First Principles

The Pandemic Showcases Courts’ Limitations

Why won’t Michigan’s legislature—the political branch that most represents Michiganders—embrace its role in the state’s constitutional system?

The Michigan Court of Claims on Thursday released its much-anticipated decision in Michigan House of Representatives and Michigan Senate v. Governor Gretchen Whitmer. The court spoke through Judge Cynthia Diane Stephens and ruled mostly in favor of Whitmer. Judge Stephens dismissed the legislature’s lawsuit, denying its request for a declaratory judgment that Executive Order 2020-67 and 2020-68 are “invalid and without authority as written.”

On the merits, the court, contrary to the legislature’s argument, held that the 1945 Emergency Powers of Governor Act (EPGA), is not limited to local emergencies but validly applies statewide and, further, that it isn’t an unconstitutional delegation of legislative power to the governor. 

Finally, the court also held that E.O. 2020-68 exceeded Whitmer’s authority under a 1976 law, the Emergency Management Act (EMA), because she re-declared a state of emergency without legislative approval after the initial 28-day window closed. Senate Majority Leader Mike Shirkey said the legislature would appeal the ruling to the state supreme court. 

On the heels of all that, Whitmer, in a Memorial Day weekend news dump, extended the state’s stay-at-home order to June 12.

Elsewhere, I discussed the pernicious “lie” that sits at the heart of this lawsuit:

By running to court instead of engaging Whitmer politically, the legislature broadcasts an embarrassing timidity, an apparent belief in its own toothlessness in the face of the governor’s unprecedented “executive-domineered legal regime.” The litigious legislature has endorsed the idea that the courts alone can save Michiganders from her grip.

The legislature undoubtedly is powerful enough to brawl with Whitmer on its own, with recourse to its own capacious powers, and without the court’s assistance or perceived stamp of legitimacy. Not only that, but a declaratory judgment against Whitmer would also be nugatory, as it would need to be given teeth by the legislature which—it bears repeating—has an independent “responsibility to maintain the structure of Michigan’s government.” In other words, the legislature is not exempt from the duty of constitutional interpretation, nor is it free from the gravitational pull of the rough and tumble politics that comes along with the separation of powers.

By leaving the status quo intact, the court’s opinion demonstrates that courts are, by design, poor vehicles through which to do politics and set wise policy. Institutionally, they’re just not up to the task—and that’s fine because that isn’t their role.

To the court’s credit, it did not attempt to impose its own policy preferences by fiat but instead stuck to interpreting and applying the law as written, acknowledging at the outset that the parties did not “ask th[e] court . . . to address the policy questions surrounding the scope and extent of contents of the approximately 90 [executive] orders” Whitmer has issued since March 10.

The question of how to respond to the coronavirus quintessentially is a political question. It involves a synthesis of epidemiological data, economic models, public opinion, constitutional principles, and public health protocols, which must then be prudently assessed and weighed against one another to achieve the best all-things-considered outcome, all while humbly conceding that the entire enterprise is shot through with uncertainty. 

Moreover, this all must be achieved in a way that recognizes the consent of the governed—that is, conducted through the people’s elected representatives in government, not unelected judges. Politics is often about making the best decision you can while flying partially blind, armed with imperfect information and laboring under numerous cross-pressures.

In other words, politics is the queen of the sciences, and therefore

it is up to elected officials to make decisions because they are the ones who are in charge of the whole, that is, the body politic; it is up to them to take all parameters into account and to envision all the consequences of their actions.

Courts, by design, are less able and equipped to do this, and it shows here.

This doesn’t make courts bad. But engaging in this kind of multi-factor analysis across various domains—law, epidemiology, economics, and the many others implicated in the decisions to close down and then re-open an entire state, home to millions of souls—is simply not their forte.

But Judge Stephens discharged her duty ably. She assessed, interpreted, and applied the relevant laws and precedents, as she was required to do as a lower-court judge. She is not a politician, and so she wisely and prudently eschewed politicking and stuck to legal reasoning. By holding that Whitmer’s actions violate the EMA but that they are nonetheless ultimately valid because her statutory authority concurrently rests on the EPGA, Judge Stephens broadcast a message loudly but implicitly: It is up to the political branches to sort this out.

What’s less clear, however, is why the legislature—the political branch that most represents Michiganders—won’t embrace its role in the state’s constitutional system. Anyone who thought the Court of Claims was going to charge into a statewide lockdown implemented to combat, in President Trump’s words, an “invisible enemy” as a policymaker to save the day was kidding himself, or doesn’t understand the institutional limits of courts. A pandemic is where the adults play; courts are at best the junior partner, as in war.

I’ll say it again: “Until the Michigan state legislature grows a spine and starts standing up for nearly 10 million Michiganders, they will languish under ‘rule by [Whitmer’s] pen’—which threatens to extinguish the majesty of self-government and make an outlaw of liberty itself.”

First Principles

Yea, Though I Walk Through The Uncanny Valley

You are being gaslit, but not by a sociopathic manipulator. Instead, the growing psychic pressure is the constricting consensus of an increasingly popular fabricated reality. You are on the business end of a casual conspiracy of complicity.

No, you’re not crazy. They just want you to feel that way.

There is a special flavor of cognitive dissonance experienced by those confronted with the dawning of a collectivist utopia. It’s found in the twilight between luminescent NuThink, and the benighted remainders of objective reality to which we plebs still cling so bitterly.

Allow me to illustrate.

Recently, as I perused the social media headlines about the present plague year, I came across a news item whose image featured the governor of Pennsylvania and his secretary of health, Dr. Rachel Levine, who is in fact, a man. It struck me because the news was not about Dr. Levine’s chimeric redefinition, but it was a serious news piece about a serious issue, and the doctor was peripheral to the point of it. The presentation of such an incongruity—an appointed official whose gender LARP is only slightly more convincing than that of Corporal Maxwell Klinger—without the slightest batting of an eyelash, is the whole game in a nutshell.

You see friend, it requires no acknowledgment since there is nothing of note here. Only the grotesquely gauche would stumble. We have serious business to do. Please focus.

The deadpan delivery leaves you feeling gaslit by the reality being proffered. The implicit assertion is not truth, but the situation itself is reality—formed by consensus, and presented without comment.

But, at least it’s democratic gaslighting…

This collective lack of acknowledgement, cemented by the integration with serious business being done, makes anyone who is tripped up by the disjoint feel that he is on the outside. Anyone hampered by a pedestrian tethering to pre-postmodernism is made to feel the keen edge of their status as the other.

It’s akin to having walked into a business meeting, and finding one of the participants is wearing a bear suit. “What’s with the bear suit?” you ask. The reply is cold stares.

This feat of quiet ostracism, this sudden sense that one is an ideological castaway, coalesces all of a sudden. A breeze blows through you, and you realize the season has changed.

You are being gaslit, but not by a sociopathic manipulator. Instead the growing psychic pressure is the constricting consensus of an increasingly popular fabricated reality. You are on the business end of a casual conspiracy of complicity. There is a new set of tracks on which your train of thought just doesn’t properly run. You are given two choices: reconfiguration or derailment.

You keep entering business meetings, only to be silently greeted by a fellow in a bear suit.

You’re going to keep getting this lesson until you learn it. Capisce?

In After the Ball, a diabolically masterful turnaround strategy created to take American homosexualism from reviled to revered, authors Marshall Kirk and Hunter Madsen laid out a pathway to bring us to this present moment of bear-suit ubiquity. It began with desensitization, progressed through leveraging perceived commonalities, and promised powerful acceptance.

When you’re very different, and people hate you for it, this is what you do: first you get your foot in the door, by being as similar as possible; then, and only then—when your one little difference is finally accepted—can you start dragging in your other peculiarities, one by one. You hammer in the wedge narrow end first. As the saying goes, Allow the camel’s nose beneath your tent, and the whole body will soon follow.

That was published in 1989.

Once the concept of tolerance was deformed to mean acceptance, and love was refashioned to include things for which it was not designed, it was clear that the plan was getting far more cultural traction than anyone had dreamed possible. As the sea change continued, the launching of S.S. Same-Sex Mirage was a fait accompli. Always, you will note, brought to market in the carefully constructed context of simulated normalcy.

The weight of normalcy packaging plus the momentum of previous acceptance equals the psychic force applied to dissenters who note the incongruities.

This simulacrum of normalcy, coupled with the raised stakes of whatever novel idea is being introduced, creates an uncanny valley of experience. It’s designed to camouflage the situation such that it sufficiently approximates reality for the initiated, but to the sober-minded, the differences create dissonance. That dissonance is designed to cleave off the bitter clingers—to refuse entry to the non-compliant, and convince them that they are the ones failing to grasp this democratically elected reality.

The pressure can feel immense at times—not the Lilliputian arguments for NuThink, but their collective power to layer up, entangle and enervate. Yes, you can see each point where things got ratcheted up, but the cumulative effect—that, you feel.

The most recent gut punch I felt was when I (virtually) encountered “Dr. Glitterbear”—university professor—in his unicorn-jammie-and-white-pumps ensemble. He had apparently led the charge to have a fellow PhD’s published paper about gender anarchy retracted, due to its NuThink compliance failure.

“What’s with the unicorn suit?” Cold stares.

Yea, though I walk through the uncanny valley, I will brook no evil.

As has been noted by those who have experienced totalitarian rule, this immense pressure to conform to a synthesized consensus exerts a real toll on the non-compliant. Presented with each new escalation, the mind struggles like an up-ended turtle wriggling to regain its feet.

It can be exhausting and disheartening to keep the turtle righted.

First, know what the truth is, and why it is the truth. If you’re reading this, I will assume that you’re likely well-engaged in this process. Understand that we are in an ontological crisis, where millions are being swept out to sea. Know how to anchor to the fixed bedrock of actual truth. While this battle is presented as a quibble over small changes, you must understand that it’s actually a conflict over whether reality is already defined, or ad-libbed. For anyone adhering to a belief in Logos and Creation, the definitions are fixed and non-negotiable.

Second, don’t lose your equilibrium. When wading through strong opposing forces, it’s very easy to overcompensate. Movements become exaggerated, and overreactions can abound. It’s oh-so-easy to become shrill, alienated, or paranoid. It’s simple to get knocked back into reflexive overreaction. Learn to find grace under pressure, and don’t allow yourself to be distorted by your exertion against the onslaught.

Third, encourage and invest in others, to strengthen the bulwark against this flood of Dionysian dissolution. Maintaining relationships with other people who are also committed in their fidelity to truth is important. Though one may be overpowered, two can defend, and a cord of three strands is not easily broken.

Finally, do not think it strange, this fiery trial which is upon us. Be encouraged that the Truth himself was similarly opposed, and so we now share in that same suffering. Having done all, stand. Simply bearing witness to truth in a raging sea of illusion, is a kingdom act.

Editor’s Note: A version of this essay was originally published at Illinois Family Institute. 

First Principles

The Restart of History and the Renaissance of Realpolitik

States and their interests, both cultural and historical, to recall Charles de Gaulle, are eternal. They do not, and will never, take a backseat to ideology of any sort. Including our own.

In the heyday of geopolitical optimism after the First Gulf War and the fall of the Soviet empire, political theorist Francis Fukuyama prophesied the “End of History.” What he meant was that liberal democracy was ascendant and would continue to be ascendant in the coming years.

History had other things in mind. That fate culminated in the recent move by the Russian federal legislature to give Vladimir Putin almost unlimited powers until 2036.

How did we get here?

The Boris Yeltsin era in the former Soviet Union, then reduced to a truncated Russia, was an “Era of Good Feelings” between Russia and the West. Yeltsin himself regularly and merrily cavorted with Bill Clinton. But as that was going on, former Soviet officials, now turned wild west capitalists, were using their influence to buy up state assets, privatize them, and become rich overnight. Their louche and garish opulence left a bad taste in the mouths of many Russians. Included in that lot was an obscure former KGB officer who had become deputy mayor of St. Petersburg, Vladimir Putin.

But that was not the only specter on the Russian scene. A civil war raged in a mountainous Muslim republic, Chechnya, pitting the Russian state against a proud, ancient, mountain people who for decades had chafed under the Soviet yoke.

I talked to American lawyer and investor, Yuri Vanetik, who possesses keen insight into how the political destiny of the former Soviet Caucasus proves Fukuyama’s theories to be fallacies. Says Vanetik:

The North Caucasus and the Chechen Republic, in particular, are comprised of distinct ancient ethnic groups who have never relinquished their cultural identity and self-determination. They were conquered by the Soviets but never defeated, and for that were forced to pay a heavy price during the Stalin forced resettlements, Soviet oppression, and subsequent brutal wars.

Often dubbed the Spartans of the Caucasus, these mountain people possess a deep sense of identity which is expressed through adherence to Adat, the traditions of the mountains, with unique rituals, dances, cuisine, profound veneration of elders, deep deference for extended families, distinct dress and language, and an amazing sense of hospitality, loyalty and courage.

I have visited the region several times in the last two years. Recently, I brought a delegation of business leaders, and journalists. The Chechen people stand as an anomalous semi-autonomous republic; feared, respected, at times despised, and always deeply misunderstood by the West. They have been able to strike a delicate balance through loyalty to Russia. Yet they serve as an example of the error in Fukuyama’s utopian vision.

Their traditions draw comparison with the Americans of Appalachia and the stories and martial records of men like World War I’s Sergeant Alvin York. Distinctive speech, a fighting spirit passed down through generations, a mountainous existence, and a reverence for elders and ancestors recall the people and spirit of a region recently chronicled in Born Fighting by James Webb and Hillbilly Elegy by J.D. Vance.

When Yeltsin left and Putin took power, civil liberties began to fall by the wayside. Putin’s political party gradually muscled out all of the legitimate opposition, and Western gullibility (one is reminded of George Bush the Younger’s line that he could see Putin’s soul in his eyes) all played a part in the process of snuffing out whatever possibility of representative government had momentarily existed during the Yeltsin era.

Vanetik continues: “It appears that the Russian government intended to reassert social solidarity by returning to mitigated, modern empire building in an age of technology, sanctions, and global economy interconnected like never before.”

It may be the type of government that works in the former Soviet territories. Even though dynasties such as that of Azerbaijan, and most of the Eurasian states, are an anathema to our sense of righteousness, they are preferred and they are functional over there.

“For Chechens, Putin’s rule appears to provide sufficient autonomy, infrastructural support from a federation of states within the Russian union, and a predictable chain of command that seems to be appealing to many of the semi-autonomous states in the North Caucasus,” Vanetik explains. “Fukuyama’s Western liberal democracy does not work there. In fact, it has failed miserably where it has been attempted. Look at Ukraine, our ally and a professed democracy.”

As the years progressed Putin moved on Georgia and the Crimea, recalling Soviet attitudes of the recent past. This was, as Putin termed the downfall of the Soviet Union, “a political tragedy” and reinstated both Soviet and Imperial Russian cultural norms in Russia.

As the Putin regime wrapped itself in the warm embrace of Holy Russia and started flexing its small but smartly used geopolitical power, Western leaders continued to ignore the warning signs of an aggressive and resurgent Russia. Chechens are an example of an efficient resurgence after brutal wars. The rebirth is arguably tempered with self-determination and loyalty to the Russian Federation. That is a challenging balance to strike and an even more difficult balance to sustain.

Vanetik concludes:

State building has become the default in how geopolitics is played out. The Chechens have rebuilt their territory, fostered goodwill with Putin’s government without compromising their cultural identity. Not so much in defense of hard regimes, but it appears that authoritarian structures work better in certain cultures so long as they are tempered by certain boundaries when it comes to rule of law, transparency, and institutional integrity. It is a truism that benevolent dictatorships are just as much fiction as Fukuyama’s End of History thesis. Notwithstanding, authoritarian structures can work and do work and account for a large percentage of sovereign regimes and autonomous states even today.

And so we come to today. The Russian national legislature has recently made it possible for Putin to rule uninterrupted by democratic niceties until 2036.

Fukuyama’s naïve notion of the total victory of liberal democracy has itself been consigned to rubbish. “The End of History” eventually turned out to be “the Renaissance of Realism and Realpolitik.” States and their interests, both cultural and historical, to recall Charles de Gaulle, are eternal. They do not, and will never, take a backseat to ideology of any sort. Including our own.

First Principles

Coronavirus Is an Opportunity to Reject Judicial Supremacy

The litigious Michigan legislature has endorsed the idea that the courts alone can save Michiganders from Governor Whitmer’s grip. This is a lie.

If anyone has benefitted from the coronavirus pandemic, it’s lawyers. Business is positively booming; if Americans know how to do anything, it’s file lawsuits. The American Spectator reports that since the various pandemic measures were enacted in March (has it really only been two months?), “dozens” of lawsuits have been filed against Democratic governors across the country.

As a general matter, that’s not a problem. In fact, it’s very good to vindicate in court one’s federal and state constitutional rights and in the process check government overreach. After all, that’s the core of what courts are there to do: grant to litigants whatever relief is proper and just to remedy violations of their vested legal rights.

But the logic of that commendable system of judicially protected rights somewhat falls apart when the plaintiffs are government actors. The current situation in Michigan is instructive on this point.

Legislature v. Governor

On April 30, the Michigan state legislature’s Republican-controlled House and Senate each adopted resolutions by voice vote (so no tallies were recorded) that authorized House Speaker Lee Chatfield and Senate Majority Leader Mike Shirkey to take Governor Gretchen Whitmer to court in her official capacity. Less than a week later, the legislature filed its lawsuit, asking the Michigan Court of Claims to grant its request for a declaratory judgment against Whitmer, one which holds that her “ongoing ‘emergency’ orders are improper and invalid as a matter of Michigan constitutional and statutory law.” Specifically, the Legislature asked the court, among other things, to “declare that the Governor’s ongoing COVID-19 executive orders . . . violate the separation of powers.”

In a May 6 press release, Shirkey said the legislature “firmly believe[s] the governor is acting beyond her authority and has left us no choice other than to seek clarification from the courts” (emphasis added) The case is scheduled to  be heard Friday.

Whither Ambition?

By running to court instead of engaging Whitmer politically, the legislature broadcasts an embarrassing timidity, an apparent belief in its own toothlessness in the face of the governor’s unprecedented “executive-domineered legal regime.” The litigious legislature has endorsed the idea that the courts alone can save Michiganders from her grip.

This is a lie.

In reality, the legislature has a duty (not to mention the tools) to maintain Michigan’s constitutional structure; that isn’t just a job for the courts, contrary to what anti-constitutional judicial supremacists (and apparently also these skittish state legislators) would have you believe. Simply put, the responsibility to maintain the structure of Michigan’s government falls to all three branches. The legislature is not exempt.

Sadly, Michigan’s Republican legislators have revealed their deeply impoverished understanding of constitutionalism. They lie supine before Whitmer, who has revealed her tyrannical soul, placing Michigan “under rule-by-executive-order for over eight weeks” and counting. Legislators pluck up just enough courage to emerge long enough to ask the third branch of government, the courts, to scold Whitmer rather than simply take action themselves.

The legislature “firmly believe[s]” that Whitmer has far exceeded her constitutional authority but will nonetheless leave it to the courts to “clarif[y]” the situation. (The legislature requested a declaratory judgment, not an injunction; while the latter might have the practical effect of halting Whitmer’s despotic, one-woman show, the former essentially requests that the court simply states the obvious, unbacked by any executive enforcement, namely, that Whitmer has vastly overstepped her exercise of legitimate executive authority. And water is wet.)

The legislature—the “sole lawmaking [sic] body in [Michigan’s constitutional] system”—should exercise its awesome legislative power rather than fight a media-driven proxy war in the judiciary. For even if the legislature wins in court, to what end will this “victory” be driving? A favorable ruling won’t change the underlying political calculus at all. Because to get the result it wants, the legislature would have to act to check Whitmer, with or without a court’s declaratory judgment.

At some point, the legislature will need to embrace the inevitable political cage match—or be rendered impotent. It can pass bills that embody its vision for how Michigan should reopen. It can force Whitmer to go on record and veto whatever “comprehensive and deliberative” plan it will devise to move the state beyond the pandemic-induced lockdown and reopen its economic and social life.

Legislators can call members of the executive branch to testify to the precise thinking that’s driving Whitmer’s dramatic overreaction and let Michiganders sit in judgment of whatever they say—or don’t say. They can amend (or outright repeal) the statutes Whitmer claims are the source of her authority. And, if need be, they can simply slash or eliminate the relevant agencies’ funding—which would render Whitmer wholly incapable of implementing her executive orders—orders which are, as the legislature sees it, based on flawed interpretations of the relevant laws.

In short, it can and should act like what it is: a legislature. It should muscle its way back into this process so that the people of Michigan have a voice and have their interests looked after and represented on this weighty issue. Without question, the legislature is powerful enough to do all of these things. But it lacks the will, the manly resolve, to enter the fray.

Until the Michigan state legislature grows a spine and starts standing up for nearly 10 million Michiganders, they will languish under “rule by [Whitmer’s] pen”—which threatens to extinguish the majesty of self-government and make an outlaw of liberty itself.

First Principles

Is Half of the Country Crazy?

When the only seemingly possible solution is using the power of the government to crush those who disagree, it is time to rethink the entire paradigm.

Is half of the country crazy? Regardless of which side of the political divide you happen to be on, at least half the country appears to be crazy. And they probably think the same about you.

Can this be true? It is difficult to believe half our country—which half doesn’t really matter—is unmoored from reality.

Thomas Kuhn in his revolutionary book, The Structure of Scientific Revolutions, noted that the common belief of science as a steady cumulative flow of one idea built upon another is simply wrong. Kuhn, who coined the phrase paradigm shift, argues that in reality science moves ahead in intellectually violent revolutions when one world view, or paradigm, is completely tossed aside and replaced by a superior paradigm.

Confronting Unreconciled Anomalies

What leads to these intellectually violent revolutions and subsequent paradigm shifts is the accumulation of “unreconciled anomalies.” These occur when the actual results don’t fit with the expected or predicted results. Sooner or later unreconciled anomalies are either somehow explained away—often just ignored for as long as is possible—or they accumulate until they force a break with the underlying theory their very existence proves to be wrong.

Of course, it is always easier to see these revolutions in the rearview mirror where one can think, “of course it is that way, how could anyone have believed anything else?”

But being in the middle of one of these revolutions is quite a different experience; and that is where we find ourselves today.

No, half the country isn’t crazy. The growing frictions we experience everyday—regardless of your political position—are simply the symptoms of the present failing paradigm.

Discarding the Failed Paradigm

And just like science, the only way to address these “unreconciled anomalies” is to abandon the present thinking which has led to the crisis and discover a deeper, more fundamental truth.

To do so requires the discarding, at least for a while, the left/right, conservative/liberal, and most certainly Democrat versus Republican lens. It is not possible to explore a new paradigm unless one can mentally discard all aspects of the old paradigm.

Until we are willing to do so, the unreconciled anomalies will only continue to grow as will the friction and anger they feed. And of course opportunists will use these frictions to gather power and enrich themselves and their friends. It is a certainty, as any halfway honest analysis of our present political situation reveals to be true.

The left versus right, liberal versus conservative paradigm is failing because it doesn’t overlap with reality. It is based far more on tribal thinking than an analysis of facts.

There are two ways to analyze and rebuild a system:

The wrong way is to analyze the present system(s) focusing on problems and where things don’t work very well. This is “problems-based” thinking and it generally leads to fighting, finger-pointing, and even more friction. It seldom, if ever, works very well with the odds of failure being far greater than those of success.

Unfortunately, this is how most people attempt to address the present impasse. At its core, our political discourse is flawed because it remains mired in the same paradigm that caused the problems in the first place. In practice, it often means communication-based on “if I just repeat myself a little slower and a lot louder those dumb SOBs will finally understand!” thinking.

The other way to analyze and rebuild a system is to mentally toss it and all it was built upon in the trash and to start anew with a completely blank slate. With this thinking, one doesn’t focus on problems since there are none yet. This might sound counterintuitive but it leads to far better results.

How did we do it in the past? Who cares? The issue is how do we want to do it in the future and for that the past is generally irrelevant. And quite often all of those “problems” that seemed so insurmountable, those issues which simply don’t seem to have a solution other than the “other” side pulling their heads out and seeing things my way, simply fade away. They are problems created by the system.

Look at the World Anew

Our political, economic, and cultural wars are all based on these insurmountable problems. Look at the present political situation. Half the country seems crazy and people sincerely speak of a coming civil war as they see no realistic way to solve the arguments other than the physical annihilation or separation of the entire “other” side.

When it seems the only possible solution is using the power of the government to crush those who disagree, it is time to rethink the entire paradigm which at its core creates these realities. If we insist on keeping the present failing paradigm, the unreconciled anomalies will sooner or later be the end of us all.

We can take this step. At least momentarily, toss all your preconceived notions in the trash and look at the world anew. You will find a very simple truth waiting. Individual freedom is the key. Not the powerful organizations we call government. Not the various tribes. Individual freedom and the forces it unleashes is the solution.

The transformative power of individual freedom is based on science and reality; it will always work. Take the leap or stay where you are while you ponder how to destroy the half of the country that seems crazy to you. The choice is yours.

First Principles

The Perils of Philosophy

Self-evident truths are the foundation of common sense realism; for Thomas Reid, common sense is the human faculty which enables us to grasp self-evident truths.

David DesRosiers has written a delightful review of my new book, Reclaiming Common Sense. His review appears in the spring issue of the Claremont Review of Books. He praised the book, and wrote that it could have been of great use to him as a graduate student when he tried to rebut utopian thinkers like Plato. DesRosiers writes:

The Republic—with its rule by the wise and its shocking communism of women and children—revealed to me the danger that reason without common sense poses to the political community.

He makes a great point. And it is difficult to overstate Plato’s influence on philosophy in the West. As Alfred North Whitehead famously wrote, the European philosophical tradition largely “consists of a series of footnotes to Plato.”

Plato’s abandonment of common sense in The Republic and elsewhere in his writings continues to exercise an enormous influence today, an influence profoundly opposed to the common-sense thinking of the American Founders.

The Founders claimed they were guided by self-evident truths. To understand the Founders’ thinking, it is important to know that their reliance on self-evident truths shows their reliance on a Scottish philosopher named Thomas Reid.

Reid called his philosophy “common sense realism.” Reid challenged the whole tradition that descended from Plato. His purpose was to put Western philosophy on the firm ground of common sense. In my judgment, he succeeded. The American Founders thought so too. As a result, the Founders’ republic is a far cry from Plato’s Republic.

Self-evident truths are the foundation of common sense realism; for Reid, common sense is the human faculty which enables us to grasp self-evident truths. Therefore, common sense is the power that makes human understanding possible. The Founders relied on self-evident truths to find a new vision of politics, government, and society. Their vision gave us the wonderful country it is our privilege to enjoy each day.

I have been a lifelong heavy reader, a “heavy reader” in the sense that some people are called heavy drinkers, and from nearly the beginning of my life as a reader I have been accompanied by C.S. Lewis. He has been my lifelong protector from reason divorced from common sense. Books that lead you away from common sense can make trouble for you and make you trouble for others.

Lewis, in his novel That Hideous Strength, portrayed a future England coming under the domination of men dedicated to brutal rule by the authority of science. One of the leaders is a character named Wither (“wither: to dry up or shrivel . . .”). Lewis writes this about him:

He had passed from Hegel into Hume, thence through Pragmatism, and thence through Logical Positivism, and out at last into the complete void . . . He had willed with his whole heart that there should be no reality and no truth…

The point of the novel is clear: the belief there is no reality and no truth leads inevitably to brutal rule and ultimately to the abolition of humanity. Destroy truth and you eventually eliminate goodness and beauty. The 20th century offers us more examples of that than we need in order to be certain it is true.

For all practical purposes, Wither had found in Hume all he needed in his quest to be convinced there is neither reality nor truth. Yet it must be said that Hume was better than his philosophy, and not like Wither at all. He was brilliant and charming, liked and admired by Reid and loved by his good friend Adam Smith.

In philosophy, Hume’s brilliance was matched by his boldness. He understood that European philosophy had already abandoned everything we know by common sense. While other thinkers recoiled from daring to complete the chain of reasoning that was right in front of them, Hume was willing to go all the way. As Thomas Reid wrote in his Inquiry Into the Human Mind on the Principles of Common Sense, Hume provided all that Wither sought:

No cause or effects; no substances, material or spiritual; no evidence, even in mathematical demonstration; no liberty or active power; nothing existing in nature, but impressions and ideas following each other, without time, place, or subject. (Italics added)

Reid took up Hume’s challenge, making the case that if nothing is self-evident, nothing can be proved. The existence of the real world can’t be proved and does not need to be proved; it is self-evident that the world exists. And the same goes for basic moral truths. For Reid, the principles of common sense, including the principles of moral common sense, are self-evidently true.

C.S. Lewis was with Reid all the way. The idea that Lewis was a common-sense thinker might come as a surprise to you, but I believe he provides the best introduction to common sense realism there is. My lifelong immersion in Lewis is surely what made reading Reid easy and fun for me. In his introduction to That Hideous Strength, Lewis refers the reader to the companion volume, The Abolition of Man. Abolition, he explains, makes the philosophical case; Strength portrays the ideas in story form. Here is Lewis the common-sense realist in The Abolition of Man:

If nothing is self-evident, nothing can be proved. Similarly, if nothing is obligatory for its own sake, nothing is obligatory at all.

Given the chance to read those words, Reid and the Founders would agree whole-heartedly.

First Principles

The Indispensable American Family

Someone may say we ought to live in open sewers, because filth and disease are subversive; or that we ought to cut ourselves with razors, because razors are edgy. What response can you give to him? He has placed himself outside of moral reasoning entirely.

In August 1884, Washington Gladden, possibly the most famous Christian preacher in the America of his day, wrote an article in The Century Magazine on “Three Dangers” besetting the welfare of the nation he loved. Of the first and third dangers he named, intemperance and gambling, I have little to say here. I will note that Dr. Gladden concedes that alcohol may be used well, even for conviviality, though he himself did not drink.

More challenging to our moral callousness is that he includes, under gambling, speculation on the stock market: “To say that gambling in margins is as bad as faro or roulette is a very weak statement; it is immeasurably worse. It is far more dishonest. The gambler in margins does his best to load the dice on which he bets his money.”

In our time, said gambler has connections to federal bureaucracies that govern the lending of hundreds of billions of dollars. The housing market collapse is a dreadful case in point.

But it is the second of the three dangers that I will discuss here, “those unsocial forces that make war upon society by assaulting the family.”

Gladden was a liberal churchman, one of the fathers of the Social Gospel, and it is as such that he speaks. “The monogamous family,” he says, “formed by the union of one woman with one man, and by the increase of children born to them, is the structural unit of modern society.” He is deliberate about every word. Society is like a physical organism, which is composed not of separate particles, but of organized cells.

So, too, “the modern social organism is composed not of individuals, but of households.” Far from being primitive and atavistic, the family, he says, is “a late product of the social evolution,” and “it is by most philosophers admitted to characterize that society whose type is the highest and whose foundations are the firmest.”

Whom does he call upon to support this assertion? Not John Wesley or Jeremy Taylor, but the liberal economist Walter Bagehot and the agnostic ethicist Herbert Spencer.

“Tribes in which promiscuity prevails, or in which the marital relations are transitory,” says Spencer, “are incapable of much organization . . . Only when monogamic marriage has become general and eventually universal, only when there have consequently been established the closest ties of blood, only when family altruism has been most fostered, has social altruism become most conspicuous.”

Of Roman boys bred to become Roman men, Bagehot notes, “they were ready to obey their generals because they were compelled to obey their fathers; they conquered the world in manhood because as children they were bred in homes where the tradition of passionate valor was steadied by the habit of implacable order.”

It is not that Gladden wants Americans to become Romans. The family is indispensable, he says, “for the cultivation of the moral qualities that fit men for association with one another,” as it is “a training-school in which discipline and the habit of subordination and the unselfish sentiments and habitudes are acquired. Without these virtues society is impossible, and there is no school for the cultivation of these virtues that compares with the monogamous family.” Indeed, “an increase of the proportion of the people who do not live in families means an increase of public peril, a decay of social virtue, a diminution of the common weal.”

We need but look at the moral squalor of American cities, and the bewildering sexual and familial chaos wherein millions of American children are supposed to find their way to moral clarity and order, to see that what Gladden says here is true.

It is the kind of truth, too, that hardly admits of argument. Someone may tell me that we ought to live in open sewers, because filth and disease are subversive; or that we ought to cut ourselves with razors, because razors are edgy. What response can you give to him? He has placed himself outside of moral reasoning entirely.

What caused Reverend Gladden to worry about the American family in his time? For one thing, the dreadful surge in divorces.

From 1860 to 1878, in the commonwealth of Massachusetts, he says, divorces rose from 243 to 600, while the population had increased only 45 percent. The census figures from 1880 show that Massachusetts had a population of 1,783,085. Taking that figure as a fair estimate of the population in 1878, that means that there was one divorce for every 2,972 people. A scandal, that.

I can hardly imagine what Gladden would say to our figures now. In 2018, the population of the United States was 327.2 million, and there were 780,000 divorces. That gives us one divorce for every 402 people. The rate is between seven and eight times as high as what Gladden thought warranted some serious attention.

Of course, what I have called the “index of social dissolution” is much higher still. For in our time, many people do not bother to marry at all, but still have children, of whom 40 percent are now born out of wedlock. So if we included as “marriages” all those sexual liaisons that last longer than two years and that produce at least one child, our “divorce” rate would be as Mount Everest is to Mount McKinley: unimaginable, to what is hardly imaginable.

Asking what the reason is for this state of things, Gladden points to two developments, one of them economic and one of them moral.

The economic cause was clear: young men and women by the millions were leaving the country to work in industrial mills in the populous towns and cities, where they were “thrown together rather rudely in their work,” living in boarding houses that “afford them none of the restraints of a home.” Its moral cause he attributes to the “popular social philosophy, which during the last quarter of a century has greatly exaggerated individualism . . . Most of our talk has been of rights, not much of duties or of services; and the consequence is a disinclination to assume the responsibilities and to make the sacrifices involved in the family relation.”

In our time, we cannot even talk about the sexes as such, since every individual claims the right to make up his own biology, his own “identity,” even his own pronominal system. Gladden would have seen this correctly as the height, or rather a deep sinkhole, of the antisocial. And women, whom Gladden and many a friendly liberal viewed as the heart of a people’s moral sensibility, lead the charge to ensure that we will not return to anthropological realism; nay, that a professor at a college, whose calling is to search for truth wherever he may find it, shall lose his very employment if he should even begin to discuss the matter.

I think it would be a fine and enlightening thing to read the works of American liberals before that sharp turn toward secularism we find in the wake of the Great War. Enlightening, and not comfortable.

First Principles

This essay is part of RealClearPublicAffairs‘s 1776 Series, which explains the major themes that define the American mind. It is republished here with the permission of RealClearPolitics.

Started in Slavery, Founded in Freedom: 1619 vs. 1776

The United States of America was indeed started in slavery, but it was founded in freedom.

Now that everyone with a computer and an opinion has had his or her say on the merits and shortcomings of the “1619 Project,” we are now in a position to step back and ask ourselves: What is really at stake here?

The most controversial aspect of the project has not been its content—apart from one important, mistaken historical claim in Nikole Hannah-Jones’s introductory essay, which has since been corrected—but its framing. No one is talking about the excellent and inspiring articles on Howard Law School graduates, black music, or the “pecan pioneer” (yes, it’s in there!). Even Hannah-Jones’s essay hasn’t been subjected to comprehensive commentary and analysis in the manner that it deserves. Instead, the focus of critics has been concentrated on the title page of Hannah-Jones’s essay—“Our founding ideals of liberty and equality were false when they were written”—and Jake Silverstein’s “editor’s note” introducing the project. And then, of course, there is the title: 1619.

. . . as Bob Woodson and others have pointed out, subtracting 1776 from 1619 renders the American story depressing and perhaps irredeemable.

What do these parts of the project jointly convey? That American identity—stated in terms of “true birth date” or “origin”—is an either/or and that 1776 must be rejected as a legitimate competitor to 1619 in this determination. The year 1619, in other words, preempts and nullifies 1776. Critics have, after all, complained not so much about the addition of 1619 as the explicit subtraction of 1776 in Silverstein’s (and, to a lesser extent, Hannah-Jones’s) framing. And as anyone with a calculator can work out, 1619 minus 1776 is a negative number; as Bob Woodson and others have pointed out, subtracting 1776 from 1619 renders the American story depressing and perhaps irredeemable. According to John McWhorter, this operation makes American civic education into an education “in studied despair over events far in the past, and a sense that it is more enlightened to think of yourself as a victim than as an actor.”

If we have to jettison 1776 to take 1619 on board, the question famously raised by Martin Luther King, Jr., and quoted by Clarence Page in a recent article for the 1776 Project, “Where do we go from here?” seems difficult to answer. It is certainly important to know where we’ve been in order to understand where we are now, and it is certainly important to understand where we are now in order to determine where we should go from here, but we can’t chart a course for the future based only on where we’ve been in the past. We have to have a goal in mind, something to shoot for, a target at which to aim. We have to have somewhere we are going to, not just somewhere we are coming from.

The question is whether the undeniable historical fact of the preexistence of American slavery tainted or invalidated entirely the ideas and arguments about natural human rights that motivated and justified the American Revolution . . .

So what’s really at stake in the 1619 vs. 1776 debate is whether the revolutionary principles of 1776 are capable of providing such a goal or target. The question is whether the undeniable historical fact of the preexistence of American slavery tainted or invalidated entirely the ideas and arguments about natural human rights that motivated and justified the American Revolution—and that, presumably, have continued to motivate and justify the American experiment in self-government from that time to ours. The question is not about what happened in 1619 but about what happened in 1776.

So what happened in 1776? In the main quad at the University of Missouri, just outside the building where Jefferson’s tombstone is currently housed, there is a statue of Jefferson sitting at a writing desk, pen in hand, and the Declaration of Independence on the paper in front of him. This expresses much of the significance of 1776 in the popular imagination: not unlike Moses going up Mount Sinai and coming back with the Ten Commandments, Thomas Jefferson went into his study and emerged with the Declaration of Independence. Jefferson himself helps solidify this view by literally etching his authorship of the Declaration of Independence in a stone tablet (his tombstone). The man, the moment, and the document are forever conjoined.

If this is what really happened in 1776, Silverstein’s either/or sounds plausible. We know that Jefferson lived far downstream of 1619. His livelihood and self-image depended squarely on his status as a slaveholder. In his well-known 1820 letter to John Holmes, Jefferson almost makes Silverstein’s either/or argument for him, saying about the predicament of Southern slaveholders such as himself: “Justice is in one scale, and self-preservation in the other.” Though many of us would like to think that 1776 weighs on the justice side of this scale, it is not clear whether Jefferson would agree. According to the author of the Declaration, 1776’s promise of “self-government and happiness” for himself and those like him was under threat during the Missouri crisis by devotees of the “abstract principle” dictating the geographic restriction of slavery.

If 1776 is inextricably bound up with the historical Thomas Jefferson, and the historical Thomas Jefferson is hopelessly bound up with the consequences of 1619, Silverstein’s argument seems right. The year 1776 is not a true alternative to 1619 but a mere diversion from an acknowledgment of the latter’s unjust and harmful effects. The either/or falls away as the antislavery Jefferson of the Declaration collapses into the apparently pro-slavery Jefferson of the Missouri Compromise and 1776 collapses into 1619. American history, as Wilfred McClay put it in a recent article, becomes “little more than the lengthened shadow of slavery.”

The more one reads of the public documents, pamphlets, sermons, and letters of the decades preceding and the years immediately following the Declaration of Independence, the more one realizes that Jefferson was really more stenographer than author.

This is not, however, what happened in 1776. Contrary to Jefferson’s proud claim on his tombstone, there were many joint authors of the Declaration of Independence. It was adopted (after alteration) by the entire Continental Congress and largely expressed what Thomas Paine had called the American “common sense” and what Jefferson would later call “the American mind.” The more one reads of the public documents, pamphlets, sermons, and letters of the decades preceding and the years immediately following the Declaration of Independence, the more one realizes that Jefferson was really more stenographer than author. Jefferson was an original thinker, but the later accusation that he had plagiarized the Declaration contained more than a grain of truth.

The candidacy of 1776 as a meaningful and valuable constituent of American identity cannot, then, be buried along with Jefferson himself. The ideas of 1776 that were expressed in the Declaration—natural human rights, limited government by consent, the right of revolution—were shared equally by Jefferson and countless other individuals at his time, many of whom were not as clearly implicated by association with the evils really and symbolically unleashed in 1619. These ideas are something apart from any of the individuals at the time who espoused them.

But are the ideas of 1776 themselves vitiated by their embeddedness in a time and place affected so deeply by 1619? Can these ideas provide enlightenment despite being spoken under the shadow of the terrible injustice of slavery and by some of its most famous beneficiaries? And are the ideas of 1776 merely one of the “multiple traditions” out of which the tapestry of American identity has been woven since?

These are not easy questions to answer, but they are answerable. There is, first, the historical fact that ideas of natural human rights, limited government, and the right of revolution were not invented by American colonists. The scholarly consensus of at least the last thirty years has been that early American political ideas were outgrowths of much earlier political and religious ideas, forming a distinctive “amalgam” of these preexisting materials. The political thought of John Locke, Scottish Enlightenment thinkers, and others was combined with Protestant theology in Europe, as well as in the New England colonies, in order to form the basis of what would become the revolutionary ideas of 1776. According to eminent intellectual historians like Brian Tierney and Richard Tuck, the roots of these ideas extend all the way back to medieval times, some 500 years before 1619. These ideas may be mistaken or undesirable for other reasons, but it is safe to say that their origins are innocent of entanglement with the practice of enslavement.

There is also the fact that the core revolutionary idea that “all men are created equal” does not in any conceivable way support the interests of slaveholders, or even the interests of the non-slaveholding American revolutionaries at the time.

There is also the fact that the core revolutionary idea that “all men are created equal” does not in any conceivable way support the interests of slaveholders, or even the interests of the non-slaveholding American revolutionaries at the time. While it is true that the progress of equality among whites has long been supported by a parallel dynamic of inequality between whites and nonwhites, a clear declaration of human (or even of male) equality could only run counter to this dynamic of reinforcement. A declaration that “all white men are created equal” or, better yet, that “white men are created superior to nonwhite men,” would have fit the bill much better.

Then there is Lincoln’s point in his speech on the Dred Scott decision in 1857: “The assertion that ‘all men are created equal’ was of no practical use in effecting our separation from Great Britain.” This idea of equality in natural human rights did not, in other words, even support the general interests of the American colonists in their argument for independence at the time. While the related ideas of government by consent and the right of revolution did clearly support the cause of American political independence, these could have been derived from narrower, more conservative, starting points than human equality. There was, for example, the long-standing “rights of Englishmen” argument that had been widely used by the American colonists throughout the 1760s and early 1770s. But this was not the argument that the colonists used in 1776. Just as the argument of 1776 could not conceivably support the interests of slaveholders, so it was not well tailored to the material interests of the American colonists in their conflict with Great Britain.

The United States of America was indeed started in slavery, but it was founded in freedom.

If the ideas of 1776 were neither a mere feature of the historical moment, nor supportive of the concrete, material interests of those who held them, why were they “held to be self-evident” at all? The shocking answer is that they were held simply because they were believed to be “truths.” And this distinguishes them in a crucial way from most of the other “traditions” that were held at the time, such as white supremacy, patriarchy, xenophobia, or class distinctions. Most, if not all, of these other traditions supported the status quo and those in positions of power in society. Though they were often buttressed by rational and religious arguments as well, these arguments were, in most cases, recognizable as weak rationalizations of material interest—like the “positive good” argument that would later be given in support of race-based enslavement. The ideas of 1776, by contrast, were justified by the force of a logic that defied the needs of the immediate moment and the concrete interests of those who enunciated them. As much as any human ideas could, they leaped off their page in history.

The men of 1776 should be considered “founders” not because of any personal greatness that they may have exhibited but because they embraced ideas worthy of serving as a foundation for political society. The personal reputations of the American founders are not what’s at stake in the 1619 vs. 1776 debate; the reputations of these ideas are. American identity is not an either/or, as Silverstein would have us believe. It is a both/and, deeply troubling in its contradictions but equally illuminating in its promise to overcome them. The United States of America was indeed started in slavery, but it was founded in freedom.

First Principles

The Pulitzer Prize for Tabloid History

Nikole Hannah-Jones and the New York Times peddled bogus history as fact. Instead of being repudiated, they just won the most prestigious award in journalism.

The New York Times Magazine’s “1619 Project” was awarded a Pulitzer Prize for journalism. Like the “suicide” of Jeffrey Epstein, the outcome is stunning but not surprising. On its face, the project is completely undeserving of journalism’s highest prize. It is not journalism, but history in tabloid form.

Are we to believe that after American historians have been investigating themes related to race and slavery for nearly two centuries, the New York Times has only now somehow found a secret source that gives them a scoop?

The simple fact is that the Times is neither prepared nor qualified to write history. Neither is Nikole Hannah-Jones, the project’s director whose introductory essay for the magazine won the Pultizer for commentary. We should not be surprised that the project offers particularly bad history. This is the frank conclusion of our nation’s most eminent historians—including several who have themselves won Pulitzer Prizes, in actual history. 

Gordon Wood called it “so wrong in so many ways.” James McPherson said, “It does not make very much sense to me.” Pulitzer Prize finalist Sean Wilentz led a group of historians who were “dismayed at some of the factual errors in the project” related to “matters of verifiable fact, which are the foundation of both honest scholarship and honest journalism.”

One would at least think that the winner of journalism’s highest prize should represent “honest” journalism, but the Times went out of its way to present a knowingly dishonest account of American history. One of the magazine’s hand-picked fact-checkers, a historian at Northwestern University, flatly refuted one of the project’s central and most damning claims—that the American Revolution was fought explicitly to protect slavery. The Times printed this claim anyway. The editor who allowed the claim to be printed, Jake Silverstein, was rightly forced to print a retraction.

This should have been a big enough embarrassment to disqualify the 1619 Project from consideration for any journalistic award. So, if you are wondering how inaccurate, dishonest, non-journalism can win journalism’s top prize, well, the fix was in from the start. The administrator of the Pulitzer Prize, Dana Canady, is a 20-year veteran of the Times. Times op-ed columnist Gail Collins is also a member of the Pulitzer Prize board. At least three other current members of the Pulitzer board have written for the Times.

For the Pulitzer Prize, this kind of self-dealing is par for the course. More troublesome than these shadowy backroom deals, though, is the appearance of coordination by a network of unaccountable organizations, resting on massive tax-advantaged endowments, to magnify the influence of this inaccurate and incendiary view of American history. The MacArthur Foundation gave Hannah-Jones its “genius grant” in 2017, helping her build the foundation for her project. Then the Pulitzer Center (which has no official connection to the Pulitzer Prize, which is administered by Columbia University) announced plans immediately after the publication of the 1619 Project to push its content into K-12 schools and colleges.

The success of the 1619 Project in wresting control of our historical narrative is not an accident. It is the outcome of a detailed and deliberate public relations strategy. Inquiring minds may want to know: Who is behind the unaccountable organizations driving this strategy, and why have they orchestrated an elaborate strategy to teach us to hate America?

In a healthy journalistic profession, inquiring minds would ask such questions, and be awarded for it. But the profession of journalism is shaped now, more than ever, by the “yellow journalism” perfected by the namesake of the profession’s highest award. Indeed, even his biography on the Pulitzer Prize website admits that Joseph Pulitzer recognized “no apparent restraints on sensationalism or fabrication of news.” The New York Times has discovered that sensationalist journalism, and tabloid history, spark the passions that power newspaper sales and hate clicks.

Greedy capitalists (i.e., greedy corporate leftists)—including the holders of Class A and Class B shares in the New York Times Company—have long known that there is profit in exploiting the people’s vices. But who cultivates the virtues that hold a people together?

In America, we have relied on the teaching of our history to inculcate these civic virtues. Students have been taught about the marginal figures from our nation’s history who claimed that some groups are incapable of sharing in the responsibilities of self-government or are unworthy of the blessings of liberty.

But students have also learned what the historians critical of the 1619 Project emphasize—that the vast American center, going back to our founding, repeatedly has rejected these sentiments. The deliberate sense of Americans over time has been to deny the legitimacy of any kind of racial caste system, and to embrace an American citizenship that requires all to be respected equally under the law and to respect the law equally.

This kind of education emphasized the development of an American consensus on the meaning of our founding ideals and brought young people into that consensus. It is being driven out by the tabloid history of the New York Times 1619 Project which is organized around the sinister claim, “Our democracy’s founding ideals were false when they were written.”

At a time when our nation is forgetting the men who authored those ideals, including Thomas Jefferson and James Madison, and those who helped us more fully to realize them, like Frederick Douglass and Abraham Lincoln, the New York Times is resurrecting and amplifying the same argument voiced by notorious and discredited characters like John C. Calhoun, Roger Taney, and Alexander Stephens—that America’s founders did not believe what they said about equality.

We should not forget the United States fought a bitter Civil War to repudiate the ideas of Calhoun, Taney, and Stephens. Why should the leadership of the New York Times go unchallenged as it allows the stoking of these fratricidal passions just to further enrich its chief shareholders, the Sulzberger family and Mexican billionaire Carlos Slim? And why should the leadership of the Pulitzer Prize Board, Pulitzer Center, and the other unaccountable organizations peddling these pernicious ideas not be scrutinized?

A nation that has no single racial, ethnic, or religious identity, but has only its history and principles to unite it, must guard that history and those principles jealously. Both are too important to be entrusted to writers of tabloid history or practitioners of yellow journalism, regardless of the prizes they give themselves.

First Principles

Big Tech, Privacy, and Power

The power of Big Tech has been growing slowly, and in a way that many of us have accommodated as a necessary infiltration. But the scope of that power—and its costs to the culture we have ordered—have been less transparent.

The ground is shifting quickly beneath our feet when it comes to tech, privacy, and power. And, although tech companies, their advocates, and even some policymakers, would like us to imagine these issues are cut and dried, they are not.

In their book The Sovereign Individual, published on the eve of the year 2000, James Dale Davidson and William Rees-Mogg attempt to grapple with the forthcoming technological changes that the new millennium inevitably would bring. “As technology revolutionizes the tools we use,” they wrote, “it also antiquates our laws, reshapes our morals, and alters our perceptions.”

This is the dynamic that has been unfolding slowly over the last 20 years, as Google, Facebook, Twitter, and other social media platforms have transformed how we engage with communications, culture, commerce, and one another.

But the COVID-19 pandemic has pushed that transformation into overdrive, while exposing just how significantly power dynamics—between individuals and corporations, and individuals and the state—have shifted.

Earlier this week, Facebook announced it was removing posts intended to organize rallies protesting government stay-at-home policies in various states. Initially, a Facebook spokesman claimed the company was doing this at the behest of state governments. Nearly 12 hours later, the company clarified it was independently removing posts “when gathering[s] do not follow the health parameters established by the government.”

Facebook did not clarify if this meant gatherings in violation of state laws, or executive orders with no force of law, or merely violations of government suggested practices.

This opens up a new, concerning lane for Facebook, and for tech more broadly. As Big Tech cements itself as our primary facilitator of communication (as it most certainly has during this pandemic), it wields outsized power.

Kalev Leetaru at George Washington University recently pointed out the significance of this shift, and the lines that blur as a result:

That a private company can now unilaterally decide to simply delete the promotion of protests it deems unacceptable is a remarkable expansion of its power over what was once a sacrosanct and constitutionally protected freedom. As we cede the public square to private companies, however, those constitutional freedoms of speech and expression no longer apply in some cases. Through those private companies, in fact, government officials can in effect restrict speech they are obligated to protect.

The irony is that less than a year ago, Mark Zuckerberg gave a speech at Georgetown University where he extolled tech’s many virtues, including how tech platforms “have decentralized power by putting it directly into people’s hands.” Yet Facebook’s most recent actions confirm that power of communication for the 70 percent of American adults who use Facebook, rather than being made disparate, is still very much centralized in the tech platform.

YouTube has also put itself in the position of defining “correct” speech—but this time, by aligning itself with the World Health Organization. YouTube’s CEO announced that the platform would remove “anything that would go against World Health Organization (WHO) recommendations.”

YouTube’s apparent motivation is to keep people safe from misinformation—which makes their choice of WHO recommendations an interesting one. In mid-January, the organization was telling the world that COVID-19 wasn’t contagious. WHO also publicly opposed the travel restrictions put in place by multiple countries and didn’t declare coronavirus a pandemic until March 11. All along, the organization has taken China’s obviously false claims at face value, allowing the virus to spread.

Yet this is the banner behind which YouTube will fly its “user safety” flag, thus imposing WHO’s views on its massive user base.

Tracking You—For Your Health.

Then there is the thorny notion of contact tracing—the way in which public health experts attempt to contain a viral pathogen by tracing where an infected individual has been, and with whom they’ve been in contact. Traditionally, contact tracing has been analog, based on a conversation between patient and doctor.

But the digital age has exploded contact tracing exponentially. It is much more efficient and accurate to trace a virtual trail, particularly as we leave immense digital footprints wherever we go. South Korea has typified this type of response, tracking COVID-19 patients using credit card data, surveillance camera footage, and cell phone location data. The South Korean government recently announced they’d be requiring infected individuals to wear electronic wristbands to ensure patients did not breach quarantine.

It is unlikely U.S. citizens would tolerate such intense and mandatory surveillance measures. But that’s where Big Tech comes in.

Without being asked, Google already has been sharing aggregate user location data with governments interested in compliance with social distancing measures. The House Freedom Caucus, a group of conservatives, sent a letter to Google raising concern over the “frightfully detailed, specific, and granular” data being provided to government officials.

Google and Apple recently have announced the development of a contact tracing technology that will use cell phone Bluetooth proximity data to alert individuals if they have come into contact with an infected person. The app’s effectiveness depends upon people self-reporting their own positive diagnosis. Already, security experts have raised concerns about false positives, spoofing, re-anonymization, and “proximity marketing” (yes, you’re just trying to avoid getting sick, but tech advertisers could still make money). Experts have also pointed out how easy it would be for this system to be abused.

The Google/Apple contact tracing app is opt-in—for now. Epidemiologists suggest that contact tracing really only works to slow viral spread if at least 60 percent of the population participates. It’s entirely possible that federal or state governments mandate the use of a contact-tracing app, in which case corporate and state power over the individual would be comingled, with little differentiation.

Michael Kwet, a visiting fellow at Yale Law School’s Information Society Project, put it this way:

Two corporations, Apple and Google, have come to dominate the smartphone software ecosystem, and they have spent years spying on users and enabling consumer surveillance in their app stores. In the world we built, we now have to weigh the fate of our lives and economy against trust in Apple and Google, the ad-tech industry they support, and government intelligence agencies. . . . This is a nightmare.

There are other questions, too. Could public health agencies get court orders to obtain phone tracking data from communications companies without consumers’ permission? Is it acceptable for aggregate location data to be made public?

We do know that the technology’s operating system will be made available only to governments’ public health authorities—will Apple and Google prevent authoritarian governments from using the technology in unintended ways? Will health authorities be able to build apps on top of the Google-Apple technology that could enable more invasive tracking?

Then there is the security of personal health data itself. This is supposed to be protected by HIPAA, the nation’s health privacy law. But the Department of Health and Human Services recently announced it would relax enforcement of HIPAA to facilitate the disclosure of health information between healthcare providers and their business associates. Google is a “business associate” of several major hospital chains already, and as part of the relationship receives the full medical records of patients without their knowledge or consent. What constitutes a HIPAA violation under this technology? Would Apple or Google be held liable?

We Have Been Here Before

COVID-19 has presented fundamentally difficult questions about the tradeoffs between public health and privacy, and the relationship between corporate and state power.

In some ways, however, we have been here before.

In the days after 9/11, Congress grappled with similar questions as they put together the PATRIOT Act. The law authorized massive surveillance of the American population, and the years since have seen that power abused and manipulated. (Tech companies also got in on that game; for years they willingly and secretly shared troves of user data with the National Security Agency.)

What we needed then was sober-minded deliberation and thoughtful analysis—not the rush to give away civil liberties as we grasped for a sense of security.

The lesson there should be applied here. As we rightly seek a functional public health response to a virus that currently lacks a vaccine, the push toward erasing the boundaries of our private lives will only increase. The belief that private industry “innovations” are inherently good and thus do not pose a risk to us has the potential to lull us into complacency. Indeed, the people who warned us about the PATRIOT Act appear to have no such qualms about Google.

But the potential for mandated usage remains, as do a host of questions, both technical and broadly philosophical. These questions should be pondered, not rushed; interrogated, rather than dismissed. As corporate power increasingly co-mingles with state power, this process becomes even more important.

The power of Big Tech has been growing slowly, and in a way that many of us have accommodated as a necessary infiltration. But the scope of that power—and its costs to the culture we have ordered—have been less transparent.

Like the bird that falls asleep on the back of the hippopotamus, we don’t actually think much about the status of where we are until the hippo moves. And now, the hippo is moving. And the massive power Big Tech has amassed has been revealed. How much or how little say we have over the arrangement, however, is still being determined.

First Principles

Will Consciousness of Death Remind Americans to Value Life?

In the 103 years since the last comparable pandemic, our cultural relationship with life and death has changed.

May 1 celebrations used to be about the renewal of life, replete with beribboned poles and spring dances, long before the Soviet and Chinese communists appropriated those joyous rituals—replacing flowers with tanks. May Day parades, ostensibly for the purpose of commemorating International Workers Day and instilling pride in the motherland, were meant also to intimidate adversaries at home and abroad.

As much of our country may be set to return to work on May 1 after what has been a nearly three-month confinement, the way in which COVID-19 compelled us to live exposes cultural paradoxes overdue for examination. In the 103 years since the last comparable pandemic, our cultural relationship with life and death has changed.

How will we remember this period of time?

Task Force member Dr. Anthony Fauci asserts that COVID-19 will be with us for some time, and thus, long-accepted societal practices must change to keep infection rates at a minimum. Fauci ignited controversy by suggesting that the widespread social ritual of shaking hands should be discontinued in our new world. “We don’t need to shake hands. We’ve got to break that custom.” His admonition, initially shocking to many, has been quietly accepted by many others as the death toll mounts in places like New York. Other, more informal public displays of affection are likewise being forsaken in the small family gatherings still left to us.

Caitlin Doughty is a mortician and self-described “funeral industry rabble-rouser” popular on YouTube. In 2011, she founded The Order of the Good Death, whose mission is “about making death a part of your life. Staring down your death fears—whether it be your own death, the death of those you love, the pain of dying, the afterlife (or lack thereof), grief, corpses, bodily decomposition, or all of the above. Accepting that death itself is natural, but the death anxiety of modern culture is not.”

In her book, Smoke Gets In Your Eyes and Other Lessons from the Crematory (2018), she graphically describes how the American fear of death results in a terrible disassociation with reality. Doughty’s goal is to reintroduce a cultural affirmation of, and comfort with, death in our lives—as opposed to the antiseptic and expensive service that the modern funeral industry currently offers us. Doughty has argued that Americans tend to deny death and decay:

Looking at the body you understand the person is gone, no longer a player in the game of life. Looking at the body you see yourself, and you know that you, too, will die. The visual is a call to self-awareness. It is the beginning of wisdom.

Doughty frequently takes the funeral industry to task for not offering a more personal, holistic mourning and burial experience like those from earlier times in our country’s history. She tells viewers that the family, usually the older women, would wash and dress their loved one’s body, carefully arrange the body on a couch or bed, and the community would come together and mourn. A black ribbon wreath on the front door notified visitors and bypassers of a family in mourning. Funeral homes, fixtures in communities today, were unknown until the mid-1920s.

During the Spanish Flu epidemic in 1918, life did not shut down. Large and small businesses continued to operate. Concessions to safety like gauze masks were made, and a substantial public service campaign to cover coughs and sneezes was launched largely with help of volunteers like the Boy Scouts.

Historian Catharine Arnold documented the outbreak in Pandemic 1918: Eyewitness Accounts from the Greatest Medical Holocaust in Modern History. She exposed the vulnerability which the experience of survival amid mass casualties can leave in its wake. She includes an account by author John Steinbeck, who had been an adolescent during the height of the pandemic. Steinbeck had recovered after a lengthy convalescence but carried on with lasting physical and mental repercussions. “The experience bestowed a strange psychological legacy, leaving Steinbeck with a profound sense of vulnerability which shaped him as a writer.”

Both Doughty and Arnold make salient points about the cultural treatment of death. Doughty is not wrong to call out abuses and scandals in the funeral industry, but she overplays the role of the industry in shaping our now-ingrained abjuration of death’s reality. “Burial,” she explains’ “means an embalmed body in a heavy-duty casket with a vault built over it so that the ground doesn’t settle. That body is encased in many layers of denial.” However, our current funeral practices are not only the cause of the cultural shift in attitudes towards mortality.

While no one would deny that there are funeral directors who prey on grieving families and abuse their own indispensability for financial gain, Doughty misses some concurrent changes in social mores that are even more directly responsible than the funeral industry. Other corporate ventures have come to trivialize the experience of death in the same measure that funeral directors are said to capitalize on our fear of death. Video games, in their quest to enhance and prolong the period of play, enable their characters to come to gory ends and then respawn with even greater powers—a potentially hazardous twist on cultural archetypes of death and resurrection.

There are scholars who have warned us. John Paul II is often described as the philosopher’s pope. There is little doubt he was influenced by Israeli thinker Martin Buber. The purpose of his 1995 encyclical Evangelium Vitae was to clarify and expand Pope Paul VI’s Humana Vitae, updating it to include new threats from technical innovation and mediated by governments, social activists, and media. The net result of those changes has been to diminish the inherent value of human life as an essential truth. The encyclical reaffirmed the Church’s stance on contraception, abortion, and euthenasia:

…[in the]present social context, marked by a dramatic struggle between the “culture of life” and the “culture of death,” there is an urgent need to develop a deep critical sense, capable of discerning true values and authentic needs.

When governments at the behest of society provide access to these “social” services, they promote a self-centered efficiency at the expense of, and furthering the depreciation of, life itself as a value.

Buber’s 1952 book, Eclipse of God, foreshadowed how nothing good could come from the rapidly fading primacy of metaphysical truths: “Eclipse of the light of heaven, eclipse of the light of God—such indeed is the character of the historic hour through which the world is now passing.” Buber was writing in the aftermath of World War II amid the ethical chaos wrought by the devout atheism of National Socialism as well as the postmodern secular philosophy of Jean-Paul Sartre and other postwar existentialists. Buber also remained acutely aware of false piety, and he did not hesitate to call out devout supposedly moral individuals who collaborated with Nazis:

I do not mean to imply that the evil are anything other than a small minority among the religious or that the religious motives of most people are in any way spurious. I mean only that evil people tend to gravitate toward piety for the disguise and concealment it can offer them.

Echoing Buber, John Paul II wrote:

. . . the eclipse of God and man, typical of a social and cultural climate typically dominated by secularism, which, with its ubiquitous tentacles…those who allow themselves to be influenced by this climate fall into a sad vicious circle: When the sense of God is lost, there is also a tendency to lose the sense of man, or his dignity and his life . . .

It is fair to say that both men were prescient in predicting the spurious nature of what would become woke culture, the fully actualized culture of death the late Pope warned us about.

Although neither Martin Buber nor John Paul II would have had occasion to play “Call of Duty” or “Red Dead Redemption,” they might have watched some American westerns. American popular culture, even including these old westerns, showed a reverence for life and for the concept of all humanity sharing an invisible bond. Several now-classic westerns sent a strong message of American moral exceptionalism. They also took care to affirm an irreducible respect for the humanity of every individual—pointedly including the insignificant, the scorned, the inconvenient. In John Ford’s “Stagecoach,” the passengers risk their own lives to ensure the survival of a pregnant woman and the baby to which she gives birth.

In John Sturges 1960 western “The Magnificent Seven,” the characters played by Yul Brynner and Steve McQueen form an instant brotherhood of protest when a town tries to deny an Indian’s right to be buried alongside the white people of his town. Finally, in Fred Zinneman’s “High Noon,” citizens of a seemingly doomed town rationalize their abandonment of that town and of its marshal Will Kane to certain death, by complaining that nobody outside their town cares about their town anyway. It takes a madam and businesswoman, Helen Ramirez, to argue that the town is choosing to kill itself and thus making it that much easier for the next town to be ground into the dust by the forces of evil.

Over the past two months, the COVID-19 pandemic in the United States has taken over 50,000 lives and wrought economic devastation. If there is good to come of this, it will be born of acknowledging the moral abyss whose edge we have too closely skirted. It is not too late for a rebirth of reverence for the precious value of human life, for the somber—not frightful—claim of all our dead upon our respect. We might reclaim lost ground from the culture of death as we reach for the light of life in the very shadow of that death.

First Principles

The Land of the ‘Free’ and the Home of Shelter-in-Place Orders

Americans should not be complacent, nor should they allow panic or fear to lead them to acquiesce to unreasonable restrictions on constitutionally guaranteed liberties.

In mid-March, governors across the country began issuing broad shelter-in-place orders in response to the coronavirus outbreak. The orders contain sweeping restrictions on individuals’ freedom of movement and activity in every sphere of life. They preclude people from going to work, running their businesses, convening to worship, visiting their own properties, taking a drive, attending school, and visiting with family or friends.

The orders are based on the belief that the coronavirus poses a dire threat to the health and safety of the populace. Drawing on the expertise of epidemiologists and other public health officials, as well as the statistical projections of various models on which those officials have relied, governors issued their orders under the belief that “social distancing” will slow the spread of the disease and spare the healthcare system from being overwhelmed.

Most people initially accepted the premise for the orders and complied with them. But as more and more data have become available, it is clear that the models the public health experts relied on for their projections were wrong.

Moreover, as the shelter-in-place orders continue with no end in sight, public-health officials seem to have moved the goalposts to suggest the orders should remain in effect until there are “no new cases, no deaths.”

Meanwhile, the economy is crumbling. As a result, Americans have begun questioning the scope and duration of the shelter-in-place orders, resulting in various protests and rallies.

Beyond Reasonable Necessity

Even as President Trump has created an advisory council and implementation plan in an effort to reopen the country, state governors insist they have plenary authority to make decisions about the scope of their shelter-in-place orders within their states, and continue to extend them, in some cases to extremes that strain credulity.

Police in California arrested a paddle boarder in the Pacific Ocean who was nowhere near any other individual. A man in Philadelphia was forcibly dragged off a bus for not wearing a mask. Numerous states have banned or restricted fishing. In San Diego police cited people for watching the sunset from inside their cars. In Colorado a man was arrested for playing t-ball alone in a field with his daughter. In Michigan, the governor’s order precludes the sale of seeds and gardening supplies.

Police in some locales are directly interfering with people’s exercise of enumerated First Amendment rights. In Kentucky people were issued “quarantine notices” and their license plate numbers were recorded after they drove to a parking lot to attend an Easter service from inside their cars. In North Carolina police arrested a woman for assembling to protest the shelter-in-place order. Apparently forgetting about those pesky fundamental rights, the police then tweeted, “Protesting is not an essential activity.”

These actions are well beyond what is reasonably necessary to address the risks of the virus. But what is the source of authority for state shelter-in-place orders, and what are the limits on that authority? People increasingly are raising these questions, and now would seem an opportune time to review the long history of legal rulings that address them.

The U.S. Supreme Court held in Jacobson v. Commonwealth of Massachusetts that the police power of a state embraces “reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” In Jacobson, the court upheld the conviction of a man who refused to comply with the state’s mandatory smallpox vaccination. The court concluded that the state retained control under the 10th Amendment of “all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states.”

However, Jacobson recognized constitutional limits on a state’s right to enact health and safety regulations, noting,

A local enactment or regulation, even if based on the acknowledged police powers of a state, must always yield in case of conflict with the exercise by the general government of any power it possesses under the Constitution, or with any right which that instrument gives or secures.

Jacobson affirmed that even in the case of health laws designed to protect the public from communicable disease, a state may not interfere beyond what is “absolutely necessary for its self-protection.”

Thus, as Jacobson and other cases have recognized, the Constitution provides a backstop, such that the state’s authority ends where the Constitution’s authority begins. Health and safety laws are no exception.

Limits on State Police Powers

One constitutional limit to state authority over health and safety laws is the Commerce Clause contained in Article I, Section 8, which authorizes Congress “to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.”

In an 1824 case called Gibbons v. Ogden, the Supreme Court affirmed that the Constitution confers upon Congress the exclusive power to regulate interstate commerce. Even if a state law is designed to affect only economic activity within its state, Gibbons concluded that the Commerce Clause gives Congress authority where the activity regulated has some commercial connection with another state. Notably, the Court in Gibbons noted that quarantine laws are not merely health or police laws, but “they are also laws of commerce.”

Another limit to a state’s ability to enact health and safety regulations is found where a law infringes upon fundamental rights guaranteed under the Constitution. The 14th Amendment guarantees no state may “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This protection ensures substantive liberty rights, not just process.

The most familiar of the liberties protected by the 14th Amendment are in the Bill of Rights. They include, of course, the First Amendment rights to free exercise of religion, free speech, and the right peaceably to assemble; they also include the Second Amendment right to keep and bear arms. In addition, the Supreme Court has held that the liberty interests secured by the Constitution exceed these enumerated rights and includes “a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”

Where a state imposes a substantial burden on a fundamental right, the state has the burden of showing that it has a compelling state interest and that the state is taking the least restrictive means toward achieving that compelling interest. This test, known as the “strict scrutiny” standard, has its roots in a case called Skinner v. State of Okl. ex rel. Williamson (1942). In that case, the Supreme Court invalidated a broad Oklahoma law that required the forced sterilization of people with multiple convictions for crimes of “moral turpitude.” The strict scrutiny test ensures that a state’s power to enact laws in the name of health and safety will not become an unreasonable pretext for overriding liberty interests secured under the Constitution.

Various state courts have explicitly recognized that states’ authority to protect against epidemic does not justify such arbitrary and unreasonable state action.

A California case (In re Shepard) from 1924 is instructive. In that case, a woman was arrested on a prostitution complaint and was ordered isolated and quarantined based on the suspicion that she was “infected with a contagious, infectious, and communicable disease.” In vacating the quarantine order the court held that the constitutional guarantees of the right to personal liberty and personal security override “mere suspicion” that someone must be isolated due to disease.

How Many Liberties Are We Willing to Cede?

Americans should be questioning whether the coronavirus presents an “immediate, imminent, and impending” threat that justifies the suspension of civil liberties and the decimation of the national economy. Whatever benefit of the doubt states had a month ago has dissipated as we have learned that the data and models the states relied on as authority for their restrictions were wrong. The states’ arguments of a compelling interest were based on dire predictions of 2 million dead Americans. Those models were wrong, and Americans should scrutinize just how “compelling” the states’ interests remain. And when governors are banning people from buying gardening supplies or citing them for watching a sunset, Americans should scrutinize whether states are employing the least restrictive means.

Over the past several months, Americans have witnessed—and in many cases accepted—a not-isolated series of infringements on their civil liberties. At the same time we continue to learn of civil rights abuses by the FBI through the use of federal court orders put in place under the USA Patriot Act after the September 11, 2001 terrorist attacks on our nation. While two decades apart, the situations are not dissimilar and are equally troubling.

As a nation we should understand that fear has a way of driving us to do things we later will regret—things like blatantly trampling on people’s constitutional rights, or, worse, simply surrendering those rights.

Americans should not be complacent, nor should they allow panic or fear to lead them to acquiesce to unreasonable restrictions on constitutionally guaranteed liberties. Instead, Americans must insist that states display a compelling interest and that the restrictions they impose are the least restrictive means necessary to address that interest. The Constitution requires nothing less.

First Principles

A New American Civics Portal

While the Real Clear Foundation’s project will not shy away from the injustices that have taken place throughout our nation’s history—including slavery and racism—those will be depicted rightly as departures from America’s founding principles.

The Real Clear Foundation has launched a new American civics education portal, dedicated to renewing civic education in the United States.

If one good thing has come out of this season of quarantine, it’s that parents, forced to homeschool, are getting to see the unpatriotic and liberal curriculum public schools are teaching. In a recent article at the Federalist, Beth Freeley wrote about a world history assignment on gender theory (parents raising “theybies”) and a physics assignment on critical race theory that her freshman received from his public school. Evidently, a supplemental source like Real Clear’s American Civics Portal could not have come at a better time.

Though the American Civics Portal is not a direct response to the New York Times’ “1619 Project” it is “more than an answer” to it, David DesRosiers, publisher of RealClearPolitics, wrote in an email.

The “1619 Project” is an initiative by the New York Times and the Pulitzer Center to reeducate Americans about American history. They seek to teach school children that America’s real founding date is not July 4, 1776—the day the United States declared independence from Great Britain—but 1619, the year slaves were first brought to Jamestown.

Even now, One World, an imprint of Penguin Random House, is working to turn the “1619 Project” into a series of books. This will include new and expanded essays as well as fiction and poetry. Further, according to Pulitzer’s Annual Report, more than 3,500 classrooms around the nation have been given free copies of the “1619” curriculum. That represents more than 100,000 students who are learning that, as Nicole Hannah-Jones puts it in her flagship essay, our founding principles were a lie.

In contrast “RealClear’s American Civics web portal gives students, teachers, and citizens-in-the-making a clear understanding of our nation’s founding principles and history,” stated DesRosiers. “We draw upon the best resources, research, and scholarly writing in order to educate and inspire a new generation of Americans,” he said.

According to RealClear’s website, the project seeks to give readers insight on topics such as inalienable rights, the Constitution, and civic virtue. Included in this project is the 1776 Series, essays that explore founding principles such as the nature of self-government and the republican nature of the U.S. Constitution. Further, this collection of essays will include modern topics of political import such as balancing individual freedom and national security.

Of the 1776 series, DesRosiers wrote, “We see that [the] soul of America finds its articulation in the Declaration of Independence and its New Order of the Ages ambitions. To say that it’s 1619—as the New York Times does—is to introduce a falsehood into our educational system.”

As a whole, this portal masterfully deals with America’s failures and successes without offering either a wholesale condemnation or exoneration. In the project’s introductory essay “American Civics in the Time of Coronavirus,” Carl M. Cannon states that the essays and resources will not present a “sanitized version of America.” He writes,

Lady Liberty is sufficiently beautiful that her blemishes needn’t be powdered over. On the other hand, modern revisionists mainly present a warts-only view of the United States. “American Civics” will do neither. The reigning ethos here will be that the country has nothing to hide and much to be proud of.

While this project will not shy away from the injustices that have taken place throughout our nation’s history—including slavery and racism—they will rightly be shown as departures from our founding principles.

The portal is arranged topically. Those doing research can click on one of several categories such as: EqualityLiberty, and Race and Slavery. Other topics will soon be added that cover self-government, citizenship, the U.S. Constitution, and more. Under each category are numerous informative essays to read. Also on the portal is a list of essential American civics readings that can serve as a source for teachers and students alike.

Tom Tacoma, assistant professor of history and political science at Blue Mountain College, said of the new American Civics Portal,

A fairly large proportion of my students want to be high school history teachers, so I think just exposing them to Real Clear’s Civics portal will be helpful to them as they look to their future careers . . . From what I’ve read already [RealClear has published] thoughtful pieces by top scholars and that’s exactly what I want to incorporate in my classes.

DesRosiers said he hopes teachers will find the page helpful. “This Civics portal brings together primary sources, video, and sample curricula to give students a clearer understanding of their nation’s principles and history.”

After COVID-19 we will need a renewed understanding of American civics to repair the economy and our political culture, Cannon writes. He argues that America has always met existential threats by summoning our inner resources.

Narratives such as the one taught by the “1619 Project” are distorting the understanding of the principles that made Americans capable of overcoming monumental obstacles. In times of war and trouble, our leaders have always been able to refer to America’s founding documents such as the Declaration of Independence to inspire people with its soaring language and ideals. Yet, if Nicole Hannah-Jones and the New York Times have their way Americans will no longer revere such things, but will look upon all of American history with cynicism.

Unlike the “1619 Project,” the 1776 Series and RealClear’s Civics Education Portal takes an optimistic look at American history. It is a breath of fresh air in a time when our nation needs it most.

First Principles

Why the Double Standard With Hungary?

What matters to transnational progressives is not “government by the consent of the governed,” but the elite consensus developed and refined in unelected judicial-administrative bureaucracies.

In reaction to the COVID-19 pandemic, all European democracies have instituted large-scale emergency measures. But one nation in particular, Hungary, has been subjected to an unprecedented barrage of international criticism for its response to the crisis.

The Hungarians are charged with moving towards “dictatorship,” bypassing the rule of law, suspending the parliament, and canceling elections. These accusations are false on all counts.

The emergency legislation declaring a “state of danger” is one of six types of emergency measures listed in Hungary’s fundamental law and constitution. The Constitutional Court is operating and could reject the emergency legislation either wholly or in part.

The “state of danger” legislation passed the parliament with the required two-thirds majority. It can be revoked by the parliament by a simple majority at any time.

On March 31, under the headline “Coronavirus Kills Its First Democracy,” the Washington Post’s Ishaan Tharoor breathlessly “reported” that in Hungary “Parliament is closed, future elections were called off.”

Unfortunately for the Post’s already-tattered credibility, none of this is true. The Hungarian Parliament has not been suspended. In fact, it has been meeting every week in person, not virtually. When CNN’s Christiane Amanpour asked Hungarian Foreign Minister Péter Szijjártó why parliament was closed, he told her that he had just spoken five times in parliament that very week. An embarrassed Amanpour muttered, “OK, that’s news to us.”

Further, there are no plans to cancel elections. National elections are scheduled for 2022 and local elections for 2024. The only exception is if a current member of parliament dies or resigns there would be no special election to replace him during the emergency because of limits on the number of people permitted in public buildings and spaces during the pandemic. Several American states, including Virginia where I live, have already delayed their primaries for similar reasons.

Critics argue that since Viktor Orbán’s government has an overwhelming majority in parliament it is unlikely to rescind the emergency legislation against the wishes of the prime minister. True, but this is, of course, the nature of democracy in a parliamentary system when a party or coalition of parties has a strong majority.  When Margaret Thatcher had a solid majority in the House of Commons, she eliminated several elected metropolitan city councils, including the Greater London Council headed by “Red Ken” Livingston, later mayor of London. She has not been considered by historians as an “authoritarian.”

What’s So Different About Hungary?

It is, however, another aspect of the vicissitudes of parliamentary democracy, as John O’Sullivan (president of the Danube Institute and a former Thatcher speechwriter) noted, that four once-popular British prime ministers (Thatcher, Tony Blair, Harold MacMillan, and Neville Chamberlain) who held commanding parliamentary majorities were forced out of the prime ministership by internal party revolts.

“The lack of a sunset clause [in the Hungarian emergency legislation] is worrisome,” O’Sullivan argues, “but talk of the end of democracy is overheated.” He does not “justify the emergency law as it stands.” Nevertheless, O’Sullivan writes, the addition of a sunset clause would be beneficial by “lower[ing] the political temperature on all sides.”

Be that as it may, the Hungarian government is pretty much doing what everyone else in Europe is doing in terms of health guidelines on social distancing and stay-at-home orders. Other European states (those usually more EU friendly, one might add) are more intrusive than Hungary in restricting civil liberties and democratic practices.

France has a state of emergency. French President Emmanuel Macron’s government bypassed parliament to adopt controversial pension legislation by decree. Further, the French government has postponed the second round of local elections and drastically enforces household curfews with fines, imprisonment, and sometimes by physically forcing people back into their homes.

Significantly, a report by Agnes Zsofia Magyar, a senior research fellow at the Danube Institute, revealed that France has instituted a “state of emergency,” rule by decree over 1,000 times since the inception of the Fifth Republic in 1958. Macron in his first two years in office has used rule-by-emergency decrees 84 times. Macron’s predecessor, François Hollande, used emergency decrees 273 times. I don’t recall anyone calling Macron or Hollande emerging “dictators.”

Since COVID-19, Italy has canceled elections. Spain is using drones to track citizens proclaiming “zero tolerance” for curfew violations. Belgium is run by a temporary caretaker government that lacks the clear democratic mandate of a parliamentary majority.

None of these countries are the object of criticism from the EU leadership, the mainstream international media, or foreign policy elites often described as “liberal internationalists” in the United States and in Europe. Why is that?

A Hungarian member of the European Parliament asks: “Why is the introduction of a state of emergency completely legal and acceptable in some Member-States, but completely illegal and unacceptable in others? On what grounds?”

To answer that question we must first answer two other questions: What forces are leading the attack on Hungary? And what do these forces have in common?

Attacks on Hungary are coming from the president of the European Commission, Ursula von der Leyen; the president of the European People’s Party (EPP), Donald Tusk; the Council of Europe; U.N. High Commissioner for Human Rights Rupert Colville; Human Rights Watch; the Washington Post; the New York Times; CNN; Barack Obama’s national security advisor, Susan Rice; and journalist Anne Applebaum.

What do these individuals and institutions have in common besides hostility towards Viktor Orbán and his democratically elected conservative, sovereigntist government?

Well, they are also hostile to Poland’s elected conservative, religious, and sovereignty-oriented administration. Moreover,  they would be delighted to see conservative Israeli Prime Minister Benjamin Netanyahu out of power. Further, they bitterly opposed Brexit and the British Conservative Party’s embrace of democratic sovereignty. Significantly, there is not one person, group, or organization, listed above, that favors the reelection of President Donald J. Trump. Is there a pattern here?

Transnational Progressives Can’t Stand Orbán or Trump

In op-eds and essays that are specifically focused on Hungary, these foreign policy gurus apparently can’t help themselves and feel compelled to add some remarks vilifying President Trump and his administration.

Thus, Rice, while arguing that Hungary should be expelled from the EU, managed to slander Trump maintaining that he used the term “Wuhan virus” for defamatory purposes. Rice claimed the phrase was deliberately “designed to stigmatize people of Asian descent.”

Likewise, in the middle of a widely circulated Atlantic essay denigrating Hungary’s emergency legislation as “creeping authoritarianism,” Applebaum characterized government spokesman Zoltán Kovács as follows, “Think Kellyanne Conway with facial hair.”

Besides snark, what the attackers of Hungary have in common is a consistent worldview: they are transnational progressives. They favor increased European integration, expanded globalization, and the transfer of authority from democratically elected governments (which they often view as retrograde and reactionary) to supranational institutions run by experts (e.g., the International Criminal Court and the European Court of Human Rights).

This worldview, in the words of French political philosopher Pierre Manent, is “post-political” and represents a dogmatic “fanaticism of the center.” “Post-political” means that decision-making is transferred from politics (i.e., the democratic process) to administrative (bureaucratic) rule. Drawing on Manent, Assumption College political science professor Daniel Mahoney explains that this narrative (which has become the transatlantic elite consensus) “erodes national identity and sovereignty” and reflects post-1968 “dogmatic” and “aggressive secularism.”

Most of the current critics of Hungary are left-liberal transnationalists, and therefore, are suspicious of democratically elected conservative governments that emphasize sovereignty and patriotism, especially if these governments are also friendly to traditional Christianity and Judaism. They portray these policy positions as backward and bigoted. Remember a recent (March 27, 2020) New York Times op-ed headline, “The Road to Coronavirus Hell was paved by Evangelicals”?

While they loudly proclaim support for democracy worldwide, in practice they prefer the rule of judges and administrators to that of elected parliamentarians and executives.

The current critics of Hungary were silent when the unelected officials of the European Union (supported by Germany and France) forced democratically elected leaders in Italy and Greece out of office in a supranational bureaucratic coup in 2011. They have little, if any criticism, of the EU’s widely acknowledged “democracy deficit.”

Does anyone remember any complaints from the editorial boards of the New York Times or the Washington Post, or any op-eds by Susan Rice decrying what even leftist German politician Joschka Fischer worried was the EU’s nondemocratic governance structure? For the past several decades, when citizens in national referenda on European Union issues rejected the preferred EU leadership outcome, those citizens of democratic nation-states were forced to vote again and again until they made the “right” decision that was acceptable to EU elites.

The current critics of Hungary cheered as oligarchical elements of the British elite attempted for three and a half years (and they are still trying) to thwart the will of the British people for a return of democratic self-government as expressed in the Brexit referendum.

They applaud when judges in the United States, Europe, or supranational courts block democratically elected officials from exercising their primary constitutional duties by attempting to control their own borders by halting illegal immigration.

For transnational progressives the “consent” of the vast majority of citizens of Western democratic nation-states to massive illegal migration from the developing world is superfluous. What matters is not “government by the consent of the governed,” but the elite consensus developed and refined in unelected judicial-administrative bureaucracies.

There is no reason why American (or European) conservatives—or traditional liberals, for that matter—should accept this false narrative on Hungary’s emergency law fabricated by foreign policy elites who are suspicious of democratic majorities and are contemptuous of conservatism in any form, but particularly a conservatism that is respectful of sovereignty, popular self-government, nation, family, and religion.

First Principles

More Speech, Not Less

Perhaps it’s time for American companies to uphold the spirit of the First Amendment, especially when lives are at stake.

Modern reliance on technology has never been more evident than now. During the COVID-19 pandemic, modern technological advances have gone from conveniences to life-saving resources.

But not for everyone.

For people banned from tech platforms, the potential emergency resources these platforms provide are out of reach. Banned from Twitter? Reduced access to breaking news. Banned from Uber Eats? Good luck getting food while maintaining social distancing recommendations. Banned from PayPal, Venmo, or GoFundMe? Sending, receiving, and raising money for emergencies becomes a lot harder. Banned from Facebook? Find another way to connect with loved ones during this difficult time. This is the reality for people whose political speech runs afoul of tech censors or who have been targeted by powerful groups for having the “wrong” political beliefs.

Groups like the SPLC, Color of Change, SumofUs, and Sleeping Giants gleefully try to get their political opponents banned from social media and cut off from payment processors. Tech companies are pressured by advocacy organizations and agenda-driven journalists.

When trying to get a “wrongthinker” kicked off social media or cut off from funding sources, organizations, journalists, and companies claim they’re helping people take a moral stand against bigotry. When Laura Loomer was banned from PayPal, the company told Newsweek: “Our decision and actions are values-based, not political.”

However, the people pushing these bans, and enacting them, have trouble explaining exactly how it is moral to limit some people’s access to food because their opinions fall outside the mainstream. How is it moral to cut people off from their support systems—from their friends, families, and neighbors—because they say things some people find offensive? How is it moral to take away peoples’ ability to pay their bills because their political views are on the fringe of current accepted norms?

In reality, these moves are meant to silence and punish politically unpopular opinions. This precedent creates a chilling effect on free speech. People have a right to say controversial, offensive, and even hateful things. American companies should realize now, more than ever, that they should not suppress the free exchange of thoughts and feelings, nor the exchange of resources, for expressing constitutionally protected speech.

There’s no question these are not normal times, but neither are the companies doing the banning merely private companies.

At a press conference, President Trump promoted a Google website to determine whether people should seek medical treatment for coronavirus. The website was created by Verily, a sister company to Google, under the umbrella of Alphabet—but a Google log in is apparently required. Meanwhile, Google fires engineers over their opinions, bans people from YouTube, refuses to allow certain ads to run, and, in extreme instances, and bans entire Google accounts. The White House has also partnered with Apple to create an app to track coronavirus information. At the same time, Apple bans apps from their app store, removes controversial podcasts, and blocks consumers from viewing chat messages that might contain offensive information.

Twitter, a platform relied on for breaking information and used by government officials and government services, removed a tweet from The Federalist after it shared an opinion piece about the best way to handle the coronavirus epidemic. Twitter also removed tweets by Brazilian President Jair Bolsonaro and former New York City mayor Rudy Giuliani for allegedly violating Twitter’s new rules about discussing the coronavirus outbreak.

In January, remember, the World Health Organization posted on Twitter that China found no evidence of human-to-human transmission of the coronavirus. That has been proven to be an utter lie, but the tweet still remains online. So do tweets claiming the virus originated in the United States and blaming American military for spreading the virus to China.

The coronavirus epidemic is causing people across the world to reevaluate their principles. Perhaps it’s time to rethink the role large companies play in policing perfectly legal—although sometimes controversial—speech. And perhaps it’s time for American companies to uphold the spirit of the First Amendment, especially when lives are at stake.

First Principles

What Is Really Fueling Wuhan Virus Hysteria?

The Wuhan virus has taught people that spiritual maladies can translate into physical maladies. A society comprised of so many individuals lacking community, faith, and reason will succumb all too easily to hysteria and nihilism.

Although the circumstances are somewhat different from today’s, in Albert Camus’ novel The Plague, there is one character, Monsieur Cottard, who illustrates what happens when a profoundly sad and lonely person encounters a horrible event that ravages his community. Cottard paradoxically finds new life and purpose for as long as the plague endures.

At the beginning of the novel, the friendless and misunderstood Cottard is thwarted in his attempt to commit suicide. He then makes a complete change when the plague hits, running a smuggling operation and cultivating friendships with his neighbors. When the plague finally passes away, he becomes angry and hysterical once again.

It is not an exaggeration to say that in the United States and much of the developed world today, there exists a whole population of Cottards. They are anti-social, unfulfilled, and paranoid. Sad with themselves, they feed off stories of doom. They may claim that they care about public health, but this becomes impossible to believe when they stubbornly cling to wildly inaccurate projections and desperately deny stories of cures or methods of preventing infections that don’t hurt vast swaths of people. Instead of resolving the chaos in themselves, they would rather normalize the chaos all around them.

It’s worth mentioning that there have been some positive exceptions to this with the Wuhan virus. Citywide shelter-in-place orders have ironically inspired people to come out of their houses and see one another for the first time. Families and married couples now take walks, play board games, and have conversations with one another. Neighbors will check on the elderly and buy them groceries. Residents in many towns have even made special efforts to keep local businesses afloat. Indeed, all the wholesome togetherness recalls a famous scene from “The Simpsons” where all the children of Springfield leave their houses and play outside when their favorite cartoon “Itchy and Scratchy” becomes boring and preachy.

All-Too-Willing Accomplices

More often than not, however, the Wuhan virus has brought out the worst in people, especially those in authority.

In the name of public health, governors and mayors have imposed indefinite shutdowns of their states and cities, thinking little of the actual effectiveness or economic consequences of such measures or how they have set a dangerous precedent for stripping Americans’ fundamental rights at a moment’s notice.

Mandatory quarantines seem to favor large corporations and government organizations, which are deemed “essential,” and condemn churches and small businesses as “nonessential.” Enforcing these orders has led to ugly scenes of police arresting pastors, pro-life protesters, and parents playing t-ball with their children in an empty field. At the same time, China-friendly monopolies such as Amazon grow by leaps and bounds and abortion providers are given a free pass to stay open despite the quarantine.

Contrary to the argument that these actions are unpopular, many people actually support this injustice and feed into it, as the hordes of COVID-shamers at any social media site will demonstrate. They faithfully report their neighbors who violate quarantine. They take pleasure in embarrassing and shaming people who have doubts about the virus or the extreme responses to it. They see no problem with so many people losing their jobs or with small businesses closing down. They couldn’t care less that their governments have effectively ruined Easter for millions of Christians. Whether or not these actions save lives, there is a feeling that it is all ultimately good for the world.

Long before coping with the Wuhan virus, Americans have been sick with other ills which have contributed to this widespread misanthropy. Despite its gains in comforts and affluence, the United States has become lonelier, shallower, and less logical. Fewer people attend church, marry, have children, keep up with family, or even maintain friendships.

At the same time, more people are addicted to pornography, social media, and videogames.

Social Maladies Exacerbated

What results from these trends are whole generations of Americans who are more depressed, less empathetic, and thoroughly irrational. They don’t mind losing freedoms because they are not really free. They don’t mind the prospect of mass suffering, because they feel like they suffer already. They don’t mind if society breaks down because they don’t see themselves as part of society. And they don’t mind that none of this makes sense, because they never learn to think clearly about anything.

To such people, worldwide disasters are treated more like novelties than serious afflictions. Hence, they embrace elaborate doomsday narratives over concrete facts. Narratives make them feel important; facts make them feel like losers.

Nobody wants to hear that they’re overreacting, or that they’re being cowardly. Nobody wants to accept that they might have been wrong or misinformed. Nobody wants to realize that the government and media institutions they depend on are corrupt and dishonest. Nobody wants to hear how they played a key part in motivating politicians to shut down the economy and trample on people’s rights. Nobody wants to be told they look stupid in their N95 masks.

No, they want to hear that they are saving lives by staying home. That they are heroes for calling the cops about teenagers playing football. That they are brilliant for taking the virus so seriously. That the real enemy isn’t China; rather, it’s the conservatives, Christians, and President Trump who are all “anti-science” and deluded with false hopes.

Whereas emotionally secure people with friends and family to support them can dispense with the narratives and own up to their mistakes, insecure people fail miserably at this. Having nothing but their own ego, they must safeguard it at any cost. They have no friends to come to their aid, to motivate them, or to offer a much-needed reality check. Thus, doomsday narratives become appealing because they offer a kind of escape from their quotidian misery.

Among so many other things, the Wuhan virus has taught people that spiritual maladies can translate into physical maladies. A society comprised of so many individuals lacking community, faith, and reason will succumb all too easily to hysteria and nihilism.

No amount of propaganda, authoritarianism, and stimulus spending will cure this. Only a spiritual renewal among individuals and communities will bring salvation from the evils of this world. This is the message of Easter Sunday and happens to be the perfect one for Americans today.

First Principles

Can a State District Attorney Prosecute the President?

The Constitution provides that the two houses of the national legislative power, which are directly dependent on and accountable to the people and to the states, should deal with any criminality of a president.

On August 29, 2019, Manhattan District Attorney Cyrus R. Vance, Jr., having opened a criminal case against President Trump, had a New York state grand jury issue subpoenas for Trump’s personal financial and tax records “dating from 2011 to the present.” Attempting to quash the subpoenas, Trump immediately sued on his own behalf. Trump v. Vance, now before the U.S. Supreme Court, has been rescheduled for oral argument in May, exact date to be determined. The Department of Justice has joined the case with an amicus in support of Trump.

As reasons for the subpoenas, Vance offers “multiple public reports,” about possible “criminal misconduct” dating back to 2005 at the Trump Organization in New York and about Trump’s possible role in the activities of his lawyer Michael Cohen’s guilty plea to charges of violating federal campaign finance law concerning the payment of “hush money” to a woman.

According to previous Supreme Court rulings involving similar historical events—including the impeachment of President Clinton and the near-impeachment of President Nixon—a president or former president is immune from civil suits for his actions as president (Nixon v. Fitzgerald), may be subject to civil suits for his actions before he was president (Clinton v. Paula Jones), and may not be immune from disclosures of presidential communications (United States v. Nixon).

Of course, under Article II, Section 4 of the Constitution, a president may be impeached by the House for “high crimes and misdemeanors” and convicted by the Senate. According to a Justice Department opinion, Article II prohibits the criminal prosecution of a sitting president. In its ruling for Vance, the Second U.S. Circuit Court of Appeals said that the president was claiming a “temporary absolute presidential immunity” which has no “historical and legal precedent.”

Vance’s Understanding of Federalism

In his brief in the Supreme Court, Vance states that his subpoenas concern “transactions that are unrelated to any official acts of the President, and that occurred largely before [Trump] assumed office.” He argues that the constitutional question of presidential immunity during office that was at the core of the Nixon and Clinton cases are not relevant precedents because the subpoenas are directed not at Trump but at his properties, holdings, and taxes. (But since Vance is seeking tax records “to the present,” the subpoenas must perforce include Trump’s presidential salary.)

Vance contends that the court has already ruled that the president of the United States is “subject to” subpoenas under United States v. Nixon and can be sued while in office under Clinton v. Jones. He additionally argues that “the ordinary principles of federalism” support his case because his are not federal subpoenas. Explicitly citing the 10th Amendment, Vance points out that the powers of the federal government are “limited,” while “the remaining powers are reserved to the states,” which have their own “sovereign powers.” The states have “a generalized police power” to prosecute crimes “within their borders.”

Trump Answers

In his own brief, Trump states that the case is an historically unprecedented attempt by a local prosecutor to “subject the sitting President of the United States to criminal process.” Citing Nixon v. Fitzgerald, he maintains that a president should have “temporary immunity” while in office. With no immunity from state prosecution while in office, “the cumulative effects of permitting every state and local prosecutor to take the same steps the District Attorney did,” would make it impossible for a president to “serve the national interest.” The Second Circuit’s holding that only his financial records are being subpoenaed is meaningless, Trump avers, because Vance himself has said that Trump is “a subject of the investigation.” The president contends that he is obviously and in fact the “target” of the investigation and points out that the subpoena “names him personally and seeks his private records.”

Trump regards Vance’s public statements as tantamount to the possibility Vance “may well charge him while he is in office.” The court’s holdings in Clinton and Nixon are not controlling because they “arose from federal proceedings—a point that was emphasized in both decisions.” On the whole, Trump’s brief asserts that “the District Attorney has no answer to the special problems created by giving the power to ensnare the Chief Executive in compulsory criminal process to every state and local prosecutor in the country.” Trump does concede that he may be subject to the criminal process “once he leaves office.”

The Justice Department Maintains Federal Supremacy

Declaring that the case “involves the first attempt in our Nation’s history by a local prosecutor to subpoena personal records of the sitting President of the United States,” the Department of Justice in its amicus brief maintains that the Court should apply a “heightened showing of need.”

Vance’s case against a sitting president, the Justice Department contends, would interfere with the conduct of the office of the president under Article II. The Justice Department asserts that, unlike the other two branches of the federal government, the “executive power” is vested in “a single person.” They go on to quote Justice Stephen Breyer concurring in Clinton v. Jones that the president is the “sole indispensable man in government.” And the department likewise cites United States v. Nixon’s holding that a “demonstrated, specific need,” lacking here, is necessary to require a president to respond to a criminal subpoena. In addition, the Justice Department offers its own long-held internal policy and constitutional interpretation—which, it says, the Court “has never” had occasion to “confront[]”—dating back to the Nixon era “that Article II prohibits the arrest, indictment, or criminal prosecution of a sitting President.”

The question goes beyond the presidency by itself to the entire structure of constitutional government.

Citing McCulloch v. Maryland that “the very essence” of the national government’s supremacy “exempts its own operations” from “every power vested in subordinate governments,” the Justice Department asserts that Vance’s subpoenas violate the supremacy clause by interfering “with the federal government’s autonomy or exercise of its constitutional functions.”

The Justice Department also contends that although the Supreme Court in Clinton v. Jones (a lawsuit that was initiated in a federal district court) deferred the question of civil process over a sitting president in state court, the court nevertheless concluded that “any direct control by a state court over the President” may “implicate concerns that are quite different.” It is a commonplace that all “federal officials” have “immunity from action by the States,” the Justice Department maintains. And that obviously includes the president.

In the final analysis, under Article I, Section 2 of the Constitution, the House of Representatives is given the “sole” power of impeachment, per Article II, Section 4, of the “President, Vice President, and all civil officers of the United States” for “high crimes and misdemeanors.” And under Article I, Section 3, an impeached federal officer, “convicted” by the Senate, is subject to “removal from Office.” He is, nevertheless, still “subject to Indictment, Trial, Judgement, and Punishment, according to Law.” But the implied meaning is that indictment, judgment, and punishment can occur only after a president is no longer in office. In Federalist 69, Hamilton explicitly said so: a removed president may “afterwards be liable to prosecution and punishment in the ordinary course of law.” (emphasis added).

The Constitution provides that the two houses of the national legislative power, which are directly dependent on and accountable to the people and to the states, rather than to a federal or state judicial branch with its normal indictment and trial. This is the proper way to deal with any supposed criminality of a president. What high crimes, federal or state (including state tax laws), for which a president may be impeached are not specified. The Constitution does, however, prescribe where those crimes of a sitting president must be considered and resolved: in the Congress. State authority is excluded.

First Principles

The Soullessness of a Technocrat

Experts and technocrats lack the experience, the wisdom, and the real political authority to make the kind of broad decisions that should be guiding us in a crisis.

If the Wuhan coronavirus and our federal, state, and local governments’ response to it does nothing else, it should put in sharp relief the limitations of experts and bureaucrats, and remind us of why so many people voted against them in 2016.

Most will agree that Drs. Anthony Fauci and Deborah Birx are superb public health officials. They explain things well without going into hysterics. They try to calm but also spur to action. They have studiously avoided politics. But neither they nor the organizations they head are infallible, and neither are the state and local versions that governors and mayors are relying on for advice.

Early on, the U.S. Centers for Disease Control moved catastrophically slowly in approving tests, and the FDA went along with that, refusing to use their powers to authorize emergency-use, and discouraging or preventing private labs from developing and using their own tests. When it comes to masks, the FDA’s foot-dragging continued until recently: it wasn’t until March 19 that it permitted industrial N95 masks to be used for hospitals.

If no bureaucrat ever got fired for saying no, and no baseball manager ever lost his job for going by the book, no politician ever lost votes for “doing what the experts said.”

But which experts?

Early on, President Trump sounded like he was trying to talk down the virus as one would talk down the dollar to a more favorable exchange rate. But it was around that same time the president imposed a partial travel ban on China. According to Senator Tom Cotton (R-Ark.), that was more in accordance with advice from defense and national security analysts, and over the objections of the public health experts, who were still listening to the Chinese Communist Party’s WHO-laundered happy-talk.

Only a fool would argue that technical expertise doesn’t matter. But technical expertise is, by its very nature, limited to that specific area of knowledge. It often also comes with a highly specific way of looking at problems and looking at the world.

Moreover, it sometimes breeds distrust for those outside the guild. Consider the masks.

Early on, public-health experts recommended that the public not wear masks when out and about because, they said, they weren’t effective. It now seems increasingly clear that that advice was given not because it was true, but in order to manipulate public behavior. N95 masks were already the unobtanium of the current crisis, and it was important that doctors and nurses have access to them and to surgical masks.

But rather than tell people the truth, ask them to do what was right and most beneficial, and trust them to do it, the experts advised us that masks simply wouldn’t benefit us. Now, they’re telling us something different.

And because decisions are being made piecemeal, here in Colorado, the state attorney general issued a cease and desist order closing down fabric and craft stores like Michael’s, JoAnn’s, and Hobby Lobby the very week that the governor told us all to start wearing masks in public.

That approach has now rightly and dangerously backfired. Rightly, because we don’t pay our public official to lie to us, and because it’s unlikely that any of them will pay a price for doing so. Dangerously, because these people are still public-health experts, and lies undermine their credibility when we need it most.

Fauci and Birx are professionals. They seem to be doing their best to provide the soundest advice. I’m sure that’s happening here in Colorado as well. But they have one job right now—to minimize COVID-19 deaths. And both their training and their professional experience limit their ability to see the broader picture.

That broader picture includes the economic costs of misguided attempts to push “pause” on a complex economy. Not only are individuals out of work, supply-chains are being re-routed, or not routed at all, factories are shutting down, people are finding themselves with cash and little to spend it on, and inventories are building up or being left to rot.

It includes societal costs of further atomizing, through social distancing and stay-at-home orders, a country already plenty distanced. And the costs of encouraging all of us to release our inner Gladys Kravitz by ratting our neighbors out for a fee. (Sadly, the social network app NextDoor seems almost purpose-built for this.)

It includes the cost of making China look like a competent hero by rushing to order masks and other personal protective medical gear from them, at a time when that country is seeking to capitalize on a crisis it foisted on the rest of the world.

No, it’s not the job of public health officials to balance all these considerations, because they’re not equipped to do it.

It’s the job of the political leaders to do that—but right now they’re failing to do so because they’re ignoring the limits of expertise.

First Principles

Maybe Nature Shouldn’t Be Worshipped After All

If the COVID-19 virus destroys the foolish veneration of nature and leads more people, especially the young, to a new respect for the Judeo-Christian worldview, it might be the one silver lining in this catastrophe.

A statement widely attributed to the great British thinker G. K. Chesterton describes the modern period as perfectly as any single idea can: “When people stop believing in God, they don’t believe in nothing; they believe in anything.”

One of these substitute gods has been nature.

Indeed, of all the false gods, nature is probably the most natural for people to worship. Every religion prior to the Bible had nature-gods—the sun, the moon, the sea, gods of fertility, gods of rain and so on.

That is why the farther Western society gets from biblical, i.e., Judeo-Christian, religions, the more nature is worshipped.

Everyone on the left and right cares about the environment. But caring about the environment is not the same as environmentalism. Environmentalism, for most of its adherents, is a secular religion. These people, many of whom refer to, and truly regard, the Earth as a goddess (Gaia, the name of the ancient Greek Earth goddess) worship the environment.

The man who, more than any other, started the modern environmentalist religion was James Lovelock, who developed the “Gaia hypothesis” in the 1970s. Almost 50 years later, in 2014, Lovelock told The Guardian, “Environmentalism has become a religion.”

New York Times columnist Ross Douthat described the 2009 James Cameron blockbuster film, “Avatar,” as “Cameron’s long apologia for pantheism, a faith that equates God with Nature, and calls humanity into religious communion with the natural world.” That equation of God with nature was a major reason for the film’s popularity.

Douthat, one of the only religious (as in believing in and practicing a religion) columnists at The New York Times, added, “The threat of global warming, meanwhile, has lent the cult of Nature qualities that every successful religion needs: a crusading spirit, a rigorous set of ‘thou shalt nots,’ and a piping-hot apocalypse.”

When you ask atheists, as I have for decades, what they believe in, the most common answer is “science.” There was a young man, an atheist, at the gym where I work out, who responded, “Science!” (in place of “God bless you”) whenever someone sneezed. There is nothing higher than science for an atheist because the natural world is all there is. So, worship of the Earth, the environment or nature is almost inevitable in a secular world.

The Bible takes an entirely different view. As explained at length in my Bible commentary, “The Rational Bible,” the first verse of the Bible—”In the beginning God created the Heavens and the Earth”—contains the most radical idea in history. It stated, for the first time in history, that God created nature and is not part of nature. It is one of the reasons I believe the first five books, the Torah, are God-given. No human beings 3,000 years ago in the late Bronze Age would have come up with an idea so opposed to the way the human mind naturally works—to regard gods as part of nature.

From the point of view of the secular, Gaia-worshipping world, Genesis gets even worse when, 27 verses later, God tells human beings to, “Be fruitful and increase in number; fill the earth and subdue it.”

Both instructions infuriate Earth-worshippers. Regarding being fruitful, they oppose people having more than one child, and many advocate having no children so as to have minimal human impact on Mother Earth. But the second part—ruling over nature—is what really angers them.

Maybe the coronavirus will awaken young people, who have been taught by nature-worshipping teachers and raised by nature-worshipping parents, to the idiocy of worshipping nature rather than subduing it. Nature, it turns out, is not our friend, let alone a god. If it were up to nature, we’d all be dead: Animals would eat us; weather would freeze us to death; disease would wipe out the rest of us. If we don’t subdue nature, nature will subdue us. It’s that simple.

Nature is beautiful and awe-inspiring. It’s also brutal and merciless. “Nature, red in tooth and claw,” as Alfred Tennyson aptly describes it. Nature follows no moral rules and shows no compassion. The basic law of all biological life is “survival of the fittest,” while the basic law of Judaism and Christianity is the opposite: the survival of the weakest with the help of the fittest. Nature wants the weakest eaten by the strongest. Hospitals are as anti-natural an entity as exists.

Only human beings make hospitals. We do so not by worshipping nature but by subduing it.

If the COVID-19 virus destroys the foolish veneration of nature and leads more people, especially the young, to a new respect for the Judeo-Christian worldview, it might be the one silver lining in this catastrophe.



First Principles

Is Nothing Sacred?

We have a duty to preserve our earthly lives, but not at all costs. This is true both for individuals and for nations. We cannot help but notice the eagerness with which some leftists have embraced the shutdown of churches.

Easter is coming. We are at the conclusion of Lent, a time of sacrifice and spiritual renewal for Catholics. During Lent, we imitate Jesus’ fasting in the desert. Our small self-denial is rightly understood not as an exercise in masochism, but as a form of spiritual food. Sadly, we cannot go to Mass and celebrate the Resurrection.

The recent coronavirus outbreak and related economic consequences have forced all of us to confront privation and uncertainty, even our own mortality. Not merely a voluntary sacrifice, we are reminded how earthly life is uncertain, contingent, and often filled with suffering. It always ends in an earthly death. For many, this crisis has led to an increased reliance upon their faith.

Most churches, including my own diocese, have suspended services and encouraged believers to follow online and engage in telephonic outreach to priests and other ministries. This is prudent. Religious services, which always entail the close proximity of worshipers, undoubtedly create risks to the health of congregants.

Some churches have not, including Rodney Howard Browne’s “The River” Church in Tampa, Florida. He was arrested last week by our sheriff for violating a statewide quarantine order. This has been a disturbing development for believers. Florida’s quarantine order shuttered most businesses, except so-called essential businesses like the police, sanitation workers, grocery stories, Uber Eats, and even Lowe’s.

While I am not sure the pastor’s decision was the right one, it wasn’t obviously a wrong one, either. Religious life is not merely important, but essential for believers. It is not entertainment—at least it is not supposed to be—but ideally it is the pinnacle of the various subordinate duties people have to their families, employers, communities, and country.

It is certainly more important than Lowe’s.

Respect for Religious Freedom Is a Core American Value

Within living memory, there used to be a shared understanding among Americans that religion was an elevated form of community with unique, non-negotiable obligations. It wasn’t just a club, like the Kiwanis or the Elks, nor was it on the same level as commerce. It was privileged.

It was sacred.

While under our constitutional structure no particular denomination is privileged, religion generally is. It is, after all, protected in the First Amendment. It has also been protected historically in other ways that go beyond mere constitutional protection.

Blue Laws encouraged respect for the Sabbath and limited the ability of commerce to invade it. Tax exemptions and the accommodation of conscientious objectors limited the demands of citizenship for members of dissenting sects. Even the familiar “right to remain silent” has religious roots; specifically, the concern that forced testimony would encourage perjury under oath, endangering the accused’s soul with the sin of blasphemy.

The government’s various powers are ultimately the power to destroy. This is well known in other contexts. This is the reason government cannot impose “prior restraints” upon speech, nor can the government differentiate between publications with tax policy.

Religious people get touchy when the government orders them around. Everyone does, of course. Businesses gripe about regulations. Bikers hate helmet laws. But there is not a constitutional right to operate a restaurant or feel the wind in your hair on a Harley.

These choices, like most things, are subject to taxes and regulations under the rubric of the state’s extensive “police power.” By contrast, those things protected as fundamental rights—free speech, freedom of religion, the right to bear arms—are supposed to be sacrosanct and immune from ordinary exercises of state police power.

Because of the Supreme Court, Religion Is Now Just Another Club 

Traditionally, religion’s privileged status prevailed, even when it conflicted with the police power. In the 1963 Sherbert v. Verner decision, the U.S. Supreme Court held that laws in conflict with religious beliefs had to meet the stringent test of being “narrowly tailored” to serve a “compelling interest.” In other words, even a neutral law had to give way in most cases when it conflicted with sincere religious beliefs.

The Supreme Court reversed itself in 1992 in Employment Division v. Smith, colloquially known as the “peyote case.” This decision held that mere impingement on religion was not an obstacle to the enforcement of a neutral law that invaded sincere religious belief, so long as the law had a rational basis—the lowest form of judicial scrutiny.

While supporters of the specific religious practice at issue in Smith are few and far between, Congress recoiled at the prospect of religious institutions being treated no better than college fraternities and passed the Religious Freedom Restoration Act (RFRA) in 1993 in an attempt to reverse the Court.

That response might as well have taken place 100 years ago. In the 28 years since RFRA became law, it has become fashionable to mock religion, with many activists now piling on and demanding the application of gay rights laws against believers, including a humble Denver bakery, along with casual suggestions that the government should keep churches shut for a year or more due to a virus with a roughly 1 percent mortality rate.

The Left’s Hostility to Christians Is Manifest

Hostility to religious exemptions for shutdown orders has been amplified by the general climate of fear about the coronavirus. Florida’s Governor Ron DeSantis recently classified religious gatherings as “essential businesses,” otherwise exempt from the state’s far-reaching lockdown orders.

The Left went bonkers.

Representative Donna Shalala, a Democrat from Miami, said the state’s exemption for religious services is “inappropriate and scary.”

Slate writer Mark Stern wrote, “It is NOT GOOD to carve out religious services from stay-at-home orders. We know COVID-19 will spread during worship; it does not make exceptions for religious exercise. DeSantis should’ve stood behind the Tampa state attorney and halted all congregations, religious or not.”

Rachel Laser, president of Americans United for Separation of Church and State, sent a letter to the Michigan governor calling similar exemptions “dangerous” and “unconstitutional.”

This is strong language. You hardly hear anyone complaining like this about convenience stores, Lowe’s, or Uber Eats being open. Surely, Amazon warehouses and their multiple workers could lead to the transmission of coronavirus. I presume the Holy Spirit doesn’t swoop in to give Walgreens singular protection!

More important, there is no evidence that all these shutdowns and restrictions actually work. For being so anti-religion, the Left is remarkably credulous. The real faith at work here is their faith in the “experts.” Unfortunately, the experts’ models have proven—as with global warming—unable to make useful predictions.

Something else is going on here.

The Left Hates and Also Fails to Understand Religious Belief

Obviously, commerce, friendship, political and social gatherings, concerts, and other aspects of life restrained by the shutdown orders are important things. These are the things that give life meaning and purpose and zest. I do not believe they should be treated as cavalierly as the public health experts have treated them. I am concerned the cure is worse than the disease.

But even these important things are only devoted to our earthly life and purposes. If we are worried about the potential disaster of an earthly death, how much larger does eternity loom?

This, of course, is a religious way of thinking. I am a religious person and a believing Catholic. It’s quite natural for me to think this way, just as it is quite natural for the country’s other religious Christians and non-Christians to think this way, too. In other words, we know that earthly life is relevant and immediate, but it is not everything. It is of lesser importance to believers than our supernatural and eternal life.

The prospect of eternal consequences, genuinely believed, can motivate men to do great and terrible things. It is what motivated Mother Teresa to devote her life to the poor, and for Catholic Saint Maximillian Kolbe to sacrifice his life at Auschwitz. But it’s also the root of the suicidal determination of the 9/11 hijackers.

In order to reduce friction between earthly power and the uncompromising nature of religious belief, most of the West has protected religious freedom since the age of religious wars. This was an important component of the American constitutional system. We know from that era of European religious violence—the time when most of America’s early settlers fled Europe—that failing to carve out this protection can yield total resistance and total violence on both sides. The Founders wisely enshrined religious toleration as the foundation of social peace.

But knowledge of the foundations of that compromise, along with a rudimentary knowledge of and respect for religious beliefs, is now absent from our ruling class. They are confused by religion at best, and deem it worthy of mockery and contempt at their worst. They simply do not comprehend how anyone might deem religion essential, and they want the state to show religious believers, especially Christians, who’s the boss.

Such an approach will not end well. For believers, the consequences are higher than the temporary and immediate risk of the loss of life from this plague. After all, Christianity has always had martyrs, and martyrdom is a demand of the faith when the state demands apostasy. This is not ancient history; the 20th century was the greatest age of Christian martyrdom. 

In addition to the prospect of violent resistance and violent oppression, the state’s intrusion upon religious gatherings in the name of public safety will be the loss of a way of life. Like organized religion, a nation has a reality that stretches from before we are born and will, we all hope, flourish long after we are gone. In other words, it has a value that transcends any of our earthly lives. It has been deemed worthy many times over for the sacrifice of earthly life by our patriots, soldiers, and other national heroes. But we will not be the same nation if we abandon the American commitment to religious freedom.

Jesus was condemned to death this week nearly 2,000 years ago. But he conquered death, and so can we . . . with faith. We have a duty to preserve our earthly lives, but not at all costs. This is true both for individuals and for nations. As the Gospel of Mark reminds us, “For what shall it profit a man, if he gain the whole world, and suffer the loss of his soul?”