Category: Michael Novakhov – SharedNewsLinks℠

The history of the twentieth century is, in large part, the story of competing totalitarian ideas put into practice, and the destruction, immiseration, and death they produced. It is a rarity in human history, perhaps unprecedented, that the lives of four generations could be told primarily through the lens of a clash of ideas that touched every corner of the globe and every facet of society, politics, and economics. That contest was fought in the pages of journals and newspapers, at the ballot box, and in wars both traditional and undeclared.

Most of these ideas, of course, were bad ones. An optimistic or perhaps Whiggish interpretation of twentieth-century intellectual history would highlight how Marxism, Communism, socialism, Nazism, fascism, postmodernism, and Islamism all rose up and were brought down, at times by their own failures and internal contradictions, and at others by the moral and martial forces of freedom.

None of these ideas were small or for the faint of heart. All sought to reorder society along radical lines, fundamentally change human nature, and extirpate root-and-branch the evolved institutions of private life and the liberal democratic order. The grandiosity of these ideas and their totalizing tendency stirred the souls of their followers, calling them to a mission to build a new society—and to destroy an existing one.

A quarter of the way into the twenty-first century, the difference between then and now could not be more stark. While ours is a moment racked by popular discontent, the diminution and desecration of formal and informal institutions (often at the hands of these institutions’ ostensible leaders), and a significant increase in the breadth of ideas in circulation, there has been very little in the way of legitimately new ideas this century, either at the level of ideology or public policy. Indeed, most of the bad ideas in circulation today are old bad ideas, not new bad ideas.

For those of us who care about a free society, this is a reason for optimism. During the long twentieth century, when anti-liberal ideas from Marxism through fascism were new, liberals faced four challenges. First, responses to these challenges were under-theorized, and it took decades of work by thinkers like F. A. Hayek and Wilhelm Röpke to address them head-on. Second, liberals had a thin intellectual bench, and aside from a few times and places like fin de siècle Vienna, they were seldom found in close regular contact. Third, the empirical record of high modern illiberalism had yet to develop. And fourth, the opponents of liberalism had the energy of true believers who believed they could remake the world anew.

Today the story is quite different. We have a much more thorough theory of a free society and its attendant institutions; put simply, the task of updating those principles and their applications, while significant and challenging, is of a qualitatively different scale than the problem facing our forebears. We have robust polycentric networks of scholars, intellectuals, journalists, politicians, entrepreneurs, business leaders, and philanthropists dedicated to advancing a free society. And we have a hard-earned century of data from grand social experiments that resulted in historically unprecedented human tragedy.

Put simply, fighting old bad ideas is a very different task in terms of scale, scope, and challenge than fighting new bad ideas.

The online new right is awash with intellectual energy, but it is almost entirely placed into service of revanchist efforts to re-popularize old bad ideas, or in the American context, to take various strains of foreign conservatism that have never had purchase in the United States and bring them to our shores. Among the more prominent of the online right philosophers is Curtis Yarvin, the Pied Piper of the so-called Dark Enlightenment. Yarvin has certainly been prolific over his decades of blogging and popular writing. But his underlying idea—that America needs to replace the Constitutional order with an unelected CEO-king—is simply a pre-modern absolutist, non-hereditary monarchy with twenty-first-century characteristics.

Yarvin’s affect is novel, no doubt. Rather than writing for clarity, he seems to relish purple prose, non-sequiturs, and halting transitions. As John Horvat wrote for Law & Liberty, “He is brash, sarcastic, skeptical, and cynical. His style is irreverent and vulgar. He cares little for rules and formality.” No doubt he’s a good marketer to the very online set. But adopting the cocky, rebellious mien of a very online twenty-first-century Mick Jagger doesn’t make his ideas original.

The Catholic integralists similarly embrace an explicitly medieval view of the relationship between temporal authorities and religious ones; to wit, they believe as a normative proposition that the former should be directed by the latter. Not only is there nothing new about this idea (it was, of course, the pre-modern status quo throughout most of Europe), but it is also, as Law & Liberty contributing editor James Patterson has shown, based on a conception of Catholicism with no historical background in the United States. The story of modern Christian nationalism, to the extent it’s even a discernible ideology, is largely the same.

It may be easier to repudiate bad ideas in their second and third comings than when they were truly novel, but it is still a task that requires diligence and persistence.

The less intellectual corners of the new right offer something even less novel; ideologically, they present a grab bag of racial essentialism, ethnic grievance, and antisemitism of varying degrees of gentility. As with Yarvin, novelty here is restricted to the realm of presentation and promotion, in particular, a delight in subverting social norms of decency.

The left is likewise in thrall to old bad ideas occasionally gussied up in ambitious rhetoric. Doctrinaire Marxism having fallen out of favor, the body count of communism still too fresh in historical memory, the left’s economic ideology is primarily a kinder, gentler “democratic socialism” or “social democracy.” On questions of identity (which now regrettably carry more political salience than do matters of political economy), there’s the same mishmash of postcolonialism, critical theory, third-worldism, anti-white racial resentment, and anti-Americanism that characterized much of leftism in the twentieth century. “Wokeism,” the only significant left-wing ideological innovation of the past quarter-century, had no new intellectual underpinnings; it was novel only in its rhetoric and Internet-optimized political tactics.

This ideological stagnation leads to policy stagnation. The mayor-elect of New York City, a self-described democratic socialist who during the campaign clearly relished his portrayal as a radical and never missed an opportunity to take a swipe at the successful, has little economically to offer besides slogans about government-run grocery stores, rent control, and free bus passes. His promises of free child care and $30 minimum wages are unlikely to go anywhere in Albany, meaning his actual fiscal impact may not be that significant.

This in itself does not counsel optimism: Zohran Mamdani’s policy ideas are terrible and will be deleterious to New York as a city, especially its less well-off. Nor should we discount Hizzonor’s bully pulpit; the vibes and pronouncements from mayors and governors matter more than cold rationality may admit.

But Mamdani’s bad ideas are also old bad ideas, not new ones. What he proposes is simply rehashing policies that have been tried and found wanting again and again. As with Yarvin, a slick front man and an affect custom-made for the zeitgeist can’t overcome the underlying poverty of the ideas. Socialism, even in its more urbane manifestations, doesn’t have a marketing problem; it has a reality problem.

The right is suffering from a similar policy stagnation. Tariffs, industrial policy, welfare statism, clientalism, protecting incumbent firms and favored sectors, and nostalgia-based grievance rhetoric all have significant purchase among elected officials. All are ideas that have been tried and failed.

When ideas have been tried and they succeed, societies do well to continue them. When they are tried and found wanting, however, it is seldom a good idea to resuscitate them and see if they work better on a second go. Yet that is what too many societies across the West are engaged in today. Their expositors and advocates are ensconcing these old ideas in new rhetoric and marketing them through digital channels that are distinctively twenty-first century. But the underlying ideas remain essentially unchanged—and unimproved.

None of this is to say that there won’t be a new intellectual or ideological innovation on the order of Marxism that emerges in the coming years or decades. The first quarter of the twenty-first century may yet be seen as an ideological lacuna, after which we could resume our regularly scheduled programming. Nor does this argue for complacency; after all, old bad ideas put into practice are no less harmful than new bad ideas put into practice, even if their consequences are more predictable.

It does however serve as a reminder that no ideas are ever truly so disreputed as to be placed permanently out of circulation. Those with sufficient wisdom and erudition may see through the disguises donned by old bad ideas and see the simulacrum of originality for what it is. It may be easier to repudiate bad ideas in their second and third comings than when they were truly novel, but it is still a task that requires diligence and persistence.

F. A. Hayek wrote that “old truths … must be restated in the language and concepts of successive generations.” So too must the critiques of the old falsities. In this regard, we find ourselves at least somewhat fortunate: old bad ideas may be making a comeback, but we stand on the shoulders of giants as we square up to the task of placing them back on the ash-heap of history. We cannot desist from the battle of ideas, but our task is qualitatively different than when we were facing genuine intellectual innovation and foment from illiberals on the left and right.

Concern that Congress is unable to fulfill its basic constitutional responsibilities has reached an unprecedented degree of mainstream acceptance. Writers on the left and the right bemoan diminished Congressional capacity, the body’s general disinterest in defending its own institutional prerogatives or reaching bipartisan agreements on looming policy issues (e.g., Social Security solvency, deficit reduction, etc.). There is no shortage of explanations for—surely overdetermined—Congressional dysfunction and gridlock, from increasing elite polarization to bicameral disagreements to the centralization of power in party leadership in Congress and so on.

One common argument blames increases in the transparency of Congress’s internal workings for the lack of bipartisan compromise on major policy issues. According to this argument, Congress’s committees for most of the institution’s history were allowed to negotiate and vote in secret, hiding their activities not only from the public but from lobbyists, other members of Congress, and the media. Even the rules of some committees were kept under wraps. In these backrooms, partisans of different stripes would build interpersonal, cross-partisan connections and ultimately deliver policy compromises. The secrecy of these committees enabled compromise in the process of partisan negotiation.

Then, over the course of the twentieth century, following the Second World War, Congress eroded the secrecy of committee hearings through a series of enactments and rule changes, most importantly the Legislative Reorganization Act of 1970. This act, along with subsequent rule changes, removed the secrecy of committee roll call votes and shifted away from secret convenings as the norm in the committee system. Adding to these rule changes, beginning in 1979, C-SPAN cameras were introduced for floor debates in the House and later in the Senate. C-SPAN coverage further expanded to cover many committee hearings as well, illuminating previously undisclosed committee negotiations.

Taken together, all this new sunshine allowed lobbyists for special interest groups, members of Congress outside a given committee, the media, and the mass public to grapple directly with the policymaking process. This increase in transparency coincided with the transformation of Congress’s committees. Committee hearings that were once the nexus of policy development and information acquisition became stages for partisan kabuki theatre. Moreover, power in the policymaking process has shifted away from once-powerful committee chairs to party leadership offices. Proponents of the pro-secrecy story point the finger at these changes as a cause for broader legislative dysfunction.

The case against transparency is facially plausible. Formal, game-theoretic models of bargaining often separately consider public and private negotiations, given the different incentives the players face when negotiating in front of an audience. This is particularly true when the audience is your boss, the electorate, and other actors who can directly influence your ability to keep your job (e.g., special interest groups who make campaign donations). And while most of the public doesn’t pay attention to the fine details of Congress’s inner workings, outside groups and partisan actors can easily rewind the tape of committee hearings and replay selective, out-of-context moments of electoral interest for members’ constituents. It would be very surprising indeed if fully exposing previously secret policy negotiations to public view had no effect on the committees’ ability to reach a compromise, or the nature of the resulting policy outputs.

So should we once again close Congress’s committees, turn off the C-SPAN cameras, and expect a rapid return to Congress’s golden age of committee bargaining? If only it were so simple. A subtle and difficult challenge for secrecy as a reform mechanism is the threat of leaks.

A recent article explores the problem of leaks in depth, asking what we can expect from committees negotiating in three different institutional settings: in public, in secret, and in secret but with the possibility of leaks. Using a formal model, the authors demonstrate two key results. First, committees negotiating in total secrecy (no threat of leaks) achieve the best outcomes, and committees negotiating in public exhibit status-quo bias. Second, and counterintuitively, committees negotiating in public reach the same outcomes as committees negotiating in secret but under the threat of leaks. That is to say, committees that operate in secret but under the threat of leaks are predicted to fail, in equilibrium, to produce better outcomes than committees negotiating in full public view.

How could this be the case? The basic strategic problem that underlies this result is called dynamic inconsistency. At the beginning of a bipartisan committee negotiation, assume both parties want to reach a policy compromise, and enacting a durable compromise is their best-case scenario. However, once the negotiations commence, both parties will be tempted to leak information from the committee proceedings to damage their opponent. For example, imagine a bipartisan committee negotiating Social Security reform. This committee would need to consider reforms that, on their own, are highly unpopular and could be damaging if attributed to one party alone (e.g., raising the retirement age, increasing payroll taxes, etc.). Members of either party would be tempted during the negotiation to leak that the other side floated an unpopular reform to gain an electoral advantage, thus damaging the prospect that the committee will reach a compromise.

Nothing’s to stop a rogue committee member or staffer from calling up a reporter after a secret meeting and spilling the beans.

This dynamic inconsistency problem, where the parties agree at time 1 that compromise is good but can’t commit to not double-crossing their opponent at time 2, undermines the efficacy of secret committee governance. In the authors’ model, both negotiating parties are incentivized to hold back information that could lead to compromise for fear of leakage. If somehow the two parties could tie themselves to the mast and commit to each other in advance that they won’t leak, then it would be possible to reach a compromise. But left to their own devices, the temptation to deviate during the negotiations and attack their opponent is too strong, overriding their interest in reaching a compromise. 

To be sure, game theoretic models of politics are stylized, reducing the strategic environment in ways that are somewhat unrealistic. In this case, we might worry, for example, that leaks of verifiable and non-verifiable information might induce different strategic behavior, or that interpersonal factors like trust could affect the probability of a successful compromise (as some former members of Congress suggest). But the fundamental intuition and strategic tradeoff in this case is clear enough, and it is easy to find examples of secret committee negotiations that failed due, at least in part, to leaks. Moreover, a subtle implication of the model is that when the threat of leaks is present, we might expect bipartisan negotiations not to begin in the first place. Why participate in a bipartisan negotiation at all if you believe your counterparty will betray you in public at the first opportunity? There is also technological variation over time that contributes to the threat of leaks. In the age of the Internet, it is easier than ever to leak documents, recordings, etc. 

Of course, the policy being debated also matters. In some areas, the parties can “expand the pie” to reach an agreement, for example, by increasing both defense and nondefense discretionary spending. This is sometimes called integrative bargaining, where the two parties try to reach an agreement that incorporates aspects both parties care about, typically over multiple dimensions. In other policy domains, bargaining is necessarily zero-sum (i.e., if I win, you must lose). These are often situations with a binary outcome: a judge is confirmed or not, a trade agreement is approved or not, etc. In the spending case, if the federal government had a balanced budget requirement, then any new spending would come at the immediate expense of other spending, or new taxes. In lieu of such an amendment, members of Congress often happily borrow to cover new spending, converting a zero-sum case into an integrative one. In theory, secrecy is useful in the integrative, multidimensional case—where members can imagine a range of mutually beneficial compromises—and less helpful for zero-sum negotiations, where at the end of the day, someone loses.

This model also helps explain why so much integrative policy development happens outside of Capitol Hill in the myriad think tanks and non-profit organizations around Washington, DC. These institutions serve a vital role in the policymaking process by granting policymakers (more often their proxies) a forum for developing compromise proposals—or searching for integrative solutions—that is largely inaccessible to the public. Leaks from these forums would be of little electoral or political consequence given the degrees of separation between these outside deliberations and actual elected officials. 

Whether or not this ecosystem of third places for policy negotiation is a net public good is hard to know. Policy non-profits are themselves funded and operated with money from large grant-giving organizations and special interest groups. One might reasonably worry that these financial interests affect the policy development that goes on in these places. For what it’s worth, in the modern Congress, special interest groups and donors have direct access to the policymaking process as well. Counterintuitively, it’s possible that negotiations that happen off the Hill may in some sense decrease the policy influence of special interests, since electoral accountability in these spaces is out of reach. 

While leaks undermine secret committee negotiations, employing secret ballots for more votes in Congress is worth considering. Many votes in both chambers are carried out by voice vote, but under the Constitution, final roll call votes on the floor of either chamber must be recorded if one-fifth of present members demand it. However, there is no such constitutional provision for committees. Regardless, many committees follow the one-fifth rule for disclosing roll calls. Even more extreme, in some committees, a single member can request a recorded vote. We could convert some portion of votes, say all committee-level and below, either to total secrecy or to a teller system where individual members’ votes are not recorded (i.e., only the count is disclosed). Secret ballots are already employed for some other votes in Congress. For example, Senate Republicans elected Majority Leader John Thune by secret ballot last year.

If Congress’s committees were to again turn away from public view, they might also consider creating a small institution to enforce information security. This would hardly be unheard of, given Congress’s proclivity to create non-partisan support offices and agencies like the Senate Parliamentarian or the Congressional Budget Office. As we’ve already established, members from both parties would often be made better off if they could somehow commit to not leaking. A third party, call them the “Congressional Paper Shredder,” with preferences orthogonal to partisan politics, could credibly play such a role.

Even still, nothing’s to stop a rogue committee member or staffer from calling up a reporter after a secret meeting and spilling the beans. If negotiations involve the president, which on major topics they almost always eventually do, then the executive branch becomes yet another potential source of leaks. It’s difficult to imagine institutional tweaks that could address these avenues for leaks, making the continued substitution to outside groups or other venues for policy development and compromise even more likely. On the other hand, making non-floor votes secret is entirely feasible in principle. One can’t leak information that doesn’t exist!

What is Christian Zionism? Is it, as figures like Tucker Carlson claim, a relatively recent development in America’s cultural history, or does a general support for the Jewish state have a longer history in America? The answer partly depends on how “Christian Zionism” is defined, but in this conversation, Sam Goldman explains to host James Patterson why support for Jewish political aspirations is part of a long tradition of Christian philosemitism that reaches back even to America’s colonial period.

Related Links

“Tucker Carlson Is Wrong About Christian Zionism,” Compact, Samuel Goldman
God’s Country by Samuel Goldman
Tri-Faith America by Kevin Schultz

Transcript

James Patterson (00:06):

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

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty and associate professor of public affairs at the Institute of American Civics at the University of Tennessee. With me, again, is my friend, Dr. Samuel Goldman. He is associate professor of humanities at the Hamilton School for Classical and Civic Education at the University of Florida. And today we’re going to be talking about both a newly-in-paperback book of his called God’s Country: Christian Zionism in America. As well as an article he wrote once again for Compact, “Tucker Carlson is Wrong about Christian Zionism.” And this has all been inspired by some of the contretemps of the moment over some of these issues. So we’ll get into those, but also some of the intellectual background that people may not know. Dr. Goldman, welcome to the Law & Liberty Podcast.

Sam Goldman (01:37):

Always a pleasure to speak, Dr. Patterson.

James Patterson (01:42):

I always feel a little guilty about being informal on these podcasts, so I’m going by honorifics at least at first. Now, before we started recording, we were just talking about how many people have offered commentary on Tucker Carlson interviewing Nick Fuentes. And your comment was never before in your life have you felt so middle aged. I feel the same way! So we are not going to talk about the ins and outs of all that business. We’re going to be talking about what was motivating them to talk, and that’s this idea of Christian nationalism. I mean Christian Zionism, excuse me, not Christian nationalism. Totally different show. So what is Christian Zionism and what does Tucker Carlson get wrong about it?

Sam Goldman (02:28):

So Christian Zionism is one of these annoying terms that can be defined in different ways. And one of the frustrating things about the discussion that I entered with my Compact piece and carried on in social media and elsewhere is that people sort of mean different things by “Christian Zionism” and unless you can settle on one definition, it’s hard to have a productive discussion. So I’ll give you two definitions. One is the one that I think Carlson had in mind, which is common and which I think is wrong or at least only partial. And then I’ll give you my correct definition, which is the one that I advance in my book. So one way of understanding Christian Zionism is as the affection of modern Christians, mostly evangelical Protestants, for the current state of Israel, and usually that is associated with a set of eschatological beliefs that involve the return of the Jews to the Biblical Promised Land, the establishment of a state there, increasing turmoil in the region and the world,

(03:49):

and finally a sort of apocalyptic narrative in which Christ returns to rule in person. That’s a definition that has been common for at least 40 years, and I think it’s probably the one that Carlson has in mind, although it’s not clear that everyone whom he mentioned, George W. Bush among others, is a Christian Zionist in that sense. But my contention in the article and the book is that that’s really just too narrow. I would say that Christian Zionism should be defined as something like the idea that God has a continuing concern for the people and land of Israel, that that concern is reflected perhaps imperfectly or mysteriously in the modern Zionist movement and the state of Israel, and because Christians profess to worship and serve the God of Israel, they have some responsibility for supporting or promoting those goals. That is a much broader definition of what it means to be a Christian Zionist.

(05:09):

And it’s also one that extends back a lot deeper in history. So Carlson in that show and on other episodes has suggested that Christian Zionism can be derived from the nineteenth century Anglo Irish theologian, John Nelson Darby. I think it really goes quite a long way farther back, really back to the Protestant Reformation. And what I suggest in my book is that this idea was brought to what became the United States by the Puritans. It became a recurring feature of American political and religious life. It was never uncontroversial or unanimously accepted; I wouldn’t suggest that for a moment. But it was a popular and fairly normal idea really throughout both the history of the republic and colonial history. So when people like Carlson said as he did in the interview with Fuentes, that this is a brain virus that’s somehow taken over the Republican party in America as a result of Darby or the so-called Scofield Bible, which included notes that were influenced by Darby’s ideas, I just don’t think that’s true. Christian Zionism in a broad sense is an old and powerful feature of American thought. And when we talk about its influence and value, I think we should approach it on those terms.

James Patterson (06:58):

During a now leaked video from the Heritage Foundation meeting over some of the fallout from their involvement with Tucker Carlson, one of the participants said that they regarded Christian Zionism as a heresy and they associated this with being either Catholic or Eastern Orthodox. We’re not going to speculate what they mean by that, but there is a kind of odd proximity of Protestantism to Christian Zionism that you don’t find in Catholicism or Orthodoxy. Why is it that Protestantism is so much friendlier to this way of thinking?

Sam Goldman (07:44):

So Protestantism emerges in part out of the idea that scripture is the ultimate authority for Christians. You know better than I do, as a Catholic, that it’s more complicated than that, and there’s a whole range of arguments, but one of the central ideas in what becomes Protestantism is that if you want to know what God wants, you have to go back to the Bible and you have to read it yourself. Which doesn’t mean that everyone’s interpretation is equally valid; particularly early forms of Protestantism had strong interpretive and theological authorities that were supposed to guide people. But you’re supposed to, you know, you read the book and you see what it says. So what happens if you do that?

James Patterson (08:28):

I have never read the Bible before, Sam,

Sam Goldman (08:31):

Well, I’ve seen on Twitter accusations that this is true of all Catholics. So I leave that for others to judge. So you pick up the Bible and what do you find? Well, first of all, you find that it has these two parts: if you are a Christian an Old and New Testament, or for Jews the Hebrew Bible and the other stuff, and then you have to answer the question of what these things have to do with each other. And one of the innovations of Protestant theologians was to say, well, look, when you read the Old Testament as it was for them, you see that it is replete with references to Israel, to the people and land of Israel. And some of those references they suggested are pre-figurations of the Church. They’re metaphors for the community of believers that would be fulfilled in Christ.

(09:40):

But some of them are references to what was called the seed of Abraham, the descendants of Abraham, and to the Biblical Promised Land. And from this turn to scripture and to the Old Testament, which for them was of equal authority to the New Testament, there developed a sense that God was not finished with the people or land of Israel. And through reading, especially some of the prophecies that occur later in the Hebrew Bible or Old Testament, many Protestants expected that one day in the fullness of time, God would bring together the scattered Jews of the world, would restore them to residence in at least some portion of the Biblical Promised Land, and would set up some kind of political community there. And all of this was vague and argument by way of implication, if not insinuation, but you can see in the sixteenth and seventeenth centuries something that looks like a precursor to Zionism emerging not among Jews and not in Eastern and Central Europe, but rather among English speaking Protestants in Britain and then in what would become the United States.

James Patterson (11:16):

So we see this and contemporary scholarship that’s come up, Eric Nelson’s book, The Hebrew Republic. I know we’re selling your book today, Sam.

Sam Goldman (11:27):

People should also buy Nelson’s book.

James Patterson (11:30):

Yeah, God’s Country: Christian Zionism in America of course. And I have this political Hebraism, which is a wonderful compilation. So this is sort of well known in scholarly circles or at least being better established than maybe it was before. And the thing about this political Hebraism is that it was not unfamiliar to the American Founders at the time of the founding of the colonies, or to the framers of the Constitution. So how is it that Christian Zionism makes its way to the US?

Sam Goldman (12:10):

Well, it becomes embedded in the religious traditions that shape the political culture of the founding period. Not equally or to the same degree everywhere, so one sort of current, where it’s especially powerful is the Puritan traditions that then become congregationalism in the eighteenth, late seventeenth and eighteenth century. Presbyterians have a strong tradition of this. It’s especially the religious communities that are influenced by Calvinism that seem to have this affinity. And that then gets picked up by many founders and framers, I think not in a sort of fully committed and explicit way. There are figures who did that; I talk in the book about a guy named Elias Buodinot who served as president of the Continental Congress and was an important aid to Washington, who actually wrote a couple of books making this case. But for some of the more familiar figures, it was sort of in the background.

(13:25):

So I am not an archival scholar. I don’t claim to have found things that other people haven’t found, but to the extent that I have any discoveries, I located a diary entry by John Adams from when he was riding the circuit in Massachusetts in the late 1760s. So in those days, as some listeners may know, the court moved so people could do their legal business and then all the lawyers would follow the court around the colony. So they spent a lot of time hanging out in taverns talking because they were away from home and didn’t have anything else to do. And Adams reports that one night in the tavern, he and his colleagues were talking about the restoration of the Jews. So this was an idea that people were aware of. It was something they heard referred to in the pulpit. It was a subject of sort of lay religious discussion.

(14:32):

And I think that created a climate in which many leading political figures, even if they were not particularly orthodox or even particularly pious, were sympathetic in principle to the idea that Jews were a nation, and that like other nations, it would be good for them to have their own state. So there’s a famous letter that Adams writes many years later to Mordecai Manuel Noah, who is the most prominent Jewish politician in the early republic. And he says to Noah, I really wish to see the Jews again in Judea, a state. And he goes on to say: And yourself at the head of an army of 100,000. And I don’t take that too literally. In part–and people who quote the letter don’t always say this–Noah had been bothering Adams for a blurb for his book, basically. So he’s sort of sending him away with this nice sentiment that he can use for promotional purposes. For Adams–he wouldn’t say anything that he didn’t really believe, either. And there are lots of statements by prominent founders and framers that express this sort of sympathy, again, for something that looks a lot or sounds a lot like Zionism, a century before the emergence of the organized Zionist movement in the late nineteenth century.

James Patterson (16:13):

One of my favorite places to go in the United States is Savannah, Georgia. There’s a synagogue there called Congregation Mickve Israel, I think the oldest or one of the oldest synagogues, 1735 is the founding. And it was Sephardic Jews escaping the Spanish and Portuguese Inquisition. So in a way, when they came to Savannah, they didn’t realize that they were going to be bordering the Spanish to their south, and immediately became very good friends with the Anglicans there, because of this common threat from the Catholic Church. So sometimes the Christian Zionism is complicated and its history…

Sam Goldman (16:58):

And one of the complicating factors is that this is a time when there are very, very few Jews in the United States. Nobody really knows for certain because the census didn’t count in those days, but in 1800 there were almost certainly fewer than 10,000 Jews in the United States. And even that may be high because I can’t remember exactly where that estimate includes. So part of the complication in this story has to do with the relation between this idealization of the national Israel and the encounter with actually existing Jews in the United States or elsewhere.

James Patterson (17:49):

The Scofield Bible that you mentioned earlier is a major inspiration for what eventually becomes known as pre-millennial dispensationalism, and that’s very strongly associated with contemporary Christian Zionism as Tucker Carlson misuses it, as you explained. And what’s really great about your book is how you illustrate that a lot of the early sympathies for Jewish inclusion in the American project, as well as for the Zionist project, was not from fundamentalists, it was from mainline Protestants of the Presbyterian and Episcopalian and Methodist sort of variety. What is it about post-millenarianism, which gets less attention, that drove them to that?

Sam Goldman (18:41):

Well, so maybe we should step back first and talk about the differences in these theories. So the classic way of doing this is saying there are people who are pre-millennial or pre-millenarian and they believe that Christ is going to return in person and then set up the millennial kingdom. And it is said that these people are waiting for a catastrophe. Things are going to get worse before they get better, and then there’ll be this miraculous intervention in history. And that’s an idea that has come to be associated with Christian Zionism, as we said earlier, partly through the influence of people like Darby and Scofield. Against that is so-called post millennialism, post-millenarianism, which is the idea that first human beings will establish the millennial kingdom, which is this, sort of, not exactly utopian but vastly improved condition that the New Testament describes. And then Christ will come back at the end.

(19:55):

And it is sometimes said that people who hold this set of eschatological views are more inclined to campaigns of political and social improvement. They want to make things better. They believe that’s how you build up the Kingdom of God. There is something to that distinction, but I don’t think it is quite as sharp as people sometimes suggest. So right up to roughly the end of the nineteenth century, you can find, and I cite in my book examples of both pre-millennial and post-millennial thinkers who see the establishment of some kind of Jewish political entity in the Biblical Promised Land as part of the progress toward the millennial kingdom. The big division in the first half of the nineteenth century is not so much whether Christ comes before or after the millennium, but whether Christ is going to come in person. And there were plenty of post-millennial theologians who expected a personal and literal return of Christ after the establishment of the millennium.

(21:07):

And they tended to be quite sympathetic to this proto Christian Zionism, or as it’s sometimes called Christian restorationism. That changes in the late nineteenth and early twentieth century as post millennialism becomes associated with what was known as the social gospel. The idea that what God and Christ want Christians to do is go and work on behalf of the poor and suffering and build earthly institutions that will reflect the teachings of charity and mercy and justice that are enjoined upon believers. And that understanding of the religious task becomes a major element in the liberal theology of the twentieth century. Now, let me bring it back to Christian Zionism. It is often suggested, especially for those who have this narrow definition of Christian Zionism and this stylized lineage going back to Scofield and Moody and Darby and others, that you didn’t find support for what is now the organized Zionist movement and eventually the state of Israel among these liberal post-millennial, social gospel type Christians, that it was concentrated in what by the 1920s were called fundamentalists.

(22:45):

But it turns out that that’s actually not true. A number of prominent social gospel figures were at least interested, although in some ways critical of the Zionist movement and the so-called Yishuv, the pre-state Jewish settlements in mandatory Palestine. And in the 1930s and especially during the Second World War, a group of Christian thinkers and activists associated with Reinhold Niebuhr tries to sort of extract that from what they see as the pacifism and the naivete of the social gospel. So by the late 1940s and early 1950s, so the immediate period of state founding, it was more common or at least more prominent to find advocates and defenders of the modern state of Israel among what were then called mainline Protestants and to some extent liberal Catholics, rather than fundamentalists or evangelicals. Once again, this was not universal. This was a source of major dispute in many churches, but those disputes go both ways.

(24:11):

So there were liberal Protestants, especially those associated with the ecumenical movement and the Federal and later World Council of Churches, who were very suspicious of Zionism and in no less a platform than Time Magazine, which was a big deal in those days. They fought that out with people like Niebuhr. But the same was true in fundamentalist and evangelical circles where many people did have this sort of eschatological belief that the establishment of the state of Israel was a step toward the second coming, but they were also very concerned about its socialist character. Remember that the state of Israel was nominally socialist and did not really firmly align with the West and the Cold War until the Korean War. So it took a little while. And also for the evangelical movement associated with Billy Graham that starts to emerge in the late forties and early fifties, there was a lot of concern about the restraints on proselytizing that the state of Israel imposed on Christians and not only on Christians. So you really see advocates of both sides of the question in both, for lack of a better term, liberal and conservative forms of Protestantism. And it’s not until quite a bit later than that, really the 1970s, that these categories start to get ironed out in ways that feel very obvious and familiar now, but again, as I suggest in my book, are a pretty recent development.

James Patterson (25:59):

The shaking out of those two categories is something that people like maybe Tucker Carlson’s age and younger sort of take for granted. They take for granted The Late Great Planet Earth and Left Behind and these kinds of resolutions that, as you say, take a century to resolve. And one of the causes for mainline churches to engage so much on this question was that, and this is something of a generalization, but in many cases, they are more proximate to large Jewish populations that have immigrated to the United States primarily in eastern coast areas. That’s as far as some Jewish immigrants could afford to arrive, right? They got off the boat with nothing, right? They became rag pickers…

Sam Goldman (26:48):

You mean they didn’t show up in Brooklyn and decide it was the greatest place on earth? There’s no reason to move on?

James Patterson (26:56):

Surprisingly, very few matcha latte vendors in Brooklyn at the time. The story of the liberal Protestant engagement with Zionism is often in terms with dealing with Jewish leaders that they became associated with. You even mentioned the ecumenical movement, which is the subject of Kevin Schultz’s book Tri-Faith America. How is it that they’re able to hash out some kind of consensus that eventually becomes known as the Judeo-Christian consensus, especially given that the third party incorporated was the Catholic Church, which as you mentioned, has very different considerations of eschatology and the nature of Israel?

Sam Goldman (27:44):

Yeah. So let me answer the second part first about Catholics and then circle back to your earlier question. So as you say, Catholics have historically a very different understanding of the relation of Israel to the Church, and standard Catholic doctrine very, very generally, certainly before Vatican II, is that the Church is the fulfillment of all the promises to Israel. So when (or I should say, if and when) you read the Old Testament and you see God promising these things directly or through prophets to Israel, they’re really talking about the Church. And this is the idea that the Protestants had challenged back in the sixteenth century. In addition to that theological position, the Catholic Church also claimed authority over the holy places in Jerusalem. It’s not uncontested; to this day you can see representatives of different churches and sects brawling in the streets of the Old City over control of certain shrines or holy places.

James Patterson (29:00):

There’s a ladder, right? Is it the church of Holy Sepulcher that no one moves because…

Sam Goldman (29:05):

Yeah, something like that.

James Patterson (29:07):

Nobody wants to say it’s their ladder or who can move it. As you say, you’ll have Franciscans in the street beating Greek Orthodox nuns, and nobody wants that.

Sam Goldman (29:19):

And the Catholic Church up to the establishment of the state of Israel had really hoped that Jerusalem would be declared an international city in which the Church would have religious custody over the holy places. So they did not like the outcome, the establishment of state of Israel and partition. Remember, people forget now, that most of Jerusalem, including almost all of the significant religious locations, were under Jordanian control, not Israeli control. But that starts to change in the late forties and early fifties for a couple of reasons. And one of them, which I think is more sort of global, is that a major political concern, the major political concern of the Catholic Church at that point was anti-communism. And it became clear, not immediately, but by say 10 years after the foundation of the state of Israel, that it was going to be part of the anti-Communist Alliance.

(30:30):

And that went some way in reconciling certainly high level Catholic officials, people who were thinking about geopolitics to the state of Israel in a way they weren’t at the time of its establishment. They were much more nervous about what it was going to turn out to be. The other cause, which is more specific to the United States, is the emergence of much stronger Catholic Jewish interfaith relations that really comes out of the American immigrant urban experience. The Jews and the Italians and the Irish all live together in these cities, and they have a long and complicated history of rivalry and tension. But in the twentieth century, there are a number of members of the Catholic clergy, Cardinal Cushing in Boston is probably the leading one, who are really trying to mend those relations. And one of the ways that they do that is through support, at least nominally for Israel and Zionism, which is a cause that’s very important to many American Jews.

(31:50):

And it provides a way for Catholics to say, look, we are on your side. That then turns into a theological argument. Some of these figures end up at the Second Vatican Council where the Church is reevaluating its stance on Jews and by the implication on Israel. And these more–here, I’m using the term very, very loosely, so everyone forgive me if you’re offended–“liberal” in a very broad sense, sentiments that come out of twentieth century America that are then sort of reflected back into Church doctrine. So it’s not a full rapprochement. I don’t think there’s been a full rapprochement to this day. This is more your field than mine. But by Vatican II, the Catholic Church, and many Catholics especially in the American hierarchy, see Israel as perfectly compatible with their religious and social and political commitments, rather than being at odds with it. Now, to return to your previous question, this is all very long-winded. This is the problem when you interview professors.

James Patterson (33:13):

No, but the thing is, I have as a pet peeve when the interviewer has on a person to listen to them. So I’ve always very self-consciously trying to make sure that when people come on the podcast that they get to talk about their stuff rather than hearing me. I’ve already felt like I’ve said too much.

Sam Goldman (33:34):

So you mentioned the idea of Tri-Faith or Judeo-Christian America or Judeo-Christian civilization. This is in my view, a much older idea. So having done this annoying thing with Christian Zionism and said, no, it’s older, it’s more complicated, it’s more deeply rooted, I have in mind maybe to write a book about Judeo-Christian civilization and do sort of the same thing. But certainly it’s an idea that becomes prominent in the 1930s as a way of describing a broad front. I mean, it’s like the religious popular front, all the churches, all the groups united together first against Nazism and later against communism. And this gets picked up in America in a particularly powerful way because it intersects with the American tradition of religious liberty and civic equality. So before World War II, and especially before World War I, it was completely normal to think of America, not just as a Christian nation, but as a Protestant nation, as a specifically Protestant nation that might tolerate non Protestants, but as having Protestantism at its core. During and after World War II, that kind of rhetoric doesn’t disappear, but it is marginalized. And instead, political figures and religious leaders start talking in very broad terms about Tri-Faith or Judeo-Christian America to create as broad a civic identity as possible, and that makes it much, much easier to think of Zionism and then the state of Israel as compatible with American aspirations and interests rather than outside or contrary to them.

James Patterson (35:46):

Yeah, when it comes to the Catholic Jewish story there, one of my favorites, I think I got this right, it’s from Machine Made, which is a book from 2014 by Terry Galway. I may be wrong about this, but it was a Tammany Hall thing where Irish Catholics during prohibition wanted to get alcohol. Now, there was no way to do that legally except through a religious dispensation, and they didn’t want to imitate being Catholic priests because they’re good Irish Catholics. So in Tammany, there are lots of Jews that have moved there recently, and the Jews don’t care if the Irish Catholics pretend to be rabbis because no one’s going to be fooled by Rabbi Ohanahan. And so they make them rabbis so they can get alcohol. They end up with Manischewitz. I’m not sure if it’s worth it!

Sam Goldman (36:39):

Well, this is also, by the way, the period when Italian food becomes America’s favorite foreign cuisine. Previously it had been German food, but after World War I, German things are very unpopular, but also at Italian restaurants, they would make wine in the basement, and suddenly Americans discovered a new affection for pasta that they hadn’t had before.

James Patterson (37:06):

Amazing, amazing how that works. The other story about this is that there was this very old continental European tradition of antisemitism, and it’s kind of represented in Charles Coughlin. He’s a radio priest in the thirties, and he’s sort of rivaled by Fulton Sheen, who’s very Philosemitic, refers to Jews as our elder brothers in faith. And the American bishops are so contemptuous of Coughlin, but they can’t get him off the air for reasons that are sort of beyond the scope of this. And then he finally says that Pearl Harbor was a Jewish conspiracy, which is hilarious to think of Emperor Hirohito on the phone with, I don’t know, the Elders of Zion. And because of that, he’s pulled off the air for seditious speech. So it is a close run thing at a certain point in mass media, but that gets us almost to the present now, where we start to see, as I mentioned already, The late Great Planet Earth and Jerry Falwell. That’s when we start to see the Christian Zionism that I think Tucker’s thinking about, and that this kid at the Heritage Foundation’s thinking about. What makes it kind of distinct from the stuff we’ve already described?

Sam Goldman (38:24):

Well, I would say the turning point is probably 1967, or the Six Day War, however you choose to describe it. And that’s where this sort of disaggregation of liberal and conservative, biblical and theological, to some extent, Protestant and Catholic tendencies begin, and you start getting something that looks much more like the kind of Christian Zionism that Carlson probably has in mind. So what happens in 1967? Well, Israel wins this extraordinary victory in a short time. OK, but what does it win? It wins control once again of the Old City, which had not been under Israeli authority previously. So there seems to be a moment in which God has reentered history and biblical prophecies are occurring. Once again, you go back to your Bible, it talks about the return to Jerusalem. Well, here are the Jews returning to Jerusalem.

(39:50):

And you can see it happening on TV. So I think that for a lot of Protestants, particularly in so-called evangelical and fundamentalist communities that sort of reawakened their sense that something was happening, that God was acting in history and big things were coming in the Holy Land. It didn’t create it. They sort of believed that in a general sense before. But again, here it was on TV in this remarkably dramatic context. But also, what else is happening in the world in 1967? It’s the peak or the nadir, if you prefer, of the Vietnam War. And what’s happening in Vietnam is that the great superpower is being fought to a stalemate, or seems to be fought to a stalemate, by these peasants in flip flops. So the juxtaposition is really powerful. America is Gulliver tied down by Lilliputians. It’s supposed to have all of this power but can’t do anything.

(41:00):

Meanwhile, Israel is David fighting Goliath (which is the rhetoric that you find everywhere in descriptions of this period) and it wins. So that suggests to some American Christians that, again, it’s not just that God is reentering history, but there’s a contrast between the biblically chosen nation, which is winning wars and getting things done, and an America that seems to be falling away from righteousness. So we’re being beaten in Vietnam, and you turn on the TV and there are hippies and kids are smoking dope. In Israel, as it seems, you have a disciplined, religious, sober people achieving their goal. So that’s really appealing to conservative Protestants. At the same time, some of the things that had once been appealing about Israel to liberal Protestants begin to recede. So it had been David, this plucky outsider, but now it’s won its war. Now it’s indisputably powerful. It starts to get harder to see it as the underdog there.

(42:22):

The Israelis are fighting with Western weaponry, mostly French, by the way. The United States had not yet become a major military supplier to Israel, but they’re fighting with Western weapons, and against whom? Against, as they see it, oppressed brown people who are parallel to the Vietnamese or the other anti-colonial movements of the world being suppressed by imperialism. Finally, the United States is beginning, if not a process of secularization exactly then a period of religious polarization. Before the late sixties, early seventies, knowing how religiously observant someone was didn’t really tell you very much about their politics. They could be liberals by the standards of the day or conservatives. They could be Republicans or Democrats. A sorting process is beginning where liberals, progressives and Democrats are more likely to be secular, and conservatives and Republicans are more likely to be religious. So what had been this sort of religious left even of Niebuhr’s period starts getting eroded and becoming more left and less religious in ways that are contrary to an enthusiasm for Israel.

(43:53):

So this doesn’t happen overnight. Really, into the 1970s, liberal Protestants like Franklin Littell, who is a Methodist, are sort of the face of Christian support for Israel in the United States. But by the late seventies and early eighties, roughly the Reagan in era, that’s changed. And it is people like Jerry Falwell, like Oral Roberts, later like Pat Robertson, who are much more consistently and explicitly conservative in their politics, are much more as they see it–obviously this is questionable, but as they see it–literalists in their reading of scripture, and who are also much more uncritical in their attitude toward Israel, which sometimes seems to interest them (this is less true of Falwell, I think, in that group) less as a real place with real people who have real interests in peace and security and normal life, and more as the aircraft carrier where Jesus is going to land. And as you’ve said and as we began the conversation, I think that is really what people have in mind now when they talk about Christian Zionism. And it’s understandable to some degree because that has been the public face of Christian Zionism now for at least 40 years.

James Patterson (45:31):

Yeah, the aircraft carrier where Jesus is going to land, that’s going to stay with me. With a Mission Accomplished banner, and gets out in a fighter jet. That is too great. The issue that I wanted to raise just as at the end here, is that Tucker Carlson tries to represent a particular kind of new version of the GOP that’s pivoting away from internationalism and what he regards as uncritical support for things like Israel or for Ukraine for that matter. But what’s weird is that what gave rise to this idea was that Donald Trump was going to be the figure that would initiate this break. And has there been a more pro-Israel president? Maybe Harry Truman? So I don’t understand why they think this is the moment to do that.

Sam Goldman (46:19):

Well, I can’t speculate. I don’t know what people imagine, but my impression is that there’s actually a lot of frustration with Trump for failing to execute this, if not break with Israel, sort of distancing from Israel. I think it is not surprising that Trump has failed to do this. His disposition in foreign policy is not non-interventionist or toward restraint. I think it’s basically what Walter Mead, who wrote a very good book about US-Israel relations calls “Jacksonian.” The Jacksonian disposition, as Mead describes it, has always had an affinity for Israel because these are tough guys defending themselves. They don’t take prisoners. They’re not hemmed in by lawyers and moral scruples. Whether or not this is true, I think that’s a big part of the appeal of Israel to a lot of Americans. And we should say as we’re having this conversation, according to polls, Israel and Jews remain pretty popular among the public at large. There has been some change in attitudes towards Israel, especially among younger Americans. But on the whole, it’s still doing reasonably well. And I think even apart from these religious considerations that Jacksonian quality is part of the reason. So Trump, as I think is often the case, is probably better attuned to his actual supporters than the social media political intelligentsia or sub intelligentsia. And at least for the moment, support for Israel is consistent with that.

James Patterson (48:30):

Trump’s not known for being terribly devout, but he’s at least probably been in the milieu for so long. He’s from New York. He grew up at a Protestant church. It’s probably beyond him; a lot of this stuff that’s coming out today just sort of doesn’t register. But I’m imagining now, because I’ve seen them already at events before, Tucker Carlson sort of beseeching Donald Trump at this side of a UFC fight, asking him to reconsider. Because I’ve seen them both together at a UFC fight before. It’s strange days, Sam.

Sam Goldman (49:15):

Every day is interesting.

James Patterson (49:18):

Anyway, thank you so much for coming on the Law & Liberty Podcast, Sam. Your book is God’s Country: Christian Zionism in America. The article at Compact “Tucker Carlson is Wrong about Christian Zionism.” Thank you so much for coming on, Sam.

Sam Goldman:

Thanks James.

James Patterson:

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

In California, and on the left wing of the political spectrum, there has been a lot of chatter about abundance, the theme (and title) of Ezra Klein and Derek Thompson’s bestselling new book. The book—praised by Governor Gavin Newsom—argues that progressives have been hurt by “well-intentioned” politicians with “blind spots” on economic issues like housing, especially in big cities where Democrats have embraced “scarcity politics” and heavy regulation.

Savvy observers such as Nate Silver have noted that Abundance, published after Democrats’ historic losses in 2024, was “carefully calibrated to persuade insiders” that progressives have been hurting themselves with heavy-handed economic policies that are doing more harm than good, particularly in US cities where progressives dominate the political scene. 

Alas, it seems that many Californians didn’t get the memo (much like New Yorkers). One week after voters in the Big Apple elected Zohran Mamdani mayor, the city council of Los Angeles took its own leftward lurch, voting by a 12–2 margin to ramp up the city’s rent control law.

Under the change, which was supported by LA Mayor Karen Bass, most Los Angeles landlords covered by the city’s rent-control system—about 75 percent of all rentals—will face much tighter limits on what they can charge for rent. Instead of being able to raise rents by 3 to 8 percent a year, they’ll now be restricted to increases of only 1 to 4 percent.

Members of the council said the goal was to make rent affordable for the more than 2 million people in the city’s rental market. “What we have before us right now is an opportunity to make L.A. more affordable,” said City Councilmember Nithya Raman, another supporter of the measure. “Because when people can afford to stay in Los Angeles this entire city thrives.”

There’s no question that the City of Angels is facing a housing crisis. She currently has a homeless population of some 44,000. The average rent for all homes is $2,750, according to Zillow—nearly 40 percent higher than the national average. Unfortunately, the city’s new rent-control policy is all but certain to make Los Angeles’s housing crisis much worse.

Economists don’t always agree, but one thing virtually all economists agree on is that rent control doesn’t make people better off. A 2024 University of Chicago survey of 45 leading economists showed striking agreement on two core questions: None of the economists agreed that a 5 percent rent-control cap would substantially reduce income inequality, while just one said a rent cap would make middle-income Americans better off over the next decade.

Rent control laws have many flaws, but the biggest is that they discourage the one thing that most effectively lowers housing prices: building new homes. By making it harder for landlords to turn a profit, rent control discourages the creation of new housing units (and disincentivizes maintenance of current units). Whether you’re looking at recent rent-control results in Europe and the US or historic examples in Latin America, the research tells a similar story: rent control makes housing affordability worse.

Lawmakers in my home state of Minnesota recently discovered this. In 2021, voters in St. Paul, the state capital, approved one of the toughest rent-control laws in the country. The following year, data showed building permits were down 80 percent—which prompted the city’s Democratic mayor to urge the city council to amend the law. Two years later, the St. Paul city council quietly gutted the measure.

California doesn’t need a complicated housing bill or a new stack of regulatory “solutions.” It simply needs to start respecting property rights again.

A simple glance at Los Angeles’s housing stock reveals the city’s real problem. Los Angeles has seen a steady decline in residential property permits in recent years, which largely stems from the city’s four-year “rent freeze” and aggressive tenant-rights laws that make it extremely difficult to evict tenants, even if they’re not paying rent or are destroying property. “It’s really hard to tell investors, ‘Let’s take all this risk,’ in a city that hates landlords and developers,” developer John Gregorchuk told Politico.

If you doubt Gregorchuk, consider that earlier this year, California lawmakers rejected a proposal to make it easier for property owners to remove squatters and trespassers. Many readers may not be familiar with California’s squatting problem, but perusing local media coverage reveals its scope and brazenness.

Online testimonials also abound. Benjamin Miller, the CEO of Fundrise, a company that operates in real estate and venture capital, recently described his experience of managing properties in Los Angeles. “The LA system is so insanely tenant friendly that a tenant has literally started bonfires in one of our unit living rooms and we still couldn’t evict them,” Miller wrote. “We had tenants who hadn’t paid rent in years. We had squatters who broke into the houses and dealt drugs from the house, and we couldn’t evict them.”

Progressives like to talk about abundance, but most of them don’t seem particularly interested in pursuing policies that lead to abundance. All too often it seems their real priority is preserving an ideological model of government-led solutions. The appearance of serving the “public good” outweighs actual public benefits, while their agenda conveniently serves entrenched interests—unions, contractors, and bureaucracies. The phenomenon—classic public choice in action—explains how you end up with $80 billion high-speed rail projects that go nowhere and $1.7 million public toilets.

Americans of all political stripes would do well to remember that the path to prosperity isn’t complicated. Adam Smith pointed out the formula centuries ago.

“Little else is requisite to carry a state to the highest degree of opulence from the lowest barbarism, but peace, easy taxes, and a tolerable administration of justice,” Smith wrote in The Wealth of Nations, “all the rest being brought about by the natural course of things.”

The last part of Smith’s famous quote is often overlooked. His phrase “tolerable administration of justice” is admittedly vague, but it plainly includes basic property rights. At minimum, that means the freedom to sell one’s property at a chosen price and the authority to remove those who trespass.

California doesn’t need a complicated housing bill or a new stack of regulatory “solutions”; it simply needs to start respecting property rights again. If you doubt this, consider how Argentina recently solved its own housing-affordability crisis. President Javier Milei didn’t pass a high-profile five-point plan; he simply rescinded the country’s harmful rent-control law, which had disincentivized housing construction. The result was immediate: the cost of housing fell roughly 40 percent, and the supply of available units surged by 180 percent.

Many people, myself included, had hoped Klein and Thompson’s book would be a wake-up call for Democrats, whose favorability hit historic lows in 2025. With the Trump administration embracing its own command-and-control style of economics, there is an opening for an abundance and reform movement in the center or, as Klein has observed, on the center-left. 

If California is any indication, it unfortunately looks like progressives will chart a different course. Instead of choosing the abundance path—removing regulatory barriers and protecting property rights—leaders appear intent on doubling down on scarcity.

This is an ominous sign. If progressives in blue states and America’s largest cities remain hostile to property rights even as their cities fail, abundance will remain just a slogan—and the costs will be high.

Unbeknownst to most Americans, federal regulatory agencies have their own court system for adjudicating disputes that businesses and citizens have with regulators. These agencies rely on special courts headed by administrative law judges (ALJs). One big problem with this system is that it operates independently of legitimate Article III courts. Another problem is that agency-housed tribunals have a strong tendency to favor regulators over the regulated. And yet another problem is how these judges (which I call “transitory”) get loaned out between agencies. Inter-agency borrowing of ALJs may not immediately stand out to the average citizen as problematic, but it raises serious questions about constitutionality, executive transparency, and bureaucratic oversight.

In a new report for the Pacific Legal Foundation (PLF), I offer a systematic review of how federal agencies exchange their judges, analyzing a sample of 960 ALJs across forty-two federal agencies. In fact, agencies have likely lent and borrowed ALJs over the past ninety years, predating the 1946 Administrative Procedure Act (APA).

The APA is considered the constitution for the administrative state. It outlines important procedures for agencies to adhere to when conducting rulemaking, rendering adjudication, and issuing statements of public policy. The APA requires select agencies containing statutory permission to conduct formal adjudication on the record (and often in public) under the oversight of an ALJ. Yet, the phenomenon of interagency borrowing of ALJs was born entirely outside of the APA’s requirements.

How did this controversial practice come to be? Several agencies managed pre-APA tribunals to adjudicate their legal matters. The Federal Trade Commission (FTC) has one of the oldest recorded instances of adjudicating public hearings within the federal government. The 1914 FTC Act enabled agency hearing officers (ALJs) to resolve disputes over unfair or deceptive acts and anti-competitive business transactions.

While ALJ borrowing formally began in the 1960s with the first documented instance at the NLRB, it may have begun decades earlier with the FTC in 1914 and the US Civil Service Commission in 1871. The Civil Service Commission is the predecessor to both the Merit Systems Protection Board (MSPB) and the Office of Personnel Management (OPM).

My report cites a 2014 case, Berlin v. Department of Labor, in which the MSPB borrowed a Coast Guard ALJ to conduct a two-day hearing for the Department of Labor. MSPB also borrows judges from the FTC through a special interagency system, adjudicating cases arising from other agencies. MSPB likely derived this power from the Civil Service Commission, which formally authorized ALJ borrowing at the National Labor Relations Board (NRLB) in the 1960s. While the NRLB’s historical report documents its internally hired or “stationary” ALJs, it keeps the identity of the agencies that lend ALJs hidden. This lack of transparency is concerning.

In addition to the above, the Department of Labor has a documented history of using pre-APA hearing examiners in the early 1900s. Examiners adjudicated public contracts for the manufacture and supply of materials under the Walsh-Healey Public Contracts Act (1936). In response to concerns over ex parte communications between Labor Department attorneys and examiners, its Division of Public Contracts kept them separated when traveling for work. Other agencies, like the Securities and Exchange Commission and NLRB, also took early steps to insulate their examiners from prosecutorial influence during the 1930s and 1940s. Most agencies today provide some degree of insulation for their judges after Congress amended the US Code in 1989 to provide ALJs with two layers of statutory removal protection.

Despite the above, Joanna Grisinger cites widespread concern over adjudicatory misconduct from a 1941 study by the Attorney General’s Committee on Administrative Procedure. According to the report, “parties confronted administrative officials not in formal courtrooms but in the agencies’ own offices, in space borrowed from other agencies, or in the field.” It is also very likely that agencies borrowed hearing examiners to conduct cases at these offices as well.

This early twentieth-century practice of agencies borrowing office space for hearings resembles a similar practice mentioned in my PLF report. My report reveals how the Surface Transportation Board borrows conference rooms at the Federal Energy Regulatory Commission to conduct its hearings. Not only that, but the Surface Transportation Board continually borrows most of its ALJs from FERC to this day.

In my report, I argue that ALJ borrowing is constitutionally suspect, however convenient for the agencies themselves, circumventing normal constitutional removal and appropriations processes.

Specifically, ALJ sharing can undermine the president’s Article II power to remove inferior officers for cause. If the ALJ is being lent to another agency, this process prevents the head of the appointing agency from removing that ALJ for work conducted at the borrowing agency. Such a predicament creates a legal gray area for the transitory ALJ to operate without being under the control of the appointing agency, lending agency, or the president. In reality, ALJs are federal officials who should always remain politically accountable to their superiors. Interagency sharing of ALJs undermines this accountability.

External agency officials cannot re-appoint ALJs to work at a separate agency without violating the Constitution.

Another constitutional concern with ALJ sharing is that agencies have obscured the source of funding for borrowed judges. My research has found that no borrowing agency provides a paper trail or budgetary justification for how they are paying their judges. The only agency that provides some financial detail is the Nuclear Regulatory Commission, listing the terms of its agreement and the stipend for borrowing ALJs from the Department of Energy.

Despite this, the Nuclear Regulatory Commission, like all other participating agencies, fails to justify where the money is coming from. Is it being siphoned from the budget reserved for hearings and appeals? Or perhaps ALJs are secretly paid from their enforcement fees, akin to the National Oceanic and Atmospheric Administration’s (NOAA) procedure? In either case, Congress did not authorize such a circuitous funding process. These black-box methods fly in the face of the Article I Appropriations Clause. Agencies should be limited to spending only the money appropriated to them for their hired ALJs and staff, not for borrowing another agency’s judges.

Beyond the constitutional conflicts, ALJ borrowing circumvents the APA itself. We see this in APA § 556, where it requires an ALJ appointed by the president or the presiding agency head to be present during the taking of evidence. According to APA § 3105, ALJs are to be appointed by the agency employing them. This Appointment Clause requirement was later upheld in the Supreme Court’s decision in Lucia v. SEC (2018).

While an agency can hire and appoint as many ALJs as it wants under the APA, it cannot accept ALJ appointments made from separate agencies. In other words, external agency officials cannot re-appoint ALJs to work at a separate agency without violating the Constitution. The ALJ Loan Program supersedes the Appointments Clause by empowering OPM to authorize temporary ALJ appointments (loans). However, OPM is constitutionally precluded from acting in place of the agency head or the president when authorizing such ALJ loans. Courts reviewing challenges to agency adjudication should properly treat ALJ loans as duplicative appointments that are unauthorized under the Constitution and the Supreme Court’s Lucia opinion.

The only exception the APA recognizes for this in § 556 is those “specified classes of proceedings” that are “specially provided for by or designated under statute.” While the OPM’s 2007 rule—“ALJ Loan Program”—relies on a legislative amendment to the APA, the statute doesn’t provide for any specified or special proceedings that borrowed ALJs must oversee. There is no distinction between the cases that transitory ALJs and stationary ALJs review.

Another issue with the ALJ Loan Program is that some forms of ALJ borrowing violate this statute. According to the 1978 amendment, only agencies that are “occasionally or temporarily” short-staffed with ALJs may petition OPM to borrow another agency’s judge. However, as my PLF report demonstrates, several agencies like the Internal Revenue Service IRS, NOAA, Surface Transportation Board, Consumer Product Safety Commission (CPSC) and for a time, the Consumer Financial Protection Bureau (CFPB) each lacked any office of hearings. This means they did not employ any of their own ALJs during the time they borrowed from other agencies, contrary to statute.

The CPSC employed only one chief ALJ from 1975–80 and has since not hired any other judges internally. And while the CFPB appointed its first ALJ in 2016, it relied entirely on borrowed judges from its conception in 2011. This presents a major statutory breach to the 1978 amendment in 5 U.S.C. § 334, which does not permit agencies without their own office of ALJs to borrow from other agencies. The text of OPM’s ALJ Loan program also confirms this.

In addition to the above, section §557 of the APA requires each agency’s ALJ to conduct formal adjudication on the record in accordance with the organic statute of the agency. It, however, does not permit one agency to transfer quasi-judicial power to another.

Only agencies that are statutorily qualified to hear cases “on the record” can conduct formal adjudication under the APA. If the agency’s organic statute does not recognize such a function, an agency cannot inherit this power from a peer agency through an ALJ loan.

Section § 554 of the APA is quite clear in stating that agencies can only conduct evidentiary proceedings when “required by statute to be determined on the record after opportunity for an agency hearing.” This point is reiterated by Law Professor Kristin E. Hickman in her text, Understanding Administrative Law. Agencies are free to establish an internal tribunal to conduct such formal adjudication so long as their organic statute or enabling act permits this. Agencies like the IRS, CPSC, and NOAA fail to adhere to this requirement.

Agencies borrow and lend ALJs for two major reasons. First, some agencies are ALJ-deficient. They either have no ALJs or have limited judges relative to their annual docket of cases. The NLRB, for example, has a storied history of lending its ALJs during times of low-to-normal caseloads and borrowing ALJs when it experiences a surge in cases.

Second, agencies lend ALJs to peers who lack funding. Many of the borrowing agencies suffered lapses in funding for ALJs or never appropriated funding for an office of hearings and appeals in the first place. As previously discussed, at least five agencies without an internal office of judges have conducted adjudication entirely through borrowed judges.

This interagency exchange of ALJs and its inherent problems are widespread. Large agencies like the Department of Labor, Health and Human Services, and the Social Security Administration are among the top lenders of personnel. By contrast, some of the biggest borrowers of transitory ALJs vary in size, like the small Surface Transportation Board and mid-sized Small Business Administration. Interestingly, independent agencies occupy the most transitory ALJs relative to total agency headcount, while transportation policy was the largest domain for transitory ALJs.

The way this secret system works is that some judges move from agency to agency on a long-term basis (transfer), rather than on a short-term basis (loans). Most agencies tend to engage in a mix of ALJ borrowing, lending, and long-term transfers.

All told, agency adjudication remains an important, entrenched exercise of administrative power. Yet, such a privilege has been abused by the pervasive process of ALJ sharing. Congress and the executive office of the president should launch investigations into this problematic practice and consider reforms that restore power and accountability to constitutionally authorized institutions. Reforming this unaccountable practice would be one way to curtail the runaway power wielded by the administrative state.

The availability heuristic is a tendency to overestimate the frequency of an occurrence based on how easily examples come to mind. This type of logic is flawed—we might more easily remember vivid examples even if those occurrences are objectively rare. History is not immune to the availability heuristic, giving undue weight to written materials. That effect becomes pronounced with translations. When only select works are translated, the translated works naturally cast an overwhelming shadow on the untranslated corpus. In the West, popular translations of Chinese philosophy have largely been translations of Confucius, the Dao De Jing, the Book of Changes, and Sun Tzu’s Art of War (frequently relegated to strategy, or worse, business). Inherent difficulties in the translation of certain Chinese concepts, along with early translators’ interest in using the mystical/spiritual “East” as a way to criticize the rational/analytical “West,” have created the impression that Chinese philosophy is a wisdom tradition, rather than true philosophy. Christoph Harbsmeier’s recent translation of Han Feizi, a collection of writings offering advice to rulers attributed to the Legalist philosopher Han Fei (280–233 BC), brings into the light a serious challenge to that cliché. Instead, we find in Han Feizi arguments for the rule of law and the channeling of man’s natural selfishness (rather than trying to change it), anticipating major themes in Western thought not developed until centuries later.

One of the more subversive surprises in Han Feizi is its relentless criticism of Confucianism, which would go on to become state orthodoxy. Broadly speaking, Confucianism is a form of virtue ethics that sought to revive a golden antiquity by re-teaching society the twin values of humaneness and proper etiquette. While Confucianism stressed the importance of educated, virtuous advisers, Han Feizi frets that to “esteem gentlemen who are adept in literary studies,” would make “orderly rule and a strong state” “unobtainable.” Confucius’s advice to “govern through generosity” is sneered at by Han Feizi as “the sort of speech that ruins a state,” that would “wreck the rule of law,” and cause “chaotic administration.” Confucians are characterized by Han Feizi as “shamans and invocators,” who naively “keep talking about the achievements of good governance in the past,” instead of examining “the business of offices and laws” or the “facts of wickedness and depravity.”

In contrast to Confucius’s quest to return to a golden antiquity by reviving its etiquette, Han Feizi takes the view that “past and present have different customs, new times and former times require different precautions.” Han Feizi daringly asserts that “benevolence and righteousness had their use in antiquity but are not useful in our times.” Indeed, Han Feizi claims that the ancients “thought little of material goods … not because they were benevolent, but because material goods were in abundance. And if today people compete and struggle, this is not because they are coarse, but because material goods are scarce.” Han Feizi had a similar explanation for why legendary kings, venerated by Confucians, would voluntarily abdicate their thrones. It was not because ancients “were high-minded, but because the advantages of that positional power were meagre.” In Han Feizi’s view, a sage-like ruler should set harsh fines and punishments to “adopt … to the customs” of the people that he rules so that “his undertakings comply with his age.”

Like Machiavelli, Han Feizi suggests private virtues may not be public virtues. Han Feizi notes that people fear “stern physical punishments,” and hate “heavy fines,” but a sage-like ruler uses them to prevent “wickedness,” as well as “violence and chaos,” proving that “benevolence, righteousness, kindness and loving care are not sufficient for use, whereas stern punishments and heavy fines can bring order to the state.” Reputations for “loving generosity” lead to ruin, as “loving concern consists in being unable to bear other people’s suffering, and generosity is the inclination to give things away. If you cannot bear suffering, then you will not punish trespassers; and if you are fond of giving things away, then you will dole out rewards without having seen any achievements.” Rulers are told that “appearance of fire is severe, and therefore few people are burnt by it; the appearance of water is soft, and many people drown. You must make your appearance stern, not to let people drown in your timidity.” The goal is not cruelty for its own sake, as Han Feizi advises a ruler that if “you are generous towards thieves and villains, then you harm honest people,” and to be “lax on punishments and fines and practise leniency and generosity, this in effect benefits the wicked and harms the good.” Rulers are advised to ignore the “proposals of learned men,” to make punishments for crimes light, as that would reduce the deterrent effect of punishment.

Rulers are encouraged to use the carrot as well, to “establish benefits to encourage people.” But contrary to the Confucian virtue of helping the needy, Han Feizi, worries that “giving succor to the poor and the troubled,” though “call[ed] benevolence and righteousness,” would permit those “without achievements” to be rewarded. Han Feizi makes punishment and reward the centerpiece of its statecraft because of its view, akin to Bentham’s, that pleasure and pain are the “two sovereign masters.” Han Feizi calls striving for “security and gain,” and avoiding “danger and harm,” our “basic human instinct.” People are described as controlled by “two handles,” which are “punishment and munificence,” since people are “afraid of punishments and fines, and covet praises and rewards.”

As Machiavelli advised princes to be feared if they cannot be both loved and feared, Han Feizi similarly advises the sage-like ruler not to “depend on others’ caring for him out of love,” as “anyone who depends on others’ caring for him out of love will be in danger.” Han Feizi explains that a wayward son who cannot be reformed by “his parents, the proper conduct of his neighbours, the intelligence of his teachers and seniors,” nevertheless would be reformed by a “local bailiff, wielding weapons from the state arsenal,” because “the people are arrogant towards love but obedient to awe-inspiring majesty.” In line with Machiavelli’s advice for a ruler to avoid becoming resented, Han Feizi warns that if “crime arises from A but the calamity hits B, hidden resentment will be formed,” and being “hard on an innocent person is what causes resentment among the people, and when the people are resentful, the state will be in danger.”

The severity Han Feizi prescribes aside, its analysis of human self-interest precedes Adam Smith’s conclusion of how self-interest can lead to beneficial exchanges in the market.

Han Feizi’s elaboration on the deterrent effect of punishment looks like an ancient Chinese version of a rational economic actor model of crime proposed by Gary Becker. Han Feizi recognized that deterrence was a function of severity, suggesting that “if one punishes heavily the light crimes, then light crimes will not arise and heavy crimes will never come. This is called removing punishments through punishments,” or “to eradicate punishments by punishments.” Han Feizi explained that the deterrent effect would depend on the probability of detection. People will keep committing misdeeds if “it is not sure whether the perpetrators will be caught,” “even if you publicly execute and dismember them,” but if harsh punishment was inevitable, then people would not commit crimes, “even if they could possess the whole world” by doing so.

The severity Han Feizi prescribes aside, its analysis of human self-interest precedes Adam Smith’s conclusion of how self-interest can lead to beneficial exchanges in the market. Smith famously remarked that “it is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love.” Han Feizi observes that when a landowner feeds his workers well, it “is not because the landowner is particularly fond of these tenants, but he says to himself: ‘In this way, they will plough even deeper furrows and when hoeing they will weed out even the small weeds.’ When the tenants use all their strength and weed and plough vigorously, they use all their skills and keep the ridges between the plots neat, it is not because they are fond of their master, but they say to themselves: ‘In this way, our broth will have excellent flavor, and our payment in money and cloth will be easy to get.’” Moreover, he adds, their “minds are attuned to … being useful, because each acts in his own best interest.” Han Feizi takes the principle even further, arguing that “when a cartwright makes carts, he hopes that people will become rich and noble; when the carpenter makes coffins, he hopes that people will have untimely deaths. This is not because the cartwright is kind-hearted and the carpenter a villain; it is just that, if people do not achieve noble status, elaborate carriages will not be sold, and if people do not die, coffins will not be bought.”

In contrast to Confucianism’s hope that with proper education and role models, society can be made virtuous, Han Feizi, foreshadowing modern Western authors, abandons attempts to instill moral virtues in the people, opting instead to take their self-interested nature as a given and design institutions around it. Rulers are encouraged to “adopt what works for the many and reject what works for the few, therefore he strives not for virtue but for law.” Han Feizi explains that “laws are established, not to prepare for the likes” of the virtuous but to enable a “ruler to stop the likes” of bad men. Subversively, Han Feizi even applies the principles of the lowest common denominator to rulers. Even “a mediocre ruler,” as long as he “keeps to law and the techniques of rule,” much like a “fumbling carpenter” who “keeps to the compass and the T-square,” “would not go wrong even one time in ten thousand.” Besides, Han Feizi argues, to hold out for an exceptional ruler would be foolish. Those by definition “emerge once in a thousand generations,” whereas embracing the law would permit “mediocrities” to assert orderly rule. Han Feizi applies the same reliance on law instead of virtue when it comes to administration, noting that “today, there are no more than ten honest and trustworthy gentlemen, but there are hundreds of offices within your boundaries,” so if a ruler insists “on exclusively appointing honest and trustworthy gentlemen, then there will be not enough people for the official positions.” Instead, Han Feizi states the proper strategy “of the clear-sighted ruler is to make uniform the law and not to seek out the intelligent; it is to be firm in techniques of rule and not esteem trustworthiness.”

Turn of the century Chinese thinkers, such as Liang Qichao, admired Legalism as proto-rule of law. Han Feizi argued that laws should be “compiled and written down on charts and documents, deposited in the repositories of the offices and promulgated to the hundred clans.” Han Feizi requires rulers to apply the law evenly, to punish even their favorites, so that the people understand that “if the ruler still applies the law” to the favorites of a ruler, “all the much more he will apply it” to the people. A ruler should not “repeatedly change the laws,” for if a ruler “frequently change[s] the laws, the people will find this hard to bear,” and the “state is likely to be ruined.”

Believing that attempts to develop virtue in leaders and the led are naïve, designing institutions based on the assumption that most people are self-interested, and the importance of the rule of law are all building blocks of modernity (for better or for worse). While these observations might seem trite today, we should be surprised that they were being discussed thousands of years ago in China. Han Fei’s contemporaries certainly were. Perhaps this explains why most political philosophers of this era died of natural causes, but not the Legalists, who often died violent deaths. A victim of court politics, Han Fei himself was forced to commit suicide. It might be of some comfort to Han Fei that his ideas have not died with him, and have instead, through the work of translators such as Harbsmeier, been introduced to a whole different world that Han Fei may not have imagined but, if given a chance to inspect, would recognize as familiar. 

I am grateful to Chad Squitieri, John Grove, and Peter Wallison for their excellent responses to my essay “Nondelegation without Chaos.” Their pieces sharpen the issues and help clarify what is at stake. But as engaging as they are, they do not undermine the core thesis of my essay—that delegation of unguided power to the executive undermines the separation of powers, even as retrospectively invalidating such delegations risks chaos. Nor do any of the responses take issue with my novel method of addressing this problem: prospective overruling. Prospective overruling can restore the separation of power structure without political upheaval.

Begin with Squitieri’s argument that delegation doctrine depends on the constitutional power delegated and is thus not captured by the more unitary perspective for domestic regulation that I suggest. I am not sure I agree with his key analytic move, which depends on a distinction between the plural legislative powers enumerated in Article I and the more general concept of legislative power. To be sure, the phrase “All legislative Powers herein granted” is a prelude to the enumeration of separate powers—but it also designates them all as species of legislative power. Thus, it does not follow that there is no unitary “legislative power” for separation-of-powers purposes. Enumeration may coexist with a single structural nondelegation principle for domestic regulation.

But, in any event, dividing the delegation doctrine into many subdoctrines would not significantly lower the stakes for overruling the current nondelegation doctrine. Almost all delegation of federal regulatory power comes from the Commerce Clause. The Supreme Court has interpreted that Clause to give Congress close to plenary authority in economic matters. Thus, if this doctrine must change substantially under original meaning analysis, we still face the same problems of chaos. Prospective overruling, not the division of delegation doctrine into fragments, remains necessary to the solution.

It is the great virtue of Grove’s response that he recognizes that expansion of the Commerce Clause beyond its original meaning lies behind the problem of excessive delegation as well.

He is also right that this expansion threatens both the horizontal and vertical separation of powers. The problem the Court faces in overruling the decisions that have led to excessive power in the federal legislature is much the same as that it faces in overruling the delegation doctrine that leads to excessive power in the executive. So many statutes have been enacted under this regime that retrospective overruling would engender chaos. Congress would not have the capacity to rewrite all statutes to make them constitutional, nor would states have the capacity to fill the gap immediately.

Thus, the solution to fixing the Court’s overbroad reading of the Commerce Clause also depends on prospective overruling. This approach allows past federal legislation passed under the Commerce Clause to remain in place. But in the future, Congress will be disciplined by the correct reading, allowing both federal and state legislatures to adapt to their proper roles under the Constitution. The restoration of federalism desired by Grove would thereby unfold incrementally, reflecting Burkean wisdom about the need for gradual change.

On the substance of the standard which I suggest, I believe, unlike Wallison, that it will make a difference. Wallison recognizes that the rule has been in place for almost a century and has proved remarkably toothless. Part of the reason is that the test’s very formulation invites passivity. Phrases like “protect the public interest” are “intelligible,” even if they grant almost boundless discretion. But I think it’s far less plausible that a Court could say, with a straight face, that by using this phrase, Congress makes the key policy choices, allowing the agencies only to fill in technical details and find facts.

Even if Congress today lacks the capacity to provide more detailed administrative legislation, it can undertake institutional reforms to be in a better position to do so.

Whatever its other virtues, Squitieri’s suggestion of building the nondelegation doctrine on the Necessary and Proper Clause is unlikely to be either an adequate or administrable replacement. First, modern doctrine treats this requirement as very lenient. Second, the “proper” prong would still require a freestanding account of what counts as impermissible lawmaking, and the Court has been reluctant to turn the Clause into a general‑purpose constraint, likely for justiciability reasons. Third, it also lacks support in early Supreme Court precedent of an approach that forbids delegating policy while allowing executive administration, such as interpretation and fact-finding. That approach states the line the courts must police rather than asking the Necessary and Proper Clause to supply one.

I also disagree with Squitieri that the test which Professor Michael Rappaport and I suggest is not administrable. Under our view, in the realm of domestic regulation, Congress may not delegate policymaking but may permit the executive to interpret and apply the law to facts. The distinction between policymaking and executive implementation is rooted in Madison’s insistence, as reflected in his own writings, that federal laws must provide “details, definitions, and rules.”

First, Courts should and do enforce the Constitution even when such enforcement requires nice judgments. The Supreme Court has long enforced the reasonable standard of the Fourth Amendment, even though the lines to be drawn are a matter of judgment. Likewise, while the First Amendment has a core meaning, jurists regularly debate questions such as whether a restriction is a reasonable time, place, and manner regulation. The Dormant Commerce Clause has often required delicate balancing.

The argument that any fuzzy edges preclude enforcement of the constitutionally required delegation doctrine is inconsistent with much constitutional jurisprudence. It usually reflects the view that such a separation-of-powers constraint should be left to the political, not the judicial, process. I disagree entirely with the view that structural provisions are second-class constitutional strictures. They are no less protective of our liberties than rights provisions and thus should be enforced even when they pose similar difficulties.

Second, the difficulties of a classical test for nondelegation are much exaggerated. The Constitution’s allocation of lawmaking power can be enforced by adhering to the formal distinction between making law and executing it. A formalist judge approaching a delegation case would begin by defining legislative power in concrete terms as the authority to establish generally applicable rules governing private conduct a statute grants the executive branch open-ended discretion to decide what rules or standards the public must obey (beyond merely applying a law’s provisions to facts), then the statute is effectively transferring Congress’s core legislative power and should be struck down. But if the statute only allows the executive to implement Congress’s determinate policy by filling in factual details or technical measures, it permits the executive only administrative, not legislative power. That is the approach Justice Neal Gorsuch suggests in his dissent in Gundy, echoing Chief Justice Marshall’s classic formulation that Congress may not delegate “powers which are strictly and exclusively legislative,” only the authority to fill in details or find facts.

Finally, prospective overruling will create a separation-of-powers dynamic that may spare the Court much of the heavy lifting. Congress will have incentives to legislate more comprehensively, for fear that failing to do so will render its legislation ineffective. Moreover, it can establish its own expert agencies in subject-matter areas to advise it, thereby gaining the knowledge needed for more precise drafting. Thus, I think even if Congress today lacks the capacity to provide more detailed administrative legislation, it can undertake institutional reforms to be in a better position to do so. In short, prospective overruling should make the judicial branch’s job easier by giving Congress fair warning.

The Roberts Court has made real progress in aligning the administrative state with the Constitution. But its prior moves on appointment, removal, and the major questions doctrine have been relatively easy, because they either do not touch the substance of regulation or still permit Congress to enact broad delegations so long as it speaks clearly. Overruling the permissive delegation doctrine prospectively would be a harder step. Still, it would do what these other doctrines cannot—restore the separation of powers at the point where law is made. By applying a stricter nondelegation principle only in the future, the Court can promote a regime more faithful to the Constitution while respecting the reliance that citizens and institutions have placed in the prior one.

In 1959, Cuba ranked near the top among Latin American nations in standard of living. Today, after nearly seventy years of communist rule initiated by a dictator whose coming to power was celebrated by many American Marxists, it ranks near the bottom. The working class has not been empowered; it has been immiserated.

It’s important to begin this review with a dose of reality, because intellectual history, focused as it is on the world of ideas, is too often detached from the real world in which those ideas live. Nowhere is this truer than in the universe of Marxist theory, which prides itself on allegedly taking its cues from the hard facts of economic life but is nonetheless characterized by a marked refusal to do so. This problem suffuses Andrew Hartman’s new intellectual history survey, Karl Marx in America.

Hartman is a fine writer who manages to keep reasonably interesting a 550-page treatment of the reception and mutation of Karl Marx’s ideas over the course of American history. In one clever turn of phrase, for example, he characterizes a popular summary of Capital as “a tempting alternative to the long march through the original text.” We meet early radical activists such as Big Bill Haywood and Elizabeth Gurley Flynn, influential intellectuals such as Sidney Hook and Max Eastman, and black Marxists such as C. L. R. James and Angela Davis. Hartman is admirably comprehensive and careful in his coverage of American Marxists; readers will come away with a good understanding of the breadth and complexity of Marxist thought in the United States, as well as its relationship to other intellectual streams such as liberalism and conservatism. He places on full display the rancorous dissension that flourished within the ranks of self-identifying Marxists, who often disagreed sharply regarding the correct interpretation and application of Marx’s corpus.

Unfortunately, Hartman’s assessment of Marxism is not as reliable as his description of it, nor is his handling of non-Marxist thinkers as judicious as that of their opponents. When he presents Marxist figures, the sketch is nuanced and careful; when he depicts others, it is too often the opposite. His treatment of James Buchanan and public choice theory is especially shabby. In Hartman’s telling (drawing in part on Nancy McLean’s tendentious account), Buchanan’s scholarship was tainted by racism, and his “resistance to civil rights … launched a long and productive career of tailoring economic ideas to serve reactionary forces.”

The book is also troubled by a problem at the heart of the historiography of American Marxism. On one hand, its historians argue, Karl Marx is a towering figure of incalculable importance. Even in the United States, his impact, though muted by various circumstances of American political and intellectual culture, has been substantial—after all, it merits this hefty tome. At the same time, their discussions of Marxism are laced with the language of “red scare,” “witch hunt,” and “paranoia.” Marxism’s historians, it seems, want to have it both ways: Marx is a seminal thinker, inspiring an array of intellectuals and activists to theorize about and strive to bring into being a revolution of the proletariat; and at the same time mainstream liberals and conservatives absurdly act as though Marxism is a threat to be taken seriously—as if a communist revolution could ever happen in the United States! In this view, anti-Marxists are either paranoid or hypocritically cynical, using the specter of communism to gain political ends but not really believing their own hype. This problem is on display, inter alia, in Hartman’s treatment of the World War I-era panic over Bolshevism, where he writes of “reactionaries” who provoked a “red scare.” But just pages earlier, he had frankly described the strenuous efforts of Marxist propagandists, including A. Philip Randolph’s publication, The Messenger, which celebrated Lenin’s 1917 Russian revolution as “the greatest achievement of the twentieth century.” A “red scare” is not as irrational as it sounds when there are, in fact, scary reds on the prowl.

The truth of the matter lies, as it so often does, in the murky middle. Communist revolution was indeed a real threat in the United States, as it was elsewhere. It faced an uphill climb in America, due to—among other reasons—relatively robust belief in the rule of law and in the Christian religion, both of which offer poor soil for the flourishing of Marxist ideas. Another related factor that kept Marx at bay was a strong anti-communist movement. As Hartman’s account shows, anti-Marxism did sometimes tip into paranoia and hysteria; the epithet “McCarthyism” rests on a real foundation of red baiting that does not reflect the best of American conservatism. What he seems to miss entirely, however, is that part of the reason that Marxism had trouble succeeding in America is precisely because insightful critics have correctly understood it, perceived its flaws, and labored to keep it from metastasizing in the country’s political culture. Whittaker Chambers, whose importance Hartman rightly ascertains, is Exhibit A.

Marxists have often been cagey about the place of violence in their worldview, and Hartman is no exception.

Although Hartman does not present it in these terms, his book can be seen as continuing a long tradition of Marxist theory that puzzles over the question, “Why no communist revolution in America?” The United States (in this view) is ripe for such a great leap forward: so much capitalism, so many exploited workers. Yet, as Hartman’s narrative makes clear—and to the everlasting consternation of the German theorist’s votaries—Marx has struggled to gain traction within the capitalist superpower. This discomfort runs as a theme throughout Hartman’s story: the more unadulterated the Marxism, the less popular it is. The Knights of Labor, Eugene Debs, and Bernie Sanders all enjoyed large followings, but they were only desultory Marxists. Figures like Daniel De Leon and C. L. R. James were fully committed, major figures in American Marxism, but only minor figures in American history.

Hartman, the capable historian, knows this. Describing the response to an 1886 lecture tour by Karl Marx’s daughter, Eleanor Marx Aveling, he writes that “most workers appeared skeptical.” Even at the apex of socialist political popularity in the 1910s, he notes, “most voters preferred the progressive option to the socialist one.” But Hartman, the admirer of Marxism, cannot put the pieces together. Could it be that the lack of anticapitalist revolutionary ferment in the United States is a result of the fact that rank-and-file workers find the American system (call it “democratic capitalism” or some other imperfect title) superior to what Marx has to offer? Instead, Hartman imagines, eventually the oppressed will understand where salvation lies, recognize “capitalism’s propensity to destroy” and discover Marx’s “compelling answers,” which have been “vindicated by history.”

As is so often the case with politically inflected histories, distortion increases the closer we get to the present. Hartman writes of the “death spiral” of capitalism following its “golden age” that was enabled by “New Deal reforms”—a demise brought on in part by “a conservative movement … that worked tirelessly at the behest of capital to crush labor.”

Ronald Reagan “embraced his role as the nation’s unapologetic defender of wealth from day one, signaled by the $25,000 gown First Lady Nancy Reagan wore to an inaugural ball.” (Bernie Sanders’s three homes are never mentioned.) Reagan’s vices extended to foreign policy as well: “As Reagan turned back the clock on how the government treated labor, he also strained to reignite the Cold War, which had grown far less tense in the 1970s.” Things have only gotten worse in the decades since, Hartman says, pointing to a growing litany of ailments that can be laid at the feet of a single cause: the “return to Gilded Age levels of economic inequality” that was “fueled” by “neoliberalism.” “Beginning in the 1980s,” he laments, “hunger and homelessness proliferated. Drug addiction, gun violence, depression, and suicide all reached epidemic levels. By 2020 … over one hundred thousand Americans were dying of drug overdoses each year.” Moreover, “things were worse in many other parts of the world, as over a billion people are now warehoused in … a ‘planet of slums.’”

At no point in this narrative of declension from a previous golden age does Hartman offer statistics regarding the proportion of the world’s population living in abject poverty in, say, 1900 or 1950, compared to 2000 or 2020. There are legitimate criticisms to be made of the world economic order over the last fifty years, but the unqualified assertion that it is a one-dimensional story of benefits flowing to the wealthy simply cannot be squared with reality.

The question of who was right—Marx or Leo—divided opinion in the late nineteenth century and it continues to divide today.

Marxists have often been cagey about the place of violence in their worldview, and Hartman is no exception. In some places, he seems to decry it; in others, he is less forthright. Regarding one instance of the latter, events have run ahead of Hartman’s text to a distressing degree. He celebrates the self-consciously Marxist art of rapper and filmmaker Boots Riley, who “effortlessly merged infectiously funky beats with bitingly hilarious revolutionary messaging.” Among Riley’s creations were a 1992 album titled Kill My Landlord and a 2001 song, “5 Million Ways to Kill a C.E.O.” Hartman’s manuscript was certainly in production before the 2024 murder of health insurance CEO Brian Thompson, so it would be unfair to suggest any intentional linkage. But some reconsideration of whether lyrics glorifying anti-capitalist violence are “hilarious” should be in order.

Notwithstanding its mediocre career so far, Hartman is cautiously optimistic about the prospects of Marxism in the United States, finding hope in the campus activism of recent years. Collegians who are considering immersing themselves in Marxist theory and praxis might do better to take advice from a different page of this book. Discussing the early twentieth-century socialist firebrand Elizabeth Gurley Flynn, Hartman notes that she wished her father had “spent more time job hunting and less time reading Marx.”

Karl Marx observed alienation, inequality, and exploitation, and he anticipated a brighter future brought about by class conflict and violent revolution. But there were other traditions of thought, some of more ancient vintage, that confronted the same problems from a radically different perspective. Pope Leo XIII’s encyclical Rerum Novarum, promulgated in the years between the publication of the second and third volumes of Capital, denied the efficacy of the Marxist solution. Were private property to be abolished, the pope wrote, “the door would be thrown open to envy, to mutual invective, and to discord; the sources of wealth themselves would run dry, for no one would have any interest in exerting his talents or his industry; and that ideal equality about which [socialists] entertain pleasant dreams would be in reality the levelling down of all to a like condition of misery and degradation.” The evidence from Russia, Korea, Cuba, Venezuela, and elsewhere indicates that Leo had a surer grasp of human nature and economic reality than did Marx.

Leo understood the natural inclination to class strife, but instead of encouraging it, he warned of its dangers. He urged cooperation not because he was a shill for capitalist interests or because he sought to supply the masses with an “opiate” to inure them to their sorry condition, but because he perceived that solidarity, founded on the view of the other as worthy of dignity regardless of ethnic or socioeconomic difference, was the path out of exploitation. The pope’s view of the matter mirrors what Michael Lucchese recently wrote in this same venue: “Radicalism and revolution promise strength to overcome oppression and crisis, but, in the end, they just foster a cycle of violence that can redeem no one.”

The question of who was right—Marx or Leo—divided opinion in the late nineteenth century, and it continues to divide today. Hartman, following the intellectual forebears he engagingly chronicles, sees it one way; most Americans another. “American common sense has it that capitalism is here to stay,” he acknowledges on the final page of the book. “Karl Marx and American common sense do not hang together.”

May it ever be so.

Thanksgiving is an astonishingly traditional holiday. In a world where everything seems to be changing, Thanksgiving feels almost unchanged from my own childhood to the present. Turkey and pumpkin pie are still the main event, the cornucopia the standard decoration. We stream the classic movies and songs instead of checking the TV Guide, but they’re the same movies and songs. Turkey Trots have been held across America for decades, enabling exercise addicts to get their endorphin fix before the rest of the world even wakes up at a massive downtown party. They’re bigger than ever nowadays, and still plenty of fun. (Yes, I am One of Those People. And quite likely my fellow addicts will be the first to read this article, so have a great race, friends!)

There may be a few small novelties. Sometimes people get a little crazy and try cooking their turkey in some new way (Sous vide! Smoker! Deep fryer!). Gratitude Journals are more of a thing now, at least in my little world of religiously conservative women, though I don’t personally keep one. For the unfamiliar: you record one thing you’re grateful for on each day in November. I’m told one is simply supposed to write “the first thing that pops into your head.” Though I fully support others’ efforts to chronicle their gratitude, I can’t get past the “overthinking” problem. One day I’m writing “Jesus” and the next “coffee” and that just feels wrong. So no journaling for me, but I do try to make November into a seasonal occasion for reflecting on the theme of gratitude. 

Perhaps that sounds treacly, but I think it’s a worthwhile endeavor. I normally put the point like this. The modern world is constantly finding ways to make us feel small, but in a mean, resentful, and grasping way. Gratitude makes us feel small in a good way. And that in turn helps us to be “bigger” people, in the most important ways. It seems especially fitting that our season of gratitude falls in November, an unassuming month when the world is mostly brown, the weather chilly, and the school year trundling along with no end in sight. It’s aggressively ordinary, just everyday life uncut. That can be dreary. But with gratitude on the brain, we may find ourselves noticing that everyday life can also be quite wonderful at times, and surprisingly strange.

Indeed, if we can bring ourselves to look at old traditions with fresh eyes, we may reflect that Thanksgiving is in some ways quite an odd holiday. It’s about gratitude, American history, and turkeys. Would those data points make any sense to us, if we hadn’t grown up tracing our hands on paper plates and preparing yam dishes in celebration of unsmiling Puritans? 

Thanksgiving has a story, of course, which can help to connect the dots. But it’s an odd story. Religious zealots come to an untrammeled North America seeking their “city on a hill,” and nearly starve to death in their fresh-off-the-boat incompetence, only to be rescued by magnanimous pagans who happen to live nearby. In my own childhood at least, the pilgrims were always presented positively by our elders as “people who wanted to worship God in their own way,” making Thanksgiving into a celebration of both devotion and religious freedom. Because the First Thanksgiving has normally been told as a kind of national origin story, it’s reasonable to see pilgrims as the presumptive protagonists whose determination and sacrifice have been honored over the years. Their coming was a watershed event. And their deep religious conviction can reasonably be viewed as seminal for America’s identity as a Christian nation. 

It’s not quite that straightforward, though. The most magnanimous-looking character in the Thanksgiving story was not European. Tisquantum, better known today as “Squanto,” was native-born, had an unclear relationship to Christianity, and almost certainly wasn’t looking to build any cities on hills. Respectful pluralism is therefore another recognizable element of the Thanksgiving story. Finally, we might note that the white people were the immigrants in this case, and we celebrate them in that role. (I have memories of pretending to be seasick in a grade school pageant as we recounted the pilgrims’ difficult journey to the New World. We definitely weren’t running from that component of the story.) 

Whatever else we think of that rose-tinted historical revisionism, the decision to celebrate the benevolence of Squanto and the Wampanoag doesn’t exactly project Western arrogance and determination to dominate.

The First Thanksgiving story is not a lament for colonialist oppression, but neither is it Christian Nationalist triumphalism. If the story has a core, it’s “finding ways to live together and appreciate one another despite deep differences.” And that’s not just modern progressive gobbledygook. Although Thanksgiving was in a sense “based on a true story,” it was famously promulgated by Abraham Lincoln, who was hoping to recover some sense of unity and common purpose in a nation deeply fractured by war. The value of friendship, harmony, and cooperation are very intentional themes.

Sometimes the storybook unfolding of those themes can be quite irksome to detractors, perhaps especially cynical anti-colonialists, who point out that Tisquantum was a tribeless vagabond and former slave whose chosen name meant “Wrath of God,” and that relations between Puritans and Wampanoag (the primary participating tribe) were actually quite fraught. The feast in question may have represented a fortuitous-but-fleeting moment in that relationship, not a defining or history-changing event. By some accounts, the Wampanoag were not even invited to that first harvest feast. They heard the pilgrims firing off a celebratory salute, misunderstood the purpose, and came ready for a fight. Realizing on their arrival that it was really more of a party, they slipped away and came back with their own contribution of venison, preserving the tense-but-still-peaceful relations they had established with the Europeans. Perhaps the meal was more a diplomatic salvage mission than a celebration of deep human bonds. 

What if it was, though? Thanksgiving is unquestionably a celebration, not only of a historical event, but of a tradition and story that were intentionally woven into American lore for civic purposes. But isn’t that always an element of culture? Whatever else we think of that rose-tinted historical revisionism, the decision to celebrate the benevolence of Squanto and the Wampanoag (in the mid-nineteenth century, no less!) doesn’t exactly project Western arrogance and determination to dominate. Rather, Lincoln was inviting Americans to reflect on how much we all owe to the sacrifice and generosity of others. The pilgrims were indebted to Squanto and the Wampanoag. We in turn owe much to the pilgrims, to other illustrious forbears, and (Lincoln would happily say) to the God who created us all. 

If we take the world as we find it, we often find that it’s quite strange. The storylines rarely run along the courses that we’ve plotted for ourselves. Projects that we begin with the highest confidence often spiral towards disaster. Then, sometimes, they may unexpectedly be salvaged, even by people we formerly regarded as enemies or barbarians. Neither people, nor things, nor the courses of human events follow expected pathways, and yet somehow, if we’re honest with ourselves, we usually have enough and probably better than we deserve. Be grateful.

Americans aren’t exactly exuding gratitude nowadays. Our public square is ablaze with resentment and angst; nearly everyone seems dissatisfied with the straw they’ve drawn in life. And sure, people have problems. Sometimes those merit attention. But if we pull our lens back a bit, considering our general situation in either historical or global context, can we really persuade ourselves that modern-day Americans have things particularly rough? Sure, the pilgrims could give thanks, but they only had to worry about starvation, bitter winters, native tribes less friendly than the Wampanoag, crops they didn’t know how to grow, animals they didn’t know how to hunt, impatient creditors in London wanting their ROI, and plagues that killed about half the colony in the first year alone. They had so much religious freedom! And very affordable housing!

What if we spent eleven months of the year working out solutions to present problems, and one month reflecting gratefully on what we already have? Is that just too Pollyannaish? The head-in-the-sand suggestion of a complacent post-colonialist? Even if it is, take a second to consider. Our political world would undoubtedly be healthier if we think a little less about what we want, and a little more about what we value, appreciate, and wish to preserve. 

What do I most want to preserve in this world? I think about it as I run along the paths of my Minnesota neighborhood (preparing to trot), passing a surprising number of turkeys along the way, especially in the fall. They’re funny-looking things, really, neither handsome nor majestic, and certainly not fast. What an odd totem for gratitude.

Reality is odd, however. It regularly defies our expectations. Would we want it any other way? If Americans could recapture that delight in the world’s strangeness, the clean feeling of being properly small, then perhaps we would remember what it means to be a great nation.

This is the time of year when we traditionally recognize America’s New England founders for something they didn’t invent—Thanksgiving—and not something they did—religious exemptions. Today we will celebrate both.

Since both have generated constitutional controversies, we will explain how a little wine knowledge can shed light on the meaning of the First Amendment while pairing perfectly with your Thanksgiving dinner.

Religious Exemptions

Let’s start with America’s first official religious exemption. That is, eliminating penalties for a religiously motivated act that would apply to the same act done for any other reason. The exemption related specifically to wine, and it happened in 1636, just half a dozen years after the first Puritan ship from the pioneering Winthrop fleet made landfall in Salem, Massachusetts.

“Puritanical” is a word we sometimes use to describe prohibitionists and teetotalers, but the actual Puritans were quite partial to wine. John Winthrop’s ship, the Arbella, carried more than 10,000 gallons of wine to sustain the Puritans in their new home.

A mere 10,000 gallons didn’t last long, and later ships brought so much more that the Massachusetts Bay government put an 18 percent tax on all imported wine. Retailers paid even more and had to get a license allowing them to sell either white wine or “claret”—that is, a red wine from the Bordeaux region of France.

The goal of the import taxes was to minimize what the governing body called the “immoderate expense” of importing “provisions brought from beyond the seas.” Incidentally, the Puritan leaders kept their eyes on immoderate consumption as well. Like the fictional Hester Prynne and her famous scarlet “A,” real-life Massachusetts Bay drunks would be sentenced to wearing a “D.” (Historians usually credit Harvard’s 1865 baseball team with the invention, but it is possible that “letter sweaters” were seen at America’s oldest university over two centuries earlier.)

The 1636 import tax—or what today we might call a tariff—included the first recorded religious exemption in American history. The law said that there would be no tax on any wine bought by the deacons for “the churches’ public use.” Perhaps concerned that the deacons might tack on a few gallons for themselves, the governing body insisted that the “public use” had to be “bona fide.”

Today, nearly 400 years later, justices, scholars, and religious liberty advocates are vigorously debating the question of religious exemptions. In brief, proponents argue that the constitutional right to the free exercise of religion means that judges should grant conscience-based exemptions even if legislatures have not done so. Opponents counter that the Free Exercise Clause does not empower judges to distribute “get out of jail free cards” to religious lawbreakers.

What does the Constitution require? Over the last 60 years, the Supreme Court has flip-flopped on this issue. In the 1963 Sherbert v. Verner case, Justice Brennan’s majority opinion launched an exemption-friendly era. The case involved a member of the Seventh Day Adventists who sought unemployment compensation after being fired from a job that required Saturday work, which she refused to do on the grounds that it was the Sabbath.

Justice Brennan’s opinion said that having to “choose between following the precepts of her religion and forfeiting benefits … [or] abandoning one of the precepts of her religion in order to accept work” is putting “the same kind of burden on the free exercise of religion as would a fine [on attending] Saturday worship.”

The Sherbert case then established that such laws would need to satisfy the rigorous compelling state interest test that the Court had been developing in connection with other individual rights cases. Subsequently, in Thomas v. Review Bd. (1981), the court would summarize the test for when the Court would grant an exemption as follows: “The state may justify an inroad on religious liberty [only] by showing that it is the least restrictive means of achieving some compelling state interest.”

Then in the 1990 Employment Division v. Smith case, the Court abandoned the Sherbert approach, with Justice Scalia asserting that the Court had “never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”That made judicially granted exemptions much harder to get. Today, the justices seem primed to reconsider Smith, but haven’t yet said what would replace it.

In deciding these kinds of constitutional cases, the Supreme Court has made it clear that it will focus on the lessons of history and tradition. For religious exemptions, that history starts in 1636 Massachusetts Bay.

The record over the following 350 years or so shows that exemptions from statutory duties would remain in the domain of legislatures. For example, eighteenth-century Massachusetts lawmakers exempted some, but not all, dissenters from the religious taxes that had begun over a century before. Throughout the nineteenth century, some state laws prohibiting business activities on Sunday exempted religious groups that recognized Saturday as the Sabbath, while other states chose to exempt taverns or railroads but not those who worshiped on Saturday.

If lawmakers failed to include religious exemptions, courts were reluctant to do so. As one judge explained, if people think “the law operates harshly, as laws sometimes do, the remedy is in the hands of the legislature.” Another judge emphasized the point by paraphrasing St. Paul in Romans 13: everyone must “obey the powers that be.”

From the time the Puritans settled in Massachusetts Bay, both state and federal legislatures would regularly grant religious exemptions.

On relatively rare occasions, courts would add a religious exemption to a judge-made common law doctrine, as in New York, where Catholic priests, but not Protestant ministers, could refuse to testify about what they heard during confessions. The constitutional protection for worship covered the sacraments, and the court pointed out that confession is only a sacrament in the Catholic Church. Protestants had to get an exemption from the legislature.

In short, people asking courts for conscience-based exemptions from statutory requirements would need to wait until the Supreme Court began doing so in the middle of the twentieth century. (For more along these lines, one of us has a book on the Free Exercise Clause coming out next year.)

But they were much more successful in the legislatures. From the time the Puritans settled in Massachusetts Bay, both state and federal legislatures would regularly grant religious exemptions. Perhaps the best-known one appears in the Volstead Act. That law implemented the Eighteenth Amendment’s national commitment to Prohibition. In adopting the Volstead Act, Congress followed the Puritans’ precedent and specifically included an exemption for wine used for “sacramental purposes.”

The Volstead Act’s ban on alcoholic beverages would end up putting many American wineries out of business. But somebody had to make sacramental wine. And so, one California winemaker paradoxically became a major beneficiary of Prohibition. Wine production at Napa’s Beaulieu Vineyards grew by an impressive 400 percent during Prohibition.

Beaulieu’s founder had previously developed a good relationship with the Roman Catholic Archbishop of San Francisco. That led to Beaulieu being named the first national wine distributor to the Catholic Church in America. In that capacity, Beaulieu supplied many parishes with the officially exempted sacramental wine.

It seems that the sacraments were enthusiastically observed during Prohibition. In the first two years, overall sales of sacramental wine in the United States increased by nearly fifty percent. Beaulieu thrived, and, after Prohibition, it expanded even further. Beaulieu has become one of America’s best-known wine producers, and the White House has served its wines numerous times. Especially for fans of religious exemptions, it may be an ideal wine for Thanksgiving dinner.

Thanksgiving

Many Americans continue to be thankful that Prohibition ended long ago. That brings us to our national day for giving thanks, along with some recommendations for wines to pair with Thanksgiving dinner.

But, first, in our dedication to the Constitution, shouldn’t we ask whether Thanksgiving is unconstitutional? After all, Thomas Jefferson’s celebrated “wall of separation between church and state” letter was written to explain why he didn’t believe that the president could issue religious proclamations, as Daniel Dreisbach has pointed out.

That notion of a wall of separation has not stopped virtually every president from calling for a National Day of Thanksgiving, however. Congress eventually made Thanksgiving an official federal holiday in 1941. At the time, FDR released a proclamation saying, “At the gathering of the harvest, we solemnly express our dependence upon Almighty God.” He asked that “every American in his own way lift his voice to heaven.”

FDR cited the precedent of George Washington’s declaration of a day of prayer and thanksgiving. Looking back even further, we frequently mention our New England founders in recounting Thanksgiving’s origin story. But the history and tradition of official thanksgivings go back well before that.

Governmental calls for the people to give thanks to God (or the gods) during the harvest season date at least to the Roman empire (and before that, to Sukkot, whose origins are at least a millennium earlier). Anyone who has read Greek and Roman mythology can appreciate just how much influence the gods could have on human affairs. One important way of staying on their good side was to make sure everyone said thanks in an appropriate way.

During festivals like Vinalia, which celebrated the wine harvest, Romans were expected to offer libations of wine to Jupiter, who had made those abundant harvests possible. As Ovid wrote,

“Autumn came, dyed with the trodden grapes:
The wine, justly owed to Jupiter, was paid.”

It is hard to think of a longer history or more enduring tradition than official days set aside for thanking the heavenly kingdom during the harvest season. To honor that tradition, we might consider raising a glass of wine made from the Muscat grape, which was so prevalent in the ancient Mediterranean that it was certain to have been one of the libations to Jupiter—or, as John’s gospel recounts, could well have been the wine that miraculously didn’t run out at the wedding in Cana. We will suggest a good one.

Further north, Bordeaux vines were already producing wine in Roman Gaul. Vinalia there undoubtedly included ancient versions of the claret to which the Puritans were partial. As for the Pilgrims, who are usually credited with America’s first Thanksgiving, they most likely drank beer and cider that day even though the Mayflower itself had spent many years as a merchant ship carrying French wines to England.

Thanksgiving Wine Suggestions

With an eye towards the distinguished history of both religious exemptions and Thanksgiving, here are a few constitutionally appropriate wine pairings for your Thanksgiving table.

For a Puritan-like experience, try a modern equivalent of Bordeaux “Clairet,” the forerunner of today’s claret. When the Puritans decreed a religious exemption for the churches’ claret, it wasn’t for Bordeaux’s famously deep, rich reds. Early seventeenth-century Bordeaux was made with minimal grape skin contact, resulting in a clear pink wine resembling today’s rosé. Over time, the French term clairet, meaning “clear,” morphed into claret, which would continue to stand for Bordeaux reds, even when they became the dark tannic wines typical of modern Bordeaux.

Smith Haut Lafitte: Les Hauts de Smith Rosé (limited production), $24

The Chateau’s first vineyard deeds originate in the fourteenth century, so it possible that the Puritans enjoyed wines from this ancient estate. Chateau Smith Haut Lafitte is situated in the famous region of Pessac-Léognan, in the southern portion of Bordeaux. The area is covered in gravel, leading to the larger region’s name, Graves.

A reasonably close approximation of the Puritans’ claret, this wonderful rosé will blend well with everything on your Thanksgiving menu. If you can find it, it’s only about $24. If you can’t, consider:

French Blue: Bordeaux Rosé, $20

A marriage of American winemaking talent and French terroir results in this deliciously fruity rosé. Lots of red fruit flavors and good acidity will complement your meal. It is a blend of two traditional Bordeaux grapes, Cabernet Franc and Merlot.

Or you could have a more “puritanical” Thanksgiving with a Prohibition favorite:

Beaulieu Vineyard: BV Napa Valley Cabernet Sauvignon, $40

During the 1920’s, Beaulieu rebranded itself as “The House of Altar Wines.” With government permits obtained prior to Prohibition, Beaulieu shipped their products in barrels marked “FLOUR” to protect them from Prohibition zealots.

Sourced from some of Napa’s most famous vineyard regions, BV Cabernet Sauvignon isn’t just for communion anymore. It’s a ripe wine with soft tannins that will round out your Thanksgiving feast. It would also be especially good with hard cheese.

When it comes to dessert, the Romans recommend:

Domaine de Durban: Muscat de Beaumes de Venise, $30

The Muscat Blanc a Petits Grains grape has been vinified since ancient times in the Mediterranean. The venerable Domain de Durban, in the Southern Rhone, features Roman ruins and boasts an impressive winemaking pedigree. Pliny the Elder (CE 23–79), Roman scholar and naturalist, praised the wines from this site. This Muscat was undoubtedly offered as a libation to the Roman gods.

Enjoy its light and pleasantly sweet flavor with pumpkin or apple pie.

Happy Thanksgiving!