Category: Michael Novakhov – SharedNewsLinks℠

Is it possible that we have reached a turning point for environmentalism? Perhaps we have already reached it, but don’t fully recognize it yet?

Let’s start with a basic axiom: the environment is too important to be left to environmentalists. Ever since the first Earth Day in 1970, which can be said to mark the birth of the modern environmental movement, environmentalism has been wedded to a narrow and often fanatical policy architecture that can accurately be described as demanding billion-dollar solutions to million-dollar problems, almost always choosing strategies that maximize political and legal conflict. The result is a kludgy regulatory regime and ongoing political gridlock. Sometimes, policy delivers perverse results in the form of worsening some environmental conditions.

How did it come to this? A review of the political and cultural history of modern environmentalism is useful in setting the scene for a reformed approach to environmental issues.

Let’s start with a quick quiz—who said this?

[There is an] absolute necessity of waging all-out war against the debauching of the environment. … The bulldozer mentality of the past is a luxury we can no longer afford. Our roads and other public projects must be planned to prevent the destruction of scenic resources and to avoid needlessly upsetting the ecological balance.

This sounds like something Al Gore, Ralph Nader, or Leonard DiCaprio might say. In fact, it was Governor Ronald Reagan, in his 1970 State of the State address, shortly before he signed into law a number of sweeping new environmental statutes that passed the legislature often by unanimous votes. Ironically, Governor Gavin Newsom recently pressured the California legislature at the fiscal equivalent of gunpoint—he threatened to veto the budget—to undo one of those Reagan-era statutes, the California Environmental Quality Act (CEQA), arguably better understood as the “Full Employment for Environmental Lawyers Act” as it turned out in practice.

Let’s take in another assertive statement from a prominent political magazine around the same time:

If [corporations] do not stop [polluting] we must find ways to compel them in some way to do so. … Important people must be interfered with before notice will be taken of disagreeable facts. Instead of demonstrating on Fifth Avenue on behalf of baby seals, the saviors of the environment would get far better results picketing the country clubs of Nassau, Fairfield, and Morris counties.

Sounds like The Nation. Or The New Republic. Or Mother Jones. Perhaps The Progressive. All describing the kind of activism we see today from Extinction Rebellion. In fact, these words, in the author’s first-person voice (not quoting a protestor or activist), appeared in … National Review. A few years later, NR devoted a cover story to defending the Endangered Species Act from early critics. Lost now in the mists of time is that co-sponsors of the Endangered Species Act included Sen. James Buckley (Bill’s brother) and Strom Thurmond. Barry Goldwater was a long-time member of the Sierra Club. In 1970, President Nixon was locked in competition with Sen. Edmund Muskie—a frontrunner to oppose Nixon in 1972—to see who could propose the toughest clean air act.

Although business and industry were wary of the potential new regulatory burden coming their way, the loudest critics of Earth Day and the flurry of new policy activity came from the left. Students for a Democratic Society (SDS) and other anti-Vietnam War groups said Earth Day was a Nixon plot to distract attention from the war, and urged a boycott of Earth Day events on college campuses.

The New Republic carried an editorial about what it called the “ecology craze,” saying, “Rallying around the ecology banner is the biggest assortment of ill-matched allies since the Crusades. … Worst of all, of course, the ecology binge provides a cop-out for a President and a populace too cheap or too gutless or too tired or too frustrated or too all of them to tangle harder with some old problems that have proved resistant and emotionally unsatisfying to boot.” In Science magazine, Amitai Etzioni dismissed ecology as a “fad,” and thought that “the newly found environmental dangers are being vastly exaggerated. … Fighting hunger, malnutrition, and rats should be given priority over saving wildlife, and improving our schools over constructing waste disposal systems.”

These criticisms were mild compared to the blasts that came from black civil rights leaders. The most bitter attack came from Richard Hatcher, the African-American mayor of Gary, Indiana: “The nation’s concern for the environment has done what George Wallace was unable to do—distract the nation from the human problems of black and brown Americans.” Whitney Young of the National Urban League was equally distressed: “The war on pollution is one that should be waged after the war on poverty is won. Common sense calls for reasonable national priorities and not for inventing new causes whose main appeal seems to be in their potential for copping out and ignoring the most dangerous and pressing of our problems.” A “black militant” in Chicago, as Time magazine described him, bluntly told the reporter: “Ecology? I don’t give a good goddamn about ecology!”

Environmentalism became a fresh and powerful angle of attack against free markets and capitalism.

In the abstract, concern for the environment would seem to be a perfectly natural conservative enthusiasm. Among other obvious things, conservative and conservatism share the same etymological root with conservation and conservationism, and while conservationism and environmentalism may not be identical, they are clearly blood relatives.

But the easy consensus and bipartisan policy milestones of the early 1970s did not last long, and for two reasons that were readily evident at the time. The first is that the Malthusianism of environmentalism hardened around the time of the first Earth Day, perhaps best exemplified by Paul Ehrlich’s international best-seller The Population Bomb (published in 1968), whose framework and predictions were falsified in short order, but whose apocalyptic mood spread rapidly, yielding the “limits to growth” projections that were also soon falsified. The news media was happy to bolster environmental mania, reporting every dubious alarmist claim with complete credulity—arguably the largest single media malpractice of any modern public issue that continues to this day with egregiously incompetent reporting about climate change.

The second was the left’s belated recognition that there were political power and redistribution opportunities to be had through the issue. A good example is New Republic columnist James Ridgeway, who wrote just three years after TNR dismissed ecology that “Ecology offered liberal-minded people what they had longed for, a safe, rational and above all peaceful way of remaking society … [and] developing a more coherent central state.” It was probably inevitable that environmental agitation would curdle into a full-blown-ism commensurate with—and often melded directly to—socialism. Just as socialism often presents as a secular religion, so too environmentalism, with its own doctrine of the apocalypse, promised salvation for the entire planet.

In other words, as the late Sir Roger Scruton put it, environmental concern was “confiscated by the state. … Alarms turn problems into emergencies, and so bring the ordinary politics of compromise to a sudden stop.” Absolutist policies were demanded (ban plastic bags!—the data be damned), even if most actual policies were incremental in practice by necessity. Environmentalism became a fresh and powerful angle of attack against free markets and capitalism. For a long time, anyone who brought economics into the discussion was roundly denounced: “Economics is a form of brain damage” was a prominent cliche of leading environmentalists for a time, never mind that imposing needlessly costly and highly inefficient regulations is wasteful of resources, and by definition, adverse to conservation. (A speaker at the 1992 Earth Summit in Rio elicited rapturous applause from the large audience of delegates by saying that “all economists ought to be rounded up and put into re-education camps.”) Some environmental statutes actually direct the government to disregard costs in developing regulations. In such a social-political hothouse, anyone to the right of Ralph Nader was put off by this extremism, and a common-sense approach didn’t stand a chance.

The scene has gradually changed and improved over the last decade for a variety of reasons. By degrees, most environmentalists have come to understand that economics is essential, and environmental economics is now nearly as important a subfield as environmental law. The inexorable necessity of confronting tradeoffs could only be denied for so long. Perhaps the biggest factor in causing some reconsideration of environmental policy is the frustration with the failure of climate policy to reduce our use of hydrocarbon energy by any meaningful amount. After 50 years of aggressive policy interventions and trillions in subsidies to promote “renewable” energy sources, oil, natural gas, and coal still account for about 80 percent of total global energy—about the same share as 1970—and haven’t significantly accelerated the long-term trend of decarbonizing our energy supply. Even the slogan of achieving “Net-Zero” by 2050 is a cheat phrase concealing that fossil fuels will remain our dominant energy source for decades to come. The “peak oil” hypothesis that was wildly popular 20 years ago now looks as ridiculous as phrenology. Regardless of the magnitude of climate change decades from now, future historians are likely to regard the monomaniacal climate fixation with suppressing fossil fuels over the last 35 years as the climate policy equivalent of wage and price controls to contain inflation in the 1970s.

The outline of a new generation of more sensible environmental policy has been coming into view for a while now. Far from being the primary cause of environmental degradation, capitalism and market exchange are a superior solution to environmental problems, especially when property rights are secured and respected. The centrality of property rights is most quickly grasped with a simple question: how come no one ever washes a rented car? Private owners are better stewards than politically- or bureaucratically-controlled resources.

One clear implication is that the commons should be privatized to the fullest extent possible. The famous “tragedy of the commons” is better regarded as an opportunity to extend the blessings of property rights and gains from trade to new domains. This is no simple step, to be sure. Some common problems, like urban air pollution, defy simple property rights solutions, as Friedrich Hayek warned in his chapter on town planning in The Constitution of Liberty. Examples of semi-privatization of common-pool resources are often imperfect replicas of property rights as historically understood. But there is mounting empirical evidence that privatized commons, even in seemingly unlikely arenas such as ocean fisheries, are more effective in preserving habitat and wildlife than regulatory schemes that are intrusive and cumbersome to enforce. Similar rights-based market mechanisms have been applied successfully to water.

The noisy fringe, along with the climate hysterics, seeking to exploit environmentalism for radical ends will always be with us.

One of the tragedies of modern environmental policy was extending the demise of common law remedies for air and water pollution, toxic waste, and other “externalities.” Nearly a century before modern, centralized regulatory regimes imposed uniform conditions and instituted permit systems for air and water emissions and land use nuisances, traditional common law remedies were highly effective in abating harmful pollution or providing damages to parties directly affected by industrial pollution or negligent land management. Common law categories of nuisance, trespass, and riparian rights (for shared water resources) were effectively applied to individual conflicts both in the United States and England. There are numerous instances in old case law of courts shutting down or awarding damages to paper mills, cesspools, and other point-sources of pollution that damaged neighbors. The most famous case is Rylands v. Fletcher in Britain in 1868, which extended the common law tort rules of strict liability for “non-natural use of land.” This framework was quickly adopted and applied for several local conflicts in the US.

A few instances can be found in relatively modern times in the US, such as a 1950 case in Louisiana in which International Paper was required to pay compensation to downstream landowners for their discharge of effluents into local waters. The most striking example of the transition away from common law to arguably less adaptive regulatory remedies is the 1972 case Illinois v. Milwaukee, which involved the successful common law nuisance suit that Illinois brought against the City of Milwaukee for its dumping of raw sewerage into Lake Michigan, which degraded Chicago’s drinking water. The ruling was vacated, however, by the passage of the federal Clean Water Act a few months later, which instituted a new federal permit system that enabled Milwaukee to delay its cleanup of its sewage system. The irony of supplanting the older common law of strict liability with a centralized regulatory program is that it foreclosed many future efforts by private parties to use to common law to enforce environmental protection. For example, in 1992, Oklahoma sued Arkansas in federal court to stop polluted water from Arkansas from slowing into Oklahoma. The claim was rejected because Arkansas conformed to federal standards, negating Oklahoma’s stricter state standard.

There are some good arguments in favor of centralized regulatory standards and enforcement, especially for some interstate environmental issues. But an irony lost on most simple-minded environmentalists is that many big business interests supported displacing common law liability with federal regulatory and permit systems, because it was more predictable for industry and eliminated potential liability, and in some cases, created anti-competitive effects. A few Marxist-leaning scholars, such as Morton Horwitz, Martin Sklar, and Gabriel Kolko, stumbled across the public choice implications of centralized regulation of all kinds, but missed the obvious lessons to be drawn from it. A reinvigoration of common law remedies for environmental problems would be a major step in restoring the use of local knowledge, Coasean bargaining, and customizing the application of general principles to changing circumstances.

But most important are the increasing number of long-time environmentalists who have shed the old Malthusianism of the 1970s and 1980s. The noisy fringe, along with the climate hysterics, seeking to exploit environmentalism for radical ends will always be with us (and get disproportionate media coverage), and the old Malthusian religion is hanging on under a new banner—the so-called “De-Growth” movement, which, its advocates tell us, doesn’t necessarily mean negative growth, but more “planning” and control to keep our resource use within some unspecified limits. In other words, the old Malthusian vinegar in a recycled bottle.

More persuasive and capacious are the “Ecomodernists” who explicitly reject the old Malthusian pessimism and embrace markets, technology, and innovation as the cornerstone of a more hopeful future for humans and the environment. Ecomodernists embrace rather than denounce many familiar targets of environmental activists, such as large-scale agriculture, active forest management, and resource extraction, highlighting the “de-coupling” of environmental degradation and resource use, let alone economic growth.

Alongside the rejection of the “limits to growth” outlook, the Ecomodernist embrace of technology and innovation is also a significant break from the anti-technology strain of ’70s-era environmentalism that was always redolent of Martin Heidegger’s famous “Essay on Technology.” The Heideggerian strain of anti-tech environmentalism suffuses Al Gore’s 1992 best-seller Earth in the Balance, for example. In no area is the Ecomodernist departure from environmentalist hostility to technology more evident than in nuclear power. Some of the most intransigent opponents of nuclear power have quietly dropped their opposition, while others have regretted ever listening to Jane Fonda and Ralph Nader a generation ago. Gov. Gavin Newsom’s reversal of the decision to close California’s last nuclear power plant at Diablo Canyon (which supplies nearly 10 percent of California’s electricity) was a major turning point. Canada and Japan are making plans to reopen some of their closed nuclear plants, and expect Germany to consider reversing its foolish anti-nuclear course soon.

Traditional big-unit nuclear power remains very expensive to build, and we’re awaiting demonstrations that a new generation of small modular reactors (SMRs) can be scaled up and drive the cost curve down. The enthusiasts and skeptics alike all agree on one thing: our nuclear and utility regulatory structures badly need an overhaul if any new generation of nuclear technology is to flourish.

The need for regulatory reform isn’t limited to nuclear power. The problem with many regulatory regimes is not simply the slowness and expense of the process, but that in many cases, it creates perverse incentives against innovation and improved environmental protection. Some industries delay modifications or innovations to their facilities that might trigger a new adversarial round of regulatory compliance problems.

Another classic case is the Endangered Species Act, whose threat to potential land use creates the incentive to “shoot, shovel, and shut up” if you discover an endangered species on or near your land, but not yet swept into a designated habitat protection zone. (Two-thirds of all listed endangered species are on private land.) Private forest managers in the southeast, for example, take great care not to let their timber stands grow too tall or too large, which would attract the protected red-cockaded woodpecker that prefers older growth trees. The result: a reduction in potential habitat. The usual remedy of the bureaucracy is ever more intrusive forest management plans and mandates, when reversing the incentives would likely achieve better results at much lower cost and political friction. In other words, landowners should be rewarded rather than penalized for having endangered species on their land. “Conservation will ultimately boil down to rewarding the private landowner who conserves the public interest,” Aldo Leopold wrote in his justly famous Sand County Almanac. Of course, doing so would put out of business the Center for Biological Diversity (and similar litigation machines), whose only real interest in “diversity” is determining which court to file their next lawsuit. This is why many environmentalists oppose any reform to the ESA, even as they know it does a poor job of achieving its objective.

The “abundance” movement, currently having a moment among liberal elites, recognizes the deleterious effects of regulatory obstacles to progress and prosperity in many domains, and tacitly but carefully acknowledges that environmental regulations are among the worst-performing regulatory regimes. Even the modest proposals for federal permitting reform to enable faster rollout of the Biden Administration’s green energy program couldn’t pass Congress because of environmentalist intransigence. If the “abundance” movement prospers, this may start to change.

New ideas inconceivable 20 years ago give some reason for optimism that the age of rigidly statist and adversarial environmentalism may be drawing to a close.

One tool that has been little contemplated in environmental and energy policy is a monetary prize for specified innovations. Many environmental regulations have deliberately aimed to be “technology-forcing,” such as automobile and truck tailpipe emissions standards and power plant emission standards. This incremental strategy has had its successes and failures. It is less certain that this strategy has led to major technological breakthroughs; the empirical evidence is mixed. Government-sponsored prizes for breakthrough technologies go back to the eighteenth century (the British government offered a prize for a breakthrough in ocean navigation), and the US government used prizes to accelerate airplane performance a century ago. More recently, there have been some privately funded prizes, such as the $10 million XPRIZE for a breakthrough in suborbital rocket flight, which was won in 2004 by Burt Rutan and his company Scaled Composites.

The advantage of prizes is that they leverage private capital rather than using public funds that often fall prey to political favorites or incumbent research efforts. Like privatizing some kinds of common-pool resources, prize goals need to be carefully defined. And it will be difficult to agree on the goals: is a radical advance in battery technology worthy of a major prize incentive, when there is already a lot of research and development underway? Or a scalable, cost-effective means of air capture of carbon dioxide to fight climate change, when the estimates of climate risk are still highly uncertain and contested? There will be no escaping the hazards of political judgment in these matters, but it seems superior to hidebound regulatory regimes or mandates that are difficult to reform.

It is possible that many potential innovation prizes will go unclaimed or prove unworkable, but the point of contemplating such a novel step is to break out of our half-century rut of proposing yet another tax credit, subsidy, mandate, or ever more complicated regulatory scheme for every environmental problem or energy challenge. This model has run its course. It is long past time for something new. The old order of ’70s-era Luddite-Malthusian environmentalism will die hard (Al Gore is still “skeptical” of nuclear power, for example), and the climate change fanatics will hold on hardest against any course change, but the succeeding generation of environmentalists and new ideas inconceivable 20 years ago give some reason for optimism that the age of rigidly statist and adversarial environmentalism may be drawing to a close.

The principle of human equality is perhaps the most universally accepted dogma of moral life in our world. But this view is quite novel. In A Short History of Relations between Peoples, John M. Ellis crafts an argument that traces this transformation from about 1500 to the present.

Ellis opens the book with an example of what he has in mind. The International Chess Federation’s motto—gens una sumus (“we are one family”)—would have made little sense to most people before the twentieth century. Ellis uses this Latin phrase throughout his Short History as a shorthand for the ideal of human equality and unity, a notion that he argues would have utterly baffled people in centuries past: “The rule in 1500 was not gens una sumus, but the very different ‘my brother and I against my cousin; my cousin and I against the stranger.’ The less like you someone was, the more dangerous he was likely to be.” Ellis shows that many in the present day underappreciate how fragile our belief in equality truly is—and how difficult an idea it was to spread.

The book aims at helping readers understand how recent attempts to revise our understanding of the past—especially those driven by critical theory, like the 1619 Project—are unfair to our forebears. But more than that, Ellis attempts to show that these judgements operate on grounds that are practically unthinkable to past generations.

In the present, it is easy to forget how apart the world’s peoples really were. Before 1500, well-educated elites might speak one or more common languages, but deeply regional dialects were the norm, with few people ever traveling very far from home. Peoples were not just physically distant, but culturally worlds apart:

Until disturbed, the status quo on the globe was that peoples who had adapted physically to a certain kind of terrain and climate, and consequently shared certain characteristics that had resulted from that adaptation, would mostly be found in the place where those characteristics developed.

War was the most common way that people encountered those of different origins. Armies brought with them starvation and destruction, and “it didn’t matter whether you were overrun by your own troops or invading armies—both would plunder your food stores and leave you to starve.”

Over the course of a few brief chapters, Ellis outlines the state of the world circa 1500, and what caused this situation where the world’s peoples largely lived apart from one another in a mixture of fear, and—when Europeans began to encounter other, less technologically advanced peoples—disdain.

From this perspective, Ellis argues that today’s revisionist critiques of the age of exploration and settlement around the globe do little justice to the principles and interests driving European expansion. Moreover, such critiques entirely ignore how obvious attitudes of suspicion and distance would be to Europeans encountering other peoples:

Nation states were formed by slow accumulations of territory, as one people conquered and absorbed another. A general principle soon emerged: bigger is better. Larger states were obviously more secure than smaller ones. … The fears that ordinary people had were based on very real threats, endangering nothing less than their life and liberty. … Gens una sumus is a modern luxury made possible only by living conditions that are far more secure than those of 1500.

Ellis presents something of a realist history of European expansion. He argues that a major drive for voyages of exploration and successive waves of colonization from Europe to the rest of the world was the simple desire to expand their military and economic power. Naturally, it became the start of a collision between dramatically different cultures, with the Europeans able to leverage their technological advances to great effect around the world. Empire itself, Ellis notes, does not deserve the sort of categorical condemnation it now receives:

Though empires have existed at all times and in all places of human history, and among all races and religions, radical historians now want to ignore the hundreds of non-Western empires that have existed throughout history so that they can frame empire as a uniquely European, and thus White supremacist, phenomenon. That is either ignorant or dishonest. Until quite recently, any group of people that were able to conquer other people and territory did so, because that was a rational response to a dangerous world.

Ellis insists that the entire rhetoric surrounding these matters in current scholarship betrays a kind of utopianism: “From time immemorial, the reality was that ownership of land rested on the ability of its occupier to defend it. Most would take their neighbors’ land whenever they could.”

He further observes that Westerners would naturally feel superior to the cultures they encountered: “How could literate cultures of the iron age not feel superior to cultures that were, technologically, thousands of years behind them?” The story becomes more complicated as Europeans themselves began to view their relations with other peoples through a moral lens, a change that could only come to pass with ready access to ideas through print:

Throughout recorded history, individual thinkers have occasionally broached the issue of our common humanity, but before the printing press their ideas could have reached only a very small number of people. The closest thing to a wide dissemination of thought would have been through … the pulpits of the Christian churches, where some priests would certainly have spoken of all people as equally God’s children. But to judge from the results, this didn’t dissuade people from their inherited tribalism to any great extent.

The printing press facilitated discussion of moral questions in a way that nothing prior had allowed, and soon after, the Reformation’s encouragement of literacy “provided a country with the means of debating its values.” Though it took time, European mores gradually shifted from a sense of superiority and disdain for the less technologically advanced peoples they encountered to a slow appreciation of their common humanity. Where philosophers and theologians started arguments in this direction, literature provided a deeper signal of shifting views: By 1719, in “Robinson Crusoe, a White man and a Black man depend on each other, cooperate with each other, and defend each other. With Defoe we are on the road to the future.”

Ellis highlights the way Europeans grew interested in foreign cultures and suggests this became another pathway toward the extension of equality: “During the 18th century, Europeans became fascinated with Turkish culture. For the first time, a serious number of people of one culture became entranced by another, contemporary culture.” This was a qualitatively different experience from the lasting interest Europeans displayed toward ancient civilizations, as they could directly compare themselves to existing societies and find something worth learning or adopting. It is not just that favorite beverages like coffee and tea made their way into European culture through this, but that the encounter with literate and sophisticated peoples forced a moral conversation about the European place in the world.

Ellis wants historians to apply their own view of gens una sumus to the past, but to do that, scholars would have to view human beings as bearing equal dignity.

Yet it was not just a generically European change: Ellis argues that the real growth and propagation of gens una sumus centered on discussions taking place in Great Britain during the Enlightenment. Thinkers like David Hume, Edmund Burke, and Adam Smith contributed deeply to this conversation. Ellis argues that the practicality of British philosophy and its greater rootedness in everyday life led thinkers there toward egalitarian views of social and political life more quickly than anywhere else in Europe.

Additionally, many of the explicitly moral discussions about how Europeans related to the wider world flowed from Christian doctrine. Catholics were the first to suggest that Native Americans deserved to be treated with a basic level of respect, and opposition to slavery was deeply Christian: “There was no organized movement against slavery anywhere until the Christian Church (therefore mainly Europeans) began to oppose it, and the practice of slavery began to end in Europe as the attitude of the Church spread.” In recognizing the role of the Church, Ellis is at pains to undercut fashionable notions that “whiteness” or “systemic racism” are somehow central to understanding the spread of slavery.

Indeed, Ellis makes a thoughtful case that much of the later critique of “racism” is misplaced. He views contemporary categories of race and identity as depending in crucial ways on the preexisting notion of gens una sumus: “Only when we believe that human beings are all of one family is it possible to violate that belief,” and he argues it is profoundly unfair of modern readers to judge Romans or fifteenth-century Europeans through an egalitarian lens:

When leftist scholars criticize the racism of earlier times, they essentially assume that our modern belief in gens una sumus is quite simply the natural one—the basic, expected standard, whatever the era under consideration. The truth is exactly the reverse of this. … It’s the older attitude that is the norm throughout the ages, while it’s the modern attitude that is artificial, something that had to be learned.

We ought not be surprised, then, that gens una sumus spread unevenly and in various areas of human life at different times. Orthodoxies spread in strange ways, but once established, even those who disbelieve in them feel compelled to pay lip service to them as a public doctrine.

Throughout the book, Ellis subverts the platitudes of contemporary historians. A few examples should suffice: Scholars today often speak of indigenous wisdom or lifeways and remark at length about how it is important to maintain this knowledge. But why is it that non-Westerners have so “quickly adopted modern technologies, weapons, travel, and every other aspect of modern life”? Ellis observes: “To judge from their behavior, therefore, they didn’t think their former practices were of equal value to the innovations of modernity.” Ellis underestimates the degree to which adopting Western technology is separable from adopting Western cultural forms. Yet, he rightly criticizes scholars who assume that the spread of Western ideas and imperial power was a purely destructive force in history.

A Short History makes a similar sport of cultural relativists. Where many scholars seek to minimize, explain away, or outright ignore certain aspects of the cultures they lionize, Ellis argues that much of this advocacy is offered in bad faith: “The plain fact is that, nowadays, nobody is willing to condone torture, cannibalism, ritual murder, or sexual slavery as ‘alternate life-styles’—least of all the relativists, who are more dogmatic than anyone about, for example, how a society should treat its women.”

In all these reassessments, Ellis offers a necessary corrective to a discipline that has largely lost perspective on the past. But while he is forthright about the degree to which Christian teachings spread the doctrine of equality, the book does not provide an explanation for how equality went mad. Committed to an argument that emphasizes the power of interests, Ellis can recognize how equality spread, but his explanation for why modern egalitarians excoriate their forebears is lacking.

A Short History presents the unwillingness to view our past charitably as a failure of understanding and lack of gratitude, and he ties it to the continued embrace of communism and the doctrine’s near relations: “No matter how many years they have spent on this earth, leftist radicals remains stuck in adolescent rebellion against their own societies, and in primitive ignorance of political history.”

Despite being clear about the degree to which Christian faith paved the way for arguments about dignity and equality, Ellis does not link the rise of egalitarian madness to the loss of faith and the cultural assumptions that come with it. This does not diminish the book’s helpful correction of the historical profession, but his argument treats religious faith more as a cultural force than a claim about the nature of reality itself.

Ellis wants historians to apply their own view of gens una sumus to the past, but to do that, scholars would have to view human beings as bearing equal dignity. This suggests the challenge lies deeper than any history book can show.

I would like to start by thanking my interlocutors for their thoughtful responses to my lead forum essay, “The Long Descent to Unilateralism.” I have been working on war powers for some time, and one of the first books I read about them was John Yoo’s The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 when it came out in 2006. I have always found his arguments extremely persuasive.

I think it would be unwise for me to claim more mastery of this topic than any of my respondents, so I will simply touch on a few points where we agree and disagree in the hopes of engaging in a friendly conversation. I will start with John Yoo’s perspective that I’ve misinterpreted the Framers. One of the things that I try to avoid, if I can, is to present a single view from the founding generation as if it were definitive of the whole. I think it is fair to say that Alexander Hamilton wanted a stronger executive than James Madison, and this came to light quite quickly as they moved from co-authors in The Federalist Papers to opponents in the Pacificus-Helvidius Debates.

One of the most valuable elements of the creation of the Constitution was the deliberation that took place in the Philadelphia Convention. The very act of discussing important matters of state over the course of time allows for compromise and clarity (and likely a good deal of frustration). The act of deliberation is an important safeguard in democracy. It is even more important in deciding about war and peace. I think most founders thought there should be some discussion about when to initiate hostilities, with a land invasion as an exception. Beyond that, I still think the founders and many who followed thought that it was important, arguably necessary for a president to ask for congressional permission, wait for their deliberation, and accept the result. I will certainly concede that many presidents argued forcefully in favor of their preferred outcome, but they did have to argue. Presidents today have too many tools at their fingertips. They barely even ask forgiveness, let alone permission. Worse still, Congress doesn’t force presidents to do so.

To continue along these lines, I very much appreciate Jordan Cash’s perspective on the political branches. By design, “Congress … is oriented to be slower, with the primary characteristics of reasoned deliberation and representation.” In contrast, by design, it is important for the person holding the executive power to make quick decisions, especially in the name of national defense, or in Jeffery Tulis’s term, “self-preservation.” Using this term throws certain actions into a different light. When thinking about self-preservation, both Washington’s decision and Lincoln’s early decisions in the Civil War make more sense. In both instances, Congress was out of session. Both instances threatened potentially existential consequences for the United States. Washington had a choice in 1793: deny the Treaty of Alliance with France or go to war to protect French assets in the Caribbean from British attack. The American military would never survive another fight with the mighty British navy. Washington could not, in good conscience, help the French at the expense of his nation. Lincoln had a similar, albeit more fraught choice: engage in actions that are legally acts of war (like blockading harbors in the southern states) or sit back while part of the country seceded.

The Constitution is imperfect, but a Congress that stands up to a president provides a superior check.

In Cash’s other examples of war powers, I have a different perspective. In the early nineteenth century, Thomas Jefferson did not send the navy to the Mediterranean to attack the Barbary Pirates. As I’ve written elsewhere, he sent them merely to defend the American merchants traveling through the area. He kept going to Congress to ask them to build more ships and give him permission to attack the pirates. They waited until the pirates engaged in incredibly provocative action before providing Jefferson with permission to use offensive force.

Polk is one of the few, or perhaps the only nineteenth-century president, to gin up a war out of blind ambition. As Cash notes, Polk ordered Zachary Taylor into disputed territory in the hopes of a skirmish breaking out. Importantly, however, he still had to go to Congress to get authorization and the necessary funds. While he kept Congress in the dark about the location of the troops, we still see Congress do its job: deliberate about the merits, decide the scope of the military budget, and authorize a war. That said, this is an example of the separation of powers failing to prevent an entirely unnecessary war. To bring in a point made by Jeffrey Polet, “Rereading the constitutional debates reminds us that no perfect instrument was ever crafted by imperfect hands.” The Constitution is imperfect, but a Congress that stands up to a president provides a superior check. Conversely, relying on presidents to check themselves has mostly failed to produce restraint.

Finally, I’ll turn to Jeffrey Polet’s piece. I completely agree that we’re on the verge of an exciting anniversary that came after many hard-won battles, and I am equally worried that “faith in the American dream and exceptionalism [is] at ebb-tide.” I echo his desire to look back at the words of the Anti-Federalists. Many of their fears have come true. In fact, the very founding of the nation came, in part, due to the increased presence of British regulars in the colonies after the Seven Years’ War. They were conspicuous in the colonies and caused the kind of trouble that young men who think they are above the law tend to cause. Having a military patrolling the streets is, after all, unnerving even to law-abiding citizens. More problematically, as Polet points out, as the military has grown, it is harder and harder to make any criticism. For over a century, there were strong and respected critics of military power. Today, there are very few. Where are the voices of the Anti-Federalists in today’s political landscape? One could hardly think of respectable voices that call for restraint in military spending. Another disquieting recent change for the republican core of the American experiment is the decision to change the Department of Defense to the Department of War. Harry Truman made the symbolic decision after WWII to make it the Department of Defense (ironically, at the beginning of the Cold War, when there would be a dramatic increase in the size, scope, and cost of the military). The president decided to remove that fig leaf.

I very much appreciate that there seems to be a consensus about the change that occurred in the Spanish-American War among my interlocutors. I think it is reasonable to say, as Polet does, that the prior era was the “Old Testament” and in the new era, the US took on “a new messianic sense of purpose.” I struggle, however, to decide if the US always wanted to be a great nation of global ambitions or if something fundamental shifted in the early twentieth century. It is hard to decide whether it achieved the military, political, and economic might because there were always people striving for that end, or if the US grew so powerful precisely because there were voices of restraint consistently arguing against imperial overreach. I think that is an enduring question, and one that I cannot fully answer. For that reason, I appreciate the opportunity to engage with alternative views of the matter.

Patriotism may seem to be a straightforward concept, but in the Age of the American Revolution, it was in fact rather complicated. In his famous Dictionary (1755), Samuel Johnson originally defined “patriot” simply as “one whose ruling passion is the love of his country.” In 1775, however, Dr. Johnson added a secondary definition to the new edition: “a factious disturber of the government.” This latter type is likely what Dr. Johnson had in mind when he told James Boswell that “patriotism is the last refuge of a scoundrel.” The Tory Johnson certainly had no problems with those who loved their country. But he did take issue with self-proclaimed Patriots who struggled, on both sides of the Atlantic, for America’s right not to be taxed without representation. As he wrote in The Patriot (1774): “That man … is no patriot, who justifies the ridiculous claims of American usurpation; who endeavours to deprive the nation of its natural and lawful authority over its own colonies.” In other words, “patriotism” had become a contested concept.

Amy Watson’s new book, Patriots Before Revolution, explores the role of Patriotism in the British Atlantic world in the fifty-year run-up to the American crisis that became the American Revolution. It contributes to the growing body of literature on the meaning of Patriotism in the eighteenth century. The book is based on a series of connected case studies, beginning in England in the wake of the Hanoverian Succession of 1714 and finishing, via Scotland, Georgia, and New York, with Patriot resistance to the Stamp Act in the 1760s. In a similar vein to recent historiography pioneered by Steven Pincus, Watson shows that Patriotism was a specific ideology with roots in British politics that migrated to colonial America.

Watson argues that Patriotism was not just a facet of British eighteenth-century party politics but also a transatlantic political party with an organization. This is largely a matter of definition, and it is important to note that eighteenth-century parties were much looser than modern ones. In her story, the Patriots emerged as a party opposed to the Court Whig Sir Robert Walpole, who led the British government between 1721 and 1742. The original opposition Whigs in the Patriot group shared a common interest in America and its trade. According to Watson, the Patriots were united in seeking to reform the British empire, making it “militant, expansionist, confederal, and free.” In other words, they wanted the empire to be stronger and more active, while leaving its settlers alone in their enjoyment of constitutional liberties. This turned out to be a rather difficult balancing act.

Watson’s book makes several substantial contributions. It helps to restore the importance of partisan conflict as being central to British eighteenth-century politics, in contrast to J. H. Plumb’s paradigm of the “growth of political stability.” And rather than “salutary neglect,” the book shows that empire was a vital part of British partisan politics. More specifically, it demonstrates the significance of this partisan conflict for the pre-history of the American Revolution. As Watson notes in the introduction: “Only rarely do histories of the American Revolution begin before the year 1763.” But, as she reveals, the long-term history of Patriot politics informed the American crisis in the 1760s.

The British Patriots were not revolutionaries but rather imperialists. However, Watson is correct to state that American revolutionaries who adopted the label “Patriot” identified themselves with British “Patriots” such as John Wilkes. As she aptly puts it, “the Stamp Act’s repeal was both transatlantic Patriotism’s greatest victory and its last gasp.” But as it weakened as a British force after the Stamp Act crisis, it flourished in the thirteen colonies, where it managed to unite southerners such as Thomas Jefferson with northerners such as John Adams.

Where’s the party?

Yet, one must consider whether the Patriots really were a transatlantic political party, or something else. Most historians have been content to call it an ideology, and Watson herself sometimes, with good reason, calls it a movement. She is right that we should not be misled by the general complaints against party politics into thinking that there were no parties. This was rather a sign that party politics was rife. But what do we gain by focusing on the Patriot party as opposed to opposition Whigs? Indeed, on Watson’s evidence, their leader William Pulteney in the 1720s and 1730s seemed clear that his “party” proceeded on what he called “Whig principles.”

The Country party platform represented an ambition to unite all opposition parties in defense of constitutional liberties and the people.

As Watson rightly highlights, party in the eighteenth-century sense was often taken to be a group of political actors held together by a set of beliefs rather than organization. But organization was not irrelevant, because party could also imply a smaller political group, often motivated by power or interest. This meant that party could refer to one of the traditional parties, the Whigs and the Tories, as well as smaller factions, often congregating around a prominent parliamentary speaker, a great landowner, or several noble families. In one of these loose senses, the Patriots could be seen to have been a political party, though one with little in common with modern parliamentary parties. But Watson goes further by saying that “the Patriots had higher levels of organization than scholarship has previously recognized, including a dedicated party leadership, a coherent ideological platform, active social clubs, and close ties to city corporations and mercantile associations.” These arguments are well-made and supported by an astonishing amount and range of archival research. Nevertheless, by reason of their boldness, such arguments warrant close examination.

Patriot Ideology

Though “patriot” was sometimes used as a generic term for opposition politician, it is evident that Patriotism did consist of an ideology, or at least a set of principles. But what were they? The ideological polarity as presented in the book focuses primarily, though not exclusively, on empire and political economy. What singled out the Patriots’ economic and imperial agenda, according to Watson, was that they regarded Britain’s colonies as markets for manufactured goods, whereas their opponents saw them as sources of agricultural products and natural resources. This sounds somewhat puzzling as, in trade, one market’s exports pay for its imports (at least in the long term), and it would have been pointless to send manufactured goods to markets that had nothing to sell in return (especially as the Navigation Acts prevented open trade, and the colonies would have had no way to finance a trade deficit). Considering the state of economic development in the eighteenth century, there could not have been any conflict over whether Britain’s manufactured goods should be exchanged for agricultural products and natural resources in the empire, and the real disagreement concerned how manufacturing and trade were to be encouraged, what markets should be targeted, and how they should be protected. This is effectively shown in the fine chapter on Georgia, established by the British general James Oglethorpe as a “Patriot colony.”

To understand the Patriot principles fully, we need to bring in another “party” that is largely, though not entirely, missing from the scene, namely the Country party. In its original, seventeenth-century context, “Country” was sometimes used interchangeably with “Patriot.” It was derived from “county” and sprang from the tension between central government and the peripheries, as well as between the court and the opposition in parliament. In the wake of the Glorious Revolution of 1688–89, the Country party platform represented an ambition to unite all opposition parties in defense of constitutional liberties and the people in opposition to an increasingly centralized, expensive, and allegedly corrupt government. This Country party ideology was often synonymous with “Patriotism.”

In this book, the Country Journal, or the Craftsman, is claimed as a Patriot journal, but it was a “Country party” venture intended to unite opposition Whigs and Tories. The Craftsman’s co-founder and leading writer, Henry St John, 1st Viscount Bolingbroke, was a Tory who popularized the “Patriot label” with his publications A Letter on the Spirit of Patriotism and The Idea of a Patriot King, written in the late 1730s and published in the 1740s. But prior to this, Bolingbroke promoted the Country party as an opposition party in the pages of the Craftsman. But to his chagrin, many Tories and opposition Whigs continued to view the Country party as an occasional bipartisan platform rather than a cohesive party. On church matters, opposition Whigs continued to speak and vote with government Whigs against the Tories, undermining the possibility of an opposition coalition. In any case, the connections between the Country party tradition and Patriotism, as well as those between the Rage of Party and the age of Walpole, could have been further explored in this fine book.

Party Leadership

According to Watson, William Pitt the Elder was the leader of the Patriot party during the Seven Years’ War. Indeed, he was often, and appropriately, described as a Patriot minister. But his own career does not reveal much interest in party organization over and above his reliance on lieutenants such as the “West-Indian” William Beckford to rally support. For Pitt, Patriotism seems to have been closer to principled independence than party solidarity, and indeed a willingness to appeal to a coalition of parties along Bolingbrokean lines. When the Elder Pitt led the government during the Seven Years’ War, he relied on the support of the Tories and, from 1757, on the Old Corps of Whigs (which would have been anathema to many earlier Patriots). As the leader of the government, Pitt had to compromise with the king (who was also Elector of the German state Hanover) and commit the government to financing warfare on continental Europe, alongside the imperial strategy favored by the Patriots. The Patriot historian Catharine Macaulay would later comment on Pitt’s mixed record:

The late Earl of Chatham [i.e. the Elder Pitt] whose splendid administration makes a capital figure in the annals of this country, is universally called the minister of the people; but whoever accurately traces the steps by which this great statesman acquired the necessary department in power to render his talents in any extent useful to his country, will find that Mr. Pitt, instead of having been forced on the crown by the voice of a free people, either in their collective or representative capacity, was, as a necessary prelude to his being appointed to the office of prime minister, obliged to sacrifice to the prejudices of the sovereign [George II] all those popular principles which had graced his parliamentary harangues for the series of many years, and which had raised him to the highest pitch of public favour and esteem.

Beyond the chronology of the book, it is worth mentioning that Pitt’s second administration in 1766–68, after he had been elevated to the earldom of Chatham, was a coalition of parties and motley independents, and ridiculed for this reason by the party man Edmund Burke in his Speech on American Taxation (1774):

[Chatham] made an administration so checkered and speckled, he put together a piece of joinery so crossly indented and whimsically dovetailed, a cabinet so variously inlaid, such a piece of diversified mosaic, such a tessellated pavement without cement—here a bit of black stone and there a bit of white, patriots and courtiers, king’s friends and republicans, Whigs and Tories, treacherous friends and open enemies—that it was, indeed, a very curious show, but utterly unsafe to touch and unsure to stand on. The colleagues whom he had assorted at the same boards stared at each other, and were obliged to ask—‘Sir, your name?’

As the Earl of Chatham, the Elder Pitt was a diminished figure, who suffered from both mental and physical health issues. Yet he could still be a formidable parliamentary speaker and the main opposition force in Britain alongside Burke’s party, the Rockingham Whigs, during the American Revolutionary War. But the Chathamites were never a party in the same eighteenth-century sense as the Rockingham Whigs. As Pitt’s most loyal follower, the Earl of Shelburne, commented, “[Chatham] thought that he could act to more advantage without the incumbrance of a party.” For several years, the only reliable “Chathamite” followers in the House of Commons were Isaac Barré and John Dunning (Beckford died in 1770). This was hardly a party. Nor did Pitt have any interest in eighteenth-century clubbing; Shelburne described in his memoirs how he “was in the most intimate political habits with him [Chatham] for ten years … without drinking a glass of water in his house or company.” The Elder Pitt’s mantra was the anti-party slogan: “not men, but measures.” And the inheritor of this tradition, Chatham’s son William Pitt the Younger, disclaimed party politics and called himself an independent Whig. 

Anti-Partyism

Party was undoubtedly a central theme in eighteenth-century British politics—one may even call it a persistent one. But unlike today, not all parliamentarians were party men. Many were independent backbenchers, who usually supported the king’s government, but were occasionally prepared to go along with Patriot measures, as when a slight majority voted for Dunning’s 1780 motion that “the influence of the crown has increased, is increasing, and ought to be diminished.”

Not all frontline politicians were party men in the eighteenth century. Robert Walpole, the Duke of Newcastle, and the Marquess of Rockingham certainly were. But the Elder Pitt was not, and the Younger Pitt was arguably not, either, unless having political friends and followers is sufficient as a criterion. We must therefore be prepared to confront the fact that William Pitt the Elder may have been the consummate Patriot politician without knowing that he belonged to, let alone led, any party organization known as the Patriots. If we take the ideas and principles of the men and women of the eighteenth century seriously, we need to come to terms with their sometimes-genuine anti-partyism, as well.

These caveats and quibbles notwithstanding, there is no doubt that Patriotism Before Revolution tells us much that is essential about ideology and political strife in the eighteenth-century Atlantic world, and that it is a must-read for all serious students of British and American history of the period. One of the many highlights of the book is its focus on the eighteenth-century partisan press, and its centrality for organized politics is usefully highlighted. But first and foremost, Watson’s study is a triumph of original archival research.

American progressives, who later evolved into the New Dealers and “modern liberals,” have had a tumultuous relationship with the Constitution. The original progressives—Woodrow Wilson, Frank Goodnow, Herbert Croly—frankly rejected the Constitution. The Founders’ document may have been fine for a time when two million farmers huddled along the Atlantic coastline, but it could not deal with the problems of an urban, industrial, polyglot society. After the national progressive hangover of the 1920s, Roosevelt and the New Dealers recognized the depth of American “Constitution worship” and instead asserted that they stood for the original Constitution, which had been hijacked by a new robber-baron oligarchy. Thus, FDR used the Founders’ vocabulary (“self-evident truths” and an “economic bill of rights”) even as he transformed their principles. 

FDR’s New Deal seized up in 1937, after his attack on the Supreme Court, his own recession, and his attempt to “purge” his own party. But for a while—from the 1940s through the 1960s—liberals espied a solution: get control of the Supreme Court, which had become a “continual constitutional convention.” But the route of judicial advancement of liberal goals stalled and even reversed sometimes (though it occasionally advanced) after 1969, and the Trump-packing of the Court has caused them to add “judicial supremacy” to their litany of complaints about the dysfunction of the Constitution.

Jill Lepore’s stout volume places her in among the ranks of progressives who now again repudiate the Constitution tout court. Former President Obama pointed in this direction when he talked about the “fundamental transformation” of the country and lamented the Founders’ constitutional concern for “negative liberties.” Georgetown Law Professor Michael Seidman said, “Let’s Give Up on the Constitution,” and Boston College Law Professor Aziz Rama wrote of The Constitutional Bind: How Americans Came to Idolize a Document that Fails Them. Lepore, Professor of History at Harvard, best-selling author, and New Yorker contributing editor, is what passes today for a “public intellectual.” Her influence means that “attention must be paid.”

We the People is subtitled A History of the US Constitution, but this is rather deceptive. It is really a history of attempts to amend the Constitution, and an attack on the difficulty of formal amendment. It tells the story of all the people who have been excluded from the original Constitution’s first words—primarily blacks, women, and Guardians (formerly known as Indians)—and the various ways by which they have tried to influence constitutional development to redress their exclusion by the means available to them (informal conventions, petitioning, general agitation). These groups were ignored not just by the Founders but by the progressives of a century ago. Thus, Lepore proffers an updated, intersectional, or woke version of progressive history. But the bottom line is the same: an eighteenth-century Constitution makes it all but impossible for us to deal with the problems that we face today.

Lepore sternly warns us that these problems are not trivial. Constitutional limits (particularly recent Court restrictions on the discretionary power of the “administrative state”) pose an “existential threat” to the planet and its human population. Her last pages present a pending environmental apocalypse; America’s peculiar Constitution threatens everyone in the world. Needless to say, climate change will have a disparate impact on the global South before it does us all in. Within the US, recent advances in racial equity, reproductive rights, and marriage equality are no longer secure. The Constitution’s amendment process was supposed to be the substitute for revolution. But the Founders made amendments so difficult that revolution is now a real threat. 

Like the early progressives, Lepore seems to trace the Constitution’s principal defect to its erroneous political theory. She starts her first substantive chapter with the story of the 1787 rescue of Joseph Pope’s orrery (a mechanical model of the operation of the solar system—turn the crank and watch the planets and satellites revolve and rotate), providing a photo of an orrery, a description of how an orrery works, and an almost obsessive effort to narrate the fate of Pope’s contraption. This painstaking account is meant as an analogy to the mechanical nature of the Founders’ constitution-making and orrery-making. The Constitution was “an artifact of the age of Isaac Newton,” Lepore notes. Woodrow Wilson made this conceit famous in his 1908 book, Constitutional Government, but Lepore doesn’t mention Wilson for another two hundred pages, nor does she follow up on this fundamental progressive criticism of the Founders’ constitutional design. (She also describes them as “Machiavellian,” but this seems like a mere throw-away line.) Lepore does return to the theme that we need a more easily amendable, “living Constitution” later on, particularly when praising Justice Thurgood Marshall’s bicentennial denigration of the 1787 Constitution. He did not find “the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound.” 

Marshall was a product of the mid-twentieth-century liberal attempt to amend the Constitution via a “litigation strategy.” His teacher was Charles Hamilton Houston, the dean of the Howard University Law School, whose goal was to train a corps of black litigators to win legal equality for blacks. Houston was a Legal Realist—law was simply an instrument of power, wielded by the dominant class (or race, sex, or whatever) to maintain its hegemony. As his biographer put it, Dean Houston believed that “given an immoral America, the NAACP campaign required that lawyer-social engineers use the Constitution, statutes, and ‘whatever science demonstrates or imagination invents,’” to bring about social reform. Blacks needed to organize and use whatever weapons were at their disposal to achieve their ends. With the courts securely in New Deal hands after 1937, they seemed to provide the most promising avenue.

The Constitution certainly is not perfect, but we should never make the perfect the enemy of the good.

Certainly there is a place to draw the line on Constitution-veneration. Lepore starts with an almost Burkean change-to-conserve line (as in “tradition is the living faith of the dead,” while “traditionalism is the dead faith of the living.”) Antiquity is never per se a reason to defer to tradition. But what if our eighteenth-century ancestors really were superior to ourselves in wisdom, foresight, and sense of justice? I would strongly defend the proposition that the Founders were superior to American political leaders of the 1960s. Marshall thought the Reconstruction Constitution-amenders of 1868 were the ones we should venerate. But does anyone really believe that John Bingham can compare with James Madison? If the besetting sin of conservatism is that older is better (or “There’s always been a lottery”), the progressive one is the obverse—later is better.

Lepore keeps coming back to “originalism,” her bugbear. She appeals to what might be called the “cognitive problem” with originalism: We cannot know from the historical record what the Founders’ intent was. But she asserts that we can be sure that it was not originalism. In a version of the “paradox of relativism,” she claims that we should be bound by the Founders’ intent that we not be bound by their intent. She brings in Mary Bilder’s account of Madison’s deceptive alterations to his Convention notes to show Madison trying to manufacture material for an originalist argument, though Madison explicitly repudiated an appeal to anything beyond the text of the Constitution or anything but the understanding of the text by those who ratified the Constitution. 

But her chief indictment of originalism is that it has been used by disreputable conservatives to thwart constitutional change. Roger Taney seems to cook up originalism in Dred Scott. (This reductio ad Dred Scott attempt to discredit the Constitution is the basis of Mark Graber’s book, Dred Scott and the Problem of Constitutional Evil, which contends that Taney’s pro-slavery interpretation of the Constitution was correct.) Lepore does not mention that Benjamin Curtis’ dissent in Dred Scott was also originalist, or that both Lincoln and Douglas made originalist arguments in their debates over Dred Scott. She ridicules James M. Beck and the National Association for Constitutional Government for ginning up an originalist cult of Constitution-worship in the 1920s. (The conservative Chief Justice of that era, William Howard Taft, Lepore notes, “was born in Ohio in 1857, the year the Supreme Court decided Dred Scott” (346). Nuff said.) Then, it is white supremacists opposing Brown that gave us originalism. Later, the Straussians are “the original originalists.” Finally, Robert Bork’s 1971 Indiana Law Review article launches originalism. Originalism just keeps originating.

What to do with a practically unamendable Constitution made even more difficult to change by originalism? Lepore seems to land somewhere between “popular constitutionalism” and outright revolution. Her model (not in the fashion-industry sense) is Victoria Woodhull, the radical feminist who adopted a “litigation strategy” to amend the Constitution according to “your own interpretation of the Constitution, original intent be damned. The original intent of the framers, after all, had been to deem women to be something other than persons.” To indulge a “gendered” term, that statement is hysterical in both senses of the word, as if the Founders’ regime were a particularly misogynistic one, rather than one with great potential for progress for female equality—as Alexis de Tocqueville noted as early as the 1830s. Woodhull’s approach sounds like that of Frederick Douglass (who came to embrace an originalist argument that the Constitution was antislavery, repudiating the Garrisonian abolitionists who saw it as proslavery), who said in his famous “What to the Slave is the Fourth of July?” speech: “I scout the idea that the questions of the constitutionality, or unconstitutionality, of slavery, is not a question for the people. I hold that every American citizen has a right to form an opinion of the Constitution, and to propagate that opinion, and to use all honorable means to make his opinion the prevailing one.” This statement could be interpreted as a radically positivistic one, that the Constitution has no meaning other than what a majority at any given time gives it. But it seems rather to have been a rhetorical stroke from Douglass, who by 1852 was defending an antislavery Constitution on originalist grounds.

That view of “popular constitutionalism,” associated with Larry Kramer, Mark Tushnet, and others, arose as a response to the failure of liberals to maintain their power to reshape the Constitution through the courts. It is a notable defect of Lepore’s book that she attributes far too much power to the Court in US constitutional history; there is the feeling of a jilted lover here. She blames the Court for the failure of Reconstruction, whereas historians like Michelle Brandwein have restored the view that the political branches were more to blame. (As Lucas A. Powe has pointed out, it is rather counterintuitive as well as historically myopic to think that minorities would gain from raw majoritarian constitutional control.) Lepore claims that the Thirteenth and Fourteenth Amendments were needed to overturn Dred Scott. They were not. Dred Scott did not establish slavery, and Congress and the Lincoln administration ignored the decision when they abolished slavery in the territories and recognized the citizenship of free blacks. It is a gross exaggeration to say that in the nineteenth century the “Supreme Court asserted and exercised an exclusive authority to interpret” the Constitution.

If not “popular constitutionalism,” what then? It is surprising that Lepore does not bring up theories of how to amend the Constitution outside of the Article V process, such as those of Akhil Reed Amar of Yale Law. One suspects that such schemes are like nullification and secession—revolutionary gambits donning a legal-constitutional facade. But the Constitutional Convention itself is open to this charge, and Publius himself in Federalist #40 at least “scouts” it.

Last of all, there is good, old-fashioned revolution. The Founders all agreed that, if government became destructive of the ends for which governments are created (albeit those are the protection of our natural rights, not the provision of entitlements and “equity”), the people had a right—a duty—to rebel. Lepore suggests that we (or some of us, anyway) will be driven by the impossibility of amendment to revolution and anarchy. Victoria Woodhull is again her exemplar: She made the claim that the Fourteenth and Fifteenth Amendments already gave women the right to vote; no women’s suffrage amendment was necessary. If Congress did not enact legislation to enforce this constitutional right, she threatened to lead a revolution. One strains to avoid calling this, again, hysterical. (Victoria Woodhull would have raised about a dozen adherents for her revolutionary army.) Lepore never says, in so many words, that we face a situation where revolution is justified. Others on the Left are ready—look at Jacobin magazine, the “leading voice of the American Left.” It seems to have dropped its guillotine-blade logo, but its website is still dripping red. Harvard Law Professor Mark Tushnet threw in the towel long ago, saying that constitutional limits on political power are “impossible,” and that if he were on the Court, he would simply do whatever it required to advance socialism.

Conservatives should feel Lepore’s pain. They certainly know that maintaining a Constitution as a “higher law” is difficult, and they know what constitutional despair feels like. In 1996, the journal First Things published a symposium on “The End of Democracy,” focused on the Court’s usurpation of constitutional power, especially on issues like abortion and homosexual rights. Libertarian conservatives are always flirting with anarchy. My mentor, Herman Belz, wrote in the standard textbook on American constitutional history that “there were philosophical difficulties in this attempt to combine positive law and natural law.” Positivism separates law from morality; natural law tends to conflate them. But if constitutional conservatives have an obligation to abjure the sin of despair, they might benefit from an understanding of the sources of constitutional liberals’ despair.

The Constitution certainly is not perfect, but we should never make the perfect the enemy of the good. Originalism may be difficult and untidy, but it is, as Antonin Scalia put it, “the lesser evil.” The Founders’ Constitution is a heritage worth the effort of preserving.

The fine essays of the August forum—and particularly those by Philip A. Wallach and Yuval Levin—aptly describe the current role Congress plays in affairs, domestic and foreign. Wallach notes that Congress is a “second-tier actor in foreign affairs” and permits dubious actions to stand, “even when Congress’s own core constitutional powers seem to be in jeopardy.” Levin agrees in large part, adding an amendment to the assessment: Congress exists to pass legislation and to facilitate bargaining across factional and party lines.

In both these regards, Congress has left its primary functions behind and supplanted its legislative and functional roles with that of a ratifier—at best—of executive desire and a partisan body that is often hijacked by the fringes. These diagnoses are deeply insightful and useful in understanding our current politics. They are also worrisome trends. Without taking away from the previous astute analysis, additional consideration of the different incentives between Congress and the presidency will shed light on how the presidency has become outsized. My primary concern is reflected in how frequently I have heard some version of, “If only Congress would do its job!” If I had a quarter for every time I heard this lament, I would easily be able to buy my weekly allotment of Dr. Pepper, which is measured by liters, not ounces.

Alas, it is insufficient to observe that Congress will not do its job and instead allows the executive to set the agenda in nearly all matters, or worse, act independently, all while broadcasting internal dysfunction to the general public. A question as to why this choice is made must be examined in the long historical context of the incentives Congress faces relative to the executive branch. The short answer is that democratic pressure on the presidency to act legislatively undermines the ability of Congress to act legislatively. The perceived difference in Congress’s electoral legitimacy, made up of discrete elected individuals that act as a representational body for the country as a whole, is weak compared to the office of the president, chosen by the whole of the populace through popular election. The fact that there are some nuances regarding the Electoral College does not change the practical fact that the president is popularly elected, if occasionally without a majority of popular votes. The whole nation votes on the presidency and sees that voting process as fundamental in both the selection of the president and establishing legitimate authority to act on behalf of the whole.

The rise of this perception is reflected and encouraged in the rhetoric of presidents. A brief survey of rhetorical highlights of the evolution of presidential legitimacy to act for the whole illustrates the point.

The presidency’s rise as a democratic organ began early. Thomas Jefferson, despite benefiting from the Electoral College in a close and controversial election, expressed concerns regarding the popular divisions sown during the election and sought to mend those fences. Quickly thereafter, this evolved into an assertive view of the president as the representative of the people, beginning with Andrew Jackson.

Andrew Jackson fundamentally reshaped the presidency’s image as the democratic representative of the people and the best expression of the people’s will. This increased democratic pressure on the executive incentivized its expansion, at the expense of legislative and judicial power. Jackson consistently argued that his role was that of an interpreter of popular will. Casting his election as a contest between vested special interests and the people, Jackson argued for the popular primacy of the executive, declaring:

To the people belongs the right of electing their Chief Magistrate; it was never designed that their choice should in any case be defeated, either by the intervention of electoral colleges or by the agency confided, under certain contingencies, to the House of Representatives. Experience proves that in proportion as agents to execute the will of the people are multiplied there is danger of their wishes being frustrated. Some may be unfaithful; all are liable to err. So far, therefore, as the people can with convenience speak, it is safer for them to express their own will.

Jackson somewhat constrained his role as the expression of the people’s will to the limits of the Constitution. Yet he viewed himself as the protector of the document even though he practically tested those limits. His interpretation of the Constitution often aligned with his populist appeal in an anti-special-interest and anti-elitist stance.

The evolution of presidential power advanced further during the Civil War, though it was largely confined to wartime exigencies. Abraham Lincoln exercised the powers of his office to maintain what he saw as the nation’s interests. Later, the rise of the Progressive Era drove a profound transformation in how the presidency was viewed, altering the constraints on the executive branch imposed by both public opinion and the judiciary. Courts, in particular, began to acquiesce to the demands of a more active executive, save for exceptions like independent commissions insulated from direct presidential control.

Theodore Roosevelt, often considered the first modern president, leveraged technological advancements in media to appeal directly to the public, bypassing career politicians, political parties, and traditional electoral mechanisms.

Because Congress sees the presidency as a competing and even superior legitimate authority for the whole people, it has little incentive to legislate against presidential ambition.

Woodrow Wilson and Franklin Roosevelt pushed for further expansion of the office’s scope. Wilson defined the presidency as an engine of popular will and energetic governance, elevating the role beyond its traditional constraints. He famously asserted, “The President is at liberty, both in law and conscience, to be as big a man as he can.” If Jackson had opened the door to popular demands on the president, Wilson flung it wide, leaving room for Roosevelt and others to walk through to a new era of presidential focus. This evolution coincided with ideological shifts away from “individualism and limited government.” The presidency’s cultural and social centrality grew, aided by technological advancements that allowed presidents to communicate directly with the electorate. Franklin Roosevelt’s fireside chats exemplified this trend, contrasting sharply with the reserved demeanor of Calvin Coolidge, who refrained from such verbosity but nonetheless demonstrated the growing cultural expectations of the office. Presidents set the agenda in new ways, more and more proposing policies rather than executing the law. Federal agencies gave presidents a policy side door to bypass Congressional approval, this ability growing with each agency, all while the rhetorical importance of the office grew, shouldering the mantle of “the people’s will.”

By the time of John F. Kennedy, this trend was well established and reinforced in speeches from the president, again describing the president as the singular representative of the national will. Kennedy explained, “For only the President represents the national interest. And upon him alone converge all the needs and aspirations of all parts of the country.”

This trend continues today. In his 2017 inaugural address, Donald Trump positioned himself as the voice of “forgotten” Americans, stating:

The forgotten men and women of our country will be forgotten no longer. Everyone is listening to you now. You came by the tens of millions to become part of a historic movement the likes of which the world has never seen before.

His rhetoric as a popularly elected president, and thus justified in his actions, has only accelerated in his second term.

The evolution of the centralized democratic presidency reflects both the incentives of political operatives and the demands of democratic processes. Electoral design often imposes preferences that reinforce the centralization of power in a single office. While this trend is common to presidential systems, the United States has fortunately maintained relative stability due to its robust institutions and cultural norms, as well as certain elements of the structure of government. Not all checks and balances have failed, but they are bending under the pressure.

One may ask, if the president is elected by popular will, then are the people not the ultimate check on the president and his excesses? If it were only so. Unfortunately, the democratic selection of the president has a warping effect on what constitutes legitimate authority in a Weberian sense. Weber viewed political authority in three co-existing but competing frameworks: legal authority, traditional authority, and charismatic authority. The latter may sound familiar to modern ears, who are familiar with the presidency as a “cult of personality.” This has been used to describe several recent presidents. The threat is that we are moving away from legal authority as establishing legitimacy, particularly in the English common law as modified through American constitutionalism. This translates into a gradual undermining of constitutional authority, both as a document and in the institutional arrangements outlined therein. While neutral principles of law still exist, they cannot be easily erased, even with a series of elections; the trend toward charismatic authority poses a legitimate threat to the rule of law. Principally, that law constrains those in power as much as it authorizes them to act on behalf of the people.

Because Congress sees the presidency as a competing and even superior legitimate authority for the whole people, it has little incentive to legislate against presidential ambition. Thus, James Madison’s theory that ambition would check ambition does not align with the practice. In our partisan age, and frankly throughout the history of the current constitutional arrangement, the incentive to agree or disagree with the president based on partisan alignment exacerbates this promise. Often, agreement or opposition hinges on partisan allegiances rather than policy. Certainly, some debates do cleave Congress along party lines, but it is a curious fact of our political age that moderate members of Congress are more inclined to vote with and support their fringe party members than form a middling alliance. Some of this is a factor of the presidential selection process, which first undergoes a primary process that would be closer to the median partisan voter rather than the median American voter, in turn driving the party members in Congress to rally together. The result is rule by bare majorities in Congress, and either the president uses that process to push through a dubious agenda or ignores Congress under the common justification already discussed in the other essays—“if Congress won’t act, then I will.”

Without understanding the political incentives unintentionally directing power away from Congress, there is little hope that Congress can take up its constitutionally assigned mantles and legislate by forming coalitions as representatives of the American people. While democratic selection of the president remains, Congress will continue to play second fiddle to the presidency.

From baseball games (without gloves) in Civil War army camps to NFL football games that gave people something to cheer about during the Great Depression, sports have always been a central part of American culture. Their extreme popularity may be a clue that sports provide something vital to the health of democracies. If Plato and Aristotle were right, sports offer an antidote to democracies’ inherent proclivity to misperceive boundaries.

In Politics, Aristotle observed that democratic regimes arise from a misperception of the true scope of equality. Democracies are prone to the fallacy that “those who are equal in any respect are equal in all respects.” In other words, “because men are equally free [under the law], they claim to be absolutely equal [in every way].” Similarly, in The Republic, Plato described how democracies’ overestimation of the scope of equality leads them to project equality onto every social relationship in society. “Democracy is a charming form of government, full of variety and disorder,” says Socrates, “and dispensing a sort of equality to equals and unequals alike.” In short, Plato and Aristotle saw democracies leveling all social distinctions, blurring and distorting true boundaries.

But sports offer democracies a welcome, refreshing chance to redraw distinctions in accordance with real boundaries—in other words, without bending equality beyond its natural scope. Like a splash of cold water in the face of an equality-minded society, sports continuously make it clear that citizens must earn their individual status, without relying on egalitarian pronouncements affording everyone equal status. Democratic citizens tend to embrace this challenge for the same reason Cuban exiles in Florida embrace a paycheck even in an entry-level job: because humans want to earn their accomplishments, not have their livelihood handed to them by the state.

Sports continuously produce new winners and losers. This is a reminder to democratic souls that, in many ways, people will always be unequal—but also that the ways in which people are unequal are always in flux. The pursuit of victory will always be, in some sense, the pursuit of a temporary unequal status. This is something to celebrate. Notwithstanding Karl Marx, who sought to eliminate competition on the grounds that it is predominantly a force of destruction, competition is, in fact, vital to social progress, innovation, and productivity. Everyone has a drive to stand out for achievement, and this incentive helps avoid the stagnation of an “everybody gets a trophy” society in which no one has any motivation to push the ball forward. In sports and in other areas of life, from The Voice to Top Chef, democracies crave competitions because they encourage citizens to push the boundaries of their advancement to achieve things that no laws can bestow on them.

As serial blurrers of proper boundaries, democracies tend to see boundaries as the enemy. “No limits” and “breaking down barriers” are common catch phrases. But engaging in sports continuously puts people in new situations that force them to recognize and contend with real boundaries. Rather than explaining boundaries away with platitudes, sports train the mind to sharpen its perception of boundaries and get creative in working with them. This is good training not only for the mind but for the soul.

Sports also engender a respect for law and order. Through sports, we quickly discover that transgressing some boundaries is not OK. There are consequences. Some things are “out of bounds,” a “violation,” “offside,” “fair,” or “foul.” Too many transgressions and you can “foul out.” And there are inflexible boundaries that determine what counts and what doesn’t: Put the ball between these goalposts and you score. Outside them, nothing.

Sports train the mind to pay attention to the boundaries of space, time, and our own internal state. No wonder this University of Chicago study found that the brain lights up on MRI scans when people are playing—or just talking about—sports. There are spatial boundaries for the brain to navigate: lines, boxes, zones, fences, walls, markers, hoops, circles, and lanes. Temporally, we have to be aware of minutes and seconds, breaks, halves, quarters, periods, shot clocks, and timeouts. And our awareness also encompasses the amazing potential and intrinsic limitations of our own mind and body. Internally, athletes are always navigating the boundaries of their concentration, tenacity, speed, strength, endurance, flexibility, coordination, height, weight, muscle fiber types, climate tolerance, and breathing.

The boundaries of team dynamics present their own challenges. Five point guards, nine shortstops, or eleven quarterbacks won’t do. There are delineated roles, each with its own boundaries. Success comes from complementarity, matching players’ abilities (see the 1995–96 Chicago Bulls, 1993–94 New York Knicks, or 2004–05 San Antonio Spurs). This is an exercise in creating social harmony. In fact, according to Aristotle, complementarity among people with differing capacities and virtues is the very reason cities—and families—come into existence. Finding ways to contribute on a sports team is good practice for citizenship.

The process of developing virtues in sports can also prepare the way for advancements in other areas of life.

Through sports, we become keenly aware of boundaries that are determined by our own effort. The feedback is often immediate: “Look, I got two seconds faster since the season started!” or “I slacked off on my diet, and now I can’t keep up.” “Success leaves clues,” said Jim Rohn, and sports illustrate concretely how our own actions lead to progress or regress. This encourages us to wonder about the boundaries of what we truly can be, and to try to become more than we are.

On the other hand, abstaining from sports steals many potential clues as to where our boundaries lie. In a culture presenting myriad opportunities for comfort, passive consumption, and entertainment, it’s easy to persuade ourselves that we are okay “just the way we are.” But inactivity can facilitate the delusion that we have reached our limit. By not physically exerting ourselves in real and difficult ways, we miss flags that could expose our regression. As the Greek stoic Epictetus put it in Enchiridion:

How long will you then still defer thinking yourself worthy of the best things? … What teacher then do you still expect that you defer to him the correction of yourself? You are no longer a youth but a full-grown man. If then you are negligent and slothful, and are continually making procrastination after procrastination, and proposal after proposal … you will not know that you are not making improvement, but you will continue ignorant, both while you live and till you die. … And if anything laborious, or pleasant or glorious or inglorious be presented to you, remember that now is the contest, now is the Olympic games, and they cannot be deferred; and that it depends on one defeat and one giving way that progress is either lost or maintained.

The process of developing virtues in sports can also prepare the way for advancements in other areas of life. Hippocrates observed this in his 400 BC treatise On Ancient Medicine: “Even today, those who give their attention to exercises and training are always making some additional discovery by the same method, investigating what food and drinks a person will best overcome so as to become as strong as possible.” Indeed, a good deal of modern nutritional science has its roots in sports nutrition research. For example, the benefits of hydration, amino acids, creatine, and timing carbohydrates, not to mention the vast array of popular energy and protein bars and drinks, were all driven by sports science.

When it comes to the boundaries of brain function, recent studies suggest that “brain games” like Sudoku do not appear to cause significant improvements or protect against mental decline. But sports do. It turns out that consistent exercise significantly increases the brain’s volume of white and gray matter, particularly the hippocampus, prefrontal cortex, medial temporal lobe, and caudate nucleus.

And sports also provide feedback that can help guide us in the realm of ideas. For example, sports can expose the boundaries where ideologies and other beliefs become nonsensical. Philosopher Brian Kemple writes that an ideology is “any belief in what ought to be irrespective of understanding what is.” In other words, ideologies are abstract belief systems that do not necessarily comport with experience. Historian Christopher Lasch wrote that “Ideologies, however appealing, cannot shape the whole structure of perceptions and conduct unless they are embedded in daily experiences that confirm them.” Sports provide the kind of daily, observable experiences—sometimes public and documented—which can be drawn on to confirm or disconfirm ideologies. For instance, Hitler hoped to use the 1936 Berlin Olympics as a showcase for the Nazi ideology, specifically his belief in the superiority of the “Aryan race.” But this belief was only disconfirmed by the numerous medals won by Jewish competitors that summer—including a silver in fencing won by Helene Mayer, the only Jewish member of Germany’s own Olympic team—not to mention four gold medals won by African-American Jesse Owens.

In discussing Plato’s Republic, my old college political theory professor once said, “Justice is about drawing distinctions in the right place.” Given that democracies tend to blur distinctions, by strengthening our perceptions of all sorts of boundaries and their consequences, sports help democratic souls improve at drawing distinctions in the right place. And in this way, sports help democracies become more just.

The Federalist remains one of the most influential books ever written about our country because no other single text better or more clearly expresses the mind of the American Founders. Cited in everything from Supreme Court decisions to Broadway musicals, this collection of eighty-five papers by the pseudonymous Publius still has considerable sway over our national imagination. Something about this book keeps Americans coming back to it in search of self-knowledge.

Still, reading these documents cannot help but inspire an aching sense of loss. For one, The Federalist’s elevated style is at a great distance from the sorry state of public discourse today—it is hard to picture politicians on cable news or Twitter/X engaging in this kind of serious political philosophy. But at an even deeper level, it feels as though American politics has lost sight of what Publius understood about the meaning of the common good our republic was constituted to secure. Especially in our era of digital democracy, the intense factional divisions the Founders feared seem to have triumphed over “the better angels of our nature.” On both the Right and the Left, some have even begun to question the validity of the Constitution itself. Is it worth defending this broken-down government anymore? Can The Federalist really still help explain who we are as a people?

But far from being irrelevant to contemporary debates, I would propose that The Federalist contains within its pages the antidote to the diseases ailing our body politic. For one, it is perhaps the greatest explanation of how our written Constitution is supposed to work. It is also, more importantly, one of the great symbols of America’s political tradition, a written expression of the unwritten constitution that seems to be failing. Publius’s true act of statesmanship was not simply convincing the Founding Generation to ratify the US Constitution, but also providing us, their inheritors, with a guide to civic education we desperately need to recover.

In order to understand The Federalist, we must first understand the political crisis it was written to answer. The United States’s improbable victory in the War for Independence did not usher in some kind of earthly utopia; if anything, American government in the 1780s was more unstable than anything experienced under the dominion of the British Empire. Almost immediately following the Battle of Yorktown, the young republic faced threats of domestic insurrection. From conspiracies of Continental Army officers to storm the capital, to the populist Daniel Shays’s rebellion in Massachusetts, it was clear that the Articles of Confederation did not frame a government strong enough to prevent mass disorder or even civil war.

The Constitutional Convention that met in 1787, then, was emphatically not a philosophe’s salon—it was a gamble for national survival. The delegates did not seek to provide a final answer to every political question, but rather to give the Union the strength it needed to resist this pull towards anarchy. Despite the aspersions of their contemporary opponents and the speculations of latter-day critics, these men truly believed in the American Revolution. Some, such as Benjamin Franklin and Roger Sherman, had signed the Declaration of Independence itself. Others, such as Alexander Hamilton and George Washington, fought and bled for its principles on the battlefield. These delegates were not staging an aristocratic coup against America’s democratic ideals, but rather reorganizing the federal government with sufficient energy so that it could preserve Americans’ hard-won liberty.

The constituent parts of Publius’s mind had to set aside whatever real differences of opinion existed between them and adopt a more moderate point of view in defense of the actual, as opposed to their ideal, Constitution.

Inspired as the “demigods” of the Convention may seem in hindsight, none of the delegates were entirely satisfied with the “bundle of compromises” that emerged. James Madison, now revered as the “Father of the Constitution,” felt it did not sufficiently nationalize politics. Hamilton, convinced by his wartime experiences that good government required an energetic executive, felt that the presidency was too feeble. Sixteen delegates refused to sign the document altogether, because they considered it a consolidation of power tending towards tyranny. Persuading the people as a whole to adopt the Constitution would be an uphill battle.

Despite their hesitations and doubts, Hamilton and Madison, along with their colleague John Jay, knew that this was their best chance to secure a stronger union. New York was one of the swing states in the ratification debate, and so they decided to work together to write a series of essays in that state’s newspapers to sway public opinion to the Constitution’s cause—what we now call The Federalist. Adopting the pseudonym Publius, in honor of one of the founders of the Roman Republic, they set out on one of the most important public relations campaigns in history.

Importantly, taking on a common pseudonym was an act of statesmanship in and of itself. In the words of the late scholar George Carey, Hamilton, Madison, and Jay each understood that “a united and coherent defense of the proposed Constitution would require them to trim their theoretical sails, that is, to accommodate themselves and their thinking to the implicit values and assumptions of the document, as well as to the sensibilities of each other.” To write The Federalist, the constituent parts of Publius’s mind had to set aside whatever real differences of opinion existed between them and adopt a more moderate point of view in defense of the actual, as opposed to their ideal, Constitution.

Perhaps they could overcome their personal pride because they understood the stakes. From the outset, Publius is clear that ratification bore a world-historical significance. In Federalist #1, he writes:

It has been frequently remarked, that it seems to have been reserved to the people of this country to decide, by their conduct and example, the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force. If there be any truth in the remark, the crisis at which we are arrived may, with propriety, be regarded as the period when that decision is to be made; and a wrong election of the part we shall act, may, in this view, deserve to be considered as the general misfortune of mankind.

This introduction reveals something about why Publius defended the Constitution so ardently: he believed it would teach the people a certain kind of virtue. It was a commonplace at the time of the Founding that republics need virtue to survive; as Washington put it in his Farewell Address, it “is a necessary spring of popular government.” Strangely, though, Publius does not often mention virtue explicitly. Throughout the work, he is far more likely to discuss the darker side of human nature—the thing the checks and balances of the Constitution were designed to restrain. But Publius’s emphasis on reflection and choice at the very start of his project shows that the preservation of self-government depends on classical virtue of prudence, that is to say, the application of principle to circumstance.

Federalist #10 provides a particularly good example of how Publius thinks the Constitution can teach the people this highest political virtue. The subject of the essay is the problem of faction—an issue with which we are surely familiar in such divided times as our own. According to Publius, a faction is any group of citizens “united and actuated by some common impulse of passion, or of interest,” seeking to subvert the rights of others or undermine the public good. Factions, he writes, are particularly troublesome in popular governments in which the will of the majority prevails. How does the Constitution solve this problem? According to Publius, by “extending the sphere.” The sheer size of the Union mitigates faction by making it difficult for any single one to gain control of all the levers of power. “In the extent and proper structure of” the federal government, he concludes, “we behold a republican remedy for the diseases most incident to republican government.”

The entirety of The Federalist is meant to teach readers just how precious freedom is, and how dangerous it is to leave her defense merely to chance.

At first glance, this argument has little to do with prudence. It almost seems as though Publius expects the “extended sphere” to operate on the basis of carefully balanced interests alone—as he says, after all, “enlightened statesmen will not always be at the helm.” But in his recent book American Covenant, Yuval Levin argues that Publius understood that this wider array of interests could actually “more effectively compel cooperation across factional lines” by forcing their representatives to deliberate with one another. These kinds of negotiations are a kind of process of discovery; by bringing together a host of particular interests, the Constitution aims to help us see our common interest. Deliberation necessitates prudence to work at all.

Of course, not all of Publius’s rivals were persuaded by this argument. The antifederalists who opposed ratification had such a wide array of ideological commitments and factional interests that it is almost impossible to attribute a single shared viewpoint to the entire party. But one of the things antifederalists usually agreed on was a belief that the Constitution’s “extended sphere” represented a consolidation of power in the political center. They felt that a stronger Union necessarily meant weaker states, and therefore fewer bulwarks against tyranny.

Publius went to great lengths to respond to this criticism. At the most basic level, he agreed with the antifederalists that tyranny, or the accumulation of absolute power in the hands of one person or group, was the worst possible outcome. But the whole point of the Constitution’s model for union was to avoid this. As Publius explains in Federalist #39, for instance,

The proposed Constitution … is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

Politics has become so hyper-nationalized in our era that it can be difficult to discern the outlines of this mixed composition. Nonetheless, it still operates in meaningful ways; intrusive as the federal government is, states are not its mere departments quite yet. They still possess the ability to curb the federal government’s overreaches, both in the courts and by other means of interposition. And the different sources for members of the House of Representatives and the Senate continue to ensure that, in the words of Federalist #62, the legislative power is “founded on a mixture of the principles of proportional and equal representation.” Vestigial as these elements of mixed composition may seem at times, it remains powerful enough to give the true friends of liberty real leverage in the system of checks and balances.

Even if the Constitution does not consolidate political power in the way the antifederalists feared, Publius does seem intent on emphasizing a consolidated sense of national identity. Over and over again throughout The Federalist, Publius strives to emphasize how Americans constitute one people. As he puts it in Federalist #2:

Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence. This country and this people seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties.

Of course, when Publius wrote this passage, it was not strictly true. States like Virginia and Massachusetts could be so different as to seem almost as though they were different countries. Historians estimate that about one-third of Pennsylvania’s population only spoke German. But as the Constitution lays out in the Preamble, one of its most important goals was “to make a more perfect Union.” Contrary to the utopian gloss the phrase is often given today, the Framers did not mean this as a synonym for social progress, however much they may have wished for it. Instead, “more perfect” meant more closely united, more tightly bound together.

The fact that Publius once succeeded in uniting the people should give us hope that renewal is possible.

But beyond simply recognizing the things which already united Americans to one another, Publius hoped to work for this “more perfect union” through a program of civic education. The Federalist aims not just to persuade New York voters to ratify the Constitution, or to explain how the document works, but also to teach Americans what their country means. Throughout the essays, Publius warns that “parchment provisions” or “barriers” are, as he puts it, especially in Federalist #48, “not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” As carefully designed as the Constitution was, it simply would not work if the people were not possessed by a spirited love of liberty.

The entirety of The Federalist is meant to teach readers just how precious freedom is, and how dangerous it is to leave her defense merely to chance. In the end, this is the reason Publius chose to engage with the American people at the heights of political philosophy. As he puts it in Federalist #85, establishing a new constitution requires “the voluntary consent of a whole people.” With his kindred spirit, Edmund Burke, Publius surely would have affirmed that this kind of consent is something stronger than the contract of a mere commercial partnership. But he also understood that force and coercion are simply not enough to make a nation free or virtuous. Such things can only ever be achieved through acts of love.

To be sure, much of The Federalist aims at the defense of the Constitution on somewhat lower terms. As James Rogers has put in these pages, “Publius makes persistent appeal to self-interest as an analytical and predictive device,” but without reducing all “human behavior to self-interest.” The genius of the Constitution is that it sets ambition against ambition to preserve liberty—but it cannot defuse the fundamental danger posed by ambitious men. In Federalist #64, for example, Publius states: “However useful jealousy may be in republics, yet when, like bile in the natural, it abounds too much in the body politic, the eyes of both become very liable to be deceived, by the delusive appearances which that malady casts on surrounding objects.” What is needed, then, is a general spirit of enlightened patriotism that can overcome the worst aspects of ambition and jealousy without hubristically attempting to revolutionize human nature itself.

George Washington adopted this theme from The Federalist as a kind of political mantra as he led the newly constituted republic. The Union, he argued in the aforementioned Farewell Address (which was partly coauthored by Hamilton and Madison, despite their bitter disagreements), “has a right to concentrate your affections” both because it provided security for the people’s interests and because it embodied their highest principles. He therefore cautioned his countrymen to discountenance “whatever may suggest even a suspicion that it can in any event be abandoned, and indignantly frowning upon the first dawning of every attempt to alienate any portion of our Country from the rest, or to enfeeble the sacred ties which now link together the various parts.” Washington and Publius alike sought to teach the people how the Constitution can unite “collective and individual happiness” according to the principles of human liberty.

In our present political troubles, it may seem that this kind of enlightened patriotism has been crowded out by vulgarity or sophistry. But the fact that Publius once succeeded in uniting the people around these ideas should give us hope that renewal is possible—and that it can be achieved through great writing and even great reading. Indeed, many of America’s institutions of higher learning are rediscovering the value of the civic education offered by The Federalist and other works in its tradition. It remains open to all citizens after all.

Another of the West’s great authors, William Shakespeare, can help us understand the profundity of Publius’s achievement. Most scholars believe he likely only wrote one scene of the Elizabethan play, Sir Thomas More—but it is, of course, the most beautiful moment in the entire piece. In it, the titular statesman must stop a riot that threatens to raze the entire city of London to the ground. But instead of drawing his sword, More is able to persuade the mob to back down by giving a speech appealing to both their sense of interest and their “better angels.” Miraculously, it works. In the aftermath, one nobleman marvels that “not steel, but eloquence hath wrought this good.” Much the same could be said of The Federalist.

This essay is adapted from a lecture delivered at the University of Florida at an event organized by the independent, student-run publication The Florida Finibus.

A self-governing republic lives by persuasion, not intimidation. The dreadful assassination of Charlie Kirk has prompted reflection on the dangers of political violence in America. A spate of previous political assaults, from the attempted assassination of President Trump to the killing of Minnesota State Representative Melissa Hortman, suggests that this latest outage may not be an anomaly but a feature of an increasingly polarized America. The civic habit of persuasion has become eroded.

Law can mitigate the risk—better security that protects public figures, electoral reforms such as top-two primaries that broaden the power of the median voter at the expense of the extremes, and a renewed federalism that lowers national stakes. Government, however, can only do so much. Law, like politics, is downstream of culture. Civil society must take the lead in addressing the mutual contempt that stokes hatred. Education is our best hope because it can habituate citizens to turn political animus into reasoned disagreement—and at times into consensus. Unfortunately, the illiberal turn in our educational system is currently a source of antagonism rather than a solution to it. Our educational system at all stages fails to model the respectful disagreement that prepares citizens for civic discourse.

The rise of AI today raises the question of when our machines will pass the Turing test, the point at which an examiner cannot tell whether the test taker is a machine or a human. An educational system should aspire to make citizens pass an “ideological Turing test,” demonstrating the ability to present the strongest case for views they reject so persuasively that an examiner cannot infer their own. A person who can do so earns rapport across the aisle by grasping the full force of the arguments that motivate opponents.

Sadly, education at all stages today hinders the ability to pass this kind of test. Begin with law schools. Over recent decades, the focus on legal and political debate that was once at the heart of legal education has declined. The reasons are many. First, the faculty is more ideologically homogeneous, and so are most student bodies. Overwhelmingly uniform and unchanging political perspectives breed intolerance and a lack of interest in other views that a more politically balanced community fosters. Second, diversity, equity, and inclusion programs present other obstacles because they prioritize affect over argument. When one liberal law professor argued against Roe v. Wade because no one would take that side in class, students complained to DEI. That kind of intervention chills professors from injecting dissent into class.

The obstacles are not only ideological and emotional but are also institutional and pedagogical. The Socratic classroom is disappearing. The crusty professor who compelled students to debate—and to defend positions they disliked—has largely vanished. Many law professors now lecture in the manner of an arts and science professor, because with a PhD as well or instead of a JD, their professional identity is not that of a lawyer skilled in argument. Not surprisingly, students prefer not to be grilled, and teaching evaluations now factor into a law professor’s compensation, further disincentivizing vigorous give-and-take.

Universities can still bend the civic arc if they return to their first vocation: truth-seeking through contestation.

The less disputatious and more ideological culture leads to parodic outcomes both at my law school in legal education in general. When Dobbs came down, my school held a panel populated exclusively by opponents of the decision. Our flagship law review devoted an entire issue to critiques of SFFA v. Harvard, the case that eliminated racial and ethnic preferences in higher education. With money provided by a well-meaning donor for dialogue across differences, the school held an election panel with a Democrat against Trump and a Republican against Trump. It had a panel on abortion rights with two strong advocates of abortion rights and a panel on election issues in taxation with two left-of-center tax professors. Even after complaints by one conservative faculty member, this fall features standalone speeches, by a passionately anti-Trump Republican and a passionately anti-Trump Democrat. How can a school model civic disagreement when it presents no disagreement at all on the most critical issues of the day?

From what I hear from colleagues, it is no better elsewhere. Indeed, our professional organizations do not model reasonable disagreement. The Association of American Law Schools offered a showcase panel at its annual meeting with only opponents of the Dobbs decision. When asked why this was, one of the panelists responded, “Because we are right.”

And this absence of debate is occurring at professional schools where professional incentives should encourage relentless disputation. One cannot be a good lawyer unless one understands the other side’s strongest arguments as well as one’s own. Legal skill requires playing one’s opponent’s moves. Indeed, a great lawyer thinks several moves ahead, thinking of the response to his response in an exhilarating and exhausting spiral of reasoning. Anyone who goes through that process gains increased respect for the best arguments on the other side.

Matters are even worse at the undergraduate level. There, faculties are even more politically homogeneous than they are at law schools. There is no need to address counterarguments to orthodoxy because law and judicial opinions based on contrary views are not part of the curriculum. Several studies—from scholarly working papers to journalistic investigations and think-tank reports—have examined college syllabi across many institutions and fields, and detected left-wing bias in assigned readings and course content. As former Harvard University President Larry Summers recently noted, an investigation of recent journal articles in the field of American studies revealed that seventy-six were critical of America, sixteen were neutral, and none were positive.

Faculty today is not only left-leaning but also invested in identity politics. Many, if not most, recent humanities hires at my own institution examine their subject through the prism of identity, such as race and gender, or identity-adjacent perspectives, such as colonization. The dominance of these perspectives, combined with the administrative perspective of DEI, crowds out conservative viewpoints.

A campus suffused with identity norms struggles to sustain the relentless truth-seeking that is the foundation for modeling reasoned disagreement. The question becomes not what the best-reasoned view is, but who is harmed by the view. Focusing on harm moralizes disagreement and makes it easy to dismiss those who disagree as bad people, a perspective guaranteed to lead to polarization and contempt. Debate also dissipates as people self-censor out of fear of being thought morally suspect. And if identity groups begin with different perspectives, they are likely to move toward the more radical perspective by self-segregation, according to Cass Sunstein’s law of group polarization. Campuses that should above all be the places that force people to doubt, instead become places where people become not only more certain of their certitudes, but more certain of their rectitude in believing those certitudes.

K-12 teachers are the products of higher education. There is considerable evidence that schools of education emphasize social justice and identity frameworks in teacher preparation. What occurs in universities today thus shapes K-12 education now and in the future.

Universities can help heal our civic culture by getting back to their own truth-seeking mission. Essential to that objective is debate over controversial matters, which encompass much of what develops at the frontier of social sciences and humanities. Law schools could readily return to a culture where students are compelled through Socratic dialogue and more formal debates to steelman their arguments by adopting the opposing side. In class, they should be assigned a side irrespective of their personal views. The experience will help them pass the ideological Turing test.

How can a school model civic disagreement when it presents no disagreement at all on the most critical issues of the day?

It is less challenging than one might think to incorporate this model into many undergraduate courses. Politics classes often require students to exchange views on controversial topics. History assignments can require students to debate the causes of such events as the Civil War. Economic classes can examine the persuasiveness of Keynesianism versus monetarism. Any face-to-face debate allows students to become more comfortable with disagreement. And oral assessment of dialectic has additional advantages in an age where written assignments risk being engineered by AI.

As important as what higher education should add is what it should subtract. Since a focus on identity is a barrier to argument, not only should all DEI offices be shuttered, but all university-sponsored identity groups should be terminated. Of course, nothing prevents students from choosing to get together on any basis they wish, but the university should not encourage the mind-forged manacles of identity.

To be sure, it will be difficult to address these problems in education. Universities are bureaucratic institutions resistant to rapid transformation, and tenure guarantees the entrenchment of identity perspectives. But the turmoil at universities today, caused by anti-Israel and in some cases antisemitic protests, the Trump administration’s leveraging of federal funding, and the advent of AI, provides the opportunity for the most significant improvements in decades.

Creating centers of heterodoxy on campus is the most effective accelerator of change. The best model is the James Madison Program in American Ideals at Princeton University. It not only sponsors scholars with heterodox views but also hosts debates and panels with sharp disagreement. It also brings in visiting faculty members who will teach courses that foster discussion of political philosophy and the causes of significant historical events. The wealthy should step up and fund more such centers on campus, ensuring that they are run by people like Robert George, who prevent such initiatives from becoming yet another mechanism for entrenching orthodoxy.

State legislatures should follow the examples of those that have created alternative colleges and centers within their flagship universities, such as the School of Civic and Economic Thought and Leadership at Arizona State; the Salmon P. Chase Center for Civics, Culture, and Society at Ohio State University; and the School of Civic Life and Leadership at the University of North Carolina. Like the James Madison Program, these schools and centers offer not only ideological diversity but also course programming that fosters a civic education and fills a gap in the current university curriculum.

To be sure, these projects are small, particularly compared with the behemoth size of state universities. But if centers gain the ability to create their own majors, they can compete against the rest of the university. And many students want to breathe the pure serenity of intellectual argument unclouded by identity sorting.

Universities can still bend the civic arc if they return to their first vocation: truth-seeking through contestation. A democracy only functions well if its elites model respectful disagreement. That kind of respect is the first step to creating a political atmosphere free from fear and threat. This atmosphere is itself conducive to the willingness to compromise on which pluralist democracy depends.

Our educational system, particularly our great universities, is an incubator of these elites. But they have singularly failed to prepare their graduates for the great enterprise of democratic deliberation among people of fundamentally different views. A university that chooses argument over orthodoxy helps ensure that ballots—rather than threats—govern our political life.

Some academics employ narratives to manipulate the Constitution into producing results they like. Because of the systemic leftward bias of academia, most of these narratives seek to sever Americans from their traditions, weaken mediating institutions, redistribute wealth, or transfer more power to the federal government.

There is a very effective apparatus for promoting these narratives. While a narrative remains viable, its authors appear on professional panels and are rewarded with career advancement. Top legal journals print their articles. Elite publishing companies publish their books, and elite magazines review them. The authors are nominated for prestigious prizes, and their commentary is featured by the New York Times, the Washington Post, and the legacy broadcast media.

While this continues, skeptics find it difficult to be heard. But eventually, like an ice castle in springtime, the narrative dissolves in the warmth of reality and is seen no more.

A narrative currently in academic favor holds that the method of constitutional interpretation called “originalism” was invented and first promoted in the 1970s by Professor Robert Bork, Attorney General Edwin Meese, and Justice Antonin Scalia. Supposedly, it was a new and radical theory, designed to obtain conservative judicial results. It wasn’t (and isn’t) coherent, because self-described originalists propound different versions of it. Nor is it practical to apply, because history is often disputed or unclear and judges are not professional historians.

This narrative is featured in a September 10, 2025, story in The Atlantic. It consists of a lengthy summary of portions of Jill Lepore’s book, We the People: A History of the U.S. Constitution.

Most of the indicia of the successful narrative-promotion apparatus are present: Jill Lepore is a professor at (of course) Harvard. She was twice nominated for a Pulitzer Prize. Her book was published under an imprint of W. W. Norton, a leading publisher. Her book was reviewed by both The New York Times and The Washington Post. And the excerpt not merely appeared in The Atlantic (a pillar of the elite media), but was the cover story.

The article’s title leaves no doubt as to its purpose: How Originalism Killed the Constitution: A Radical Legal Philosophy has Undermined the Process of Constitutional Evolution. It promotes all the tenets of the current anti-originalist narrative—that is:

• Originalism is a new interpretive theory, first promoted during the 1970s by Bork, Meese, and Scalia.
• It was designed to promote a conservative political agenda. 
• It is not a coherent theory, because different proponents present different versions.
• It is impossible to apply.

The article also adds a new charge: Originalism is largely responsible for a breakdown in the Constitution’s amendment process.

In the coming days, Law & Liberty will print a full review of Professor Lepore’s book. My sole purpose is to focus on the allegations against originalism. For those who don’t mind a spoiler alert, here it is: All of these allegations are false. The charge that originalism caused the breakdown in the amendment process is particularly far from the truth.

Interpreting a document using originalist sources can, like any legal task, be done badly or well. The fact that it can be done badly is not a reason for adopting less accurate methods.

Originalism was not invented specifically for the Constitution. Originalism is merely a new name (initially coined by opponents) for the dominant mode of documentary construction in the Anglo-American legal system.

Originalism is the process of interpreting a legal document or text with the goal of reconstructing the parties’ initial understanding of its prospective legal effect. As formulated in England during the sixteenth century (if not before), this process was called a search for the “intent of the makers,” which was identified as the “lodestar” of documentary construction. In this context, “intent” is a term of art that, depending on the circumstances, can refer to the parties’ explicit or implicit understanding or the document’s meaning to them.

The “makers” of a legal document are those whose actions give it legal effect. They may or may not also be the document’s drafters. If the document is a will, the sole maker is the testator. If it’s a trust, the maker is the settlor. The makers of a contract are the contracting parties. The makers of a statute are the enacting lawmakers (not the legislative drafters), and the makers of a constitution are the ratifiers (not the framers or constitution-writers).

One seeks evidence of the makers’ “intent” in the document’s words (which usually comprise the best evidence), in the parties’ expectations for the document and their reasons for adopting it, in their prior and contemporaneous statements, and in prior and surrounding circumstances.

For almost all documents other than the US Constitution, seeking and applying the parties’ “intent” is uncontroversial. Commentators who think constitutional originalism is unique or “radical”—including some constitutional law professors—may have little experience in other areas of the law and almost none in actual law practice.

Not only is originalism nearly universal, but it is also extremely old. Polybius referred to it in describing a court dispute in ancient Greece. Justinian’s Digest referred to it. It was firmly established in England at least by the time of Edmund Plowden (1520 [N.S] – 1585), one of England’s foremost interpretive scholars.

In the United States during the Confederation era, state courts employed originalist methods for construing their own state constitutions. In Commonwealth v. Caton (1782), for example, Judge George Wythe—later a delegate to the 1787 Philadelphia convention and a leading Virginia ratifier—acknowledged the primacy of the “intent of the framers” in a case where the framers also were the constitution’s ratifiers (and therefore the “makers”). Moreover, as I have demonstrated elsewhere, the Framers of the US Constitution drafted the document with the expectation that it would be applied using the prevailing interpretive method. If they had thought that some non-originalist procedure would be used, they would have written the document differently.

Most participants in the subsequent debates had the same expectation. A few Anti-Federalists, it is true, made extravagant claims about how the document might be twisted. But Federalists responded by reminding their audience of the rules by which legal instruments actually were interpreted. One instance appears in Alexander Hamilton’s Federalist #33.

Until the Supreme Court became dominated by progressive majorities in the twentieth century, it was essentially originalist. Chief Justice John Marshall, among others, frequently resorted to the “intent” or “intention” of lawgivers and constitution-makers. If he failed to cite the actual constitutional debates, it was because transcripts of those debates had not yet been published.

Of course, any interpretive method can be applied badly. The majority opinion in Dred Scott v. Sandford is famous for inept and dishonest originalism. But the two dissents relied on originalist sources as well—and to better effect.

The judicial methods that were novel, radical, unique, and politically-driven are not originalist methods, but those utilized by progressive Supreme Court majorities throughout much of the twentieth century. Illustrative of this approach is an opinion by Chief Justice Charles Evans Hughes, who in Home Building & Loan Assn. v. Blaisdell (1934) held that a constitutional provision designed specifically to ban state debt moratoria did not, in fact, ban state debt moratoria:

There has been a growing appreciation of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare. The … pressure of a constantly increasing density of population, the interrelation of the activities of our people and the complexity of our economic interests, have inevitably led to an increased use of the organization of society in order to protect the very bases of individual opportunity. Where, in earlier days, it was thought that only the concerns of individuals or of classes were involved and that those of the state itself were touched only remotely, it has later been found that the fundamental interests of the state are directly affected. …

If by the statement that what the Constitution meant at the time of its adoption it means to-day, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning: “We must never forget, that it is a Constitution we are expounding.

This passage has features common to other Supreme Court decisions issued during the periods of progressive dominance. It contains amateur sociology. It is conclusory (“carries its own refutation”). It endorses judicial re-balancing of what the constitution-makers already had balanced. It is utterly foreign to how judges traditionally construed documents. And, like some of the other New Deal decisions, it is partly dishonest: Marshall’s “memorable warning” in McCulloch v. Maryland was not that the makers’ intent should be ignored. It was that the best evidence of intent may vary according to the nature of the document being construed.

Thus, originalism is not a new or radical interpretive method of interpretation. It is restorative: It rescues the Constitution from experiments with new and radical methods of interpretation.

Admittedly, originalists sometimes open themselves to charges of novelty. In the latest version of The Heritage Guide to the Constitution (to which I am a contributor), Justice Samuel Alito suggests that originalism is new:

What we now call “originalism” arose to fill this void, and three men led the charge. If we can envision a Mt. Rushmore of originalism, the three visages we would see carved in stone are those of Robert Bork, Edwin Meese III, and Antonin Scalia.

It does no disrespect to any of these three men to acknowledge that they are not the visages on the “Mt. Rushmore of originalism.” If there ever were such faces, they have been eroded by the passage of centuries.

As for the charge that originalism is incoherent: It is true that originalists sometimes offer different versions of their methodology—particularly “original intent” (of the framers), “original understanding” (of the ratifiers), and objective “original meaning.” Moreover, these concepts are often jumbled. For example, a court may refer to the “intent of the framers” when addressing the ratification debates.

One reason for the confusion is simple fallibility, especially by harried judges swamped with work. Another may be unfamiliarity with traditional interpretive standards. Still another may be that evidence of original intent also can serve as evidence of original understanding or original meaning, and so forth.

The correct historical standard is clear: In construing a constitution, the “lodestar” is the understanding of the ratifiers, with objective public meaning serving as a substitute when evidence of understanding is insufficient or fatally conflicting. The framers’ intent is useful primarily as evidence of original understanding or original meaning.

As a practical matter, these sub-methodologies usually produce similar results, and those results generally are more accurate than achieved by “progressive” interpretive experiments.

As I have shown elsewhere, difficulties in applying originalism—evidentiary gaps, conflict, ambiguity, and the like—tend to be exaggerated. When construing other legal documents, the courts regularly confront and overcome such difficulties. Fortunately, much of the Constitution does not suffer from such uncertainties, and some uncertainties that formerly existed have been resolved by originalist scholars.

Originalism was not invented specifically for the Constitution. It is merely a new name for the dominant mode of documentary construction in Anglo-American law.

Unfortunately, some originalists have supplied fodder to opponents by arguing from “evidence” of little or no probative value—especially material arising well after the provision being construed was ratified. Justice Scalia’s opinion in District of Columbia v. Heller can be justly criticized for this: What happened in 1867 (or 1267) should be of little concern to a court interpreting the meaning of a clause adopted in 1791.

Moreover, expanding the temporal scope of an originalist inquiry beyond the scope of the ratification record increases evidentiary difficulties and risks. I plan to enlarge on those in a later essay.

I have published extensively on the amendment process—perhaps more extensively than any other active scholar. From that perspective, I found particularly unpersuasive the Atlantic/Lepore charge blaming originalism for our modern reluctance to amend the Constitution.

It was not reassuring to find the charge marred by some technical errors. The assembly that the Constitution calls a “Convention for proposing Amendments” is the immediate proposing entity—not, as the article says, the states. Nor is a convention for proposing amendments a “constitutional convention,” as the article labels it. In its purpose, power, and scope, an amendments convention is more akin to the 1861 Washington Peace Conference than to a constitutional convention.

Rather than rebut the article’s strained argument point by point, I’ll outline the actual reasons for the paucity of recent amendments.

Throughout much of the twentieth century, liberals and progressives enjoyed enough power to secure the adoption of amendments they favored. Around 1968, they lost that power, as Americans increasingly recognized that the federal government was not living up to the liberals’ billing. At that point, as Professor Lepore acknowledges, liberals turned to the Supreme Court to obtain constitutional change.

After 1968, “conservative” proposals—such those for amendments mandating a balanced budget and congressional term limits—became hugely popular. But liberals were still strong enough to prevent Congress from proposing conservative amendments. So conservatives turned to the convention-proposal mechanism.

To force Congress to call an amendments convention, two-thirds of the state legislatures must issue demands on matching subjects. To block this from happening, liberal opinion makers, in conjunction with compliant mass media, argued that an amendments convention was an unlimited “constitutional convention” that could stage a coup d’état and rewrite the Constitution at will. This claim frightened some conservative state lawmakers into joining with liberals to defeat legislative applications for a convention. Thus, the disuse of the amendment process has nothing to do with originalism. It is the result of the current political balance and of the power of the “runaway convention” myth.

To summarize: Originalism is not new or different. It is an application to the US Constitution of the same interpretive methods applied to other documents—the same interpretive environment in and for which the Founders wrote and ratified it. Originalism’s pedigree dates back thousands of years—hundreds in the Anglo-American system. Its weaknesses have been exaggerated, but to the extent they exist, they sometimes are the product of confusion among originalists themselves.

Interpreting a document using originalist sources can, like any legal task, be done badly or well. The fact that it can be done badly is not a reason for adopting less accurate methods.

Finally, the recent paucity of constitutional amendments has nothing to do with originalism. It is the result of political factors coupled with a successful “runaway convention” propaganda campaign.