Category: Michael Novakhov – SharedNewsLinks℠

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May it ever be so.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Religious Exemptions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thanksgiving

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

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

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

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

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

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

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

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

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

Thanksgiving Wine Suggestions

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

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

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

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

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

French Blue: Bordeaux Rosé, $20

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

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

Beaulieu Vineyard: BV Napa Valley Cabernet Sauvignon, $40

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

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

When it comes to dessert, the Romans recommend:

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

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

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

Happy Thanksgiving!

John McGinnis’s lead forum essay is characteristically intelligent, scrupulous, and concise. He reads the judicial tea leaves, discerning the Roberts Court’s priorities when it comes to undoing some of the institutional distortions that previous Courts have countenanced, and offering a path to reinstate a more robust nondelegation doctrine as the central element of constitutional renewal.

I write here not to quibble with McGinnis’s main argument, with which I am in general agreement, but to raise a question about an issue he mentions only in passing—though I think it is more relevant to the nondelegation issue than that reference suggests. And while his general approach is legal in nature, mine is more institutional and political.

McGinnis brings up the Court’s expansive commerce clause jurisprudence only by way of an analogy to the possibility that the Court, in reasserting “the Constitution’s design for executive and judicial powers,” could be “inviting … chaos.” He notes that widespread reliance on the expansion of federal power has long been seen as a reason not to overrule past precedents that have expanded the scope of the commerce clause, even if one believes they ballooned federal power well beyond what is authorized by the Constitution’s text. The horizontal, separation-of-powers problems under consideration, he believes, do not run into this issue, or can be addressed in a way that avoids it.

McGinnis does not say anything more one way or the other on the commerce clause or the expansion of federal power more generally, so I do not impute to him any particular viewpoint. I will only suggest that there is a close and domino-like connection between these three problems: 1) the erosion of strict limits on federal power, 2) the delegation of power from the legislature to the executive, and 3) the empowerment within the executive of unaccountable bureaucratic agencies. McGinnis rightly notes that the Roberts Court seems most interested in and has had the most success with #3; that it has at least some interest in #2, though just how far it is willing to go remains in question; and that it seems mostly uninterested in #1 beyond symbolic gestures. I would caution, however, that those latter two problems are dominoes that fell for good reasons once the first problem became entrenched and generally accepted.

Therefore, any attempt to revive the Constitution’s separation of powers framework without doing something about its federalism framework may only cause new problems.

To make a brief digression, I will call on James Madison to set the table conceptually. One of the most unjustly neglected of the Federalist essays is, I believe, number 56, which considers whether the overall size of the House of Representatives is adequate to make it properly representative of the people’s interests. One of his premises is relevant to the present discussion:

It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority.

He then goes on to note the relatively few and defined “circumstances and interests” that federal authority addressed—namely, interstate commerce, taxation, and the militia. A relatively small handful of representatives will be perfectly capable of possessing a sympathy of interests and the “local knowledge” necessary to make policies in those areas.

Similarly, in number 14, Madison reminds his readers that the federal government’s

jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity.

He then goes on to note that “were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection” (emphasis added)—namely, their objection that the new Congress would be unable to adequately account for the interests of its people.

Fast-forward 230 years or so, and the landscape of policymaking is radically different, but Madison’s basic premise is still relevant. There is a certain amount of specialized knowledge that is necessary to make any given policy. When we are talking about an extremely large and diverse country, it may still be possible to make policy in a republican fashion by representatives, but only if the policies are broad and limited in scope. If that same government were to be a general-purpose regulator of all aspects of common life, genuine republican self-government would no longer be possible.

Any attempt to resolve the structural distortions of our constitution, without addressing the expansive commerce clause, may be like attempting to flatten a water balloon—squeeze in one spot, and you will only cause a flare-up somewhere else.

One of the most common arguments in favor of delegation is that Congress does not possess the requisite knowledge and expertise to make good policy. Accordingly, it hands that duty off to those who do. To be sure, the kind of “knowledge” and “expertise” that we talk about today isn’t exactly what Madison had in mind, but his basic point still holds. Advocates of delegation are right that members of Congress don’t really have the requisite knowledge to make detailed policy choices on every conceivable social question. Where they go wrong is thinking that the solution is to send that power to “experts” in the appropriate bureau with scientific knowledge as their guide, rather than sending that power back to localities and states with local and circumstantial knowledge as their guide.

Moreover, as federal authority has expanded, so has the public expectation that the federal government will solve a variety of social ills that it never had the capacity to address properly. This almost certainly contributes in some way to the declining trust in federal institutions, of which Congress has long been the prime example.

If the Court is successful in pushing real policy choices back to Congress, as McGinnis hopes, we are likely to relearn the lesson that, given the current scope of federal regulatory power, the institution is incapable of making such choices—at least of making them well. If our reforms stop at the horizontal plane of nondelegation, it may simply result in a greater crisis of congressional legitimacy as it inevitably fails in its expected role. That may prompt an even stronger push for rule by executive, a practice that seems to have growing bipartisan support. Perhaps the Court would stand fast in resistance to the backlash, striking down “phone-and-pen” governance. But it may cave; or its justices may be replaced; or it may be ignored. That last possibility is a prospect that might not be too far off, given just how executive-centered our political system is becoming.

To avoid that fate, the Court would need to take the next step of the constitutional restoration project: the vertical balance. That would be a much more difficult prospect. Americans now look to Washington, DC, not only for policy but for their identity as citizens; the most powerful interests in the country all have a vested interest in having a single hub of authority to which they can send their lawyers and lobbyists; our economic system is built around there being one set of rules pronounced from DC; and both major political parties have built messages and coalitions around national visions that given them every reason to resist an erosion of federal power.

If all this is correct, it would raise two important questions. First, could McGinnis and Rappaport’s “prospective overruling” work for the commerce clause, too? Could it make decentralization palatable enough to prevent massive resistance? Second, does the current iteration of the Roberts Court have any more inclination to pursue this path than the 2012 version, when Roberts himself went out of his way in NFIB v. Sebelius to ensure that some rationale would be found to uphold federal regulation, even when the commerce clause fails?

In theory, I don’t see why prospective overruling could not be applied to questions about the scope of federal power. Just as McGinnis describes its delegation questions, it could allow past pieces of legislation that have generated sufficient reliance interests to stand as a matter of precedent, while still making clear that they are unconstitutional on the merits, and thus rob them of precedential import. Nevertheless, prospective overruling would likely create an extremely awkward and rigidified regulatory environment in which outdated federal rules would still apply, without any ability to update them. And it would raise the question as to whether such grandfathered-in rules would perpetually preempt state and local attempts to update them.

Which is to say that prospective overruling of commerce clause precedents would likely be an extremely difficult prospect—maybe not even any easier than the “chaos” that outright overruling would invite. John Roberts has already shown his disinclination to pursue the difficult path. Will the other originalist justices be willing to take on such a radical agenda?

Any attempt to resolve the structural distortions of our constitution, however, without addressing the expansive commerce clause, may be like attempting to flatten a water balloon—squeeze in one spot, and you will only cause a flare-up somewhere else. The only way to succeed is to choose a painful route: poke a hole and let the water out.

A provocative thesis underlies Joe Jackson’s Splendid Liberators: Heroism, Betrayal, Resistance, and the Birth of the American Empire. The author argues the Spanish-American War was a pivotal moment in US foreign policy that ushered in an age of American interventionism. It became the “template” for every so-called small war ever since­—“from the Bay of Pigs to Vietnam, Iraq and Afghanistan.” The war, Jackson argues, is not only history but a cautionary tale.

Splendid Liberators is a work of modern narrative nonfiction that covers the Pacific and Caribbean theaters of that war. At the time, US Secretary of State John Hay called the conflict a “splendid little war.” To his credit, Jackson has reached beyond traditional US sources, materials, and perceptions. He uses archival materials in the Philippines and Cuba and interviews with scholars in those countries. This material and firsthand accounts gleaned from diaries, letters, and unpublished reminisces add genuine depth to this account. The result is a broad, sweeping work that captures America on the eve of empire building, replete with revealing insights that sometimes sink under the weight of tangential narrative and uneven writing.

Unrest, War, and Insurrection

Jackson begins his narrative by recounting the decades of unrest created by exploitive Spanish colonialism in the nineteenth century. The vestiges of a once vast overseas empire in the New World and the Pacific were island possessions that included Cuba, Puerto Rico, and the Philippines, and “Spain was a parasite sucking them dry.” Spanish policy bred unrest, years of armed rebellion, and revolution that was met with terrible force. The Cuban rebellion, Jackson notes, lasted nearly thirty years and was not quelled by military action, arrests, executions, or the establishment of reconcentrados­—concentration camps created to separate rural populations from rebels.

Splendid Liberators describes the outsized role the American press had in publicizing and then exaggerating Spain’s heinous efforts to suppress unrest and crush rebellion. Symbolic images of “Cuba as a starving woman with sunken eyes and fleshless ribs” in a reconcentrado first appeared in print in 1896. American correspondents were imprisoned and deported. Nothing outraged Americans more, however, than lurid stories of defiled Cuban maidens, trumpeted with banner headlines asking: “Does Our Flag Shield Women?” Eventually, “coverage reached an unprecedented level of shrillness and cascading cries for intervention became the new norm,” as correspondents flooded Cuba and yellow journalism took hold of New York City’s penny press and midwestern weeklies.

Although previous works explore this coverage more fully (for one, Charles Henry Brown’s The Correspondents’ War), Jackson is on solid ground with claims that the popular press of that day shaped American foreign policy. The author describes how pressure built on the McKinley Administration—especially on the president himself, “a man trapped between two unmoving rocks of belief” between peace and humanitarianism—to intervene in Cuba and ultimately declare war on Spain.

Even in this well-grounded beginning of Splendid Liberators, what should be a tight narrative thread begins to unravel. Jackson first loses his narrative focus here and writes pages about Stephen Crane, just one of the famed correspondents in Cuba. Then the author segues into an out-of-place discussion on the “roots of twentieth century American literature,” in which “suddenly, no higher meaning or old truths intercede, only the lonely struggle to survive amidst a revelatory rage.”

Splendid Liberators is mistitled. There was nothing splendid about one of the most shameful episodes in American history.

This will not be the last time Jackson writes maudlin prose in this book. Jackson can write vividly and with a keen eye for description. For instance, in describing the public reaction to yellow press accounts of Spanish assaults on Cuban women, Jackson writes that “America hummed like an angry hive.” At other times, he is mawkish, as when he describes American war fever making “the young and the restless want to be a part of it. The winds tremble. The distant thunder rolls.” 

More troubling for the reader is the author’s decision to cast bit players in recurring roles. In the book’s front matter, Jackson lists no fewer than 96 “Dramatis Personae” with narrative roles to play. These include infantry soldier Carl Sandburg (later poet and author) and nurse Clara Maass (a victim of voluntary yellow fever trials), and others who are only on the margins of the story here. Dozens of these minor actors come and go throughout Splendid Liberators, and what should be a crisp, lively narrative becomes at times stodgy and sluggish reading.

Race and Remembrance

Splendid Liberators is a book of social and political narrative history, as well as one of military history. While Brian McAllister Linn’s The Philippine War, 1899-1902 and G. J. A. O’Toole’s The Spanish War: An American Epic,1898 are standard military histories of these wars, Jackson does a credible job writing military accounts. He covers, in sound detail, military actions from fleet engagements to land battles—including the poorly planned assault on the San Juan Heights. The author is at his best, however, when he gleans from individual accounts the suffering and privations of the men and women caught up in this conflict.

Jackson uses some of these accounts to buttress his argument that racial animosity was a key factor in events leading up to and during the Spanish-American War and especially so during the Philippine Insurrection (1899–1902). For example, he ascribes McKinley’s failure to intervene in Cuba as early as 1897 to his fear that a free Cuba would be “a racial Utopia compared” to the United States, although the author’s assessment is based only on one obscure source.

He also describes the indignities heaped upon black units in the regular army, an indictment of the bigotry and racial animus of the times. For example, Jackson brings to light the little-known race riots in Tampa, Florida. It was, he writes, “one of the worst racial clashes in an army camp during the war, a culmination of all the hatred that had grown between blacks and whites,” not only in Florida but throughout the post-Reconstruction South and during the start of the Jim Crow era.

It was, however, only a harbinger of worse things to come. Splendid Liberators recounts outrages perpetrated on the Filipino people during the insurrection after the Spanish cession of the Philippines to the US. In retaliation for gruesome Filipino guerrilla tactics, Americans carried out reprisals and executed a scorched-earth policy against people they called “n*****s” and dehumanized as “gugus.” “The war that resulted transformed the archipelago into a post-apocalyptic wasteland of famine, disease, ecological disaster, and hundreds of thousands dead.”

American troops’ atrocities are cited in this book—the execution of unarmed prisoners and civilians, torture (including infamous waterboarding, called the “water cure” then), the wholesale destruction of crops and livestock, razed villages, targeted attacks on non-combatants, murder, and rape. Given these horrific and widespread war crimes, Splendid Liberators is mistitled. There was nothing splendid about one of the most shameful episodes in American history.

Jackson’s unflinching account of the Philippine Insurrection is the best of what narrative history can offer readers. Still, this book is not without flaws. Splendid Liberators is flecked with errors that should have been corrected by the author or a careful editor. Jackson, for example, describes the Krag-Jørgensen rifle carried by some American troops as a “30 shot, 5 caliber” weapon; it is a 30-caliber rifle with a five-round magazine. In another instance, Jackson claims an officer graduated “number 3,616 in West Point’s class of 1894—the ‘goat.’” That graduating class numbered 54. These errors are not confined to the text. The 43 historic photos in the book include a picture of Frederick Funston, a pivotal figure in the conflict who fought in Cuba and the Philippines. The caption claims Funston is wearing the uniform of a junior officer of volunteers, but, in fact, this is a photo of Funston as a brigadier general in the US Army. The cover art, ostensibly illustrative of the American war with Spain that began in 1898, is a depiction of the Battle of Desmayo between Cuban insurgents and Spanish forces in 1896.

Beyond annoying errors of fact, the book can be difficult to read. Jackson sometimes skips forward and back, writing broken chronological accounts. This is distracting, especially when the author suddenly shifts from the past to the present tense when he writes not only about the same event, but even in the same paragraph. The notes, organized by page numbers, are a confusing jumble that don’t always provide a direct citation for quoted text. It’s difficult to reconcile attribution and specific claims in Jackson’s work with either a primary or a secondary source.

Jackson also makes acerbic comments throughout his book, wholly out of place even in writing a narrative history. He writes, for example, that various American presidents looked to the Philippines and “hoped to recast the archipelago ‘in our image.’ Considering America’s current number of mass killings, they succeeded.” In another instance, he claims to have found a “frequent fixture in the American character: patriotism that allows malice at home, and … murder overseas.”

In the end, Jackson’s Splendid Liberators is a bitter commentary on the onset of the age of American empire and especially on the nation’s first wars overseas. On many levels, then, this is a difficult book to read; but its critique of American exceptionalism and the nation’s little wars cannot be ignored.

New York, August 16, 1824. The guns had scarcely fallen silent when the bells began. Bunting unfurled; apprentices scrambled onto rooftops; veterans pinned sun-faded cockades. A steamboat shrieked past Staten Island as ferries veered in for a glimpse of the man the papers called the Nation’s Guest. Then the figure who had once ridden beside Washington—older now but unmistakable—stepped ashore at Castle Garden: Marie-Joseph Paul Yves Roch Gilbert du Motier de La Fayette, Marquis de La Fayette. At the subsequent reception, “In they came, rich and poor, Black and white … old veterans, young soldiers.” For thirteen months and more than six thousand miles, through all twenty-four states, variations of that scene replayed: processions, banquets, tears, toasts. Ryan L. Cole’s The Last Adieu invites us to follow Lafayette’s Farewell Tour—and asks why it mattered.

Cole, a former speechwriter to Governor Mitch Daniels and author of Light-Horse Harry Lee, writes with a journalist’s eye for municipal pageantry: arches and illuminated decorations, menus and militia drills, the civic theater of a republic tidying itself because a hero is coming. He is superb at showing how towns rehearsed gratitude until welcome became a national language, even if the interpretive spine sometimes lags behind the scenes. Published to mark the tour’s bicentennial this year, The Last Adieu doubles as commemoration and lens: a timely reminder that Lafayette’s persona—so steeped in Revolutionary ideals—could briefly knit a fractious nation together, and a mirror for our own moment.

The timing was perfect. In 1824, the United States was noisy, expanding—and divided. The presidential race splintered over who would succeed James Monroe: Andrew Jackson, John Quincy Adams, Henry Clay, or William H. Crawford. The economy lurched; slavery’s westward push darkened debate; and the Revolution’s living witnesses were fading, their ideals dimmed in a more partisan, commercial age. With the Declaration of Independence’s fiftieth anniversary approaching, Americans looked backward with yearning. The Founding Fathers had become figures of near-mythic unity, even as that unity had always been fragile. Few of them remained alive—only John Adams and Thomas Jefferson still survived among the great names. In this atmosphere of nostalgia and uncertainty, one man embodied the living memory of that heroic age: the Marquis de Lafayette, the last surviving major general of the Continental Army and George Washington’s self-proclaimed “adopted son.”

President James Monroe recognized the symbolic power of inviting Lafayette to return from France for the approaching semicentennial. The results of the Tour were extraordinary. As a foreign hero above domestic factions, visiting hundreds of cities and counties, Lafayette indeed became a unifying emblem in a season of division. Cities and towns staged vast civic rituals, and political opponents stood side by side to cheer “the last general of the American Revolution.” The tour turbocharged early American celebrity culture—portraits, ribbons, crockery, songs, and endless newspaper coverage—and it catalyzed commemoration: monuments rose, Revolutionary sites were restored, and local histories flourished. In celebrating Lafayette, Americans rediscovered the Revolution itself.

As Cole explains in The Last Adieu, Monroe’s invitation arrived alongside private letters from old comrades who wished to see the marquis “before it was too late.” Lafayette needed little persuading: he longed to embrace his brothers-in-arms—and he had other reasons to come. Under the Bourbon Restoration, he was admired by some but sidelined by many, criticized from the right for his liberalism and from the left for his moderation. He longed—not unreasonably—for the public affection he had once known in America. Materially, he needed relief: years of imprisonment and confiscations during the French Revolution had damaged his fortune. The American visit promised not only honor but concrete support: Congress would ultimately vote him a substantial cash grant ($200,000) and a land grant of 24,000 acres in Florida—welcome help to a man whose finances had been battered. He also wished to see how the republic had grown since 1784. And ideologically, he hoped that his reports and writings on a thriving American experiment might rekindle liberal confidence abroad, especially in France.

The 1820s did not simply “discover” Lafayette—they made him through souvenirs and songs, orations and schoolbook stories, and the christening of towns.

Cole opens the story at La Grange, Lafayette’s château, moving readers past portraits and objects that summarize a long life—a gallery-like prelude that orients without claiming to be a full biography. Swift and effective, it still raises background questions that would enrich the opening: why did contemporaries judge his wartime role crucial? What shifted between Washington’s caution in the 1790s and the adoration of 1824? How did Adrienne de Noailles shape his life? And why was his standing so battered amongst his French countrymen, and yet he achieved a kind of apotheosis in America? The next chapter’s survey of US politics and growth is informative but long for material not tightly tied to Lafayette; much of the content could have been braided into the itinerary.

The heart of the book traces the Farewell Tour almost day by day: six thousand miles by steamboats and canals, stagecoach and horseback. Cole draws on an impressive trove of newspapers, correspondence, municipal records, invitations, and speeches to paint New York’s delirium; Philadelphia’s pageantry; receptions in Washington City and Lafayette’s remarks to Congress; the hushed pilgrimage to Mount Vernon; Yorktown’s anniversary; a push west to the frontier; and the spill and scare when the Mechanic sank near Louisville. Towns refurbished Revolutionary landmarks; souvenirs proliferated; a young consumer republic learned to monetize—and memorialize—its gratitude. The landing’s emotional temperature is “the return of the Revolution … the perfect confluence of feeling, history and time.” No faction could monopolize him; Lafayette became “the object of the entire nation’s admiration.”

Read alongside the itinerary, the book doubles as a brisk portrait of a republic transformed in half a century. Canals and steamboats collapse distances; print culture and civic associations thicken public life; towns balloon into cities with new markets, professions, and tastes; party structures harden even as civic rituals try to soften them. Without pausing the narrative, Cole lets readers feel how different 1824 looks from 1776—an America more populous, commercial, infrastructural, and self-conscious about its past. That lightly threaded backdrop is one of the study’s most engaging contributions.

One of Cole’s other signal contributions is staging the tour as a traveling theater with a marvelous ensemble. Closest to the star are his son, Georges Washington de Lafayette—who lived with the Washington family during his parents’ imprisonment during the French Revolution—and Auguste Levasseur, the indefatigable secretary-publicist whose 1829 account helped shape memory of the journey. In city after city appear elderly veterans, Masonic lodges in full regalia, merchants turning admiration into handkerchiefs and medallions, poets and bandmasters minting odes, politicians like Andrew Jackson and orators like Daniel Webster, French émigrés, and the Custis family at Arlington and Mount Vernon. John Quincy Adams toasts him; Jefferson and Madison receive him; schoolgirls crown him with garlands; printers sell broadsides by the ream. Cole is at his best when he lets this cast bustle across the page.

The blow-by-blow gives texture and momentum, but at times repetition creeps in—the long streak of parades, crowds, balls, dinners, veterans, Freemasons, political notables, and miles traveled on horseback. Within a single volume, Cole understandably privileges pace; even so, a few added scaffolding beams would steady the interpretive frame.

A firmer thematic spine—veterans’ culture, municipal boosterism, Masonic networks, the press as promoter, preservation and philanthropy, celebrity and politics—would more directly test whether Lafayette truly “united” the nation amid serious political and economic strains. That newspapers wrote less about party while he was in town does not, by itself, mean that minds reconciled. Cole notes grumbles about “too much adulation” and cites Lafayette’s confidence in a “reconciliatory effect,” but dissenting voices and partisan readings would sharpen the question. Likewise, historians trying to understand the mechanics of nineteenth-century fame—how adoration is constructed and to what ends—could profit from modern celebrity studies.

Another thread could have been Lafayette’s evolving ideas. What precisely did he believe by 1824, and how had his views shifted since wartime and the 1784 tour? The book offers flashes—on emancipation, religious liberty, representation, women’s education—but little synthesis. A comparative glance at 1777–81, 1784, and 1824–25 would illuminate constancies and adjustments and show how his principles met the realities of a more populous, commercially ambitious, infrastructural America.

Subjects that surface in anecdotes could also use fuller treatment. Slavery appears repeatedly—in cityscapes, in encounters (Cole notes an old acquaintance from 1777, “Pompey,” with whom Lafayette shares champagne), and through Frances Wright—yet Lafayette’s antislavery program (his experimental plantation, his advocacy in France, the through-line of his views) receives only brief attention. Native nations appear at the margins: the Creek predicament is sketched, as are the effects of expansion and industrialization on Indigenous life, but we hear little of Lafayette’s responses to Native Americans, a topic close to his heart—he collected indigenous artifacts at La Grange after the tour. Women beyond Wright are mostly belles at balls; there are richer ways to see them as shapers of memory culture in academies, civic philanthropy, trades, and commemorations, and to bring forward Lafayette’s views on women’s education and rights.

Another shortcoming is that Cole leaves Lafayette’s companions on the journey under-drawn. Auguste Levasseur, Lafayette’s private secretary, appears mainly as a source rather than a presence. Yet Levasseur was far more than a stenographer: his Journal of a Voyage to the United States of America (published in 1829) became the official narrative of the tour, shaping how Americans and Europeans alike remembered it. A skilled propagandist and liberal journalist, Levasseur helped craft the marquis’s public image as the “nation’s guest,” curating newspaper coverage, organizing appearances, and controlling access. Through his pen, Lafayette’s passage became a model of transatlantic republican virtue—part travelogue, part political lesson, and part mythmaking.

Lafayette’s son, Georges Washington de Lafayette, likewise receives only passing notice. His very name—bestowed in honor of his father’s American mentor—embodied the symbolic bridge between the two republics. Georges had once taken refuge at Mount Vernon during the darkest years of the French Revolution, and his return to America in 1824 alongside his father closed that emotional circle. His impressions of a vastly transformed United States, and his role as both filial companion and emblem of youth in the public ceremonies, could have deepened the narrative. The father-son dynamic—aged hero and heir, memory and renewal—offered a human dimension to the tour that remains largely latent in Cole’s telling.

Cole deserves real credit, though, for weaving Frances (Fanny) Wright into the story. A Scottish-born writer, freethinker, feminist, abolitionist, and later a US citizen, Wright addressed diverse audiences on politics and reform, advocated universal education, women’s legal rights and liberal divorce laws, birth control, and emancipation, and in 1825 founded the Nashoba commune to model a path from slavery to freedom. She traveled alongside parts of the tour, visited Monticello with Lafayette, and moved within reform networks he admired. Cole’s inclusion of her perspective is a real strength of the book, even if the material invites even more examination of Wright and Lafayette together. We should understand their ideas in dialogue rather than in parallel.

If Americans in 1824–25 used Lafayette to remember who they had been, our task today is to use him to think about who we might become.

One further question—apt for the bicentennial of Lafayette’s farewell tour—is how the tour itself shaped the telling of Revolutionary history: did schoolbooks, local histories, and national narratives accord Lafayette a larger place after 1825, just as towns and counties took his name? Answering that would round out the story Cole has begun.

Because Lafayette was profoundly transatlantic, the clearest opportunity for expansion is the French side of the story. The book notes his divergent standing in France but rarely lets French sources speak. Was the tour followed in Parisian papers? Did Lafayette or Levasseur write home to seed the “reviving [of] moribund liberal spirits in France”? How did the journey affect his position under Louis XVIII and Charles X, and the energies that would break in 1830? Given the American rejoicing rendered here, the comparative shadow feels faint.

Accuracy matters in a history book. The Metz dinner occurred in 1775, not 1776. Washington’s physician was James Craik, not “John Cochran.” Lafayette did not “found” the French branch of the Society of the Cincinnati; he was a prominent member, not its founder. None is fatal; all are easy to fix.

To its credit, the book’s insights travel well to the present. Cole shows how public ritual and shared memory can, at least for a season, quiet partisan tempers. Editors who had dined on faction turned to parade routes and ball menus; rivals cheered side by side as the “Nation’s Guest” passed. Whether that harmony outlasted the fireworks is harder to prove, but the aspiration is recognizable. He also reminds us that commemoration is constructed. The 1820s did not simply “discover” Lafayette—they made him through souvenirs and songs, orations and schoolbook stories, and the christening of towns.

Many moments of the Tour are beautifully rendered, too many to list, but three scenes especially linger. At Mount Vernon, Lafayette emerges from the vault “with his eyes overflowing with tears,” and George Washington Parke Custis presents him with a ring containing Washington’s hair, creating a genuinely moving moment for the reader; later, as Lafayette glimpses Mount Vernon for the last time from the deck of the ship carrying him back to France, the farewell is all the more poignant. On the Ohio River, Lafayette and his party face the greatest peril of their journey when the steamboat Mechanic sinks near Louisville on the night of May 8. Cole’s account lingers on the chaos in the dark, the drowning of a beloved dog, the terrifying uncertainty over whether Lafayette’s son has survived, and the loss of clothing, keepsakes, and money gathered along the way, before the party regroups and continues on through Indiana and Kentucky to Cincinnati. And last but not least is Lafayette’s comparison that France might have fared differently had 1789 “kept its original direction,” which makes the tour feel less like a triumphal victory lap than a final, insistent argument for liberalism.

The Last Adieu is, finally, a generous gift for readers who want to walk the route, see the arches, hear the bands, and meet the people—veterans and politicians, reformers and merchants, mothers and schoolboys—who made a continental party of gratitude. The research in correspondence, newspapers, and municipal ephemera is tireless; the portrait vivid and exhilarating.

The affection has proved enduring. Across the United States, towns named Lafayette, counties styled “Fayette,” and innumerable streets, squares, schools, and colleges attest to a sustained habit of gratitude. In 2024–25, the American Friends of Lafayette retraced the route with partners in all twenty-four states, reviving ceremonies and teaching the principles Lafayette championed. The Lafayette Trail continues to map and mark sites nationwide; in France, several efforts are led by the Fondation Chambrun. Forthcoming commemorations from 2026 through 2033 promise deeper public engagement on both sides of the Atlantic.

Taken together, these projects underscore the very point Cole presses: commemoration can do civic work, not just ceremonial work. If, as he shows, Americans in 1824–25 used Lafayette to remember who they had been, our task today is to use him to think about who we might become. The durable lesson of the Farewell Tour is not simply that a republic can crown a hero for a year, but that liberal ideals of constitutionalism, civic equality, the rule of law, and representative government can be taught, argued, and renewed. This book, abundant in scenes, sturdy in reportage, candid about what it leaves up for debate, helps that renewal along. Now, in 2025, with America 250 approaching, Lafayette’s story offers a guide: commemoration can be more than ceremony—an occasion to elevate constitutional ideals and recover a sense of common purpose.

Helen Andrews has a point about wokeness and women. Together, they have done a lot of damage to American institutions.

As many of her critics have pointed out, males as well as females are culpable for mistakes of the 2010s, when performative racial grievance elevated a new multiracial elite at the expense of everyone else, including and especially non-white non-elites. Yet, unlike many of Andrews’ other critics, I do concede that college-educated women deserve a disproportionate share of the blame. 

However, contra Andrews, I contend that this is not the result of elevating women. It’s the result of elevating the wrong women: the kinds of women who organize marches with no discernible objectives, yet claim to embody female empowerment. The kinds of women who cry and scream because professors do not forbid other young adults from wearing Halloween costumes they find offensive, yet claim to be “tolerant” above all. The kinds of women who cannot define the word “woman,” yet insist that the world is rife with misogyny. 

In other words, we have elevated the kinds of women (and, it bears mentioning, the kinds of men, too) who are chronological adults yet think and behave like toddlers: profoundly unreasonable, proudly irrational, and occasionally hysterical. 

The problem Andrews identifies, then, is not feminization. It is infantilization. 

America the Infantile

For over a decade now, clickbait sound bites and one-sided narratives have both created and reflected all sides of our polarized politics and culture. True believers on the left have various litmus tests of illogical allegiance for friends, family members, and politicians alike: trans women are women, equity is true equality, and masculinity is toxic. Their counterparts on the right likewise have nonsensical premises that bond them to like-minded others: America is a Christian nation, America first means America alone, and women ruin workplaces. 

No right-thinking adult could take these views seriously, let alone hold them. They have been elevated because there are now far too many overgrown children, both male and female, in positions of political and cultural power. This immaturity is affecting and infecting nearly all of our political and cultural institutions, rendering Andrews’ fear of a future in which rationality is superseded by irrationality entirely legitimate—and not by the left’s hand alone. 

People with adult qualities of mind and character uniformly accept the reality principle that economist Thomas Sowell has termed “the constrained vision.” They recognize that trade-offs between competing goods and values are an irreducible aspect of personal and political life, and that eradicating these trade-offs is not possible. Grown-ups also recognize that, given the constant reality of competing goods and values, not all moral people will prioritize those goods and values in the exact same way. Among adults who actually merit the designation, Isaiah Berlin’s pluralism reigns: it is entirely possible for two perfectly reasonable people to disagree without one of them necessarily being evil. 

The leftist excesses that rightly worry Andrews are borne of a widespread rejection of these basic tenets of political and cultural maturity. There is also an abdication of personal responsibility for one’s own failures and successes. When everything is “systemic,” nothing is really up to anyone. There is no authority. So it should come as no surprise that performative helplessness, the defining characteristic of toddlerhood, is arguably today’s most potent political and cultural currency, on left and right alike. 

In the remainder of this essay, I will make two arguments. First, I will illustrate why Andrews’ feminization thesis is such a seductive red herring—but a red herring all the same—for the real problem of endemic, unisex American immaturity. Second, I will make the case for recognizing anew, and actively elevating, the incomparable societal value of grown-up women. 

Not All Women

In the summer of 2020, after George Floyd was killed, Robin DiAngelo’s 2018 book, White Fragility, topped the bestseller lists. DiAngelo’s thesis is that white people should treat Black people not as fellow human beings and presumptive equals but as endemic “others” meriting sycophantic devotion. She can be fairly considered the founding mother of what New York Times columnist and Columbia linguistics professor John McWhorter calls “woke racism,” or the creepy condescension of the racial equity initiatives that dominated mainstream academic and corporate spaces from 2020 to 2022: The Smithsonian calling “being on time” a tenet of “white supremacy”; discussion circles in schools and elsewhere segregating participants by race; and politicians allowing crime to spike, watching while schools instituted so-called “restorative justice,” and echoing activists’ calls to “defund the police.” 

These patronizing affronts against the dignity of Black Americans (which managed at the same time to introduce various kinds of discrimination against white males ) were not perpetuated equally by Americans of all races, creeds, and colors. Indeed, as I wrote in 2020, progressive, college-educated white women bear a disproportionate share of the blame for the mainstreaming and institutionalizing of the worst “woke” excesses of 2020 and beyond. Without thousands of shrill “mini-mes” embedded everywhere across the nation, DiAngelo would easily have been dismissed as an incoherent, self-aggrandizing fool. 

Adults are supposed to embody authority and women are supposed to be adults. We may need men more than fish need bicycles, but we should not need them in any given moment to make boys or girls behave. 

For Andrews, this reality of women’s unequal blame in the various leftist excesses of recent years amounts to “feminine patterns of behavior applied to institutions where women were few in number until recently.” In other words, wokeness is a direct consequence of the increasing number of women. That alone made wokeness inevitable. 

Andrews fails to notice how our institutions’ elevation of anti-meritocratic performative empathy over reason, and of anti-pluralistic intolerance in the name of tolerance, happened concordantly with their inclusion of women. Unless Andrews is arguing that the removal of barriers to female advancement is, in itself, an outgrowth of leftist excess (which, to be fair, she is not), then correlation and causation remain distinct things. 

So, the problem is not that we began including women, but that we began paying obeisance to infantile nitwittery at the same time that we began including women. As a result, we have included too many infantile nitwits who happen to be women (along with, it bears mentioning, plenty of infantile nitwits who happen to be men). 

There is a complicated history behind this. As Erika Bachiochi has documented in The Rights of Women (2021), the earliest iterations of proto-feminism concerned themselves with women’s spiritual and legal equality within a framework of Christian virtue that applied to women and men alike. While males and females might be expected to demonstrate qualities like strength, bravery, and honor in distinct ways, owing to their inherent biological differences, these virtues themselves were expected from and prized in both sexes. 

Unfortunately, the history of mainstream feminism amounts to a series of moves away from this concept of women’s equal dignity and morality. Beginning in the nineteenth century with the equation of elite white women to “angels” whose feelings could stand in for moral argument—and extending to arguments for suffrage predicated not on women’s equal humanity but on their superior emotive morality—feminism and the corresponding progressivism lionized leftist women’s feelings. That’s where what Allie Beth Stuckey has termed “toxic empathy” (or, many progressives’ endemic elevation of feelings over reason) comes from. 

One can acknowledge that women are, on average, more agreeable and by extension more empathetic than men, and thus the likeliest and ablest promoters of toxic empathy, without accepting Andrews’ thesis. Likewise, to acknowledge that men are on average less agreeable and by extension more aggressive than women, and thus the likeliest and ablest perpetrators of violence, sexual and otherwise, is not to accept the theses of mainstream feminism. 

Empathy and aggression are morally neutral traits. But the indulgence of either, contrary to reason and civilization, should be expected and accepted only from toddlers. 

Our institutions have long been designed to resist, marginalize, and punish undue aggression, which can be properly understood as infantile masculinity, and to select for males mature enough not to indulge it. They were not designed to resist undue empathy. Indeed, many were long ago hijacked by a progressivism that equates unreasoned empathy with virtue. Hence, they resoundingly failed to resist, marginalize, or punish infantile femininity or to select for females mature enough to resist it. 

So, what Andrews positions as a simple chain of events (in came the women, and out went the objective truth!) fails to account for the character and quality—the maturity—of the women in question. In other words, we used to value objective truth and exclude women; now, we value infantile untruth and include women. 

What have we never yet tried? Valuing truth and including women. 

If we attempt that, I suspect we shall find that America is in fact home to large numbers of actual adults who happen to be female. Indeed, I am fairly certain that we could fill every relevant institution many times over with such women, while avoiding all the perils of what Andrews misleadingly calls “feminization.”

My primary worry for America’s future, though, is not that there are too many infantile, weak-minded women in historically male spaces, but that there are not enough mature, strong-minded women in historically female ones. 

American Girl Power

Andrews is worried that “the rule of law will not survive the legal profession becoming majority female.” The predictive value of this statement depends entirely upon the maturity of the females in question. My own worry is that the nation itself will not survive if our mass infantilization continues. 

If we want to grow and institutionalize renewed American maturity, we need adult women to lead the way—not only in our board rooms and courtrooms, but first and foremost in our homes and schools. 

Historically female spaces, as well as historically male ones, merit and require the triumph of reason and discipline over impulse and indulgence. This is necessary for the country to persist. 

After all, it is teachers and mothers lacking in adult reason and authority who produce girls too weak and sentimental to resist misguided empathy (take a look, once again, at today’s young female left) and boys too weak and petulant to resist revolutionary destruction (take a look, if you can bear it, at today’s young male right). 

Those who advocate for more stay-at-home dads and more male teachers, as Richard Reeves does in his 2022 book Of Boys and Men, do so in large part to diversify role models for male success. I have no objection to that. But another tacit assumption is also at work here: we need more male teachers to facilitate better school experiences for boys. Men will allow for more male competition and bodily movement, yet tolerate less bad behavior. 

Aside from realizing that the kinds of men who tend to go into education are not particularly likely to resist the antimeritocratic, undisciplined tenets of today’s educational institutions and that men are not going to become stay-at-home dads or teachers en masse (unless we socially engineer that outcome, psychological and personality differences between men and women being what they are), we must resoundingly reject the notion that women must be flanked by men in order to exact compliance from children. 

American women should be universally more than equal to the task of establishing sufficient structure and authority to facilitate children’s education and formation, whether there are more men in our homes and schools or not. 

I defy anyone to find me any child or group of children hailing from law-abiding, two-parent homes, from toddlerhood through grade school, who I cannot deftly keep in line. This is not a boast; it is a baseline and a given, and one that should be shared with every other normal woman in America. Adults are supposed to embody authority, and women are supposed to be adults. We may need men more than fish need bicycles, but we should not need them in any given moment to make boys or girls behave. 

To put it another way: returning the right’s “soft girl” moms and the left’s gentle “parenting” moms from the courtroom to the classroom and the home would not serve anyone’s interests. Weakness disguised as virtue destroys everything it touches, and schools and homes are upstream of laws and research. 

Thus, we are no better off with today’s overgrown little girls failing to do the work of yesterday’s grown women than we are with their failing to do the work of yesterday’s grown men. Indeed, the former might be more destructive. 

The key to reversing our national infantilization, then, is not to have fewer female attorneys. Rather, we need more Tocquevillian matriarchs—as lawyers and nurses and engineers, yes—but most importantly, as mothers. 

We need, in short, the hands of more grown women like Helen Andrews, rocking more cradles to rule an imperiled world.

Housing has become front-page politics. Zohran Mamdani’s mayoral campaign in New York City featured pledges to freeze rents and build hundreds of thousands of affordable homes, responding to an issue that is felt to be increasingly urgent nationwide. Public housing and rent control have bad track records, but Mamdani’s sense of urgency is justified. Why is housing so expensive? In most sectors, modern technological capitalism has brought plenty, making former luxuries cheap, and food plentiful, yet it seems harder than ever to get a roof over one’s head. What explains that? 

Naturally, there are multiple factors. Partly, remote work has dialed up demand. Partly, housing is a financial asset that often tracks other financial assets such as stocks. But the real problem is the way housing supply is constrained by red tape. 

To house people more affordably, we need to make homebuilding more efficient. But a deeply entrenched overregulation of land use and the building trades keeps homebuilding firms small and backward. Other industries—aviation, computing, agriculture, containerized shipping, manufacturing, retail, telecommunications, and so on—have raised productivity through deregulation, big business, innovation, automation, standardization, and scalability. Homebuilding needs to follow suit.

The Divergence of Home Prices and Paychecks

Housing really has become unaffordable for many people, and Figure 1 sheds light on this by comparing (a) the median sale price for homes, (b) the Case-Shiller home price index, and (c) median household income, all adjusted for inflation and normalized so that the year 2000 = 100. Together, they detail how home prices have diverged from paychecks.

Figure 1. The time trend towards housing unaffordability

Source: US Federal Reserve Economic Data (FRED), accessed October 2025. Series include:

• Median Sales Price of Houses Sold for the United States (MSPUS, US Census Bureau, quarterly) 
• S&P CoreLogic Case-Shiller US National Home Price Index (CSUSHPINSA, S&P Dow Jones Indices LLC and CoreLogic, monthly) 
• Median Household Income in the United States (MEHOINUSA646N, US Census Bureau, annual)
• Consumer Price Index for All Urban Consumers (All Items, SA) (CPIAUCSL, US Bureau of Labor Statistics, monthly)

The median home sale price has risen from a 1990 median of $293,630 to $418,975 in 2024 (in constant 2024 dollars). This can be misleading because of composition effects (rich versus poor doing more of the selling). The Case-Shiller index addresses that by tracking prices across repeat sales of the same houses for selected cities. It omits new houses and doesn’t sufficiently capture home improvements, but it gives meaning to a particular concept of housing affordability. The same houses that were affordable to middle-income families a generation ago are often unaffordable for them today.

Real median household income, also shown in Figure 1, hasn’t shown the steady uptrend that one would hope for. It rose and fell during the dot-com bubble and its aftermath, then rose and fell again during the 2000s housing bubble and its aftermath, and was lower in 2012 than in 1995. Since then, incomes have been rising, but haven’t kept up with housing prices. In the 1990s, it took roughly four years’ worth of median household income to cover the median home sale price. This surged to roughly five years in 2004–06, and approached six years in 2022. By the Case-Shiller measure, home prices climbed more than 50 percent relative to median incomes between the 1990s and the 2020s. 

None of this quite proves that, in general, kitchens and bedrooms, central heating, front porches, and nice neighborhoods with good schools, etc., have become less affordable vis-à-vis basic earning power. Rising prices in established urban neighborhoods, as tracked by Case-Shiller, often reflect falling crime and other real improvements in quality of life. A benign urban revival has occurred in many places. And while homebuilding has slowed, new houses tend to be larger, while older houses get expanded, so the average family has more floor space than in the past. US cities have also tended to de-densify over time, so people are living their lives in less crowded spaces.

At best, rising home prices could be a win-win. Incumbent homeowners enjoy capital gains in pleasantly gentrifying neighborhoods, while income-constrained young families move further out, but get larger homes in spacious emerging neighborhoods with plenty of amenities and their own prospects for capital gain. But the reality is less benign than that.

When the Office Came Home

The recent surge in home prices reflects familiar factors—low interest rates and broad asset optimism—but also one distinctive shock: the mass breakthrough of remote work forced by the pandemic. When lockdowns hit in 2020, office work didn’t break, and managers discovered that the office was optional. Hours worked from home have fallen from a 2020 peak of 60 percent to about 27 percent, but the decline is leveling off. The best guess for the new normal is roughly one in four hours worked remotely.

A leap in productivity made cars affordable for ordinary families and helped create a middle-class way of life defined by mobility, household appliances, and a backyard for the kids. Housing needs a similar breakthrough.

This shift has clear long-term benefits for families, communities, and productivity, but awkward short-term consequences for housing. Mondragon and Wieland (2022) find that each additional percentage point of remote-work prevalence across metro areas corresponds to a 0.9 percent rise in house-price growth and may explain about 12 percent of the national increase in real home prices since 2019. The mechanism is intuitive: when people work from home, they consume more space. Extra bedrooms become offices; empty nesters postpone downsizing. Stanton and Tiwari (2021) show that remote workers choose larger homes and different locations, consistent with higher housing-space demand. 

Remote work also helps explain why the 2020–24 housing boom was more evenly spread than that of 2002–06, as shown in Figure 2.

Figure 2. The house price surge in 2002–06 was concentrated, that of 2020–24 was diffuse

Source: US Federal Reserve Economic Data (FRED), accessed October 2025.

The earlier boom centered on “superstar” metros tied to the IT revolution, where proximity drove productivity. Today’s rise in prices is economy-wide. Freed from the daily commute, some remote workers operate as the arbitrageurs of housing markets—leaving expensive cities for cheaper regions and taking their jobs with them. That has narrowed inter-city price gaps but spread affordability pressures nationwide.

 It’s widely recognized now that superstar cities’ costs drive workers away from high-productivity regions—and thus hurt national output. Those supply bottlenecks still weigh on productive metros, but remote work is beginning to outflank them—exposing another constraint: our inefficiency in building new housing. Remote work increases the need for space only modestly. Its large price impact stems from inelastic supply. When housing demand rises, a sluggish and bureaucratically hamstrung construction sector struggles to meet it.

Why We Need a Henry Ford of Housing

It would be nice if twenty-first-century homebuilding could emulate twentieth-century carmaking. Henry Ford’s assembly line raised output per worker by roughly 700 percent between 1913 and 1925, cutting the time to build a Model T from twelve hours to ninety minutes. That leap in productivity made cars affordable for ordinary families and helped create a middle-class way of life defined by mobility, household appliances, and a backyard for the kids. Housing needs a similar breakthrough.

The best proof of concept already exists where the automotive and real-estate sectors overlap: the mobile home. Factory-built housing achieves large productivity gains because it is standardized, mechanized, and—crucially—shielded from local red tape. Federal code preemption under the 1976 HUD Code created a nationwide market in which homes could be mass-produced and sold across state lines. That legal loophole allows real economies of scale: costs average about $88 per square foot in 2024, roughly half those of site-built homes.

For a time, manufactured homes steadily gained market share, peaking at 580,000 units shipped in 1973—more than a quarter of all new single-family homes—before collapsing to 50,000 per year by 2009. Researchers such as Carly Slade (2019) and the Harvard Joint Center for Housing Studies (2024) have shown how institutions throttled the industry as zoning boards and local codes reasserted control. Urban Institute (2018) data show that three-quarters of US jurisdictions restrict or ban manufactured homes in residential zones.

Where federal preemption ends, local obstruction begins. The HUD chassis rule (24 CFR § 3280.902) adds cost and precludes basements. Zoning blocks infill, while “affordable housing” subsidies such as LIHTC and HOME direct resources to much costlier projects—often $250 per square foot. The result is a perversity: government suppresses naturally affordable housing with one hand and subsidizes bureaucratized “affordability” with the other.

Ironically, the same HUD Code that limits mobile homes’ design also demonstrates what can happen when production is liberated from local micromanagement. Factory-built housing shows that standardized, scalable methods can deliver abundance. Yet outside that narrow sector, construction productivity has stagnated. Labor productivity in US construction has fallen more than 30 percent since 1970, even as the broader economy’s productivity has doubled. The industry remains one of the least digitized: dominated by small contractors, solving problems locally, and too fragmented for systematic R&D or technology adoption.

With luck, we might get a pattern for houses like we have for cars, where the rich buy the newest and best while people on a budget buy hand-me-downs that are still pretty good.

Occupational licensing compounds the problem. As economist Morris Kleiner documents in Licensing Occupations (2006) and Guild-Ridden Labor Markets (2021), licensing growth in construction has outpaced nearly every other field, raising prices without measurable quality gains. The apprenticeships typically required to get occupational licenses have their romance, but doing and teaching are actually different skills, and the route to productive, specialized work today usually runs through education and open competition, not incumbent gatekeeping.

Mobile homes are what economists call an “inferior good,” like margarine, instant Ramen, or public transit, disproportionately bought by poor people, because they can’t be wider than road lanes allow, which precludes the most appealing floor plans. More mobile home adoption as starter housing would free people to start families sooner and help them save money for a down payment on something better. Meanwhile, further up the scale, new building materials, more energy-efficient designs, smart homes with embedded Internet of Things devices, and integrated photovoltaics, AI, 3-D printing, and virtual and augmented reality—want to walk through your dream home virtually before you build it?—are enabling new frontiers of convenience and luxury. With all this improvement going on, it’s a missed opportunity that we’ve let the median age of US housing rise from 31 years in 2005 to 41 years in 2023.

Fast broadband connections, including to build sites by wireless and satellite, computer vision, augmented reality for smart tools, delivery of supplies by autonomous vehicle or even by drone, AI, and the new culture of remote work among workers and managers, are all tools in the arsenal of a potential Henry Ford of twenty-first-century housing who might bring factory efficiencies to on-site homebuilding. Humanoid robots won’t build houses anytime soon—general robot dexterity remains elusive—but task-specific robots and smart tools could help. The scale economies, capital intensity, and benign deskilling characteristic of Fordism are more achievable in a geographically distributed business like on-site homebuilding, now that broadband is ubiquitous and remote work is normal. And AI art, 3-D printing, and augmented and virtual reality open up fascinating new possibilities to satisfy idiosyncratic tastes and sentiments while at the same time deploying factory-produced modular components, capable of easy repair and upgrading, to make homes as smart as phones and cars. With luck, we might get a pattern for houses like we have for cars, where the rich buy the newest and best while people on a budget buy hand-me-downs that are still pretty good. But we can’t find out what can be achieved because the same forces stand in the way: incumbent gatekeeping in licensed building trades; opaque and fragmented local zoning and building codes; and firms too small to practice scientific management and lean into technological progress.

Finding the Freedom to Build

Housing needs a strong dose of libertarian common sense. Some things are none of the government’s business, and low construction productivity and housing unaffordability are largely a function of government meddling more than it should.

Consider the following thought experiment. Imagine that Americans fall asleep tonight and are visited by the ghosts of John Locke and Thomas Jefferson, who teach them new principles. They then wake up burning with new convictions that all men are created with equal and inalienable rights to liberty and the pursuit of happiness, including the right to improve one’s land as one sees fit, park a mobile home in one’s backyard, and hire whomever one wants to fix wires and pipes. Convinced that governments are instituted among men to protect, and not to violate, these rights, they alter or abolish zoning and occupational licensing boards. What would happen next?

Our housing affordability problems would melt away. The change would probably begin with a lot of mobile home infill in suburbs. Consolidation and scaling in the homebuilding and rental industries would follow. Then we’d see technological change and productivity growth in construction, as we did in manufacturing. By the late twenty-first century, the next generation might look back on the bad old days when only the rich had graceful, garden-ringed mansions the way we look back on the bad old days when only the rich had cars.

As St. Augustine and St. Thomas Aquinas wisely taught, “human law is law only by virtue of its accordance with right reason. … Insofar as it deviates from right reason, it is called an unjust law; in such case, it is no law at all, but rather a species of violence.” This admirable principle is difficult to put into practice. But the rise of Uber provides a fascinating case study in a kind of capitalist civil disobedience for the common good, which might outflank the unreasonable rules that bottleneck homebuilding. Before 2009, taxi service was controlled by tight rules that served no purpose except to enrich certain insiders. Uber’s “ride-sharing” service was effectively a taxi service, yet it launched in city after city, quite outside the rules, and was borderline or outright illegal. Some authorities intervened with cease-and-desist orders, fines, and impoundments of vehicles, but Uber ignored the orders, mobilized its customers, lobbied aggressively, and won. Likewise, to fix housing, entrepreneurs may need to combine the virtues of Henry Ford and Robin Hood.