jordan’s view has now been discarded by Democrats at the highest levels is evident from the calls leading members of that party have made for the abolition of Immigration and Customs Enforcement (ICE).
The shift in the Left’s attitude on such issues appears to have begun in Britain during the ministry of Tony Blair. A former Labour Party advisor, Andrew Neather, is on record as having said that the Blair government deliberately encouraged immigration in order to change the demographic make-up of Britain. Neather described the policy as designed to “rub the Right’s nose in diversity.” Labour spokesmen denied this claim, but three years later, former cabinet minister Peter Mandelson (now Lord Mandelson) admitted that, under Blair, “In 2004 when as a Labour government, we were not only welcoming people to come into this country to work, we were sending out search parties for people and encouraging them, in some cases, to take up work in this country.”
That the American Left’s abandonment of the positions of Barbara Jordan in favor of unlimited immigration reflects a similar self-serving intent to “rub the Right’s nose in diversity” may be seen from the straightforward statement of the Left-wing Center for American Progress functionary Jennifer Palmieri, who wrote in a memo dated January 8, 2018:
“In September, President Donald Trump set in motion a process that will strip protections from nearly 800,000 Dreamers, young people who came to the United States more than a decade ago and who are American by every measure except a piece of paper. Ending Deferred Action for Childhood Arrivals (DACA) will lead to the deportation of Dreamers, separating them from their homes, their communities, and their loved ones. . . . The fight to protect Dreamers is not only a moral imperative, it is also a critical component of the Democratic Party’s future electoral success” [emphasis mine]. This admission is startling in its candor.
Second are economically self-serving actors who expect immigrants to increase the supply of unskilled labor and depress the level of wages paid for it. Significant among these is the United States Chamber of Commerce, a staunch proponent of amnesty for illegal aliens, along with various agricultural interests that rely on immigrant labor. In the past, the Chamber has largely supported Republican politicians, and its open-borders stance has the support of numerous Congressional Republicans, as well as that of former Florida Gov. Jeb Bush and former President George W. Bush. Governor Bush once described illegal immigration as an “act of love”; President Bush remarked that:
“There are people willing to do jobs that Americans won’t do. . . . Americans don’t want to pick cotton at 105 degrees (Fahrenheit), but there are people who want to put food on their family’s tables and are willing to do that. We ought to say thank you and welcome them.”
Retiring Speaker of the House Paul Ryan (R-WI), who represents a dairy-farming district, has been notably unhelpful to any measure tightening immigration control, as illustrated by his handling of the Goodlatte bill earlier this summer.
Third in order are politicians, economists, and journalists who make seemingly objective and disinterested arguments for the benefits of large-scale immigration. It is difficult to disentangle these from the positions of the first and second categories mentioned above, since such persons often make such claims in addition to others that are more obviously self-interested. One argument is that a growing population leads to growing wealth, as measured by GDP. Another more sophisticated argument is that because the native-born population is not reproducing at a sufficient pace to replace itself, productivity will fall without a constant influx of immigrants, and in addition, old-age benefit programs such as Social Security and Medicare, which are dependent on payroll taxes, will be unsustainable. The late Sen. John McCain made such an argument; so has the German chancellor, Angela Merkel, with respect to similar benefits in her country.
Fourth are libertarians, by whom free movement of people (laissez-passer) is considered a natural right akin to free movement of goods and money (laissez-faire). Exemplary of this class are the Koch brothers, and the libertarian Cato Institute, of which they are substantial benefactors.
Fifth are those who might be called ancestral nostalgists, for whom immigration of any kind is sentimentally esteemed. A shining example of this class is Dr. David S. Glosser, described as a retired neuropsychologist, formerly of the faculties of the Boston University School of Medicine and the Jefferson Medical College. Dr. Glosser is also the uncle of Stephen Miller, who has been one of the Trump administration’s policy advisors on immigration law.
Dr. Glosser has attacked his nephew as an “immigration hypocrite” on the grounds that his and Mr. Miller’s common ancestor, Wolf-Leib Glosser, was a Russian Jewish immigrant who “set foot on Ellis Island on January 7, 1903, with $8 to his name” and through subsequent efforts was able to bring other members of his family to this country, and to build a successful chain of retail businesses. Dr. Glosser claims that his nephew “has become the architect of immigration policies that repudiate the very foundation of our family’s life in this country” and writes:
“I shudder at the thought of what would have become of the Glossers had the same policies Stephen so coolly espouses — the travel ban, the radical decrease in refugees, the separation of children from their parents, and even talk of limiting citizenship for legal immigrants — been in effect when Wolf-Leib made his desperate bid for freedom.”
Any one of these arguments, by itself, might not persuade enough people to have much political effect, but taken together they pose a formidable obstacle to any effort to bring immigration under control. Despite this discouraging prospect, each of the arguments can be countered, and many of them will be seen to be founded on faulty premises, hyperbole, and “straw man” claims that are not actually advanced by any serious critic of uncontrolled immigration.
The first constituency for pro-amnesty, open-borders policies, the self-serving politicians, need more strenuously to be pointed out as such. The Left loves to posture as if it holds the moral high ground, but in this (and many other cases) it really doesn’t. If redefining the electorate by encouraging immigrants of a type that are expected to support a particular party is to be considered a legitimate partisan tactic, then opposition to such manipulation is equally legitimate.
Meddling with the electorate is an old practice. Considerable controversy surrounded the admission of new states almost from the beginning, because of its potential for upsetting an existing political balance.
During the ante-bellum period, by virtue of a series of compromises, new states were admitted in offsetting pairs — one free and one slave state in tandem. Conflict was inevitable once such compromises could no longer be reached. After the War Between the States, this issue became moot, but the admission of states continued either to be promoted or resisted based on how it would affect the political balance both in Congress and in the Electoral College. This remained the case right up through the admissions of Alaska (Jan. 3, 1959) and Hawaii (Aug. 21, 1959).
Not only the admission of states, but also the extension of the franchise to different groups of people took place in each instance because it served some partisan advantage. High-flown democratic ideals were far from primary in any of them.
The general abolition of property qualifications for the franchise (which prevailed in all thirteen of the original states at the time of American independence) enabled the eventual triumph of “Jacksonian democracy.” Following the Civil War, the Fifteenth Amendment was ratified, extending the vote to freed slaves. The value of this was seen at the time less in its egalitarian intent than in that it enabled the Republican Party — the party of Lincoln and Grant — to enjoy a firm hold on Congress and the White House following the War. After the end of Reconstruction, blacks were eventually and effectively disenfranchised, but by then the Republican Party had enjoyed thirty years of national dominance, interrupted only by Grover Cleveland’s two non-contiguous terms. Similarly, the Nineteenth Amendment’s extension of the franchise to women, in close succession to liquor prohibition under the Eighteenth Amendment, was seen by the common supporters of the two amendments as mutual reinforcement — women, through the Women’s Christian Temperance Union, had been a strong constituency for prohibition. The Democrats’ abandonment of their traditional Southern support in favor of the civil rights movement much more reflected practical coalition-building than it did moral principle — as illustrated by the peculiar transformation of former Ku-Kluxer Sen. Robert Byrd into a figure revered by liberal Democrats.
Of course this kind of cynical manipulation of the franchise continues — as seen most recently in Virginia, where then-Gov. Terry McAuliffe attempted to restore voting rights to convicted felons en masse, in the expectation that they would largely support Democrats. Now there is a push to allow non-citizens to vote in some municipal elections. Conservatives legitimately oppose any such watering of the electoral stock, and ought to point out just what the Left is doing and why.
The second open-borders constituency, those who like unrestricted immigration because of its wage-lowering effects, needs equally to have its motivations exposed. There are not “jobs Americans won’t do.” Rather, there are wages and terms of employment that Americans won’t accept, and indeed, would be prohibited by law from accepting even if they were willing to do. Illegal aliens participate in a huge “grey market” for labor. The jobs they take may not pay the legal minimum wage, or conform to the requirements of law with respect to wages and hours, workers’ compensation insurance, or safe working conditions. This suits employers who wish to circumvent their costs. On the other hand, not having taxes withheld from their pay serves illegal alien workers. They are still, in many instances, capable of earning many times what they could in their native countries. They are willing to live in squalid conditions, save their money, and send it home by convenient and relatively inexpensive wire transfers. The employment of such persons privatizes the profits that result from it, while socializing the costs in terms of welfare benefits, public education for the children of the illegals, and the burden of this population on law enforcement, the courts, and the prisons.
The claim of some farmers that crops would rot in the fields if not for immigrant labor does not hold up under examination. Dependence on stoop labor can be and has been eliminated in a wide variety of industries by mechanization. If the economy of substitution is great enough, capital investment will be forthcoming to develop equipment to mechanize a task. Grain farmers were already doing this by the middle of the nineteenth century, as McCormick’s reaper and various types of threshing machine replaced the scythe and the flail. Horse-drawn implements were replaced by those relying on steam engines, and later by gasoline-powered tractors.
President Bush’s remark that “Americans don’t want to pick cotton at 105 degrees” is either a cynical misrepresentation or an astonishing display of ignorance. Texas, of which he was once governor, is a cotton-growing state. He ought to know that cotton has not been picked by hand for decades; Rust’s mechanical cotton picker was introduced in the 1940s. The work that in the remote past might have required hundreds of field hands can now be done by a single individual sitting in the air-conditioned cab of a large tractor. Tomatoes and other fruits are now routinely harvested by machine. In Europe cows are milked in automated milking parlors. Farmers who today complain that they can’t get along without cheap stoop labor are today’s heirs to the antebellum planters of the old South, who feared that they would be ruined by the abolition of slavery.
The arguments of the third category about the economic benefits of immigration may seem to carry some weight. However, to argue that growing population leads to growing wealth is to make the mistake of confusing correlation with causation. It is true, for example, that the population of Great Britain at the time of its first census in 1801 was 10.5 million, and that by 1901 it had reached 38 million. In the mean time, Britain had undergone an industrial revolution, and its standard of living had risen. But was this caused by its increase in population, or did the increase in population reflect rather the greater capacity of British industry to support it?
And further, do taxes paid by immigrants — illegal and legal — result in a net surplus of revenue over the cost they represent to the public treasury? The Dallas Federal Reserve Bank has published a study on this question. While it goes into considerable detail, it appears in summary that only immigrants having bachelor’s degrees or better are lifetime net taxpayers. The others are lifetime net tax eaters.
Libertarians, who make up the fourth class of open-borders advocates, would do well to heed Milton Friedman, who long ago warned that “It’s just obvious you can’t have free immigration and a welfare state.”
It may be that libertarians would like to see the welfare state dismantled — but the political will to do this is lacking, and it is not a wise idea to attempt it by causing the welfare state to collapse under the burden of costs imposed by large numbers of unassimilated and perhaps unassimilable foreigners.
They might well, too, contemplate what a foundational libertarian, Ludwig von Mises, wrote in 1927:
“In the absence of any migration barriers whatsoever, vast hordes of immigrants from the comparatively overpopulated areas of Europe would, it is maintained, inundate Australia and America. They would come in such great numbers that it would no longer be possible to count on their assimilation. If in the past immigrants to America soon adopted the English language and American ways and customs, this was in part due to the fact that they did not come over all at once in such great numbers. The small groups of immigrants who distributed themselves over a wide land quickly integrated themselves into the great body of the American people. The individual immigrant was already half assimilated when the next immigrants landed on American soil. One of the most important reasons for this rapid national assimilation was the fact that the immigrants from foreign countries did not come in too great numbers. . . .”
Libertarians today often tend to think of the nation-state as an enemy of freedom. Indeed, the proto-libertarian Albert Jay Nock published a book entitled Our Enemy, the State. Libertarianism champions what Benjamin Constant called “the liberty of the moderns” — in other words:
“. . . the right of everyone to express their opinion, choose a profession and practice it, to dispose of property, and even to abuse it; to come and go without permission, and without having to account for their motives or undertakings.”
To come and go without permission implies open borders. Like Constant, libertarians think of the nation-state as representing “the liberty of the ancients,” in which the people collectively exercised sovereignty, acknowledging no overlord — but at the expense of the personal liberties esteemed by the moderns.
Yet this is a false distinction in the modern world. While the nation-state has often been an enemy to personal liberty, it has also on many occasions been its indispensable defender. It is a mistake to view people, as many libertarians tend to do, purely as economic actors guided by rational expectations. People have different cultures, and think and act differently. All do not prize personal liberty as Western societies do. If we are to retain our liberty we must assure that those admitted within our borders will obey our laws and adopt our ways. If not — “good fences make good neighbors.”
We now come to the last category of open-borders advocates — the ancestral nostalgists. Theirs is in some ways the most difficult position to deal with, because it is based on emotion rather than on self-interested calculation or on badly or incompletely reasoned argument. To people like Stephen Miller’s uncle Dr. Glosser, all we can do is to quote Celia from As You Like It – “Was” is not “is.” Then is not now. Dr. Glosser’s and Mr. Miller’s ancestor, Wolf-Leib Glosser, a Russian Jew fluent in three languages (but not English) who entered the United States legally at Ellis Island in 1903, is not a today’s Mexican or Central American illegal alien, not even literate in the one language he speaks. Mr. Miller has the rationality to make this distinction, and to act in the interest of his country.
Dr. Glosser, by contrast, is mired in the treacle of filiopietistic sentimentality. He feels bound to beliefs and positions today based on those of his ancestors more than a century ago. This has blinded him to the facts and has led him to make several false statements in one sentence:
“The Glossers came to the U.S. just a few years before the fear and prejudice of the ‘America first’ nativists of the day closed U.S. borders to Jewish refugees.” 
Presumably here Dr. Glosser is referring to the Immigration Act of 1924, passed 21 years after his ancestor entered the United States. This Act did not “close U.S. borders to Jewish refugees.” It excluded no one on the basis of religion. The 1924 Act set annual quotas for admission based on national origin, not religion. It was not the work of “‘America first’ nativists”; the America First Committee was not founded until 1940. That organization was, furthermore, not a “nativist” group, but rather opposed U.S. entry into World War II. It did this not out of anti-Semitic sentiment but rather because of the widespread sense among Americans that U.S. intervention in World War I had been a waste of American blood and treasure.
The quotas for Germans, Poles, and other immigrants from central Europe went unfilled in all years until 1939, the year the war began. Sadly, it was in that year that the “Voyage of the Damned” took place, in which the MS St. Louis, transporting 937 Jewish refugees from Germany, was turned away at Havana by the Cuban government, and subsequently by the governments of the United States and Canada. It is impossible to blame the authors of the Act for those events which they could not have foreseen; rather the blame lies with that revered liberal, Franklin Delano Roosevelt, who might have permitted the ship to land in the United States, but who refused to do so on the advice of his Secretary of State, Cordell Hull.
Surely it should be possible to put aside the specious, self-interested, badly-reasoned, and emotional arguments against controlling America’s borders and enforcing its current immigration laws efficiently. To do so is not “nativism” in any meaningful sense of the term. Further, it should be possible to discuss limitations on overall numbers of immigrants to be admitted, and replacing bizarre practices like the “visa lottery” with merit-based qualifications for entry. Are Canada, Australia, and other representative democracies that embody such qualifications in their law “nativist” for so doing?
Finally, we should recognize what makes one an American. There is no meaningful constituency here for “blood and soil.” It is appropriate to recognize a distinction between colonists and settlers on one hand, and later immigrants. Our institutions are undoubtedly based on those brought by our earliest population; they are part of the English tradition of common law and representative government.
Yet American-ness is neither a matter of ancestry nor one of some sort of abstract “propositional nation” principles. Rather it is a character formed by common experience.
Frederick Jackson Turner in 1893 proposed what has come to be called “the frontier thesis.” This maintained that the common experience in question arose from the demanding environment of the frontier — of settlement in a wilderness, where one had to “make do or do without,” where in bad weather one had to take what shelter he could, and where these already harsh conditions were punctuated by the attacks of hostile Indians.
It mattered little whether the frontiersman was a seventeenth-century cavalier in Virginia, a seventeenth-century puritan in Massachusetts, an eighteenth-century Scotch-Irish mountaineer in Tennessee or Kentucky, a gold-rush miner in California or the Klondike, or a German or Swedish pioneer in Wisconsin or Minnesota — all these people faced the same challenges, and they forged the American archetype of stubborn independence, inventiveness, and admiration of success coupled with lack of deference to authority.
There is a well-known anecdote that illustrates this frontier attitude. An English lord, having travelled to the American West for a big-game hunt, sought the rancher who was to be his host. On arriving in the town nearest the ranch, he spotted a cowboy who worked at the ranch. The lord approached this man and said: “My good man, can you tell me where I may find your master?” The cowboy replied, “I reckon that man ain’t been born.”
This lack of deference towards those who seem to demand it is, of course, what infuriates our chattering class today. It is — to repeat a common phrase these days — what got Trump elected.
We can’t replicate the frontier experience for today’s immigrants, but what we may take away from it is that assimilation formed Americans in the past and is necessary to form them today. We must assure that immigrants are willing to assimilate, and we must give them time to assimilate, not admitting so many that society cannot easily absorb them. It is not “nativism” to believe that it is a privilege and not a right for a foreign national to enter this country’s borders. Neither is it “nativism” to believe that American citizenship is a precious gift — one that should neither be offered nor received lightly. *
 Act III, sc. 4.
 op.cit., ref. 7
Michael S. Swisher
Bugaboos of the Chattering Class — Nationalism
Nationalism vies for top billing with populism (discussed in the last installment of “Animadversions”) among the bugaboos of the chattering class. Like populism, the chatterers deliberately define it vaguely, but almost always use the word in a pejorative sense. One favorite tactic is to associate it with authoritarianism.
Name-calling is a well-worn practice on the left. One of its oldest tropes is to call someone a fascist. Stalin himself initiated this comparison, when he called Trotsky a fascist. Trotsky might justly have been called many names (including mass murderer), but one thing he was not was a fascist.
Right on cue after the election of Donald Trump, who proudly identified himself as a nationalist, no less than the Washington Post carried an article by Michael Kinsley headed “Donald Trump is actually a fascist.” Jonathan Chait wrote in New York magazine:
“Never in my lifetime has the United States seen a period of darkness like the one that lies ahead of us. . . . The Trump years will be a horror. . . . Trumpism grows out of a decades-long trend toward authoritarianism as the dominant tendency of Republican politics. . . . His wall paid for by Mexico is not even a punch line — it is a symbol of his supporters’ fascistic willingness to subordinate all critical faculties and endorse an obvious absurdity.”
Numerous comparable examples could be listed. If “fascism” means anything, it must mean what Mussolini, its inventor, understood by it. He summarized it briefly as “Everything within the State; nothing outside the state: nothing against the state.” Does that sound like Trump, or any other politician currently active in this or any other country? To date during the Trump administration, the Congressional Review Act has been used seventeen times to rescind actions of the administrative state. The sphere of the state has been shrunk, not expanded.
Fascism and Nazism (Trump, and every other conservative politician for the past fifty-odd years has been compared to Hitler) are, moreover, forms of hegemonic nationalism. None of the current nationalisms propose world conquest.
But if one is not an aggressive imperialist in search of lebensraum, he can always be accused of isolationism. This Trump has also been; his lack of enthusiasm for overseas wars, and his suggestion that our NATO allies should make an effort to pay the two percent of GDP to which the alliance commits them, have been denounced as “isolationist.” Furthermore, his use of the slogan “America First” has been compared to that of the American isolationists of the pre-World War II period, with the insinuation that they, and therefore Trump (and his supporters), must be anti-Semitic.
This is not only a slur on Trump (who, with an Orthodox Jewish son-in-law, a daughter who converted to that faith, and grandchildren being brought up in it, was a most unlikely anti-Semite — even before he recognized Jerusalem and the capital of Israel and moved the U.S. embassy there). It is a slur on the 80 percent of American citizens who before the attack on Pearl Harbor opposed intervening in the war in Europe. Most of these people thought, with some justification, that American intervention in what was then called “The Great War” or “The World War” had been a huge waste of American lives and money without significant benefit to the United States or American citizens. They simply did not wish to repeat the experience.
It is true that a small minority of the so-called isolationists were extremists of one sort or another — including, from August 23, 1938 through June 22, 1941, members of the Communist Party of the United States of America, which obediently followed Stalin’s bidding for the duration of the Molotov-Ribbentrop Pact. Domestic opposition to entering World War II of course evaporated after the attack on Pearl Harbor, showing ultimately the lack of influence of foreign propaganda in the face of enemy action.
In any event, Trump’s criticism of the nation-building wars begun in Afghanistan and Iraq under the administration of George W. Bush and continued under that of Barack Obama is without reference to anything that happened in World War II. The weariness of the public with the inconclusive wars in the Middle East resembles, if anything, the widespread sentiment of Americans after World War I.
If we are to understand today’s nationalisms (they differ from nation to nation) we must abandon the dishonest and pejorative historical allusions used by their opponents, and examine their actual positions. Modern nationalism, in general, is not hegemonic — Trump hasn’t tried to annex Canada, Britain since Brexit has not tried to reconquer the British Empire. Neither is it isolationist. Nationalists have not stopped trying to engage with the rest of the world. They just want to engage with it in different ways. Their emphasis is on self-determination, which used to be considered an admirable goal. Opposed to modern nationalism is globalism.
Mark Hendrickson, writing in these pages, has made a useful distinction between globalism and globalization. Globalization is an economic phenomenon that has arisen spontaneously from a variety of modern technologies, particularly the development of rapid and widely accessible media of electronic communication, and of relatively inexpensive and swift air transportation both of goods and of people. Globalization is what makes it possible for a person to call his daughter at college in France, bid in an auction in England, order a part for his car from Germany, correspond with a friend in Australia, and pay his credit card bills, all from a cellular telephone or tablet — and to have the merchandise he ordered delivered to his door within less than a week. Naturally there are costs that come with these benefits, and they have brought about changes in the economic landscape — but such changes are as inevitable in economies as changes in weather, and complaint about one is as futile as the other.
Globalism, however, is a political phenomenon. It is associated with globalization, but is independent from it, and represents an expression of the will of policy-making elites around the world. Globalism prefers technocracy over democracy, and amorphous supranational governing bodies with unlimited authority and limited answerability to the people, instead of sovereign nations governed by elected legislatures and executives. It is the international counterpart to the domestic administrative state.
The inefficacy of a body like the United Nations somewhat makes up for the absurdity of such things as its Human Rights Council, which includes representatives of third-world dictatorships and Islamic theocracies. Of a more serious character are entities like the World Trade Organization (WTO), the North American Free Trade Association (NAFTA), and other similar multi-lateral bodies either now extant or proposed. To these multi-lateral bodies the government of the United States has willfully abdicated its Constitutional treaty-making powers in much the same way that Congress abandoned and delegated significant portions of its legislative authority to domestic alphabet agencies. In some respects the international administrative authorities are worse than the domestic administrative state, since many of their officials are foreigners, not only not answerable to American voters, but not even fellow Americans. Yet they exercise significant powers capable of affecting the lives of American citizens.
As an illustration of a multilateral supranational body, the European Union (EU) is an egregious example. The EU began as a simple customs union but has long since imposed regulations governing everything from the acceptable degree of curvature in bananas, to the units of weights and measures permitted to be used, to the definition of beer, and most recently to immigration. While there is a European Parliament, it is a largely powerless talking-shop, in that respect not unlike the UN General Assembly. Real power is centered in the arbitrary and opaque EU Commission, of which Jean-Claude Juncker is the current president.
The EU’s immigration policies have followed the lead of Germany, as indeed most EU policies do. They impose negligible barriers to the entry of so-called refugees who are in many cases really economic migrants seeking the benefits of Western Europe’s generous welfare states. These migrants are required to be distributed amongst the EU’s member states according to a formula prescribed by the EU Commission. Many of the affected countries have seen the rise of so-called nationalist parties or factions in response to this.
In France, the Netherlands, and Germany, among others, they have polled impressively; in Austria, Poland, Hungary, and most recently in Italy, voters have elected anti-immigration and/or “Euro-skeptic” governments. The EU’s response has been to lecture, to threaten financial penalties, and to generate through its journalistic allies defamatory portrayals of the upstart countries. This has spread even to some nominal conservatives in the United States. For example, Jay Nordlinger wrote of Hungary’s Prime Minister Viktor Orbán in National Review:
“Back to Orbán’s proclamation that ‘the era of liberal democracy is over.’ On Twitter, Simon Schama, the British historian, said, ‘Well, no, Orbán, liberal democracy will see you and your nativists off because liberal democracy has John Milton, John Locke and J. S. Mill and you have Nigel Farage, Marine Le Pen and Steve Bannon.’”
Nordlinger didn’t bother to note that what Mr. Orbán meant by “liberal democracy” might not be Milton, Locke, or Mill. Orbán was elected in good part because he had a reputation for standing up to the dictates of the EU, personified by EU Commission President Juncker. Juncker recently delivered a fawning speech on the occasion of the 200th birthday of Karl Marx, at which time a statue of the original Communist, donated by the People’s Republic of China, was unveiled at his birthplace in Trier, Germany.
Hungarians spent close to fifty years subjugated by the Soviet Union, which sent tanks in to crush their uprising against it in 1956. If “liberal democracy” is represented by Jean-Claude Juncker and his Marxist apologia, it is not hard to see why Hungarians reject it. They have enjoyed national self-determination now for less than thirty years and are not about to give it up to another overlord, especially one professing admiration for the founder of Communism. It is especially disheartening that a National Review columnist is taking the side of Juncker and Soros!
Closer to home, “nationalist” Americans see their government as having “given away the farm” in recent decades. The EU is itself a mercantilist cartel. As President Trump has pointed out, an American-made automobile entering the EU faces a tariff four times as great as the tariff levied on a car made in the EU entering the United States. Yet any complaint about this, much less a threat to retaliate, is stigmatized as “protectionism.” According to the global technocracy, American businesses and working people are obliged to accept such treatment without complaint.
Even worse is contending with China. The People’s Republic of China was, under Mao, an ideological totalitarian dictatorship. Richard Nixon sought to open diplomatic and trade relations with the PRC in an effort to play the Chinese off against the Soviet Union. As time passed, China shed much of its Marxist economic dogma and appeared to liberalize economically. Despite this, its Communist Party retained a political monopoly and rigid social control.
The Chinese government demonstrated that it had not given up repression by violent force as recently as the 1989 Tiananmen Square massacre. Western diplomats and technocrats nonetheless hoped to induce Chinese liberalization through expanded trade. China was first given temporary most-favored nation status during the administration of Bill Clinton, and this was made permanent under that of George W. Bush. The policy elite reasoned that when the Chinese became prosperous, even if at the expense of American industry, it would become a liberal democracy. Vain hope! What do we read from NR’s Nordlinger, quoted above deprecating Viktor Orbán and agreeing with Juncker and Soros? This:
n the April 30 issue of this magazine, we published a piece about Jerome A. Cohen, a veteran American scholar of China. He told me that he was consumed, at present, by one thing above all: the mass incarceration of the Uyghur people, with no due process whatsoever. It reminded him of Austria and Germany, where some 40 of his relatives were murdered.
“For the Chinese government, this is standard operating procedure. They punish the families of journalists, critics, and human rights advocates abroad. Consider Rebiya Kadeer, the brave lady known as ‘the Mother of the Uyghurs.’ She has been in exile since 2005. Thirty-seven of her relatives have been rounded up: including her children, grandchildren, and siblings. When Uyghurs are rounded up — taken away — they are often ‘disappeared.’ Their loved ones don’t know where they are, or whether they are dead or alive.”
What would NR counsel that this country do about this latest round of totalitarian repression? Sanctions? Revoke China’s most-favored nation status? Heaven forbid! That might start a trade war. The world would end if American consumers couldn’t buy Chinese-made sneakers for half the price of a pair made in the United States.
In dealing with China, we have forgotten the good advice given long ago by the great American foreign-policy expert George F. Kennan:
“. . . we have about 50 percent of the world’s wealth but only 6.3 percent of its population. This disparity is particularly great as between ourselves and the peoples of Asia. In this situation, we cannot fail to be the object of envy and resentment. Our real task in the coming period is to devise a pattern of relationships that will permit us to maintain this position of disparity without positive detriment to our national security. To do so, we will have to dispense with all sentimentality and daydreaming; and our attention will have to be concentrated everywhere on our immediate national objectives. We need not deceive ourselves that we can afford today the luxury of altruism and world-benefaction.”
Because we did not pay attention to Kennan, where are we today? According to an essay, “Adapting to American Decline,” published by Christopher Preble in the New York Times:
“America’s share of global wealth is shrinking. By some estimates, the United States accounted for roughly 50 percent of global output at the end of World War II. . . . It has fallen to 15.1 percent today.”
It is true that the 50 percent of the world’s wealth that the United States enjoyed in 1948 was a figure that reflected the destruction of much of the rest of the world’s productive capacity in World War II. As this capacity was restored (some of it with American assistance through the Marshall Plan and other foreign aid), America’s percentage was bound to fall. However, the fall from 50 percent to 15 percent does not reflect just increases in the wealth of the rest of the world — it reflects the continuation of give-away policies (and the attitudes behind them) that are no longer appropriate to the world’s current situation, and which American citizens can no longer afford. Yet in spite of this, our policy-making intelligentsia have embraced rather than dispensed with sentimentality and daydreaming; they wallow in the luxury of altruism and world benefaction against which Kennan warned.
A minor but well-delineated character in Dickens’s novel Bleak House is Mrs. Jellyby. She is an enthusiastic philanthropist, her philanthropy focused exclusively on a remote African tribe. So devoted is she, and so generous to them with her resources, that her own family lives in neglect and privation.
American international policy for too long has been a sort of Jellybyism writ large. It is high time that America cease playing Lady Bountiful abroad with the resources of its citizens, out of some mistaken notion of noblesse oblige. This is, in the first place, inappropriate to a Constitutional republic that recognizes no nobility. If a self-governing nation-state has any legitimate purpose, it is to promote the interests of its citizens over those of foreigners. Uncle Sam should live up to his persona as a sharp Yankee trader, who drives a hard bargain with the rest of the world.
Further, America should support other self-governing nation-states that seek to retain their sovereignty and to promote the interests of their citizens. The so-called nationalist parties of Europe are truer friends and allies to the people of the United States than the technocrats of the European Union, which — in view of Juncker’s speech in Trier — bids well to be called a European Union of Soviet Socialist Republics. *
 For an interesting account of Communist propaganda during the period, see Hollywood Traitors: Agents of Stalin, Allies of Hitler (2015) by Allan H. Ryskind.
Michael S. Swisher
Bugaboos of the Chattering Class — Populism
What is “populism”? According to many editorial-page writers, think-tank pundits, television commentators, and opinion journalists, it is one of the factors to credit — or more often, to blame — for the passage of the Brexit referendum and the election in 2016 of President Donald Trump.
Merriam-Webster defines a populist as “a believer in the rights, wisdom, or virtues of the common people.” Other descriptions characterize populism as “support for the concerns of ordinary people” or as “the quality of appealing to or being aimed at ordinary people.”
Such definitions make populism seem almost synonymous with democracy, which is a word derived from the Greek demokrateia, or government by the people. Yet, in its present usage, populism is almost always employed in a pejorative sense, as it was in a recent article headlined “Populism’s Challenge to Democracy.” How can a polity based on belief in the wisdom, rights, or virtues of the common people “challenge” democracy?
Before its recent revival, the word “populism” was a term most commonly associated in American politics with the career of William Jennings Bryan (1860-1925). Bryan entered politics in 1890, having been elected to Congress from the First District of Nebraska. Depressed agricultural conditions prevailed there, and his victory, as a Democrat in a normally Republican district, was an upset. He was an accomplished debater, and soon drew national attention to himself by two noteworthy speeches — one in 1892, against protective tariffs, and another in 1893 against the repeal of the Sherman Silver Purchase Act. Bryan blamed the rigidity of the gold standard for the panic of 1893. He advocated a policy of “easy money,” which was to be achieved by monetizing silver at a fixed ratio of 16:1 with gold. This was a highly inflationary proposal in its effect, since at the time, the market price of silver per ounce was much less than 1/16 that of gold. Bryan rode his free-trade, easy-money platform to the Democrats’ presidential nomination in 1896, 1900, and 1908.
Slightly later, what has sometimes been called “prairie populism” swept across the upper Midwest drawing on widespread antipathy to eastern bankers, railroad men, mill owners, who where seen as benefiting at the expense of small farmers. It ran the gamut from the liberal Republicanism of Sen. Robert M. LaFollette, Sr. (1855-1925) in Wisconsin, to the shifting allegiance of Rep. Charles August Lindbergh (1859-1924), the father of the aviator, who had begun in political life as a Republican was by its end a candidate of the Farmer-Labor Party, to the Nonpartisan League in North Dakota, which began as a Republican faction, but ended up pursuing overtly socialist policies, establishing a state-owned bank, a state-owned elevator and flour mill company, and a state-owned railroad. Prairie populism even spread into the western provinces of Canada, with the foundation of the Co-operative Commonwealth Federation (CCF), which described itself as “Farmer-Labour-Socialist.”
It is clear that what is called populism today has very little to do with this historic populism. Bryan was opposed to tariffs and favored an inflationary policy; Trump is, if not a protectionist, using the threat of tariffs to extract more favorable trade agreements with foreign countries. The prairie populists were of a decidedly left-wing disposition; Trump has, according to the Heritage Foundation, implemented more conservative policy goals in his first year as president than any previous incumbent had since 1977, when Heritage began keeping track.
In short, Brexit and the 2016 presidential election were unpleasant surprises for the intelligentsia — the “chattering class.” The people, the “basket of deplorables,” are at fault. Their political action is represented as “populism,” and “challenge to democracy,” because the intelligentsia has fetishized democracy for so long — World War I was fought to “make the world safe for democracy,” after all — that it cannot bring itself to attack democracy itself, even though that is what it wishes to do, and is in fact doing.
The Founding Fathers mistrusted democracy. As educated eighteenth-century gentlemen, they were far better acquainted with the Greek and Latin classics than most people are today. They knew that Aristotle had considered democracy an unstable form of government, prone to fall into tyranny. They bore in mind the examples of the failure of the ancient Athenian democracy before the aggression of Alexander the Great and his successor, and of the descent of the Roman republic into civil war followed by the principate of Augustus Caesar. They knew how a prevailing majority could oppress and crush political minorities, and therefore incorporated anti-democratic features in the Constitution — the apportionment of two senators to each state, regardless of population; the indirect election of senators; the Electoral College; and the requirement of super-majorities to ratify treaties and amendments to the Constitution. Even more important than these were the checks and balances that separated and limited the power of each Constitutional branch, and the Bill of Rights, which absolutely forbade certain actions on the part of government.
Yet the objections of the intelligentsia to democratic results with which they disagree are not satisfied by the Constitution’s restraints on democracy. Indeed, the intelligentsia finds the Constitution, with its limits on governmental power, to be itself a source of frustration. The roots of their antipathy to limited government go back at least a century, to about the same period when the original populism of Bryan and the prairie populists was flourishing. Indeed, if populism arose in response to plutocracy, then the intelligentsia’s embrace of technocratic government perhaps arose as a reaction to populism. The great theorist of technocracy was Walter Lippmann, the long-time doyen of America’s public intellectuals.
In his 1922 book, Public Opinion, Lippmann argued that the masses are incapable, on their own, of enlightened self-government, while the commercial and social leaders are myopically self-interested. Therefore, he thought, policies should be formulated by an educated elite — a clerisy or mandarinate, capable of disinterested and wise judgment. The job of the press and politicians would then be to propagandize and promote those policies, and to “manufacture consent” for them through the electoral process. As he wrote:
“It is no longer possible, for example, to believe in the original dogma of democracy; that the knowledge needed for the management of human affairs comes up spontaneously from the human heart. Where we act on that theory we expose ourselves to self-deception, and to forms of persuasion that we cannot verify. It has been demonstrated that we cannot rely upon intuition, conscience, or the accidents of casual opinion if we are to deal with the world beyond our reach.”
By manufacturing consent for the preferred policies of the clerisy, the outward form of Constitutional government could be maintained, though empty of real substance. A classical parallel to this might be the way in which Rome under the principate kept up the pretense of maintaining its historic senate, consuls, and tribunes, though these were without real power, and the city was ruled by an emperor put in place by his Praetorian guard.
The application of Lippmann’s theory in domestic political practice was accompanied by Congress’s cession of its legislative authority to “alphabet agencies” that made a travesty of the separation of powers — combining in each one the power to promulgate regulations having the force of law through publication in the Federal Register; the power to enforce it through field agents (many of them armed and authorized to use deadly force); and the power to adjudicate alleged violations before internal tribunals. This is the so-called administrative state that has predominated since the New Deal, and is decried by the Heritage Foundation and Steve Bannon alike.
Anyone who might doubt that manufacturing consent is a burgeoning operation of government should be invited to contemplate two of its prominent exponents. Remember Jonathan Gruber, the “key architect” of Obamacare?
“In November 2014, a series of videos emerged of Gruber speaking about the ACA at different events, from 2010 to 2013, in ways that proved to be controversial; the controversy became known in the press as ‘Grubergate.’ In the first, most widely publicized video, taken at a panel discussion about the ACA at the University of Pennsylvania in October 2013, Gruber said the bill was deliberately written ‘in a tortured way’ to disguise the fact that it creates a system by which ‘healthy people pay in and sick people get money.’ He said this obfuscation was needed due to ‘the stupidity of the American voter’ in ensuring the bill's passage. Gruber said the bill’s inherent ‘lack of transparency is a huge political advantage’ in selling it. The comments caused significant controversy.
“In two subsequent videos, Gruber was shown talking about the decision (which he attributed to John Kerry) to have the bill tax insurance companies instead of patients (the so-called ‘Cadillac tax’), which he called fundamentally the same thing economically but more palatable politically. In one video, he stated that ‘the American people are too stupid to understand the difference’ between the two approaches, while in the other he said that the switch worked due to ‘the lack of economic understanding of the American voter.’. . .”
Perhaps the most prominent of today’s exponents of Lippmannism is Cass Sunstein, a former Obama advisor and currently the Robert Walmsley University Professor at Harvard Law School. His thinking is described in a lengthy and laudatory article in Harvard Magazine of which the following extract is a representative sample:
“In the conception of republicanism designed by James Madison and reflected in the Constitution, he wrote, ‘the system of checks and balances provided a serious obstacle to national regulation.’ As a result, ‘the vast majority of regulatory functions were undertaken by the common law courts’ in the states, in lawsuits about contract, property, and tort (wrongful acts) disputes, public as well as private.
“New Deal regulation rested on the conviction that the common-law system ‘reflected anachronistic, inefficient, and unjust principles of laissez-faire’ and was inadequate ‘because it was economically disastrous, insulated established property rights from democratic control, failed to protect the disadvantaged, and disabled the states and the national government from revitalizing or stabilizing the economy.’”
Sunstein, as the above makes clear, is not only a leading defender of the administrative state — he is also perhaps the leading advocate of state manipulation of public opinion. Where Gruber is contemptuous and gloating, Sunstein is condescending and paternalistic, betraying just as low an esteem for the intelligence of his fellow citizens. Government, he contends, ought not be confined to its customary role of enacting laws to prohibit crime — it should also encourage desirable behavior by “nudging” people in a preferred direction. In a more sinister vein, he has proposed that government should employ “cognitive infiltration of extremist groups” whereby “Government agents (and their allies) might enter chat rooms, online social networks, or even real-space groups and attempt to undermine percolating conspiracy theories by raising doubts about their factual premises, causal logic or implications for political action.”
That Sunstein trusts in the benignity of government, present or future, in the implementation of such “nudging” or “cognitive infiltration” activities, evinces either a remarkable ignorance of history on his part, or an overweening confidence that he and people of like mind will always be in charge — or perhaps both. The fears that Madison and his contemporaries felt are nowhere to be discerned in Sunstein’s writing — they were, after all, at fault for the “serious obstacles to national regulation” posed by the Constitution.
From the time of Walter Lippmann to that of Cass Sunstein, there has been a concerted effort to supplant the substance of Constitutional government with technocracy. Elective politics has increasingly become a charade in which the technocrasy’s managerial class allows the public a strictly limited range of choices. The result is that when an election is held, whatever may be the result will serve the ends favored by the “well-informed.” This is then held out as exemplary of democratic self-government.
So, to return to the question at the beginning of this essay — what is “populism”? It is what happens when an electoral process has escaped the control of the technocrats — as it did in the cases of the Brexit vote and the 2016 presidential election. It is nothing more or less than actual democracy, as opposed to the sham of manufactured consent. Populism does not challenge democracy, nor is it a threat to liberty, so long as we observe and enforce the constraints of genuine Constitutional government. *
 William A. Galston, “Populism’s Challenge to Democracy,” Wall Street Journal, March 17-18, p. A11.
 Lippmann, Public Opinion (1922), chapter XV.
 “The Legal Olympian,” by Lincoln Caplan. Harvard Magazine, January-February 2015. https://harvardmagazine.com/2015/01/the-legal-olympian
 “Nudging: A Very Short Guide,” 37 J. Consumer Policy 583 (2014)
 “Conspiracy Theories,” Cass R. Sunstein and Adrian Vermeule, Harvard University Public Law and Legal Theory Research Series, Paper No. 199, and University of Chicago Law School Law and Economics Research Paper Series, Paper No. 387. Electronic copy available at: http://ssrn.com/abstract=1084585
Michael S. Swisher
Do Cuts in Tax Rates Cause Deficits?
The tax reform bill recently passed by Congress and signed by President Trump cut the corporate income tax rate from 35 percent to 21 percent, reduced personal income tax rates slightly, and cut the rate at which income from so-called “pass-through” business entities such as subchapter S corporations and limited partnerships is taxed to their owners.
One argument that opponents of cutting tax rates always advance is the claim that doing so leads to deficits. Many of the opponents of tax rate cuts are, to be sure, leftists, who regard business and “the rich” as enemies, and the tax code as a stick with which to beat them. On the other hand, even supposedly conservative writers fall all too easily into the habit of assuming that reductions in tax rates necessarily imply reductions in tax revenues.
One example is the National Review writer Kevin Williamson, who recently wrote: “It [the tax bill] will also add about $1.5 trillion to the national debt.”
This claim takes “static scoring” at face value. It is based on the favorite assumption of economists, cœteris paribus — a Latin phrase meaning, “all other things being equal.” Yet, in real life, they never are. Taxes are the price of government, and like any price they are subject to the law of diminishing marginal returns. People change their economic behavior in response to taxation, just as they do when any price rises or falls.
Tax rates and tax revenues never change in direct proportion. Is it too much to ask that persons writing about economics be familiar with the data?
The cuts in tax rates during Ronald Reagan’s and George W. Bush’s administrations are often blamed for the deficits that occurred during their time in office. For this to have been the case, tax revenues would have had to fall — and they did not.
Total Federal tax revenues in fiscal year (FY) 1980, the last full fiscal year of Jimmy Carter’s administration, were $517.112 billion. In FY 1981 they rose to $599.272 billion; in 1982 to $617.766 billion; in 1983 they fell to $600.562 billion; in 1984, rebounded to $666.438 billion; in 1985, rose to $734.037 billion; in 1986, to $769.155 billion; in 1987, to $854.288 billion; in 1988, to $909.238 billion.
Thus, during the entire administration of Ronald Reagan, Federal tax revenues each year exceeded those collected during the last, or any previous year of Jimmy Carter’s, and rose every year except for FY 1983. The highest revenues were those collected in 1987 and ’88, during which the maximum personal income tax rate was reduced from 50 percent to 28 percent.
In FY 2003, the year during which the 2003 so-called Bush tax cuts were passed (which reduced the Federal tax rates on qualified dividends and capital gains to 15 percent), total Federal tax revenues were $1,782.314 billion. In 2004 they rose to $1,880.114 billion; in 2005, to $2,153.611 billion; in 2006, to $2,406.869 billion; in 2007, to $2,567.985 billion; in 2008 they fell to $2,523.991 billion, signaling the start of the recession.
All of the above information is readily available on the informative website of the Tax Foundation.
Deficits in the referenced periods occurred because spending exceeded revenues — not because revenues fell.
Williamson cannot bring himself to say anything in Trump’s favor — so he wants to blame the tax bill in advance for deficits that will undoubtedly occur in the future. Yet if the past is any guide to the future, the cuts in tax rates just enacted will not result in lower revenues. Deficits will originate, as they have before, from a failure to restrain spending.
One benefit of Trump’s policy goals, if he can achieve it, would be a reduction in the number of low-skilled unassimilable aliens present in the United States. They undoubtedly inflate the welfare rolls and will do so at an increasing pace unless their numbers are dramatically reduced. Higher welfare expenditures socialize the cost of the private benefit that the wage-depressing effect of untrammeled immigration delivers to employers of unskilled labor.
We conclude with the observation that a really good way to reduce entitlement spending would be to quit importing future welfare beneficiaries.
Is Trump Really a Protectionist?
We constantly hear that President Trump is a “protectionist.”
What protectionist measure has Trump actually put into force? The only concrete action he has taken of this kind has been to impose “safeguard” tariffs on imported solar panels and washing machines. This was done in response to petitions under existing U.S. trade law, using presidential authority last exercised in 2002 by no less a free-trader than George W. Bush. According to the Washington Post:
“In the solar panel case, massive Chinese government subsidies and industrial planning were blamed for a surge in China’s production of solar cells and modules, and the demise of up to 30 U.S. solar panel makers. China’s share of global solar cell production rose from 7 percent in 2005 to 61 percent in 2012, according to the USTR.”
“In the dispute over washing machines, the Commerce Department imposed duties on South Korean washing machine makers Samsung and LG in 2013 in response to Whirlpool’s complaints that its rivals were receiving government subsidies and selling their products in the U.S. below the cost of production.”
It is not clear that in such egregious cases, any other president might not have done the same. Indeed, this use of existing statutory authority is a useful reminder that the status quo is not one of “free trade” but rather one of managed trade, as it always has been.
For the most part, the difference between President Trump’s approach to trade issues as compared to that of previous incumbents has been in his public skepticism about multi-lateral trade agreements such as NAFTA, and his expressed willingness to threaten protectionist actions, rather than to take them.
Threatening to do something — in this case, to impose punitive tariffs — is not the same as doing it. Threats can be a useful negotiating strategy, as no doubt Trump has found in business.
It is somewhat surprising that none of the defenders of multi-lateral “free trade” arrangements who usually attack Trump for his “nationalist, protectionist” positions has noticed a recent article from The Financial Times. Its headline reads:
“China Offers Concessions to Avert Trade War with U.S.”
The article goes on to remark,
“China will offer the Trump administration better market access for financial sector investments and U.S. beef exports to help avert a trade war, according to Chinese and U.S. officials involved in talks between the two governments.”
So, here is an instance where Trump’s tough words prompted a trading partner to level the playing field a little bit more in America’s favor, with the result that China (which has been unapologetically mercantilist in its own trade policies) now has fewer, not more, barriers to competition from American businesses.
Apparently his critics would have preferred that Trump hadn’t secured freer trade with China in a way that was to American advantage.
Similarly, the reduction in corporate tax rates has now made manufacturing in America more attractive than it was, to the extent that it has caused China to respond with tax breaks of its own. From the Mercury News:
“China offers tax breaks to counter US tax cuts.”
Australia has also taken notice. From The Guardian:
“Scott Morrison says Australia needs tax cuts to offset hit from U.S. cuts”
Note that no tariff or duty has been imposed — instead, business tax cuts in the U.S. have made American products more competitive. Can those who attack Trump on trade explain how such “protectionist” results are so terribly bad for the United States?
New York Still Above Water!
According to a prediction made in 2008 by James Hansen, the former director of NASA’s Goddard Institute for Space Studies, a significant part of Manhattan was supposed to be submerged by 2018. He claimed that: “The West Side Highway (which runs along the Hudson River) will be under water. And there will be tape across the windows across the street because of high winds. . . . ”
The New Year has arrived — and this has not happened, nor is there any indication that it will in the immediate future.
Does anyone remember the Club of Rome, and the disaster predictions of Paul Ehrlich, who forecast a future of desperate shortage? Julian Simon proposed a bet of a market basket of commodities — if their prices went up, Ehrlich would win; if they went down, Simon would win. Simon won; no shortage materialized.
Does anyone remember the predictions of “Peak Oil”? There was no peak; the U.S. is now the world’s largest producer of petroleum — fracking having opened previously undiscovered supplies — and proven reserves are larger than ever.
Now, New York remains above water, despite Hansen’s prediction.
It is time to recognize that these people are not relying on “settled science,” but are rather acting in the tradition of apocalyptic prophecy. As so many people have abandoned the faith of their fathers, something has to fill the empty space left in their consciousness by its absence. For some it is occultism; for others, it is the existence of extraterrestrial life; and for others, it is the cult-like environmentalist prophecy of doom.
It is not surprising that Hansen is without embarrassment or shame — neither were the Club of Rome, Paul Ehrlich, or the “peak oil” prognosticators.
I am reminded of the Millerites, who anticipated the second coming of Christ “sometime between March 21, 1843 and March 21, 1844.” When it failed to happen, they first re-calculated that it would take place on April 18, 1844; then on October 22 of the same year. After that day passed like any other, the sect referred to it as “The Great Disappointment.” So, no doubt, it is for Hansen. He will persist in his delusion to the grave. The sad thing is that his followers are still so numerous and so over-represented in positions of influence over public policy. *