Category: Michael Novakhov – SharedNewsLinks℠

The first Liberty Fund colloquium that I attended occurred in 1986. Held in Montana, the reading for the event was a single book, Playing God in Yellowstone: The Destruction of America’s First National Park, by philosopher Alston Chase.

His argument was that the National Park Service (NPS), in cahoots with the budding environmentalist movement, had already wrecked America’s Yellowstone treasure. The guiding principle here had come from the 1963 Leopold Report, which urged the NPS to manage the parks so that they would be “nearly as possible in the condition that prevailed when the area was first visited by the white man. A national park should represent a vignette of primitive America.”

When placed atop the earlier priority given to supplying a good visitor’s experience, the results were disastrous. For example, Yellowstone now has far fewer beavers due to depleted vegetation. This was a consequence of too many elk. Their numbers had exploded because the NPS had killed off the wolves, mountain lions, and a hefty share of the coyotes that had kept the elk population down. Bear feed lots and bison fenced in along the roads—popular in the 1950s—were shut down. Starving bears began to attack the human visitors, and so on.

Alston showed how the environmentalists’ faith in the invisible hand of nature actually rested on two massive errors. First, Yellowstone was not a closed ecosystem, but rather part of a vastly larger physical and biological landscape. This made it impossible to manage flora and fauna only within the strict boundaries of this, or any, park. And second, human alterations of plant and animal life within the future park had actually been happening for over ten thousand years, ever since the first human visitors had arrived after crossing the land bridge from Asia. The “pre-white man” measure of “primitive America” or wilderness had no real historical or measurable coherence.

Also present at that 1986 Liberty Fund colloquium were several persons from the relatively new Political Economy Research Center. They were advancing a fresh and compelling paradigm for the conservation of valued ecosystems based on honest science, property rights, market incentives, and common sense. Since then, I have been on the mailing list for PERC Reports. By a modest coincidence, the Summer 2025 issue features articles on “Building a Brighter Future for National Parks,” including Kat Dwyer’s “Surviving the Popularity of Yellowstone.” Her PERCish proposal for reducing the Park’s $1.5 billion “deferred maintenance hole”? Slap a $100 surcharge on international visitors.

Human-induced climate change has a long and diverse pedigree.

The PERC model came to mind when reading Steve F. Hayward’s “A New Environmentalism?” There is much in this essay that I admire. His review of the early enthusiasm for a radical environmentalism shown by conservative voices such as Ronald Reagan and National Review, and the hostility toward the first Earth Day exhibited by the progressive left, is both hilarious and sobering. His argument that the anti-human bias of modern Malthusians, such as Paul Ehrlich, later led the left to embrace Ecology is convincing. This ideology found environmental worries to be a useful tool for expanding the regulatory state. Hayward correctly skewers the “peak oil” hypothesis advanced several decades back for vastly underestimating oil and natural gas reserves. He properly laments the demise of common law remedies to environmental pollution, such as nuisance statutes and riparian rights. His suggestions for repairing this damage, such as bringing back old-fashioned common law liability, are especially strong. Hayward correctly indicts the Endangered Species Act for encouraging private owners of wildlife habitat to “shoot, shovel, and shut up” whenever a rare creature enters their property. And his call for privately funded monetary prizes for specified innovations in environmental and energy policy is a most welcome idea.

All the same, I offer two cautions regarding his analysis.

First, while I share his enthusiasm for potential ecological gains from a strengthening of property rights, the models that he offers may favor the concentration of land and resources in ever fewer hands. For example, while he commendably argues that “the commons should be privatized to the fullest extent possible,” he also praises the “Ecomodernists” who endorse “large-scale agriculture” and “resource extraction” on a mega-capital scale. The human model here seems to be billionaires, each owning several million acres of Montana or Wyoming land, and corporations employing technologically advanced machines in place of human labor. I much prefer strategies and incentives that would enhance land and resource ownership by “smallholders” of “the middling sort.” Given the opportunity and the proper incentives, they too can be good stewards of the environment. This was the republican model favored by the nation’s Founders, and one still relevant to our time.

Second, Hayward frequently denounces “the climate change fanatics”—or alternately “the climate hysterics”—and their “monomaniacal climate fixation.” He never identifies who these people are, however, nor why their arguments are wrong and hysterical. Recent research in and on science may help clarify matters here.

To begin with, most commentaries on human-driven climate change—or the “global anthropogenic transformation of terrestrial nature”—focus solely on the industrial era, beginning in the early nineteenth century. However, as the title of a recent article in The Proceedings of the National Academy of Sciences (and foreshadowed by Alston Chase) puts it, “People Have Shaped Most of Terrestrial Nature for at least 12,000 Years.” Major events included the deforestation of Western Europe beginning in Roman times and the introduction of rice cultivation in China 5,000 years ago. The essay provides a multitude of other examples, mostly performed by the oft-sainted indigenous or traditional peoples. As the authors of the paper conclude: “Depicting human use of nature largely as a recent and negative disturbance of an otherwise human-free natural world is not only incorrect but has profound [and disturbing] implications for both science and policy.”

Put another way, human-induced climate change has a long and diverse pedigree. What about global warming caused by the burning of fossil fuels? Where can someone find honest and unbiased science on this? The answer may be surprising: turn to the oil industry itself.

A 2018 article in Nature Climate Change describes early research funded or encouraged by the American Petroleum Institute (API). For example, a 1954 project reported an increase in global CO₂ concentration of 10 percent since 1854. Four percent of this was due to the combustion of fossil fuels, with the remainder due to deforestation and other land use changes. In 1965, API President Frank Ikard reported to his membership “that carbon dioxide is being added to the earth’s atmosphere by the burning of coal, oil, and natural gas at such a rate that by the year 2000 the heat balance will be so modified as possibly to cause marked changes in climate beyond local or even national effects.”

More remarkably, a 2023 article in the journal Science examined 32 in-house documents written by Exxon (later ExxonMobil) scientists between 1977 and 2000 and another 72 peer-reviewed scientific publications also authored or co-authored by the oil company’s employees between 1982 and 2014. The result? “We find that most of their projections accurately forecast warming that is consistent with subsequent observations.” Moreover, ExxonMobil scientists “correctly rejected the prospect of a coming ice age, accurately predicted when human-caused global warming would first be detected, and reasonably estimated the ‘carbon budget’ for holding warming below 2 [degrees Celsius].”

It is true that ExxonMobil’s public relations strategy, as laid out in a 1988 internal memo, was to “emphasize the uncertainty in scientific conclusions regarding the potential enhanced greenhouse effects.” Of course, this is exactly what one would expect from a corporation that derived its income and profits from the drilling, refining, and sale of fossil fuels. The surprise is that the scientists whom the company hired, paid, and trusted concluded otherwise. Their science is far from hysterical and may perhaps be as close as we can ever get to fair and accurate analysis.

In short, the activities of human beings can change the climate and have done so for thousands of years. Humans in the past, however, were always unaware of (and probably quite unconcerned about) the possible climate-altering consequences of their actions. A new reality emerged in the late twentieth century when, for the first time, scientists arguably identified a specific cause of human-induced climate change before it had reached its consummation. And, for the first time again, humans therefore gained the collective opportunity to alter or mitigate the process.

With that said, specific strategies of mitigation—e.g., ban the burning of coal, favor electric vehicles, reboot the nuclear power plants, tax the CO₂ discharges of factories—may or may not be worth the economic, social, and/or political costs. The option of doing nothing also remains, so letting the consequences fall where they might (while perhaps investing in prime beachfront property on Greenland’s sunny coast). In every case, though, choices must be made, even if by default. To borrow a phrase, that is The Big New Thing.

Some ninety years ago, Rose Wilder Lane penned “Give Me Liberty,” extolling the remarkable freedoms Americans had, especially in contrast to their European counterparts. Written in the 1930s, Lane’s piece is both a stirring defense of American freedoms and a damning portrait of European societies still writhing under the weight of bureaucratic statism. Written just as the state interventions of Roosevelt’s New Deal began to bite, her notes stand as a useful portal into a different era—challenging and checking our current assumptions about the trajectory of transatlantic liberty. In a nutshell, Europe has leapt forward since Lane’s day, while America has wallowed, indeed probably regressed, on the frontiers of individual liberty. Revisited today, Lane’s observations prompt an uncomfortable question: what if the roles have reversed? 

Lane wrote from direct experience. Having spent years in 1920s Europe, first as a writer for the Red Cross and later as a roving correspondent, she saw a remarkable cross-section of European society from France to Albania as it dug itself out of the ruins of World War I. Her essential observation was that Europe, in terms of exercising freedom, was frightfully retrograde—“for all the years of my residence in Europe,” she wrote, “a great many obstacles were enforced upon me by the police-power of the men ruling the European States.”

Her examples are vivid. She reminded her American readers that they thankfully “were not obliged,” as Europeans then were, “to carry at all times a police card, renewed and paid for at intervals, bearing our pictures properly stamped and stating our names, ages, addresses” and other personal details. They sound suspiciously like today’s driver’s licenses, which, while not technically required “at all times,” are effectively required for general day-to-day life, especially travel. As we know them now, this form of identity card did not unfold US-wide until the 1940s. Lane would no doubt be shocked.

She was horrified, after all, by police raids in Budapest where working-class neighborhoods were upended in the name of “public order” and their “workingmen’s cards” checked to ensure they were employed in their proper capacity. Lane noted that the working families’ “terror at the sight of uniforms was abject. All rose meekly and raised their hands. The policemen grinned with the peculiar enjoyment of human beings in possessing such power.” Such raids are more or less unheard of in Europe today, yet bear an uncanny resemblance to the ICE raids sweeping America coast-to-coast now. Regardless of where one comes down on the proper enforcement of immigration, the fact that modern America so resembles Europe of the 1920s should give us pause.

Such intrusions on liberty, Lane noted, were always justified by a “good motive, and a rational one.” “Public safety” and “good order” were the professed justifications for outrageous personal invasions of liberty in Europe, but Lane very rightly pointed out that social order was in fact perfectly possible amongst “multitudes of free human beings” without the heavy hand of state enforcement. She questioned, for instance:

whether there was less crime in police-controlled Europe than in America … there is no section of an American city which I would fear to go into alone at night. There were always many quarters of European cities that were definitely dangerous after nightfall, and whole classes of criminals who would kill any moderately well-dressed man, woman or child for the clothes alone. 

It’s strange to read, decades later. Regardless of how accurately Lane’s perception aligned with reality at the time, the unequivocal fact today is that American cities have homicide rates several times higher than European ones. A comparison of the five largest American cities to the largest European ones shows a homicide rate of around 12.3 per 100,000 in the US versus a rate of around 1 per 100,000 in Europe. This inversion begs a question: Is there perhaps a direct correlation between freedom and security, as Lane intimated? We’re often taught to assume the reverse—that we can only gain security by trading off freedoms—but the fact that Europe and America have apparently switched places implies the opposite: European cities today certainly don’t feel more “police-controlled” than American ones, and arguably the rise of militarized police in America contributes, counterintuitively, to more violence. The phenomenon, if true, would corroborate Lane’s essential point: the more overt and violent controls are placed on society, the more violent they become.

Homicide rates and internal security are one thing, but even in day-to-day commercial norms, there has been an inversion of sorts. France, in Lane’s day, required every purchase, no matter how minuscule, to be “recorded in writing in a ledger, in the presence of both buyer and seller, as Napoleon decreed.” This tedious bureaucratic requirement added half an hour to each transaction since lines would inevitably queue as fastidious clerks dutifully recorded every purchase. “Could French merchants change it now?” Lane asked. “It is to laugh, as they say; a phrase with no mirth in it.” Apparently, however, French merchants did change it, as Europeans today from Paris to Kyiv routinely bleep instantly in and out of stores with lightning-fast electronic pay (usually on their phones). The kind of old-school check-writing at grocery stores or for paying utility bills that is still common in much of America is practically unheard of in Europe, and they giggle in consternation at how slow commerce is in modern America. Peer-to-peer transfers, wireless bank transactions, and contactless payments mean Europe is ahead of the US in speed, integration, and cost efficiency. We lag because legacy systems like ACH and banking silos slow modernization efforts.

The trouble, it seems, lies on both sides of the Atlantic: politicians of every stripe find it hard to contain the impulse to stifle liberty in support of their special worldviews. 

Do such things matter in the grand scheme of things? Can liberty really be measured by contingent elements like commercial ease and city safety? Surely America stands tall amongst the nations for protecting the more abstruse yet important elements of freedom—things like political rights and civil liberties? According to those who systematically compare such things, not so much. According to Freedom House, the United States stands around 60th in rankings of political and civil freedom, well below almost all of Europe. The conservative Heritage Foundation ranks the United States around 30th in its “Economic Freedom Index,” which assesses nations on metrics like property rights protection, government integrity, and tax burden. The Cato Institute’s “Human Freedom Index” places the US at #17, behind Switzerland, Finland, Norway, Denmark, Ireland, Germany, and even the Czech Republic. There’s room to debate the metrics used to calculate these rankings, but shouldn’t Americans be sobered by the realization that no one seems to think we’re setting the bar for freedom?

But what of high-profile cases, especially in the UK, of governmental crackdowns on free speech? A US State Department report notes that the UK’s vague rules against “hateful” or “offensive” speech can lead to the “perceived weaponization of law enforcement against political views disfavored by authorities.” It’s a valid concern, to be sure, but do these rather haphazard incidents indicate a genuine and troubling structural failure—a foundational crack in European civil society that is being overlooked by freedom indices done by the likes of Cato, Heritage, and Freedom House? It seems unlikely: Cato, for instance, which publishes the least favorable index toward Europe vis-à-vis America, uses “86 distinct indicators of personal and economic freedom,” including (in the realm of freedom of expression) areas of “academic and cultural expression, government censorship, internet censorship, and media self-censorship.” They may not be perfect, but they go to great lengths to compare apples to apples, and it seems rather remarkable that eight of the nations topping Cato’s index are in Europe. As Americans, we need to be careful not to conflate concerning headlines from across the pond with broad, structural truths that get lost in the buzz.

Americans, after all, also wrestle with threats to free expression. Consider the dustup over FCC Chair Brendan Carr’s thinly-veiled attempts to weaponize his bureaucratic powers to revoke broadcast licenses for media companies that “get out of line.” The trouble, it seems, lies on both sides of the Atlantic in this regard: politicians of every stripe find it hard to contain the impulse to stifle liberty in support of their special worldviews. 

As Rose Wilder Lane properly pointed out, illiberalism always creeps under the guise of “Public Safety” and “Good Order,” and in today’s social media age, this kind of order is generally attained by stifling various kinds of “misinformation.” Lord Young, at Britain’s Free Speech Union, notes the delicious irony when “those in authority who accuse their political opponents of trafficking in misinformation are actually—by describing what their opponents are saying as misinformation—trafficking in misinformation themselves.” Clearly, both Europe and America have work to do to better safeguard their citizens’ natural rights, but it would be delusional to assume that America holds a singular or permanent advantage when it comes to securing liberty. 

The truest form of patriotism is one that refuses to traffic in myths and instead demands clear-eyed appraisals of how one’s country is really doing. When Lane wrote in 1930 that “Americans have had more freedom of thought, of choice, and of movement than other peoples have ever had,” she was most probably correct. That is no longer true, sad as it is to say. The fact that America has dropped from the leading ranks is a testament (thankfully) to other nations adopting and perfecting the very principles of laissez-faire liberty we helped pioneer. As freedom-loving Americans, however, we need to take honest stock of where we are heading and attempt to reinvigorate the freewheeling individualist ethos that made America free in the first place.

In nineteenth-century Britain, advertisements for patent medicines often carried the testimonials and encomia of duchesses, though there was absolutely no reason to suppose that duchesses were better informed or more intelligent on matters of health than wheelwrights or dustmen. Endorsement of products by sportsmen or film stars is similarly ridiculous. Even those who act upon such endorsements probably know that they are bought and paid for, which suggests that rational considerations play only a minor role in much of humanity’s decision-making. 

Something similar seems to be at work when the president of the United States advises pregnant women not to take acetaminophen (also known as paracetamol) during pregnancy because to do so might result in childhood autism. 

Doctors are universally of the opinion that pregnant women should take as little medication as possible, especially in the first three months of their pregnancy, and take only that which is really necessary. But this general precautionary principle is a far cry from condemning any individual medication as being dangerous or developmentally harmful to a fetus. 

It is probable, of course, that no politician has the faintest idea of what would count as valid evidence to justify such advice. And they are not alone. Few people are aware of the complexity of proving a statement such as that, “Acetaminophen taken in pregnancy causes autism.” A statistical association, even if present, is far from sufficient to do so, because association is not causation.

Unfortunately, it is part of human psychology, even of the sophisticated and the educated, to take association as causation, and to think that such association provides guidance about prevention or treatment of a disease. Researchers who publish findings of statistical associations in medical journals almost always speculate on the reasons for these associations, as if they were causative in nature. 

In 1965, the British statistician, Austin Bradford Hill, laid down principles or guidelines for the assessment of whether an association was likely to be causative. These principles or guidelines are not invariable rules but are nevertheless useful and should be kept in mind when statistical evidence of causation is either to be assessed or asserted. Among the factors Hill identified are Strength of Association, Consistency of Findings, Temporal Relationship, a Dosage Relationship, Specificity of Findings, and Biological Plausibility.

Is the association a strong one? The stronger it is, the more likely it is to be causative. A very weak association is most likely to be a statistical artifact. For example, in one of the best studies of the acetaminophen question, a Swedish examination of 2.5 million children born in Sweden between 1995 and 2019, found that the rate of autism was 1.33 percent in those whose mothers had not taken acetaminophen during pregnancy, and 1.42 percent in those who had. This is a very small difference, well within a margin of error from several different angles, and no one should conclude anything from it. 

Here it should also be borne in mind that in any such study it is vanishingly unlikely that the figures for the two groups should be exactly the same, and furthermore that if you examined the consumption of, say, a hundred comestibles during pregnancy, you would find that some of them were statistically associated with the development of autism, even though none of them was causatively related in any way. If you look at enough factors, you are bound to find some that are statistically, but not causatively, associated.

Are the findings consistent? The more consistent such studies are, the more likely the association is to be causative. For example, no study fails to show an association between smoking and lung cancer. This is far from the case with acetaminophen and the development of autism. 

To suggest without firm evidence that mothers may have helped to cause, however inadvertently, the autism of their infants by having taken acetaminophen during their pregnancy is to add casually to their suffering. 

Is there a temporal relationship? Is there a connection between the consumption of acetaminophen by pregnant mothers and the rising prevalence of autism, as might be expected if one caused the other? The answer is “No.” Here, it might also be pointed out that the true nature of the rise in prevalence is not clear. Is it fashion in diagnosis, an increase in recognition of the condition, or a genuine rise in a real phenomenon? Changes in terminology do not necessarily reflect changes in reality. 

Is there a relationship between the dose and the response? In this case, is there a relationship between the amount of acetaminophen taken and the likelihood of the development of autism? If there were, it would strengthen the case for a causative relationship, though it must also be borne in mind that the latter might be idiosyncratic, so that any exposure at all to the drug might cause autism. At any rate, no such dose-response relationship has been found. 

How likely is it that the outcome is the result of the specific cause being studied? Are the pregnant mothers who take acetaminophen the same in all relevant respects as those who do not? The answer clearly is “No.” Either they take the drug because they are suffering from pain or fever, or because they are neurotically anxious, although, of course, some pregnant mothers may refuse to take acetaminophen for pain or fever (in which case, they are also different from those who do). It is very difficult to control for these factors, but the smaller the association between the drug and the condition, the more important those factors are likely to be. Both fever and diabetes in pregnant mothers, by the way, have been associated with the development of autism in infants—but, once again, association is not causation.

Is it biologically plausible? Is it scientifically possible that acetaminophen should cause autism? The mechanism of action of the drug is not fully understood, nor is the cause of autism fully understood, except that it is likely to be complex. At the very least, it is unlikely that the drug should contribute greatly to that causation; and sweeping pronouncements, such as have been made, that the cause, the magic bullet, will soon be found, raise hopes without any real prospect of fulfilment. In that sense, they are cruel. 

Cruel also are warnings against drugs when these scientific guidelines do not indicate a clear danger. It is natural for parents of infants with abnormalities, especially psychological ones, to agonise over what they did, to examine whatever mistakes they made, that resulted in the abnormalities of their children. In the 1960s and ’70s, for example, some psychiatrists suggested that the manner in which families communicated could induce schizophrenia in adolescents and young adults, a view which was popularised in magazines, books, and films, though in fact there was no basis to it. Parents suffered unwarranted guilt about, and even blamed, for the sufferings of their children, which added to their own considerable sufferings. To suggest without firm evidence that mothers may have helped to cause, however inadvertently, the autism of their infants by having taken acetaminophen during their pregnancy is to add casually to their suffering.

There is an interesting sociological question to be asked about the president’s pronouncement: why should anyone take or have taken any notice of it? It is extremely improbable that he studied the question in any depth or even appreciated the methods by which the question could be answered. Yet many people are more likely to take notice of him than of real authorities. Other equally uninformed celebrities, in the wake of this pronouncement, are likely to be reckless in distributing the same advice.

It is, perhaps, wasted breath to protest against people’s propensity to invest the wrong people—presidents, duchesses, or film stars—with authority to pronounce on matters of health, because it seems ineradicable. In these circumstances, however, those with what might be called charismatic authority, rather than with the authority of true expertise, have an inescapable duty to remain silent on subjects that they have not studied but on which their advice might be heeded by many people if given. 

No doubt some will say that experts can be mistaken, which is certainly true. Furthermore, the mistakes of experts can be catastrophic. Fallibility is built into our nature, and no one can escape it. Nor are experts always in agreement on every subject. 

But this is no reason to doubt the value of expertise, or to resort uncritically to the opinions of those who have not considered a subject for more than a minute. We are utterly dependent on expertise and have good reason not to mistrust it most of the time. Whenever we take an aeroplane, whenever we drive a car, whenever we turn on a light, whenever we drink a glass of tap water, whenever we take a pill, and on myriad other occasions throughout the day, we rely on the expertise, past and present, scientific and practical, of others. The attempt at blanket scepticism of expertise is not only foolish, it is also both impossible and dishonest. 

Expert opinion suggests that it can sometimes be medically advisable for pregnant women to take acetaminophen. Celebrities with no expertise in the subject have an inescapable duty to remain silent.

In 2022, then-President Joseph Biden invoked the Defense Production Act, a 1950 law that gives the president the authority to direct domestic industry in the name of national defense, to increase the supply of baby formula available to Americans. Three years later, President Donald Trump imposed tariffs on kitchen cabinets, bathroom vanities, and associated products in the name of America’s national security. How did baby formula and kitchen cabinets come to be considered as crucial parts of America’s security? Andrew Preston’s important book, Total Defense, provides an answer to this question.

The origins of the US national security state are typically traced to World War II and the Cold War. In this telling, the National Security Act of 1947, which established the Department of Defense, the National Security Council, the Central Intelligence Agency, and later the Joint Chiefs of Staff, was a pivotal event, establishing the core institutions of the national security apparatus. Moreover, instead of demobilizing following World War II, US government leaders decided to maintain a permanent war economy to prepare for future wars. This was justified by the Cold War, an open-ended global conflict against the Soviet Union requiring nonstop preparation to ensure the security of both America and the world.

Preston does not deny the importance of these events, but argues that this widely accepted origin story starts too late. The US national security state, he argues, was not born with World War II or the Cold War, but rather during Franklin Delano Roosevelt’s New Deal programs. He convincingly shows that Roosevelt’s policies fused domestic economic management with international security issues. The result was an expansive vision of “total defense,” which included not just domestic economic security, but also security against international threats. Importantly, the Roosevelt administration and its supporters effectively redefined “threats” to include not just the possibility of immediate military invasion, which was minimal, but also a broad range of non-military cultural, economic, and social issues. The result was a broad menu of potential government interventions, as decided by those in power, undertaken in the name of the security of the American people.

The main contribution of the book is a more accurate understanding of the foundations of the US national security state. This is not merely a matter of getting the historical timing right, although that too is important. More fundamentally, Preston’s reorientation clarifies that the American welfare and warfare states are close siblings that cannot be separated in their origins and purpose. The unifying theme is their shared foundation in the Progressive ideology. As Preston writes, “Insurance and military efficiency sprouted from the same conceptual ground as progressivism: a desire for improvement by modernizing and rationalizing society in a way that preserved what were thought to be the core elements of American identity, democracy, and sovereignty. It wasn’t a stretch, then, for advocates of a larger military to locate their position within broader trends that propelled a progressive state in the pursuit of a better society.” This ideology birthed a large-scale and sprawling state apparatus that merged traditional military activities (the maintenance and use of a standing army and military equipment) with top-down government policies related to economic, social, and cultural policies undertaken in the name of national security. Its purpose was the same as other New Deal programs—to implement top-down state control over domestic life by an expert class who promised protection to the American populace.

Over time, and especially due to the Vietnam War, many liberals and progressives became increasingly skeptical of the national security state, coming to view it as being at odds with the welfare state and President Lyndon Johnson’s Great Society program. At the same time, many conservatives came to embrace the national security state while eschewing the welfare state as a threat to American values and the country’s fiscal health. Nonetheless, officials from both parties today remain quite comfortable invoking “national security” rhetoric for the benefit of their preferred policies. As Preston emphasizes, American politicians “figured out that they could build support for just about any initiative as long as they described it as vital for national security.”

While it may not be politically feasible to roll back the expansive conception of national security today or tomorrow, it is important to hold space for alternatives to the status quo.

In Crisis and Leviathan, economic historian Robert Higgs presented a ratchet effect framework for understanding the growth of government. In his framing, a crisis presents a government with an opportunity to expand in scale and scope in response to the emergency. This expansion rarely fully recedes post-crisis, hence the ratchet effect of crises on the overall size of government. Part of why expansions persist is due to the economic incentives for government agencies to self-perpetuate. But more important are shifts in ideology where both political elites and the broader populace come to view the citizen-state relationship in a different light than prior to the crisis. Activities previously viewed as either unacceptable or outside of the purview of government become normalized as part of the regular actions of government. Preston’s story about the New Deal illustrates this dynamic in a new light as a domestic economic emergency was used to justify not just a narrow economic response by the state, but rather an expansive range of policies to ensure “total defense.” At the core of the story, there is a qualitative shift in the scale and scope of state power grounded in changes in ideology regarding the role of the state, both domestically and internationally.

As Preston documents, the New Deal was both grounded in, and contributed to, ideological and rhetorical shifts in American society. Many Americans came to accept and expect an expanded role of government in their lives to protect them from an ever-growing list of threats. The political elite, who were active participants in crafting the narrative of the prevalence of threats and their ability to insulate Americans from them, willingly embraced their expanded powers. At the same time, the newly expanded rhetoric of national security became prevalent across the ideological spectrum. The result was a militarization of political rhetoric and policy, characterized by security justifications for an ever-increasing range of government actions, that still exists today, as illustrated by the two examples discussed above. Beyond baby formula and kitchen cabinets, the rhetoric of government-provided national security is now tied to international trade, environmental issues, food supply chains, income inequality, (dis)information, items deemed necessary for the nation’s security (metals, minerals, etc.), technology, and public health, among a range of other areas of life. Nothing is off limits when it comes to national security.

In addition to shifting the scale and scope of state power, the rise of total defense also changed how and where this power is exercised. The idea behind the Madisonian vision of the separation of powers was to establish a set of checks and balances to safeguard against abuses of concentrated power. Crises pose a challenge to this arrangement because they concentrate discretionary political power in the hands of the executive and administrative state at the expense of the legislative branch. During emergencies, it is argued that the executive must act quickly and decisively. They cannot be bound by congressional deliberation and debate, which will slow the state’s response. The predictable outcome of a state tasked with providing total defense is a significant expansion of the powers of the executive at the expense of other branches. In the case of the United States, historians have documented the rise of the “imperial presidency” resulting from the role of the president expanding through time. Preston’s book provides insight into this phenomenon by documenting how the New Deal contributed to the evolution of the executive branch as an office of permanent emergency powers. Given this context, is it any surprise that it is seen as entirely routine for presidents to implement a range of industrial policies or to take ownership stakes in private companies in the name of national security?

It is important to appreciate how encompassing the powers of the New Deal-inspired security state are in practice. When social and welfare policies are folded into an amorphous category of “national security,” the state has an automatic justification to intrude on personal and economic liberties in the name of the public and global interest. This shift in emphasis from the primacy of individual rights to the primacy of the collective includes not only restrictions on private property but also an extensive system of state surveillance of day-to-day activities to ensure that the actions of the individual align with those of the common good as defined by the current elites in power. Also necessary is a system of punishment and enforcement to incentivize compliance and punish deviations. The risk, of course, is that these actions, which are justified on the grounds of protecting Americans from threats, end up doing just the opposite in practice as the national security state becomes the very thing it purports to protect against.

In his epilogue, Preston calls for a rethinking of what constitutes national security. He is skeptical that Americans can cast off the expansive conception of national security because “it’s just too tightly woven into the fabric of American society.” After reading the book, I reached a different conclusion. Total Defense shows that the Roosevelt administration’s vision of the state, combined with its rhetoric of what constitutes security, actively reshaped political legitimacy with long-lasting effects on American society and political institutions. In other words, the fusion between the welfare and warfare states was not inevitable, but constructed through purposeful choices. This means that it can be deconstructed.

There is a tendency to view the growth of government, especially in relation to crises, as unidirectional and deterministic, and there are certainly forces that push in the direction of state growth. At the same time, alternative images of the world matter, as does the rhetoric used to describe the visions of what might exist. While it may not be politically feasible to roll back the expansive conception of national security today or tomorrow, it is important to hold space for alternatives to the status quo, which is rooted in the progressive vision of state experts ruling over citizens.

How might members of a truly self-governing society think about security? What aspects of security are best left to non-state solutions (markets and civil society)? How can private people resolve collective action problems that may emerge in security provision without reliance on the top-down arrangements of the national state? These, and related, questions are of crucial importance precisely because of the threat posed by centralized government power to the security of the individual. Once this threat from within is appreciated, one might very well conclude that the protection of the individual is too important to be left to the national security state. The intellectual task then becomes envisioning and articulating what alternatives consistent with a free society might look like in practice.

Today, October 13, marks 100 years since Margaret Thatcher’s birth. First becoming prime minister in 1979, she led her British Conservative Party to three consecutive electoral victories, making her the longest-tenured resident of 10 Downing Street in the twentieth century. Her impact far exceeded her longevity, though, as she led transformative administrations fundamentally reconfiguring the politics and economics of her nation. The “postwar consensus,” which had seen government spending marching steadily upward and great swathes of industry nationalized, was comprehensively dismantled. Under Thatcher, Britain became a land of free markets and deregulation.

Disgust with socialism at home was matched by her opposition to communism abroad, rendering her a vocal Cold Warrior. Indeed, a hardline speech against Soviet behavior in 1975 led the Red Army’s propaganda paper to dismiss her with the nickname the “Iron Lady,” a moniker more accurate than they could have realized. By the time she left the global stage, most of her enemies within and without—trade union socialists, Argentinian generals, Soviet commissars—lay prostrate before her. Margaret Thatcher was arguably the most consequential female politician in the last century. Yet, as I chronicle in Forging the Iron Lady: Margaret Thatcher, the 1970s, and the Origins of Neoliberalism, her rise to national power and global prominence was both an unpredictable and unlikely outcome.

Her ascent must be understood in the times in which it occurred, for the United Kingdom in the 1970s was a mess. US Secretary of State Henry Kissinger lamented to President Gerald Ford, “Britain is a tragedy—it has sunk to begging, borrowing, and stealing until North Sea oil comes in.” Long-term economic underperformance against healthier continental countries like France and West Germany produced relative decline. Britain had become “the sick man of Europe.” The global economic downturn at the end of the postwar boom rendered these maladies far more acute, manifesting in rising inflation and industrial unrest.

Crisis followed upon crisis. Edward Heath’s Conservative government (1970–74) faced rampant industrial action, including a coal miners’ strike that shut down power generation and forced industry onto a three-day week. The “lights going out” remains an illuminative metaphor for the entire decade. The Conservatives ran on a manifesto implying a less interventionist, anti-collectivist approach. Faced with a sea of troubles, Heath reversed course—his “U-turns”—jacking up spending and subsidizing industry. It did him no good. Growth came, only to be wiped out by rising inflation (“stagflation”), and a second miners’ strike was called in 1974. To break that strike, Heath called a snap “Who governs Britain?” election, which he promptly lost.

His replacement, Harold Wilson and the Labour Party, fared little better. A “Social Contract” promising more government benefits to workers in exchange for industrial peace drove spending to its peacetime peak. Inflation soon followed, hitting 25 percent in 1975. The next year saw a financing crisis, necessitating an appeal to the IMF for an emergency loan. Labour, now led by Jim Callaghan, had to accept deep spending cuts. With each new calamity, the system seemed more paralytic; the country was becoming “ungovernable,” regardless of whether the Conservatives or Labour was in charge.

During the 1970s, Margaret Thatcher changed from being an improbable national leader to her taking her first steps in becoming the Iron Lady of our historical imagination.

Economic crisis begets political opportunity. That Thatcher would emerge with the laurels, becoming Tory leader in 1975 and prime minister by 1979, would have been considered the longest of shots to any analyst at the start of the decade. A 1967 Sunday Times assessment of future party leaders put her odds at 1000-1. She entered Ted Heath’s Cabinet as Secretary of State for Education in 1970. However, education is not one of the great offices of state, and she remained largely invisible to most voters. Visibility came, albeit in an unwelcome manner, from tabloid-driven accusations of cruelly cutting school milk programs. She became a household name: “Margaret Thatcher, milk snatcher.”

Better opportunities eventually followed, and Thatcher made the most of them. With few skilled communicators among their front ranks, she was drafted to be a key spokesperson for the Conservatives’ October 1974 election campaign, bringing some life to an otherwise gloomy affair. Shortly thereafter, she was tapped to lead opposition to the government’s Finance Bill, where she combined detailed dissections of Labour’s economic proposals with rhetorical bravado. To Chancellor of the Exchequer Denis Healey, she declared: “Some chancellors are macroeconomic. Other chancellors are fiscal. This one is just plain cheap. … If this chancellor can be chancellor, anyone in this House of Commons could be chancellor!” Roars of approval arose from Tory backbench MPs, who finally saw somebody fighting back successfully after the disappointments of the Heath years.

Indeed, the greatest thing she had going for her was having Edward Heath as her opponent. Heath lost three out of the four elections as leader. It was time for him to go, a reality recognized by almost everyone. Except Ted Heath. His refusal to step aside forced a leadership campaign. It also froze many likely contenders, especially William Whitelaw, his most obvious replacement, who remained loyal to Heath and did not want to stand against him.

Heath’s caustic personality had long ago alienated many of his own MPs. Placating disgruntled MPs through patronage or promotion was a shabby political art he thought beneath him. Beyond the personal, sticking with Heath also meant continuing a technocratic, value-light, status quo-oriented politics he represented. Others were pitching a new approach of smaller taxes, reduced spending, and economic deregulation. That proved a more appealing offer to many Tory MPs.

Thatcher, however, was not the obvious alternative; that was Sir Keith Joseph, who had served alongside Thatcher in the previous government, where they bonded as political kindred spirits. Defeat set him to profound soul-searching, at the end of which he decided that he was not a conservative at all. He had acquiesced in the steady advance of socialism in the postwar years. His personal self-reflection also fell on his party, and the Heath Government in particular. Real change was needed. Through a well-publicized speech campaign in 1974, he laid out this critique and positioned himself as the voice of the discontented Tory right wing. Joseph, alas, went one speech too far, raising questions during a speech on social welfare as to the health of “our human stock,” a whiff of eugenics that scuttled his chances.

When Joseph informed Thatcher he was withdrawing from the leadership contest, she stepped in, “because someone who represents our viewpoint has to stand.” Even then, few saw her as a strong contender. The Economist described her as, “Precisely the sort of candidate that ought to be able to stand, and lose, harmlessly.” MP Airey Neave, who hated Heath with a burning intensity, organized a successful campaign playing on Heath’s failings among his colleagues and implying Thatcher did not have enough votes anyway, so why not send Ted a message? It worked perfectly. She ousted him in the first round and then fended off other challengers in the second. In February 1975, Margaret Thatcher became the first woman leader of any major UK political party.

Winning the leadership did not mean she had full control over the party. The majority of the Shadow Cabinet were One Nation Tory moderates like Jim Prior and Ian Gilmour, who were closer to Heath, and her position as leader was insufficiently secure to see them off. Tory moderates believed the postwar consensus and the drift toward bigger government were simply the reality to which the party must adapt. Nor did they see the prior Conservative government as a failure. Heath had a run of bad luck and misguidedly tried to challenge the unions. Court the moderate voters who defected to the Liberals in 1974, and they would be back in office in no time. The party needed to be offering comforting words, assurances of stability, not fire-breathing radicalism.

Thatcher and her allies, however, believed they had no choice; continuing the status quo meant further decline. Divisions within the party proved a roadblock to the articulation of new policies. On the most pressing issues of that decade—how to fight inflation and how to handle the unions—the moderates and Thatcherites fought for several years to a draw. The major policy documents of the time were studies in obfuscation.

The chaotic ‘70s created political opportunities for many politicians, but faced with crises, others crumbled where Thatcher did not. 

Success came by bringing outsiders into the discussion, mainly via the Centre for Policy Studies, a think tank established by Joseph. Among the most important of these were John Hoskyns and Norman Strauss, authors of the “Stepping Stones” strategy. Winning the next election, they argued, was not enough; the Conservatives had to induce a “sea-change in Britain’s political economy.” Voters had to reject socialism and support transformative regeneration, which meant grappling with the main obstacle to economic reform: the unions.

The party establishment thought all of this was dangerous nonsense. Chairman Peter Thorneycroft ordered that every copy of “Stepping Stones” be burned. Thatcher, Joseph, and crucially Whitelaw, supported it; on the other hand, these ideas were woven into Conservative policy, providing focus and clarity when events eventually broke their way.

Break their way they did with the “Winter of Discontent,” the wave of strikes sweeping the country in 1978–79. The Callaghan Government combatted inflation through an incomes policy, seeking to hold wage growth below inflation. With real wages declining for several years, workers finally rebelled. Strike followed upon strike throughout a frigid winter, the inconveniences, disruptions, and misery piling up upon the public. Petrol ran out, food went undelivered, hospitals shut down, bodies went unburied, and, yet again, the lights went out. Callaghan’s government also froze, unable to formulate a coherent response to the chaos.

The political space for transformative politics was thus opened. Thatcher could now properly articulate her vision, moving her party definitively to the right and taking a much harder line against the unions. Politics in the ‘70s dismayed so many because so many leaders seemed incapable of managing the nation’s problems. Voters saw in Thatcher a firm hand on the tiller. By the spring of 1979, the next election was never really in doubt.

At multiple points in this narrative, Thatcher’s advance could have been easily halted, reducing her to a historical footnote. She might have been booted from office over the “milk snatcher” row, condemned to rebuild her position from the backbenches. Had Heath more self-awareness, he might have voluntarily stepped aside to allow one of his favored alternatives to become leader. Had Joseph been more reserved in his rhetoric, he would have been the one to challenge Heath. Had Jim Callaghan called for an election before the “Winter of Discontent,” which he seriously contemplated, the Conservatives might well have lost, and Thatcher would have been unlikely to remain leader.

We know, of course, this is not how the story ends. During the 1970s, through the interplay of events and opportunities, Margaret Thatcher changed from being an improbable national leader to her taking her first steps in becoming the Iron Lady of our historical imagination. However, this is not a tale of mere chance and good fortune. Thatcher rightfully remains the central figure by putting herself into a position to take advantage of chances when they arose, actually earning the nickname the Soviets had already gifted her by demonstrating courage and conviction in situations of genuine political danger. At the same time, she was also a skilled pragmatist, conceding when she could not win, all the while not losing sight of the goal.

Thatcher tempered her remarkable courage and conviction with patience and persistence. The chaotic ‘70s created political opportunities for many politicians, but faced with crises, others crumbled where Thatcher did not. She possessed the skill, acumen, and resolve needed to take advantage of the moment and assert control, leading her into Downing Street and on the path to great accomplishments.

Article I of the Constitution grants Congress the power to “coin money and regulate the value thereof.” The Supreme Court has ruled that this power is exclusive and that Congress “may constitutionally secure the benefit of it to the people by appropriate legislation, and to that end may restrain, by suitable enactments, the circulation of any notes, not issued under its own authority,” including taxing the circulation of such notes.

The GENIUS Act of 2025 creates a new electronic pseudo-currency—payment stablecoins. Stablecoins are instruments that can be used to make payments at distance over the Internet and circumvent the need and expense of using banks and their payment systems. In many respects, the GENIUS Act stablecoins resemble banknotes issued by state-chartered banks that circulated as currency until the 1860s.

Until the passage of the GENIUS Act, Congress has, either directly or indirectly, taxed the circulation of notes issued by for-profit businesses that were commonly used as currency. Congress has the authority to tax stablecoins, and to tax them out of existence should a future Congress determine that such an action is in the national interest.

The GENIUS Act breaks with the longstanding congressional tradition of taxing currency issued by for-profit enterprises. Not only does the Act fail to tax the digital currency of for-profit stablecoin issuers, but the Act also fails to grant stablecoin regulatory agencies the power to impose fees on stablecoin issuers to defer the expense of stablecoin federal supervision and regulation.

This break from tradition has received little or no public attention. This essay reviews the historical record regarding the congressional delegation of its exclusive power to “coin money and regulate the value thereof” and contrasts this history with the provisions of the GENIUS Act.

The 2025 GENIUS Act and Stablecoins

The GENIUS Act defines a stablecoin as a digital asset that trades on a public distributed ledger that is designed to facilitate payments. Stablecoins are prohibited from paying interest. The law requires that stablecoins be redeemable for national currency, but states that stablecoins are not a national currency, a bank deposit, or a security. The Act is explicit in saying that a stablecoin issuer may not “market a payment stablecoin in such a way that a reasonable person would perceive the payment stablecoin to be—(I) legal tender, as described in section 5103 of title 31, United States Code.” And yet the Act also seemingly implies that GENIUS Act stablecoins can be accounted for and used as a cash equivalent in a host of financial transactions:

A payment stablecoin that is not [emphasis added] issued by a permitted payment stablecoin issuer shall not be—(1) treated as cash or as a cash equivalent for accounting purposes; (2) eligible as cash or as a cash equivalent margin and collateral for futures commission merchants, derivative clearing organizations, broker-dealers, registered clearing agencies, and swap dealers; or (3) acceptable as a settlement asset to facilitate wholesale payments between banking organizations or by a payment infrastructure to facilitate exchange and settlement among banking organizations.

While not explicitly a “national currency,” a GENIUS Act stablecoin seemingly can be treated as if it is a national currency in financial statements and many transactions.

A stablecoin issuer must hold, at a minimum, dollar-for-dollar reserves in Federal Reserve district bank deposits, bank deposits, very short-term government securities, or mutual fund shares that hold the equivalent thereof. These reserves provide the stablecoin issuer with interest income, back the issuer’s outstanding stablecoins, and “create the reasonable expectation” that the stablecoin will maintain a stable dollar redemption value. The stablecoin issuer must provide monthly public reports on the composition of its stablecoin reserves, which periodically must be audited by a licensed public accounting firm.

Until Congress created National Bank Notes in the mid-1860s, banknotes of state-chartered banks functioned as currency but were not recognized by Congress as legal tender.

The Act directs federal bank regulatory agencies to draft and issue chartering, safety and soundness, and anti-money laundering rules and regulations for stablecoin issuers. The Act does not appropriate any funds to defer the cost of issuing and enforcing stablecoin regulations. Nor does the Act impose any examination fees or franchise taxes on stablecoin issuers, or delegate the authority to impose such fees or taxes to federal regulatory agencies.

The Historical Delegation of Congressional Power to Coin Money

In 1791, President George Washington signed an act that created the first Bank of the United States. Each of the bank’s eight branches issued banknotes that were redeemable for “legal money”—gold and silver coins and specie—at the issuing branch. Its banknotes functioned as national currency and were accepted as payment for all federal taxes. The Treasury initially retained a 20 percent interest in the bank but later sold its shares. In total, the Treasury earned over $1.1 million in dividend income on its shares and a capital gain of $671,860 when it sold its shares.

The War of 1812 reduced the federal government’s tariff revenues, forcing the Treasury to issue bonds. The Bank of the United States’ charter expired in 1811, leaving the Treasury without a fiscal agent to market a bond issue. The Act for a National Bank created the second Bank of the United States in part to act as the Treasury’s fiscal agent. The bank’s 25 branches issued banknotes, redeemable for specie on demand, that were used as currency in commercial transactions and were accepted as payment for federal taxes, customs duties, and federal land sales. In creating the bank, Congress retained a 20 percent interest for the Treasury. In addition to dividend income on its shares, the Act required the bank to pay Treasury $1.5 million, “in consideration of the exclusive privileges and benefits conferred by this act.”

Until Congress created National Bank Notes in the mid-1860s, banknotes of state-chartered banks functioned as currency but were not recognized by Congress as legal tender. State banknotes promised redemption in gold or silver when presented at the issuing bank. However, unless the bank was chartered in a state that had an insurance scheme, the promise was not backed by a state government guarantee.

Banknotes issued by state-chartered institutions were commonly accepted for payment in commercial transactions in lieu of federally designated forms of legal money, but typically were valued at a discount from their par value. The par value discount varied based on the distance from, and the perceived credit standing of, the bank that issued the banknote. These discounts were widely believed to discourage interstate commerce.

GENIUS Act stablecoins closely resemble state-chartered banknotes. Neither is recognized as a national currency, yet both promise redemption at par value in national currency. Neither instrument’s redemption promise is guaranteed by the federal government. State-chartered banknotes were commonly traded at a discount from par value, and so may GENIUS Act stablecoins.

The Legal Tender Act of 1863 imposed a tax on all circulating state-chartered banknotes equal to a tax Congress had imposed on National Bank Notes. The National Banking Act of 1864 imposed an additional tax of 10 percent on the value of state-chartered banknotes paid out by any bank. The latter Act effectively taxed state banknotes out of circulation.

In 1863, Congress also passed the National Bank Act, which created the Office of the Comptroller of the Currency (OCC) and empowered it to charter national banks—privately owned for-profit entities that were required to issue National Bank Notes. National banks had to purchase and deposit specific interest-bearing Treasury bonds with the Treasury and, in return, received National Bank Notes. A bank was required to maintain the market value of its Treasury bond collateral on deposit above 111 percent of the value of National Bank Notes it had been issued. By design, National Bank Note issuance was a profitable business. Banks earned interest (6 percent in 1863) on the bonds they deposited with the Treasury, and National Bank Notes did not pay interest.

National Bank Notes circulated at par because the notes were required to be redeemable in specie at par by the issuing bank, and the Treasury was empowered to liquidate the collateral on deposit and use the proceeds to redeem National Bank Notes of banks that failed or suspended specie redemptions. National Bank Notes could be used to satisfy all debts except federal customs duties or interest payments on Treasury debt.

In return for the delegated power to issue a national currency, Congress imposed a franchise tax on circulating National Bank Notes:

Such associations authorized under this act shall, semi-annually, … pay to the comptroller of the currency, in lawful money of the United States, one per centum on the amount of circulating notes received by such association.

Congress adjusted the collateral requirements and franchise tax on National Bank Notes over time to reflect changes in the interest rates on Treasury bond collateral and ensure note issuance remained profitable. For example, the Gold Standard Act of 1900 lowered the franchise tax and increased the allotment for National Bank Notes issued (from 90 percent to 100 percent) on notes collateralized with 2-percent Treasury bonds.

From National Bank Notes to Federal Reserve Notes

In the wake of the Panic of 1907, Congress passed the Aldrich-Vreeland Act, which empowered the secretary of treasury to authorize the issuance of emergency temporary National Bank Notes and created the National Monetary Commission “to examine the United States monetary policy, evaluate alternative monetary regimes, and recommend a course for monetary policy going forward.” The findings of the commission were influential in discussions of banking system reforms that culminated in the creation of the Federal Reserve System. 

The Act authorized the creation of emergency National Bank Notes that were collateralized by assets other than Treasury bonds, but “should be treated in the same way” as National Bank Notes. The Act imposed a franchise tax rate on outstanding notes that increased each month after issuance to ensure that, once issued, the notes would be quickly withdrawn from circulation. The 1914 outbreak of World War I created a specie shortage. Treasury Secretary William Gibbs McAdoo authorized the issuance of this emergency currency, which helped avert a financial crisis. The notes were quickly retired from circulation.

The Federal Reserve Act of 1913 created a new national currency, Federal Reserve Notes. Designed to replace National Bank Notes, Federal Reserve Notes were issued by the twelve Federal Reserve district banks created by the 1913 Act. According to the Act,

Said notes shall be obligations of the United States and shall be receivable by all national and member banks and Federal reserve banks and for all taxes, customs, and other public dues.

The 1913 Federal Reserve Act includes an explicit franchise tax on district banks’ earnings assessed for the express privilege of providing this new national currency:

After all necessary expenses of a Federal reserve bank have been paid or provided for, the stockholders shall be entitled to receive an annual dividend of six per centum on the paid-in capital stock, … all the net earnings shall be paid to the United States as a franchise tax, except that one-half of such net earnings shall be paid into a surplus fund until it shall amount to forty per centum of the paid-in capital stock of such bank.

The Victory Liberty Loan Act of March 1919 allowed district banks to keep all net earnings after dividends and expenses until their surplus account equaled their subscribed capital, after which district banks were required to pay 90 percent of their net earnings to the US Treasury.

Is the GENIUS Act a reflection of congressional genius, or did industry lobbyists just pull off the Great Stablecoin Heist of 2025?

The Glass-Steagall Act of 1933 created the Federal Deposit Insurance Corporation and capitalized it by requiring each Federal Reserve district bank to subscribe to FDIC shares in an amount equal to half of the bank’s surplus account. The shares had no voting rights and did not pay dividends. In return, Congress eliminated the Fed’s franchise tax on net earnings. Yet, as the Federal Reserve Board’s 1933 annual report explained, the change had little practical importance, because, “the investment of $139,000,000 of their surplus in the stock of the Federal Deposit Insurance Corporation reduced the surplus to a point where it would have taken a considerable number of years to bring that surplus up to 100 percent of the subscribed capital.” Congress retired the FDIC’s stock in 1947 and directed the FDIC to cancel Fed district banks’ Class B shares and return the invested funds to the Treasury.

In 1934, Congress passed the Industrial Advances Act which created Federal Reserve Section 13(b) powers that allowed district banks to make working capital loans to industrial and commercial businesses that were unable to secure credit on a reasonable basis from normal sources. To fund these loans, Congress directed the Treasury to loan to each district bank an amount equal to the surplus funds Congress had taken from it the prior year. District banks were required to remit to the Treasury 2 percent interest on these loans.

In 1947, the Federal Reserve Board voluntarily reinstated a franchise tax on Federal Reserve Note issuance by resuming the practice of remitting 90 percent of district bank net earnings after dividends to the Treasury. The policy was designed to preempt Congress from reimposing a franchise tax in legislation and to facilitate the Fed’s plan to increase short-term interest rates, since, with the franchise tax, the majority of any increase in Fed profits would accrue to the Treasury. The Fed maintained its self-imposed franchise tax policy until 1996.

Beginning in the 1990s, a series of congressional appropriation bills indirectly taxed Federal Reserve district banks by limiting the surplus balances district banks were allowed to accumulate or by mandating specific remittance payments to the Treasury. These bills, which include the Omnibus Budget Reconciliation Act of 1993, the omnibus spending bill of 1999, the 2015 “FAST Act,” the Bipartisan Budget Act of 2018, and the “Economic Growth, Regulatory Relief, and Consumer Protection Act” of 2018, imposed decreasing limits on the system’s consolidated surplus account balance and required excess surplus balances and earnings to be remitted to the Treasury.

On a consolidated basis, the twelve Federal Reserve district banks have had negative net earnings since early September 2022. However, it is the net earnings after dividend payments of each individual district bank and the bank’s maximum legal surplus that determines whether a district bank remits net earnings to the Treasury.

As of September 24, 2025, two district banks, Atlanta and St. Louis, still have positive net earnings after dividend payments and remit earnings to the US Treasury. The other ten Federal Reserve district banks have negative net earnings and will likely continue posting losses for several years. The CBO estimates that these banks are unlikely to recover their accumulated losses and resume making remittances to the Treasury until sometime after 2030.

Precedent and the GENIUS Act

The GENIUS Act breaks over 200 years of congressional precedent by delegating congressional authority to “coin money and regulate the value thereof” to private enterprises that will profit by issuing a new currency without imposing a franchise tax on the new currency. Moreover, the GENIUS Act does not appropriate funds to defer the bank regulatory agencies’ costs incurred to draft and issue the new regulations mandated by law. Nor does the Act impose fees on private stablecoin issuers to defer ongoing supervisory costs. If the cost of bank supervision is any guide, the cost of stablecoin supervision and regulation is likely to be substantial.

The Constitution vests Congress with the power to collect seigniorage profits from its exclusive right to determine the coin of the realm. Congress spent considerable time debating and exercising this power by imposing franchise taxes on banknotes issued by state and national banks, as well as on the issuance of Federal Reserve Notes. To the best of my knowledge, however, there was no public discussion of these issues as Congress debated the provisions of the GENIUS Act.

Are the unusual benefits accorded stablecoin issuers the result of an unintended legislative oversight, or did Congress intentionally award the stablecoin industry the total seigniorage profits, at least a part of which should accrue to taxpayers? Is the GENIUS Act a reflection of congressional genius, or did industry lobbyists just pull off the Great Stablecoin Heist of 2025?

Christopher Scalia’s 13 Novels Conservatives Will Love (but Probably Haven’t Read) is a book about books that also functions as an extended book list. It is a collection of essay-length chapters that discuss and recommend some of his favorite novels. And it is a reliable guide to younger readers, suspicious and wearied of politicized works of culture, exhorting them to reclaim their patrimony by making great literature central to their intellectual formation.

Its appeal is immediate. Everybody loves a good list: from desert island books to the best walkable cities, unusual collectibles to the omnipresent ranking’s lists. Lists can help to distill what can seem overwhelming into the digestible. They invite comparison, spark conversation, and, often, stir nostalgia. They can also forge emotional connections between the reader and the books they love most. Think of lists that take deeper dives into Middle-earth lore. In sharing them with friends and fellow travelers, many of us experience a sense of literary community as a result.

At their best, lists instruct as much as they entertain, offering readers entry points into common interests and shared traditions. Even Russell Kirk joined the list-making trend late in life with several chapter-length compilations in The Politics of Prudence. Book list mania shows no sign of slowing. In just the last couple of weeks, I received in the mail two books in this genre: God on Stage: 15 Plays that Ask the Big Questions by the prolific Peter Kreeft, and Great Books for Good Men by the similarly productive Joseph Pearce.

A suggestive list, then, can guide one to an array of richer works that might serve to delight while forming our moral imagination. Christopher Scalia understands this appeal. His 13 Novels Conservatives Will Love is more than a clever catalog—it is a cultural invitation. By drawing together novels that combine artistic power with enduring themes and contemporary resonance, he hopes to reawaken among conservatives the habit of reading serious fiction as both pleasure and inheritance.

Scalia’s 13 Novels is not a work of literary theory. It is not a work of comparative literature. It is not a book in search of that great rarity, the political novel. It is not a book about conservatism per se. And, perhaps more controversially, Scalia did not write a book about 13 conservative novels. Rather, he offers a range of fiction in the Anglophone tradition by writers of a conservative bent that he believes warrant the attention, even affection, of those readers possessed of a conservative disposition.

Scalia encourages his readers to embrace a capacious conservatism—a conservatism animated by the imagination, rather than by the usual satchel of abstract ideas and political bromides. That is a worthy objective in every age. But as the commentators on a certain tired “conservative” cable news station say on command: now more than ever!

Scalia credits thinkers like Russell Kirk and Sir Roger Scruton with introducing him to a world beyond politics, one in which the conservative could also be a literary conservator. Scruton warned that art falters when it is reduced to a message. Kirk believed truly remarkable art has a moral end. Both hold that the ideological novel is propaganda, whereas the enduring novel discloses human nature and conveys some aspect of a moral imagination. Though diverse in setting and style, Scalia’s selections echo Kirk and Scruton and converge around themes often emphasized or grappled with by intellectual conservatives—limits, tradition, realism, rootedness, faith, happiness, and the fragility of order.

It is a great day when one opens a book basically aimed at elevating the reading habits and imaginative life of younger conservatives, and finds selections like Scalia’s. Several are worth mentioning.

Sir Walter Scott’s high romance, Waverly, is the indispensable novel for imaginative conservatives and a reflection on both what we owe to the past and the constant need to reconcile change and continuity. It invented the historical novel genre and stands as a paean to one of the great lost causes in history—the gallant but doomed rising of Bonnie Prince Charlie and the ’45.

Scalia approaches his list of novels as a continuum of moral imagination.

Samuel Johnson’s Rasselas, an eighteenth-century road trip novel where Odysseus meets Plato in the Nile Valley. It is a mix of travelogue, philosophical inquiry on happiness, and character sketch. Scalia puts Johnson first on his list, not merely for the sake of chronology, but because Johnson has a claim to being the first modern conservative, certainly the first Tory conservative. Because his “vision of fiction was to help form its young readers into better people … he focused on educating younger readers about proper moral conduct and certain principles of human nature.” In his own way, this is Scalia’s project in 13 Novels. And so, he begins with Johnson’s story of the restless young prince of Abyssinia, Rasselas, who leaves his sealed-off kingdom, Happy Valley, and sets out with a wise guide and friends to seek the meaning of human nature and happiness so that he might deliberately know and choose the truth of things himself. The result is a brilliant and charming Johnsonian literary-philosophical pilgrimage.

Next, Scalia includes Fanny Burney’s wonderful novel, Evelina. Burney was in some ways a Jane Austen in training, and this novel is a very clever and funny story about how manners shape freedom, civility, and the significance of unwritten rules of behavior. Strangely though, Scalia only refers to her as “Frances” never as “Fanny.” Jane Austen and Edmund Burke, Samuel Johnson and Adam Smith, would have.

Scalia rightly includes Nathaniel Hawthorne’s anti-utopian meditation on why no community can escape original sin, The Blithdale Romance. As Russell Kirk put it,

The Blithdale Romance is the history of a fanatic reformer who is determined to redeem criminals by appealing to their higher instincts; and when all is done, he is grimly resigned to attempting the reformation of one criminal only, himself. … This was the substance of Hawthorne’s resolute conviction: that moral reformation is the only real reformation; that sin always will corrupt the projects of enthusiasts who leave sin out of account; that progress is a delusion, except for the infinitely slow progress of conscience.

In his hilarious lampoon of the modern culture of journalism, Scoop, Evelyn Waugh makes media madness into comic opera and proves as only he can that satire can be both delightful and devastating. This addition is particularly germane in today’s climate. As Scalia wrote in a Washington Post article, Scoop’s relevance is suggested by the way Waugh lampoons “fake news” and the herd habits of the press corps. He also perceptively observes, “the novel’s depiction of an insular, gullible and sometimes dishonest press will strike a chord with many readers in the Age of Trump—or in the Age of the Anti-Trump Media.”

A more somber addition is V. S. Naipaul’s stark tale of postcolonial Africa, The Bend in the River. Joseph Conrad might have found a way onto Scalia’s list—Under Western Eyes, Secret Agent, or, of course, The Heart of Darkness are certainly worthy candidates for inclusion. As it is, Naipaul’s haunting book reads like Conrad rewritten for the late twentieth century: civilization under siege, delicate, and taken for granted, a warning “of the thin barrier separating civilization from terror.”

Christopher Beha’s rejection of the technocratic illusion that society and life can be managed like a spreadsheet, The Index of Self-Destructive Acts, is another fine inclusion. A liberal writer and former editor of Harper’s Magazine who also possesses a Catholic and culturally conservative disposition, Beha’s Index is a big, ambitious New York novel blending baseball, politics, and family into a meditation on hubris and life’s tragic complexity. It’s a fine contemporary work, but a modern favorite of mine is another Beha novel that is deeper, richer, and more beautifully written, his What Happened to Sophie Wilder. Add that to your list! Or maybe his enjoyable, Arts & Entertainments, Beha’s satire of our celebrity age and a modern moral comedy.

To read these novels is to be wiser, humbled, deepened, and prepared for the common work of sustaining civilization.

From Scott’s historical memory, Burney’s manners, and Johnson’s moral realism, through Hawthorne’s critique of utopian delusion and Naipaul’s tragic vision of civilization, to the Catholic conservative voices of Waugh and Christopher Beha, who satirize and illuminate modernity, Scalia approaches his list of novels as a continuum of moral imagination. He also includes novels by Willa Cather, Muriel Spark, George Eliot, Zora Neale Hurston, Lief Enger, and P. D. James. Together, they testify that the permanent things endure amid the flux of modern times.

At the outset of this review, I mentioned that Scalia’s 13 Novels is an extended book list. I might have said that it is an extended book about a book list: at 300 pages, it is too long. In drawing out detailed plot, character, and conservative lessons from each novel—most at substantial length—Scalia risks instructing more than inspiring, explaining away what ought to be discovered. A shorter, evocative approach might have captured more of the “romance of reading” and less of the seminar pitch. Still, if the result is that conservatives pick up works by Johnson, Scott, Hawthorne, Cather, Spark, or Waugh, perhaps the tradeoff is worth it. Though given that less than fifty percent of the US population reads for pleasure these days, the length of the book and each of his chapters might be its biggest challenge.

Another model for this book genre that a lot of young Christian conservatives read in the 1980s—and, if like me, have returned to over the years—is the rich, brilliant, and powerful primer by James J. Thompson Jr. entitled Christian Classics Revisited (1983). Also, a book about books, it fits comfortably in the palm of your hand and comes in at 160 pages. His wise essay meditations on 25 novels were really guides for pilgrims like us on a journey through life in its spiritual, social, and political dimensions. Thompson, who would later edit the Southern Essays of Richard M. Weaver, in his clarity and concision, managed also to convey the depth of each work within a larger tradition. He had a generation of conservatives collecting those books and talking about them. And marveling at, in addition to the authors he included, how great a writer Thompson was! I hope that reception for Scalia, when he looks back upon how his list of novels was received.

There’s one minor element of the book that I found off-putting. I think Scalia occasionally damages his own cause, and in doing so could give evidence to those who will charge him of making literature a means to a political end. He often descends to speaking in an informal style that clashes with the high tone of his novels and his own analysis. When he does, he is less and not more relevant (surely not a conservative aspiration!). Along these lines, he peppers in pop culture references (which I doubt most of his young readers will understand) and invokes contemporary conservative journalists, pundits, and DC-types that give a possible wink to the accusation that he has a principally partisan political end in mind for his novels.

Still, as we head toward the fall and short, darker days, Scalia’s 13 Novels Conservatives Will Love (But Probably Haven’t Read) can be a warm and enlightening companion, directing unsure readers to some undeniably great works of fiction that are both artistically delightful and morally serious.

At its best, Scalia’s 13 Novels refreshes the conservative literary imagination by showing that great fiction is not hostile to conservative sensibilities but is a deep well of wisdom that affirms limits, memory, duty, and hope. These novels model what T. S. Eliot called in East Coker the “wisdom of humility,” the cultivation of which Kirk believed essential for the renewal of culture.

For young conservatives especially, Scalia’s 13 Novels is not merely a syllabus but an invitation to undertake what amounts to an intellectual pilgrimage. To read these novels is to be wiser, humbled, deepened, and prepared for the common work of sustaining civilization.

The arts, along with almost everything else, have become a political lightning rod. Many commentators have warned of the Trump Administration’s effects on the arts, which include, among other things, sweeping changes to the National Endowment for the Humanities and the National Endowment for the Arts. There has been a vast re-staffing of the Kennedy Center, the nation’s symbolic performing arts house. Former Washington Ballet dancer Stephen Nakagawa, who previously criticized the “radical leftist ideologies in ballet,” was hired as Director of Dance Programming. The administration does certainly have political and ideological goals, but critics act as though the “capture” of public arts, in which politically powerful groups control funding and artistic agendas, is something new when, in fact, previous incarnations of these organizations clearly reflected a left-wing agenda. In a pluralistic society, people are bound to disagree over what art deserves prioritization. 

Whereas many cultural economists have taken as a given that the government must directly support the arts, in Realizing the Values of Art: Making Space for Cultural Civil Society, Valeria Morea and Erwin Dekker encourage readers to rethink the very foundation on which cultural policy rests. In an innovative and thought-provoking volume, the authors contend that we should begin discussions of art by exploring why people produce it in the first place: to pursue their values. Both consumers and producers pursue art for the values it enables them to imagine, realize, or evaluate. This may seem like a heterodox starting point for a cultural economics treatise, but the authors make a persuasive case that this should be the foundation for a shift in arts policy.

Don’t expect, however, the authors to discuss in philosophic detail what constitutes great art or beauty. The authors discuss values commonly thought of as universal, such as beauty or enlightenment, in a social context: “The diverse values of the art are realized through social practices, rather than through an esoteric activity, where isolated individuals seek to realize some absolute goal of beauty or perfection.” This suggests that value itself is socially defined and therefore malleable, rather than permanent and enduring. The authors treat cultural policy as a collective action problem, considering how to make space for different types of art when public values come into conflict. 

Today, much cultural policy is focused on the so-called positive externalities of the arts for the economy. For instance, Morea and Dekker point to the European Commission’s Cultural and Creative City Monitor, which attempts to measure value across three dimensions: cultural vibrancy, creative economy, and the enabling environment. The authors correctly argue that this sort of study only encourages instrumentalization of the arts by reducing the value of the arts to their economic contribution. High marks are given to arts organizations that contribute to tourism, generate innovation, and create job opportunities. The environmental dimension, which looks at the institutional and governance factors that influence the openness, tolerance, and trust of the overall culture, ignores more informal organizations, failing to take into account communities in which “true” value is being created. The authors point, for instance, to a vibrant underground Venetian art scene, through which local artists offer an alternative to the Biennale, a tourist-dependent contemporary art festival, thereby reclaiming, in a sense, space in their city. 

To this point, Morea and Dekker’s biggest objection to quantitative attempts to measure the value of the arts is the lost information regarding the dynamics of entry, adjustment, and exit that happen between the diverse array of groups in civil society, analogous to what the price system tells markets about what to produce and when. By joining particular artistic entities, people signal which movements and social practices are becoming more influential. To facilitate a fluid cultural civil society, the authors argue for a separation of arts and state akin to the separation between religion and state. 

Indeed, Morea and Dekker seek to move the arts “beyond market and state,” to paraphrase the Nobel Prize address of the political economist Elinor Ostrom. Just as Ostrom argued that no panacea or optimal form of governance exists to solve the “tragedy” of the commons, the authors argue that no optimum form of governance, public or private, exists for the arts either. Cultural civil society operates in a variety of institutional forms with a plethora of collectives, artistic circles, and co-creation communities. There is a decentralized, polycentric form of governance. The authors contend that the arts should no longer be viewed simply as perennially struggling “creative industries” that cannot exist without government support, but rather as a decentralized group of civil organizations more akin to religious organizations.

Valeria and Morea suggest that artistic innovation need not arise from institutional backing, and they cite various cases in which creativity effectively thrived in the absence of support, public or private. They discuss the rise of hip hop from neglected neighborhoods in the Bronx in the 1970s and how artists repurposed spaces in the empty houses of East Berlin following the collapse of the wall. These successes in cultural entrepreneurship and self-governance indicate the resilience and innovation of cultural civil society, even in the absence of institutional frameworks. 

The authors contend that government funding of the arts, which has traditionally privileged high-brow art over popular art, has crowded out marginalized communities.

Ostrom described how society could solve collective action problems in this decentralized, self-governing manner, and Morea and Dekker indicate that this could be translated to cultural civil society. Elinor and her husband, Vincent, initially studied how public goods such as safety were produced by cooperation between the citizens and police. The arts are similar, contend Morea and Dekker, in that they are artifacts of cocreation, requiring, for instance, the participation of the audience to gain meaning. This idea of cocreation is especially inherent in modern arts, which can be temporally liminal and invite open-ended interpretation. The authors cite the work of the contemporary artists Jeanne-Claude and Christo, who wrapped landmarks such as the Arc de Triomphe in giant sheets of fabric. These temporary, site-specific public artworks use existing art to create new meaning. As products of cocreation, they depend upon, for instance, complex institutional partnerships and the interpretation of passersby to be fully realized.

The audience is a central part of this decentralized cocreation process, argue the authors. They draw on the work of the philosopher John Dewey, for whom, the authors write, “the ‘human contribution’ to art does not merely consist of the creation of artefacts or the acts of performance, but just as much of the attention that is paid to art, the way that individuals and social groups attend to art.” The authors later discuss Star Trek fan communities, “instagram museums,” and even online meme culture in which “participants” infuse preexisting works with new meaning through the creation of fan content. According to the authors’ framework, these art communities practice decentralized self-governance in the creation process. While the authors note that the “public good” category is far too narrow for the arts in general, public art is created for shared spaces, so it’s conceivable that an Ostromian solution of decentralized governance that arises directly from the needs of particular communities is viable. 

Surely fan and popular art can be generated without any government support, although guardrails should remain, adapted to our digital age, to protect the original owners’ copyright. High art, however, and the lack of market recognition of its value could signal a need for government funding. Ballet, opera, and art museums arguably have an enduring value that markets cannot reflect because of insufficient availability, information, and mass appreciation. Yet, Morea and Dekker, suspicious of any claims of universal value in the arts, choose a different tack to address this fairly common argument. 

The authors contend that government funding of the arts, which has traditionally privileged high-brow art over popular art, has crowded out marginalized communities, encouraged a dependence on the state, and an unresponsiveness to changing tastes. Morea and Dekker point to national museums, whose purpose came about in European capitals in the 1800s to relate an officially sanctioned narrative of national identity based on the idea that that identity would be a permanent fixture of society. Then, according to the authors, with the advent of modern art, “art for art’s sake” became entrenched after World War II, alienating the average viewer from the ivory tower modernist tastes of the elite. More recently, governments have prioritized social change, supporting marginalized artists by using, for instance, graffiti art to transform and even gentrify neighborhoods, a co-opting that the authors argue could transform street art away from its transgressive roots. Morea and Dekker seem to say that no matter the art government chooses to favor, the preferential treatment will spawn a negative spillover effect of social contention as differing public values come into conflict. 

Contention over the values displayed in public art is bound to arise and has arisen more in recent years, especially with calls to tear down public statues of figures such as Robert E. Lee, Theodore Roosevelt, and Cecil Rhodes. Writing that “the violent destruction of objects which are meaningful to others is certainly not the way forward,” Morea and Dekker point to the very nature of public art and national museums as the problem. They argue that in an increasingly heterogeneous society, it makes less sense to prop up a specific version of national history and identity. Aside from a misplaced emphasis on traditional museums as being the root of social contention, Morea and Dekker thoughtfully propose a public policy rooted in epistemic liberalism that ensures an open space for people to pursue different public values without favored groups receiving unfair advantages. 

To that end, the authors emphasize the importance of institutional diversity in cultural civil society, especially with their case study of the Queer Museum in Brazil. After encountering both public and private hurdles to secure funding, the Queer Museum held a successful grassroots crowdfunding campaign to become a reality. The authors argue that the government should provide only the guardrails to allow for this diversity. They point to Italy as an example, which has created a variety of legal forms to recognize more informal associations, including volunteer organizations, association networks, mutual associations, philanthropic entities, and social enterprises. These broader recognitions create “a legal framework for different types of communities to govern themselves” and encourage a diverse cultural society. Presumably, these would be somehow more expansive than the United States’s current tax exemptions for non-profits, but Morea and Dekker give no concrete proposals. 

Can a hippie cultural community truly provide the starting point for a decentralized, polycentric “heterotopia” on a large scale?

In the final chapter, the authors lay out a visionary heterotopia that embraces a variety of ideas and institutional arrangements, exploring, with the same spirit of diversity of thought, this rather quaint concept from the vantage point of the philosophers Michel Foucault and Robert Nozick. Nozick, for instance, imagined a heterotopia in which people could either join a dominant set of social practices or create new ones. Varying social practices could compete for members, but none would be inherently superior to another. In practice, this means that public squares would be occupied not with publicly commissioned art exemplifying a single narrative but by a rotating array of diverse practices. The authors don’t say much about how this diversity would be enforced, although they indicate that this “framework” would be a task for the government. 

The authors suggest “creating space” for alternative cultural movements, with Morea and Dekker pointing to the autonomous community Freetown Christiania in Copenhagen as an example of this utopia. Founded by squatters on an abandoned military base in 1971, this experiment has since become a magnet for counter-culture artists, both dependent on Copenhagen for tourism but also deeply self-governed, at least in the sense that Copenhagen allows the thousand or so residents to self-organize to govern matters such as business, education, and waste collection. According to the authors, this “counter-cultural square” indicates how public squares can allow for alternative cultural civil society, even if they must tread a pathway between establishing legitimacy and becoming co-opted by institutional forces. 

Nonetheless, can a hippie cultural community truly provide the starting point for a decentralized, polycentric “heterotopia” on a large scale? It’s conceivable that broader legal frameworks are needed to allow for more alternative, self-governing communities such as this to arise—on a certain scale, this could encourage the expression of alternative viewpoints—but it seems that this soft-form anarchism could also foster more fragmentation rather than social cohesion. According to the authors, however, contestation is simply part of how cultural society works. The reader feels excited about the possibility of a Tocquevillian cultural civil society, but it’s possible that within this milky relativism, the search for the good and the true that is inherent in artistic creation and appreciation will be lost in a kind of post-state democratic experiment. 

What Morea and Dekker propose is more of a framework for collective action problem-solving rather than any specific policies, yet some of the implications of their ideas will meet resistance from many artists themselves. One wonders how many artists will choose to vote out government funding boards. Regulatory “capture” may be especially difficult to expel in the arts because some people’s livelihoods have become dependent on funding. Yet, Morea and Dekker are more interested in an overall framework for a robust civil society than in policy prescriptions. 

At the same time, some arts do thrive with structured arrangements. The arts can stand for stability as well, and the idea that art has moved beyond the permanence of traditional museums seems doubtful. If everywhere became Freetown Christiania, would space still exist for traditional museums that celebrate artworks that have withstood the test of time? Can we still appreciate the difference between Da Vinci’s Mona Lisa and its cocreation counterpart, the meme of a Mona Lisa? Perhaps, but I worry maybe not in “Freetown.”

I appreciate Law & Liberty providing space for a review of my book and inviting me to offer a response to Jakub Grygiel in these pages.

As Grygiel accurately points out, “there is so much to think through in foreign policy, the topic of Emma Ashford’s First Among Equals. The last twenty years of US foreign policy seem to have been a blip of mistaken visions, many of which ended tragically.” On this we can wholeheartedly agree: America has spent much of the last 30 years engaged in fruitless crusades and attempts to reshape the world in our own image, from the Balkans to the Middle East and beyond. As the balance of power shifts globally, however, we can no longer afford to fritter our scarce resources away on such unachievable goals.

First Among Equals offers my vision for the reform of US foreign policy along realist lines. I argue that it is time to reposition ourselves to better compete in the emerging world, a choice that will inevitably involve some retrenchment and re-equilibration. In the book, I propose a dialing down of US commitments in Europe and the Middle East, in order to prioritize engagement with Asia and Latin America. This should be coupled with a willingness to reframe our economic engagement with the world.

The United States faces clear challenges in the coming decades. Indeed, these challenges—most notably from China—are a major reason why the United States must learn to prioritize. I argue that a slimmed-down US foreign policy that focuses our resources on the most compelling challenges is by far the best way to ensure that Americans can thrive in the emerging world.

To do this, the book builds on a long tradition of realist theorizing and thinking about the world. More importantly, I also try to engage with each of the core alternative theories of foreign policy—from liberal internationalism to the emerging “America First” worldview—on their own terms. If America faces challenges, then open debate on how best to meet them is a valuable tool in our arsenal, and one that differentiates us from illiberal societies like Russia or China.

It is thus unfortunate that Grygiel’s review of First Among Equals does not engage the foreign policy debate in this manner. As the very title of his review—“The Allure of Foreign Policy Weakness”—might suggest, he fails to seriously treat the book’s central arguments and instead paints them as inaccurate strawmen.

This is particularly ironic given his core criticism of the book: that First Among Equals is merely “a doctrine based on several articles of faith.” In this, I plead guilty as charged. Yet this is not perhaps as damning a criticism as one might think. All grand strategies are supported by assumptions and articles of faith, whether they are made explicit or kept implicit. Grygiel himself brings biases and assumptions to his review—from the notion that significant American forward presence is necessary to constrain other states to the idea that retrenchment is inherently risky. In the book, I try to make my assumptions explicit—the best that any scholar can do—and to back them with evidence wherever possible.

Our own recent history suggests that targeted retrenchment can work; would America have fared so well in the Cold War, if Nixon had not extricated us from Vietnam?

Much of his review hinges on general criticisms of realism or restraint in US foreign policy, rather than the contents of the book itself. Grygiel, for example, elides the fact that significant space is devoted in the book to discussing many of the criticisms of a realist foreign policy that he raises.

Consider his points about offshore balancing. Though he restates a well-known criticism of offshore balancing—that it can require future US intervention—he ignores the several pages of the book devoted to addressing this criticism explicitly. To quote it briefly: “There are undoubtedly risks inherent in this strategy, as in any strategy the United States might fail to adequately respond to threats from China or other states; the United States might be forced to come back onshore under less favorable conditions. But though possible, these outcomes do not seem likely, and the trade-offs are worth the risk.”

Indeed, Grygiel’s heavy reliance on generic criticism of realism or restraint offers little in the way of genuine engagement with the book’s specific arguments and evidence. On the question of US interests, for example, he points out that my narrow definition of American interests is something with which everyone agrees. But while this may be true, the book itself makes the point that it is not the novelty of interests that matters. Instead, it is the absence of an entire basket of other purported US interests, from human rights to democracy promotion. If a grand strategy can truly only be novel or useful by adding new US interests to existing ones, then no coherent strategy for the United States will be possible ever again.

Likewise, he suggests that the book is rigid, and that it argues for a “doctrinally prescribed” path which prescribes a “doctrine of retrenchment” that is “untested in history.” Yet it is simply not true that retrenchment is always bad, nor that it is an “untested” strategy during changes in the balance of power. One historical study of great power retrenchment found that great powers that successfully retrench and reprioritize do better than those that don’t; fifteen of the eighteen cases discussed by the authors didn’t result in war. Our own recent history also suggests that targeted retrenchment can work; would America have fared so well in the Cold War, for example, if Nixon had not extricated us from Vietnam?

Ultimately, Grygiel argues for a continuation of existing policies and dismisses the alternative offered in the book, pointing to the risks it may create. Yet all strategies have risks and costs. The continuation of the status quo that Grygiel endorses would itself require America to sustain a significant military presence throughout the world, to provide security for many other states at the expense of the US taxpayer, and to sustain the world’s largest military force. As others have persuasively argued, this would require a substantial increase in our already significant defense budget; it also risks overstretch and unintentional conflict with China, Russia, and other states.

In First among Equals, I try to offer a good-faith argument for how America can adequately bring means and ends into alignment in foreign policy while avoiding that overstretch. I firmly believe that a more modest and sustainable foreign policy is the best option to allow Americans to prosper and be secure well into the twenty-first century—without spending and arming ourselves into a garrison state. Grygiel’s view is that this is a weakness. But any reader who harbors doubts about the sustainability of America’s present course—or who disagrees with his characterization of prioritization and strategic realignment as “weakness”—should consider picking up First Among Equals and decide for yourself if the argument holds up to scrutiny. 

William Bentley Ball is not a household name. Even among lawyers, references to “Bill Ball,” as he was once known, rarely prompt a meaningful reaction. “I’ve never heard of him,” most law professors and students would likely respond if asked.

And yet, more than 50 years ago, this little-known Pennsylvania lawyer helped change the course of American legal history.

In the early 1970s, William Bentley Ball argued Wisconsin v. Yoder before the US Supreme Court. In Yoder, the Court was asked to decide whether Wisconsin could compel Amish families to send their children to school beyond eighth grade. For the Amish, this compulsory school-attendance law was untenable because, at this time in life, an Amish child is to “grow in his faith and his relationship to the Amish community” by “acquir[ing] Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the adult role of an Amish farmer or housewife.”

Although Ball was a devout Roman Catholic, he understood the fight for the Amish as one of paramount importance to all sincere religious believers. When he argued Yoder at the Supreme Court, in fact, the notes that he brought to the podium included a reminder, written in all capital letters, that Wisconsin threatened the “destruction” of the Amish faith community.

If Wisconsin could destroy the Amish, Ball thought, what religious minority might the next state attempt to destroy?

In Yoder, Ball persuaded a unanimous Court to hold that even facially neutral laws—such as Wisconsin’s compulsory school-attendance law—are unconstitutional if they do not satisfy strict scrutiny, a judicial test that requires the government to demonstrate that it is advancing a “compelling” regulatory interest in a way that “least restricts” a fundamental constitutional right. Because Wisconsin could not explain how the “speculative gain” that might accrue from “an additional one or two years of compulsory formal education” justified “gravely endanger[ing], if not destroy[ing],” the free-exercise rights of the Amish, the Court ruled against the government in Yoder.

Despite Ball’s success in Yoder, the Court, nearly two decades later, sharply curtailed the laudatory effects of its decision in Employment Division v. Smith. In that case, Justice Antonin Scalia led a 6-3 majority of the Court to find that “neutral” laws of “general applicability” must satisfy a far less stringent standard of review to pass constitutional muster. Indeed, Smith held that such laws would only be subject to rational basis review, which merely requires the government to demonstrate that it has a legitimate regulatory interest and that there is a rational connection between the government’s chosen means of regulation and the ends it seeks to advance.

Unsurprisingly, William Bentley Ball and many other religious liberty advocates rebuked Smith as “virutal[ly] … overriding” Yoder and as representing a “stunning repudiation of the ‘judicial conservatism’” so often associated with Justice Scalia.

To be sure, post-Smith efforts to restore strict scrutiny for alleged violations of religious free-exercise rights—such as Congress’s passage (and President Bill Clinton’s signing) of the Religious Freedom Restoration Act—have done much to advance what is often described as our “first freedom.” But with Smith still on the books, not all sincere religious believers have enjoyed the constitutional protections for which Ball and the Amish once fought.

Perhaps recognizing how Smith could enable the government to unjustifiably restrict the scope of religious free-exercise rights, the Supreme Court has recently clarified the meaning of Smith’s “neutral” and “generally applicable” carve-outs from strict scrutiny. In Roman Catholic Diocese of Brooklyn v. Cuomo (2020), for example, the Court held that then-Governor Andrew Cuomo’s Covid-19-era restrictions on in-person religious worship services were not immune from strict scrutiny because his regulations treated houses of worship less favorably than comparable secular entities.

If the government can destroy the Amish without meaningful justification, what religious minority might a state try to destroy next?

At particular issue in Cuomo was one executive order that prohibited more than ten persons from attending religious services in a “red” zone, and more than 25 in an “orange” zone. According to the government, these colored zones (and their accompanying gathering restrictions) were designed to stem the spread of Covid-19. But as the Court’s decision in Cuomo illustrates, the existence of exemptions to the gathering restrictions for non-religious entities revealed that the government was not acting with constitutionally sufficient deference to religion.

The first exemption that the Court identified in Cuomo was in red zones. There, religious institutions were prohibited from admitting more than ten congregants, but “essential businesses” were exempted. In orange zones too, religious institutions were required to abide by the twenty-five-person gathering limit, but businesses were empowered to “decide for themselves how many persons to admit.” This facial discrimination, the Court concluded, required the challenged executive order to be justified by a compelling government interest and be narrowly tailored to advance that interest.

Cuomo was not the first or only case in which the Court has held that the existence of secular exemptions in laws that burden religion requires those laws to be reviewed within Yoder’s strict-scrutiny framework. But Cuomo is of particular interest today because New York is now involved in litigation that poses the question of whether Smith ought to be overruled wholesale.

And this time, the Amish are again on the front lines of American religious freedom.

In 1966, New York enacted a law requiring students to receive certain vaccines. According to this law, students who could not be vaccinated for medical reasons and students whose parents had religious objections to vaccines were exempted from the immunization mandate. Between 2018 and 2019, however, New York experienced a significant outbreak of measles, ultimately leading the state legislature to repeal the religious exemption. After three Amish schools were fined for teaching unvaccinated students whose parents had sincere religious objections to vaccination, a lawsuit was filed under the Free Exercise Clause.

In its briefs before the US Court of Appeals for the Second Circuit, the Amish plaintiffs in Miller v. McDonald argued that New York’s modified mandate (i.e., without the religious exemption) is not “neutral” and “generally applicable” under Smith and cannot withstand strict scrutiny. To support this argument, the plaintiffs first turned to Smith’s neutrality element, but ultimately failed to persuade the Second Circuit that New York’s regulation is not, in fact, neutral. Unlike in Cuomo, where the government “‘single[d] out houses of worship for especially harsh treatment,’” in Miller, the Second Circuit found that New York’s immunization requirement applies to “all schoolchildren who do not qualify for the law’s medical exemption.”

Having rejected the Amish plaintiffs’ argument that New York’s mandate is not neutral, the Second Circuit considered whether the mandate is generally applicable. Following two other post-Cuomo decisions on religious exemptions, the Second Circuit in Miller defined non-generally applicable laws as those that “treat[] secular conduct more favorably than religious activity” and/or “‘invite[]’ the government to consider the particular reasons for a person’s conduct by providing a ‘mechanism for individualized exemptions[.]’”

To determine whether New York’s mandate treats secular conduct more favorably than religious conduct, the Second Circuit compared the scope of the prior religious exemption to the remaining medical exemption. According to the Amish plaintiffs in Miller, the government’s exempting students from vaccination for medical reasons, but not for religious reasons, places the mandate beyond the scope of Smith’s generally applicable standard. In the Second Circuit’s view, however, New York’s mandate does not treat secular conduct more favorably than religious conduct because the medical and religious exemptions are so different in their “scope and duration.” According to the Second Circuit, “[New York’s prior] religious exemption was generalized to all vaccines for the duration of that child’s school admission,” whereas the remaining medical exemption is “granted only with ‘sufficient’ documentation of the child’s contraindication to ‘a specific immunization,’” and is temporally limited “only ‘until such immunization is found no longer to be detrimental to the child’s health[].’”

In Miller, the Second Circuit misunderstood the analytical framework demanded by the Supreme Court’s post-Smith Free Exercise Clause decisions, including Cuomo. Indeed, to reach its conclusion that New York’s regulation is neutral and generally applicable (and therefore only subject to rational basis review), the Second Circuit proceeded from the view that the immunization mandate applies to “all schoolchildren who do not qualify for the law’s medical exemption.” But even in the Second Circuit’s own framing, a mandate that applies to all students except those who do not qualify for a medical exemption cannot be generally applicable; after all, on the face of the regulation, religious and non-religious conduct is treated differently. Thus, the Second Circuit in Miller should have concluded that this differential treatment gives rise to a presumption of unconstitutionality that New York can rebut when strict scrutiny is applied.

The Amish plaintiffs in Miller have asked the Supreme Court to review the Second Circuit’s adverse decision. Should it take the case, the Court would have the opportunity to provide much-needed clarity to the lower federal courts about the current state of free-exercise doctrine.

Some legal scholars see Miller as an opportunity to overrule Smith, and others (including the plaintiffs) have argued that, even under Smith, the Second Circuit decided the case incorrectly. But regardless of whether the Court ultimately hears the case, it is clear that America’s Amish are once again on the front lines of religious freedom. And so, all proponents of religious freedom should remain mindful of the danger that William Bentley Ball identified decades ago: if the government can destroy the Amish without meaningful justification, what religious minority might a state try to destroy next?