Category: Michael Novakhov – SharedNewsLinks℠

Wendell Berry’s most recent novel, Marce Catlett: The Force of a Story, cements him as one of America’s finest propagandists.

I don’t mean this as a personal attack. Berry, now 91, has written more (and more insightful) essays, novels, and poems in his old age alone than most of us could imagine writing over the course of our entire lives. Several of these have impacted my life profoundly. Some I teach every year. 

But Berry has long displayed a tendency to subordinate artistic forms—which should seek primarily after beauty, a true representation of reality, and an authentic account of human flourishing—to politics. Berry’s art is didactic. It wants to teach you something, and that thesis—at least in Berry’s more recent work—is political. It has an ulterior motive. It wants to sell you something. Specifically, it wants to sell you the idea that there is one way of viewing politics that is correct and many, many others that are wrong. This approach instrumentalizes the art into a piece of technology and transforms his relationship with his audience from a dialogue—a mutual gazing on, paying attention to, and representing reality to discern the truth—into a monologue. 

Take, for example, this passage towards the end of Marce Catlett, in which Berry’s omniscient third-person narrator discusses how World War II transformed the role of farmers in America:

It was a foreign invasion, the homecoming of the war, except that the invaders now were the industrial corporations of urban America, employing rural labor as cheaply as possible to establish what has remained a domestic colonialism. … The good, frugal famers [sic] who drove their first tractors into the fields around Port William were entering, without knowing it, the technological romance of the corporate giants, the millionaires and the billionaires, who would conquer the earth, conquer “space,” invade Mars, a place known better to them than the country that grows their food. (This is now a policy of the second Trump administration.)

Here, Berry models his way of seeing the world. Human beings are divided into two groups: the good and the evil. On the side of the good, you have thinly veiled representations of four generations of Berry’s family and those who agreed with their politics. On the side of the bad, you have everyone who fails to live up to their standard. This latter group is doomed, in Berry’s eyes, to ideological slavery to the technocratic, Mars-conquering millionaires and billionaires who represent for Berry the logical and inevitable end to farmers using tractors.

On the side of the good, Berry holds up farmers like the ones in the Burley Tobacco Growers Co-operative Association, a real organization founded in 1945 and dissolved in 2020. In our world, as writer Jodi Cash recounts, Wendell Berry’s father, John Berry Sr., witnessed his own father, Pryor Thomas Berry, come home to their place near Port Royal, Kentucky, from Louisville “with devastating news. After a year of ardent labor over his tobacco crop, he returned from the auction with not a penny for his efforts. What little money the fastidiously grown plant had earned was spent simply on the sale’s commission and transport to and from Louisville, some 40 miles from his home.” This inspired John Berry Sr. to devote his life to “protecting his father and fellow tobacco farmers from the same hardship. This was a promise he upheld, spending years as a lawyer and farmer” championing the Burley Tobacco Program, which his granddaughter Mary Berry tells us he was the “principal author” of, a piece of “New Deal agricultural legislation that dealt with tobacco” and “brought stability to thousands of small farmers in Kentucky. … The tobacco industry hated the Program because it required them to pay farmers fairly.”

Berry’s world sorts into two camps: the intellectually enlightened, hard-working old farmers and their ignorant, ease-seeking prodigal sons.

In Berry’s “fictional” novel, Marce Catlett, grandfather of long-time authorial stand-in character Andy Catlett, returns home from Louisville to their place near Port William, Kentucky, with devastating news. After a year of ardent labor over his tobacco crop, he has returned from its auction with not a penny for his efforts. What little money the fastidiously grown plant had earned was spent simply on the sale’s commission and transport to and from Louisville, some 40 miles from his home. This inspires his son Wheeler Catlett to devote his life to protecting his father and fellow tobacco farmers from the same hardship. This was a promise he upheld, spending years as a lawyer and farmer championing the Burley Tobacco Program, which our omniscient narrator tells us he was the principal author of, a piece of New Deal agricultural legislation that dealt with tobacco and brought stability to thousands of small farmers in Kentucky and was hated by the tobacco industry because it required them to pay farmers fairly.

You get the point. Marce Catlett’s front matter promises that “all of the characters, organizations, and events portrayed in this novel are either products of the author’s imagination or are used fictitiously.” But this is simply not the case. Marce Catlett is the story of the Berry family’s political ventures, a “‘real story’” which, Berry tells us in his acknowledgments, “because it is mostly undocumented, must be told as fiction.” 

This intertwining of reality with fiction makes Berry’s easy division of the world into two camps, friend and enemy, more disturbing, as this valorization at best results in historical revisionism and at worst in a Pelagian vision of the world. Berry breaks with the tradition he’s worked in before, one which combined eastern and western philosophy and stretched back as far as Hesiod and the first indigenous peoples of the Americas, and instead accepts the modern, post-industrial view of human community that posits work—not leisure—as the basis of culture.

Here’s an example. Berry characterizes the farmers of Marce Catlett’s generation as achieving “an authentically settled life in place,” which was “not possible” before “because of chattel slavery and its malign influence on everything within its horizon. Slavery was, and it is, correctable only by the courage to connect freedom with responsibility … the ability and readiness to do one’s own work and to clean up one’s own messes.” The wisdom of this generation was in its anti-mobility, its taking up the duty it had to its particular place to put into effect, “from the work of [their] own hands,” a “democratic, anti-slavery, if not anti-racist, sentiment often spoken in the Port William neighborhood: ‘I won’t ask another man to do for me anything I won’t do for myself.’” These farmers believed that “if the puzzle of a community in place is put together and kept together long enough, it will work out on its own the terms and conditions of its coherence through time and change. It will need no help, no expert advice.” 

 Berry contends that human beings, if rooted to a particular place and left to their own devices, will basically work out any injustices that might come up through their own efforts and wisdom without any external help—including, presumably, the workings of divine grace. Historical injustices like racism and slavery occurred only because people were too focused on freedom of mobility and were unwilling to take responsibility for their own actions. Sin, for Berry, is ignorance, something that you can fix through your own work and efforts if you can think your way out of it.

Meanwhile, ideas that come from outside the community are suspect and bring totalizing solutions that undermine the real goods of rootedness. One of these intellectual viruses is Port William’s “failure to value itself at the rate of its affection for itself. Gradually, it had learned to value itself as outsiders—as the nation—valued it: as a ‘nowhere place,’ a place at the end of the wrong direction.” After World War II, and especially under the production-oriented USDA policies of the 1970s, the people of Port William were infected with, among other dangerous ideas, “a reluctance” towards the “accepting of the work,” as “they began—the older people slowly, the young at once—to work with their minds diverted to quitting time or Saturday night, places where the lights were bright and the good times rolled.”

Berry emphasizes the contrast in the old and new ways of approaching farm labor in his final chapters, which give highly detailed descriptions of older methods of growing tobacco. At every stage—from the burning of the tobacco fields to their being “painstakingly weeded” to the degree that “sometimes you needed the point of a blade of your pocket knife to remove the weed seedlings from among the tobacco seedlings” to the eradicating of pests by hand rather than via insecticide to the tobacco harvest itself, which Berry admits was excruciating, back-breaking labor—the farmers realized how great and enjoyable it all was. “The remarkable thing about this work, hard as it might be,” writes Berry, “was that you got used to it. And just at the hardest, hottest, most miserable, most troublesome moment,” someone would always “render a complaint of exceeding eloquence or make a joke or recall something funny … until the whole miserable bunch, without noticing how it had happened, would be enjoying themselves.” The difficulty, the painterly attention it demanded, made the work more significant, and the suffering that went along with it united the community and built the common character of their local culture.

A community that values leisure, with worship at its center, cannot but see its lack of self-sufficiency. It can only be fulfilled by something it receives as a gift, by grace.

Does an annual season of picking weed seedlings from the dirt with the tip of a knife not appeal to you? Does inspecting tobacco plants individually for hornworms and removing them by hand sound too hard? Do you not want to harvest tobacco in wet clothes and scorching heat? If you don’t, you don’t care about local community. Even if you do, looking forward to the weekend or thinking about using a backhoe or natural pesticides shows you’ve fallen prey to the externally imposed, un-local, unnatural, governmental mentality of tech billionaires, private space travel corporations, the forty-fifth and forty-seventh president of the United States, the “so-called conservatism that had always opposed” and ultimately ended the Burley Tobacco Program, the domestic colonialist architects of America’s economic production in World War II, tractor users, and everyone else Wendell Berry doesn’t like.

Obviously, I’m being hyperbolic. But Berry’s world really does sort into two camps: the intellectually enlightened, hard-working old farmers and their ignorant, ease-seeking prodigal sons. Certainly, we need both meaningful work and meaningful play to live truly flourishing lives. A life without hard work would be miserable. But the health of human culture is not determined simply or primarily by common work but by common worship, the highest leisure activity, the ultimate pursuit of a good in itself. A community whose center is work, even excellent work, can only point towards itself. It begins and ends with the political. Its beauties are necessarily artificial. Its virtues are industrious but incomprehensible without reference to labor. It perpetuates the lie that we are self-sufficient, that we can overcome the deficiencies of our natures through our own efforts. 

But a community that values leisure, with worship at its center, cannot but see its lack of self-sufficiency. It can only be fulfilled by something it receives as a gift, by grace. Worshippers cannot force God to love them any more than poets can force inspiration or an infant force his mother to care for him. A culture of leisure is a culture of contemplation, which will necessarily get sick of thinking about itself after a while—because to stay in the realm of only thinking about human beings and the world is to fail to see how humanity and the cosmos open up to the divine, how the imperfect opens up to the perfect.

Therefore, Marce Catlett’s problems begin with its subtitle: The Force of a Story. In his essay “Abuse of Language—Abuse of Power,” the philosopher Josef Pieper, author of Leisure: The Basis of Culture, argues that conversations, like works of art, have the same aim: to reveal reality as it is, delightfully. That doesn’t mean that the excellent conversationalist or author shies away from the harshness of natural or human evil, but it does mean proceeding under the assumptions that truth is real, that it underpins reality, that we are meant for the truth, and that we can work together to find it. This is at the heart of dialogue. When my conversation contains within it an ulterior motive, particularly a desire to get something out of the other person, the other “is no longer a fellow subject. Rather, he has become … an object to be manipulated, possibly to be dominated, to be handled and controlled.” I can “use him for my purposes. … Basically, what happens here is speech without a partner (since there is no true other),” as my manipulation takes the form of monologue. When the goal is not to see the truth together, but rather to sell something to the viewer—a political agenda, for instance—then what has been made is no longer, properly speaking, art. It’s propaganda.

Marce Catlett: The Force of a Story lacks force because there is no story. The plot is minimal. The characters are wafer-thin ersatz Berrys, and none of them grow. There are no character arcs, unlike in Berry’s past novels. Their dialogue reads like lecture notes, as even Berry’s usually well-edited and precise prose is lacking: typos abound, a rarity for Berry’s novels. What’s left is a rhetorical exercise lobbying for a particular politics that presumes ignorance of its audience and generational superiority of its author. It treats its readers like how Berry thinks tractors treat the land, plowing over them and crushing them for the sake of a “better way.” I think I’d much rather be crushed by an actual tractor.

I’ve never been to Port William, Kentucky. It is, after all, fictional. And yet, I feel like I know its streets and their one-time inhabitants so well that I may recognize them, if I were to visit. Over there used to stand Jayber Crow’s barbershop. And that’s the house where a wounded man once rushed in and bled all over the floor in Anno Domini 1888, as five-year-old Mat Feltner watched—yes, that same Mat Feltner who would grow up to become the friend and neighbor of Marce Catlett, and then both of them would in the course of time become the grandparents of Andy Catlett, although long before that Mat would also be the father of Virgil Feltner, who would marry the Hannah who would eventually become Hannah Coulter, the wife of Nathan Coulter, but first for just a short while she was Hannah Feltner, before her husband of too short a time was killed somewhere in the Pacific in WWII and his body never recovered.

Time and stories and people in Port William can unfurl and at other times collapse together over the series of novels and short stories about them, reminding us that no one’s story is his own alone. The people and their stories all belong together and to each other, in a covenant that they describe as “the membership.” For a time, the meek in these stories inherit the earth—quite literally, in the farmland in Port William that they lovingly work. Except, this inheritance, as all else since the expulsion from Eden, comes with the obligation of much hard work. 

This fictional town is not wholly fictional, however. It is loosely based on Wendell Berry’s own home of Port Royal, Kentucky, where he still lives and farms in the same county that has been home for his family since before the Civil War—a reality on which he reflects in his 2022 work of memoir-cum-cultural criticism, The Need to Be Whole. How might we heal our souls and our places? The two, after all, are sick or well together, not separately. 

Ever since Berry published the first of his Port William novels—Nathan Coulter, which appeared in 1960—he has been thinking about the story of this place, so similar to the real one where he dwells in rural Kentucky, and whose decline (along with the rest of rural America) he has been lamenting in such works of nonfiction as The Unsettling of America: Culture and Agriculture (1977). Against its backdrop, the people of Port William have acquired stories, which have grown deeper and more three-dimensional over the course of the intervening decades. We have gotten to know the joys and the sorrows of the life and work of Nathan Coulter, Hannah Coulter, Jayber Crow, Andy Catlett, the many Feltners and the Branches, and now of course, Marce Catlett too—after whom Berry’s newest (and likely final) Port William novel, Marce Catlett: The Force of a Story, is named.

The relationship of Berry’s fiction, nonfiction, and poetry—for he has been a prolific writer in all three genres—is unapologetically close. But in his review of Marce Catlett, John-Paul Heil is concerned that Berry has abandoned any interest in developing the plot of the novel in favor of a political manifesto glorifying the hard work of the leisureless, industrial variety. “Marce Catlett’s problems begin with its subtitle: The Force of a Story,” he remarks, clarifying that “Marce Catlett: The Force of a Story lacks force because there is no story.” The story, he suggests, has been hijacked by Berry’s defense of his family’s own real-life political decisions. Worst of all, Berry seems to present in this novel “work—not leisure—as the basis of culture.” 

The charge against Berry that this novel lacks a plot is, to an extent, true. And yet, the accusation misses something important—that all of Berry’s Port William fiction is one continuous story to which he has been adding with subsequent books and short stories for the past sixty-five years. Marce Catlett, as a result, is an epilogue to a very long story of a lifetime, or even several lifetimes—its author is now ninety-one years old, and the novel’s protagonist, Andy Catlett, is in his tenth decade as well. As an epilogue, it is fitting that this novel does not have a developed stand-alone plot and story arc of the sort we’ve seen in the previous Port William novels. Instead, Berry at last offers his readers—and himself—needed closure. There is a force to the overall story of Port William, we realize as a result—just as there is force to the overall story of American farmers and others who live in towns like Port William or Port Royal. Most of all, though, there is force in telling stories of virtue prevailing over vice in an age that makes the latter so much easier. And the ultimate virtue is to stay, choosing to love a place and its people well.

To abandon one’s story, we know from some of the younger characters of this series who haunt this particular novel as ghosts by their loud absence, is to become unmoored, uprooted, lost and confused in the modern world.

As a result, this novel, unlike Berry’s earlier ones, does not have as much of an overall plot, once we depart from the opening backdrop tale about Marce Catlett and the injustice of a tobacco sale that defrauded small-scale farmers. Instead, we hear Andy’s now elderly voice—Berry speaking through him—reflecting in the novel’s opening sentence on the story that has defined his life: “Grown old, Andy Catlett has still ahead of him and in obligation the story of a time a hundred and eighteen years ago.” 

Except, the force of the opening story continues to drive the novel. The characters all belong to that story. There is, indeed, much reflection throughout the novel about stories to which people belong—stories of family, community, place. So it is, for instance, that “the story of a family at home is like a puzzle put together. Put together, the separate parts cohere in a kind of sense, not otherwise ever to be made: the story of the family at one for a time with the story of its place.” 

As seasoned Berry readers will recognize, all of Berry’s stories have been stories of gradual decline—of the “unsettling of America,” as the children of the Port William families move away, abandoning that family story and choosing other careers over the agriculture of their ancestors. But what effect does it have on the soul when one moves away from the place where one belongs to a story? Belonging to a place means belonging to a story; the two are inextricably connected by roots no less strong for being invisible. To abandon one’s story, we know from some of the younger characters of this series who haunt this particular novel as ghosts by their loud absence, is to become unmoored, uprooted, lost, and confused in the modern world.

This brings us to Andy Catlett, who, a half-century ago now, once lost an arm to the latest agricultural technology. Now he is an old man, thinking alone about the story to which he belongs—and which belongs to him: “For a century and more after the time it happened, the story has been kept in living memory, and so it has had a future. It has been joined to the story of its own survival and influence. If it has at present no public life, it continues to live locally, to inspire local work, and to produce local benefits. So far, it has not ended.” 

But do these reflections on the value of local work amount, as Heil believes, to a glorification of hard, industrial, modern work that is the enemy of leisure? Not so fast. While Berry indeed glorifies work in this novel, as in his previous ones, it is the beauty of work that takes the front seat in these discussions. Berry continues to juxtapose work that is beautiful and soul-enriching (and usually done by people in love with their land and the craft of caring for it) with work that is very modern and mechanized, apt to crush souls and bones (as Andy Catlett had experienced). But when Marce Catlett comes home from his heartbreaking day in the opening story of this novel, he joins his family for a dinner together where they rest as one. Yes, there is leisure in the hard-working life of Berry’s farmers. It repeatedly involves the cultivation of relationships and the sharing of a table—the communion of saints, breaking bread together. 

It is undeniable that Berry’s novels appear more politicized to some readers now, as Heil contends. But if this is the case, this isn’t because Berry’s message about the value of small-town life, farming, family, and community has changed since 1960. Rather, it is because more voices in our society have grown louder in rejecting these concepts as worth preserving or even in any way praising. In response, Berry’s message of love for place, family, and the rooted life suddenly seems decidedly radical. 

Berry’s Port William novels are an invitation into the achingly beautiful membership that the novels describe. It is fragile and imperfect, and yet you cannot help but see its beauty that inspires longing. You too, reader, can come into this community, get to know its history, and consider who you might have been had your own ancestors lived in a town like this one, where you still could live now. Perhaps even, like Berry, without a computer.

There is undeniable melancholy in this novel and its conclusion—and yet, as in The Need to Be Whole, there is hope and warning too. We have all been created for relationships, real roots, and stories to which we need to belong for our wellbeing—spiritual, intellectual, familial. The promises of the American countryside still beckon, and I reflect on this as I share the road with Amish horse-drawn buggies in my small Ohio town. Even in this age of cities and the reign of machines, the meek—the farmers and others who choose to dwell in America’s small towns and the countryside and love them—could still inherit this earth. 

Writing to her husband John in a May 4, 1775 letter, Abigail Adams expressed her disdain for the “wretched” Loyalist former royal governor of Massachusetts Bay, Thomas Hutchinson. She wished upon him “the fate of Mordecai,” mistakenly swapping in the heroic Jewish figure in the biblical book of Esther for his nefarious foil, Haman, who, at story’s end, is hanged on the gallows he had prepared in order to kill Mordecai.

The Adamses were not the only Founders fond of the ancient tale in which the young Jewish woman Esther, after being taken to the palace of King Ahasuerus to be his queen, heroically risks her life at the urging of her cousin Mordecai to foil the wicked vizier’s plot to murder all the Jews after Mordecai refused to bow down to him. On December 17, 1778, then-General George Washington wrote to Joseph Reed, the newly elected president of Pennsylvania’s Supreme Executive Council: “I would to God that one of the most atrocious of each State was hung in Gibbets upon a gallows five times as high as the one prepared by Haman.” Affinity for the Esther narrative has manifested well beyond its original Jewish readership—though, as in Abigail Adams’s bungled allusion, the details have oftentimes been muddled along the way.

Haman: A Biography, by Adam J. Silverstein, the Max Schloessinger Chair of Islamic Studies at the Hebrew University of Jerusalem, offers a reception history of the book through the framework of an academic fan-letter to its archvillain. Arguably the Bible’s second-most notorious antagonist, besides Pharaoh of “I will not let them go” fame, he has proven a malleable metaphor for varied audiences over centuries, and a useful portal of entry into understanding the central purpose of the tale in which he appears. “His impact over millennia has been enormous,” Silverstein argues, “making him one of history’s great overachievers,” serving as “a divisive figure both within religions (on account of stirring debates about his status), and between religions (as his name was used polemically, to denigrate rivals).” He is threaded through the Abrahamic faiths, and a prism through which they “share with us their fears, worries, frustrations, and hopes by expressing their thoughts about Haman, each in their own way.”

In the opening pages, the author notes, Esther’s “story was retold and reimagined time and time again, far more than most biblical narratives.” Readers have long been regaled by the palace intrigue of a humble young woman’s courageous maneuvering to prevent the slaughter of her kinsmen. So much so that they tried to, in their eyes, make it even better—with mixed results.

In ancient times, anonymous Jewish scholars translating the book into Greek inserted prayers in the mouths of the Jewish characters they felt were missing in the canonical original. For other ancient sages, in traditions collected into what are called midrashim, the book was understood to be yet another iteration of the Jewish people surviving evil forces throughout history that sought their destruction. These rabbis suggested that the conniving snake in the Garden of Eden was a prefiguring of Ahasuerus’s malevolent advisor thousands of years later. Haman, to them, was the evil inclination in human form, which must be defeated for humanity to be fully free.

Early Christians, emerging from the Jewish community that to this day celebrates the holiday of Purim in commemoration of Mordecai and Esther’s ultimate triumph, also encountered the book, but were hesitant to embrace it. As Isaac Kalimi, the author of The Book of Esther between Judaism and Christianity (not cited by Silverstein), has summarized, “At best Esther has a marginal place within Christian religion, theology, and culture which has tended to assess the book quite negatively.” The Book of Esther is never quoted in the New Testament, and early Christians debated including it in their canon at all. The first extant Christian commentary on the text was not written until the ninth century. Later Christian skepticism toward Esther has been well-documented. Though he continued to include Esther in the canon, Martin Luther clearly did not think highly of it, and he weaved that low opinion into the antisemitic commentary that exploded late in his life.

The current volume’s attempt to find echoes of Haman, and the Book of Esther as a whole, in the Christian textual tradition unsurprisingly proves to be a challenge. Silverstein suggests John 19, in which Jesus is portrayed “wearing the crown of thorns, and the purple robe,” is an intertextual allusion to Mordecai’s triumphant emergence after Haman’s defeat “in royal robes of blue and white, with a magnificent crown of gold and a mantle of fine linen and purple wool” (Esther 8:15). But Silverstein struggles to make sense of his own observation. Perhaps Jesus is a new Mordecai, he posits, “Just as Mordecai’s elevation represents an apex of success and prestige, the inversion of the language when describing Jesus’s passion represents a nadir.” Then again, Silverstein wonders, maybe Jesus is a new Haman: “Jesus was crucified in lieu of Barabbas, just as Haman was crucified in lieu of Mordecai; and both were executed after having been falsely accused.” While his Gospel is not particularly friendly to “the Jews,” the idea that John would portray Jesus, who lived and died as a Jew, as the second coming of a Jew-hating genocidist, and sympathetically so, seems more than a stretch.

In another unconvincing attempt to find echoes of Esther in the New Testament, Silverstein notes that Jesus’s words on the cross, “My God, My God, why have you forsaken me?” (a quotation from the Hebrew Bible’s Psalm 22) is attributed in the Babylonian Talmud (composed three to four centuries after the New Testament) to Esther herself, as she trepidatiously approached Ahasuerus’s throne room to advocate on behalf of her people. “It is possible,” Silverstein offers, that the Talmudic sage who suggested the Psalm’s verse was composed by Esther, “was influenced by an ancient pre-Christian tradition about Esther’s self-sacrificing approach to the king,” which, goes Silverstein’s theory, Jesus was then alluding to when he said his last words. This strains credulity.

The Book of Esther reflects the power of unexpected heroes and heroines to risk their lives in defense of their liberties.

In analyzing Muslim traditions about Esther, Silverstein points out that Haman is mentioned six times in the Quran. Strangely, for those well-versed in the Hebrew Bible, however, the character appears in the context not of Ahasuerus of Susa in Persia, but of Pharaoh, king of Egypt. The Quranic Pharaoh asks Haman to build a tower made of bricks baked from clay, which seems to be a mash-up of Genesis’s Tower of Babel story—but in Egypt, in the time of Moses. This places the Quran with a figure, who, per the Hebrew Bible (which was composed over a thousand years before the birth of Muhammad) lived around 700 years after Pharaoh of the Exodus’s fame, and over 1,300 miles away. Esther and Mordecai, mind you, are not mentioned in the Quran’s account. Haman in the Quranic context exists as a foil for God, opposing Moses’s call for monotheism.

In attempting to explain how Haman shows up in the wrong time and place, repeating a theory from his earlier volume Veiling Esther, Unveiling Her Story: The Reception of a Biblical Book in Islamic Lands, Silverstein suggests that “Haman” was possibly confused by Muhammad with Haran, who Genesis lists as a brother of Abraham. Thus, the Quran placed this “Haman” in a Genesis-era setting, Egypt, not in Abraham’s time period, but rather in Moses’s.

In a bizarre attempt to integrate the Islamic version with Jewish interpretive tradition, Silverstein tries to propose a thread of the Jewish tradition that also saw Haman as existing independent of the Esther story, as an enemy of God. To do so, he cites a Jewish prayer recited on the holiday of Purim, which contains the line praising God for Haman’s defeat: “You, in Your abounding mercies, foiled his council and frustrated his intention.” Unfortunately for Silverstein, that short prayer begins with the line: “In the days of Mordecai and Esther, in Susa the capitol, when the wicked Haman rose up against them and sought to destroy and annihilate all the Jews, young and old, children and women.” Support for his attempt to prove an Islamic-style Esther-free Haman character somewhere in Judaism requires sundering a beloved prayer recited by millions of Jews for hundreds of years.

Silverstein, throughout the work, makes his affinity for the archvillain explicitly clear, a particularly bizarre perspective in light of the recent bloody struggle Israel waged with today’s Persians, the Iranians. Even putting aside the contemporary resonance, Silverstein’s fandom for the mastermind of a plot to murder his ancestors, perhaps meant to be tongue-in-cheek or some sort of marketing strategy, strikes one as quite literally self-defeating. “An objective reader … cannot but empathize with Haman,” Silverstein effuses. “His rivalry with a particular Jew, and by extension all Jews, appears motivated and strangely reasonable, for it is he who loyally and consistently executes the king’s orders, even at great emotional expense, while the Jew(s) refused to do the same. He is the victim of … more than one miscarriage of justice.” The horror! An antisemitic mass-murder motivated by one individual Jew’s disrespect put motivation, reason, and emotion into trying to kill millions of that individual’s coreligionists, wasn’t able to do it, and then was duly punished. Poor Haman!

Whether Israeli soldiers who have been risking their lives in defense of Israel after Hamas’ Iran-backed slaughter on October 7, 2023, or the millions of Israeli civilians who have lived through two years of Iranian and Houthi ballistic rocket attacks that have thankfully largely been foiled by Israel’s Iron Dome might be sympathetic to the claim that Haman, who organized a genocidal attempt to wipe Jews off the map and whose name they stomp at the sound on in synagogues on Purim was unfairly punished because after all, he didn’t kill anybody, I leave to them. Speaking as one such Israeli civilian, I possess no such sympathy, let alone “empathy.”

Speaking of Jewish interpreters of Esther, Silverstein notes how the story found particularly devoted readers among conversos, Jews who outwardly practiced as Christians while avoiding the Inquisition, as Esther had operated as a Persian Queen, hiding her Jewish identity. Silverstein does not mention the American Founders’ fascination with the Book of Esther. 

Another Israeli academic, Eran Shalev, by contrast, has written, both in his American Zion and my own edited volume, Esther in America, on the many citations of the book by preachers and the press during the years immediately preceding the American Revolution. Nor does Silverstein note Abraham Lincoln’s citations of the book in the nineteenth century. In these contexts, the Book of Esther reflects the power of unexpected heroes and heroines to risk their lives in defense of their liberties. In times both ancient and modern, that has been to practice as proud Jews, or, in the case of the Founders and Lincoln, as Americans who saw themselves as biblical Israel reborn. Both groups sought to imitate Mordecai and Esther’s coreligionists in achieving triumph over tyranny.

He does note, however, that in the twentieth century, the Nazis self-identified with Haman, an analogy that global Jewry, including American, surely agreed with. Julius Streicher, the convicted war criminal, wrote in a 1939 essay, “When they mention ‘Haman’ in the synagogues they think of Hitler.” Streicher even shouted “Purimfest!” as he was led to the gallows for his execution at Nuremberg.

“Different Esthers, refracted through different interpretive lenses,” Silverstein writes, “produced different Hamans.” Haman: A Biography is a testament, then, to the timeless allure of both biblical interpretation and misinterpretation.

Many historians have assailed the originalist project. While flawed, these scholarly works present serious arguments and sometimes provide useful added information for originalists to consider. But Jill Lepore—one of the nation’s most widely read historians and a chaired professor at Harvard—has recently offered a different sort of broadside in The Atlantic, “How Originalism Has Killed the Constitution.”

In recent pieces for Law & Liberty, legal scholar Robert Natelson and historian Paul Moreno have defended originalism against Lepore’s “constitutional despair.” It is safe to say that, unlike the more rigorous work of her colleagues, her jeremiad fails to meet standards of scholarship, as it distorts quotations out of context, misstates facts, and confuses concepts. And its central thesis—that originalism thwarts constitutional change and kills the amendment process—gets matters precisely backward.

Properly understood, originalism preserves the Constitution and its Article V amendment process, the lawful mechanism for change that a constitutional republic requires. By distinguishing between judicial and political processes, originalism provides a vital framework for protecting the democratic legitimacy, popular sovereignty, and the formal amendment machinery at the heart of the American Founding.

Problematic History

Lepore’s treatment of Antonin Scalia’s ideas is particularly shabby. To support a central claim—that the “idea of amending the Constitution” is “dead”—she quotes the late Justice: “The whole purpose of the Constitution is to prevent a future society from [doing] what it wants to do.” But this comment is out of context—it is in a speech about constitutional interpretation, not amendment. Scalia never opposed the idea of amending the Constitution; quite the opposite. For instance, he stated in a 2007 talk, “If you want more rights, create them by statute; if you want more constitutional rights, create them by amending the Constitution.” What he resisted was changing the Constitution by means he considered extraconstitutional—interpreting the Constitution to reflect present-day values rather than the meaning that was enacted.

Lepore also wrongly claims that interpreting the Constitution according to its original meaning is a recent invention of the political right. She argues that “the word originalism didn’t enter the English language until 1980, and it had virtually no currency before 1987, when Reagan nominated Bork to a seat on the U.S. Supreme Court.” It is extraordinary for a historian to suppose that contemporary usage settles whether the concept of originalism predates the 1980s.

Even a cursory review of history reveals that originalism’s roots date back to the early Republic. Many statements of the Founders espouse interpreting the Constitution according to its original meaning. To take just one: James Madison, the Father of the Constitution, wrote: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the Nation. In that sense alone, it is the legitimate Constitution.” Professor Howard Gillman, hardly a conservative, wrote a well-known article in which he established that, until the Progressive Era, almost all official interpreters of the Constitution were, in some form, originalists. Woodrow Wilson was innovative precisely because he compared the Constitution to a living organism that evolved. Surprisingly, Lepore appears unaware of such well-documented facts.

For a professor, Lepore strangely does not investigate whether originalism has intellectual, rather than partisan, origins. During the 1950s and 1960s, many constitutional theorists struggled to provide constraints on judicial power. The Warren Court’s activism had created a crisis for constitutional theory. Even if the results were beneficial, how were they legal and not simply political judgments dressed up in the garb of legal opinions? At that time in academia, the legal process school supplied the framework for legal decision-making, and neutrality was its key concept. For the legal process school, what distinguished the judicial from the political process was the judiciary’s obligation to follow neutral rules of law, rendering consistent decisions from one case to the next.

Lepore acknowledges Robert Bork’s role in initiating the modern originalist turn but fails to describe how his theory was a logical outgrowth of the jurisprudential framework of the day. Bork’s insight was that neutral rules of the legal process, by themselves, are not sufficient to constrain judicial discretion because judges would still have discretion to decide which rules to follow. The rules themselves had to be neutrally derived. The original meaning of the Constitution supplied that method. Lepore is right that, in the decades since Bork first wrote, originalism has developed many “nice” distinctions; however, such careful reticulation and debate also show that it is a jurisprudential, not a partisan project.

The Failure of the Constitutional Amendment Process

The most serious flaw in her article, however, is its central thesis: that originalism hinders the process of constitutional change and exacerbates political polarization by making the composition of the Court more salient. Both are the opposite of the truth. As we have shown in detail elsewhere, it is originalism that protects the process of constitutional change outlined in Article V. In contrast, allowing judges to update the Constitution undermines this process.

First, constitutional amendments should garner a consensus of the country so that they do not impose a partisan vision that will be strongly opposed by opponents. This consensus often takes a long time to develop. But suppose the Supreme Court can use non-originalism to decide cases. In that case, they will act to update the Constitution instead, thereby taking the wind out of the sails of a movement to pass a constitutional amendment.

Lepore fails to recognize that originalism, fairly applied, is not a form of policymaking on par with nonoriginalism. It is the opposite.

Second, if judges update the Constitution, political energy will naturally be directed into the less laborious process of confirming judges who will update the Constitution in the direction of their supporters. Finally, citizens will become less interested in enacting constitutional amendments to incorporate their own provisions into our fundamental law, as they will rightly fear that judges will treat the new amendment as a blank check to write in their own views. Consider this analogy: if judges did not enforce contracts according to their terms, far fewer people would bother to write contracts.

The need for originalism to support the amendment process is illustrated by the success and failure of the amendments most recently proposed by Congress. For instance, in Oregon v. Mitchell, the Supreme Court correctly interpreted the Constitution’s original meaning to preclude Congress from lowering the voting age to 18 for state and local elections. Because that position did not accord with a consensus of the American people, Congress proposed, and the states ratified an amendment a year and a half after the decision.

In contrast, the Equal Rights Amendment (ERA) likely failed due to the Court’s nonoriginalist approach. The Court had already updated the Equal Protection Clause in a nonoriginalist manner, providing substantial rights to women and making the ERA seem less necessary. And its reputation for judicial activism made it less trustworthy. Not surprisingly, one of Phyllis Schlafly’s arguments against the ERA was that the Supreme Court could not be trusted to interpret the amendment faithfully, and that it would instead use it to impose same-sex bathrooms and other extravagant notions. In short, because the Court had already granted many women’s rights through judicial rulings—and because activists like Schlafly distrusted how judges might interpret a new amendment—momentum for the ERA dissipated.

Lepore unwittingly provides evidence against her own thesis. She writes that “in the 1930s, President Franklin D. Roosevelt largely abandoned constitutional amendment in favor of applying pressure on the Supreme Court.” The Court he opposed had generally interpreted the Constitution according to its original meaning, but in many instances against popular consensus. Roosevelt could have used the unpopular originalist interpretation to facilitate constitutional amendments.

By choosing to eschew the amendment process and appoint nonoriginalist justices, Roosevelt made it less likely that the Constitution would be amended. For instance, it seems likely that during the New Deal, the nation would have supported an expansion of the Commerce Power, but the strategy of appointing justices who would not enforce the Constitution as originally written deprived us of the need for such an amendment, along with the salutary social consensus that would have accompanied it. Thus, had Roosevelt pursued amendments (for example, to expand federal power), those changes would have garnered broad democratic support and legitimacy. By instead relying on appointed justices to reinterpret the Constitution, he undercut the very amendment process that could have solidified lasting consensus.

Lepore’s Mistaken Understanding of Originalism

Lepore also fails to recognize that originalism, fairly applied, is not a form of policymaking on par with nonoriginalism. Again, it is the opposite—an effort to follow the meaning of the Constitution, regardless of the policy consequences. In other words, originalism compels judges to apply historical meaning, whereas non-originalist approaches permit judges to consider the preferences of contemporary society or their own views of constitutional morality.

As a result, overruling a nonoriginalist decision does not represent any policy judgment, but just the view that the previous decision has failed to reflect that meaning. For instance, Dobbs (the decision that overruled Roe) did not address the merits of abortion at all; instead, it followed the constitutional line between the authority of the federal judiciary and that of state legislatures, returning the authority to regulate abortion to the people and their elected representatives.

Lepore is also incorrect to contend that originalism makes the confirmation process polarizing. Nonoriginalism is much more polarizing because, if the original meaning of the Constitution does not restrain judges, they are more likely to look to their own values in deciding questions. Americans have different views on what values should be prioritized in policymaking. To be sure, judges may disagree about the meaning of the term, but that is an empirical question to be decided by the strength of the relevant historical evidence. And while the evidence about a constitutional provision’s original meaning is not always clear, often it is. And even if the Court sometimes engages in bad originalism, that reasoning can be criticized by appealing to empirical facts.

Moreover, forcing constitutional change through the amendment process tempers social polarization. To persuade the supermajority of the citizens necessary to enact a constitutional amendment, no social movement or party can achieve its maximum demands. Instead, proponents must build a broad-based coalition, persuading fellow citizens with whom they do not agree on every other issue. This process has the benefit of requiring citizens to think of one another as partners in the common enterprise of constitution-making, not as political enemies.

Ironically, Lepore’s essay itself underscores the virtues of originalism. She is a distinguished American historian, but not a specialist in American legal history. She simply has not undertaken the sustained inquiry the subject demands. Many of Lepore’s claims are contradicted by the relevant literature and the historical record.

Disengaged from the discipline of evidence, ideology supplies Lepore’s narrative, and because she writes from the left, the jurisprudence favored by conservatives becomes the constitutional menace. We should be grateful that our best jurists adhere to a method that prioritizes empirical knowledge of the past, thus making such ideological frolics far less likely.

Before heading for a special London summit earlier this year, Polish Prime Minister Donald Tusk noted “a paradox” involving the continent’s security relationship with America: “500 million Europeans [are asking] 300 million Americans to protect them from 140 million Russians.” His numbers were slightly off—it’s more like 600 million Europeans and 340 million Americans—but his conclusion, that Europe “must take greater responsibility for the continent’s security,” was sound.

The time is well past for burden-sharing, however. It is time for burden-shifting.

NATO was created 76 years ago. Yet the Europeans remain seemingly haplessly and helplessly dependent on the US for their defense. Of course, that was not Washington’s original plan. Multiple officials affirmed that the alliance was to provide a temporary shield behind which Europe could recover. Dwight D. Eisenhower, the first NATO Supreme Allied Commander Europe before serving two terms as president, explained in 1951: “If in ten years, all American troops stationed in Europe for national defense purposes have not been returned to the United States, then this whole project will have failed.”

President Donald Trump was not the first US official to subsequently question why Americans were still expected to babysit a potential continental colossus. In his famous 2011 valedictory address Defense Secretary Robert Gates observed: “The blunt reality is that there will be dwindling appetite and patience in the US Congress—and in the American body politic writ large—to expend increasingly precious funds on behalf of nations that are apparently unwilling to devote the necessary resources or make the necessary changes to be serious and capable partners in their own defense. Nations apparently willing and eager for American taxpayers to assume the growing security burden left by reductions in European defense budgets.” The continental response was nothing, not even the pretense of doing more. Europeans continued to treat Washington’s military guarantee as a birthright entitlement, which “allowed European governments to spend a certain amount on butter that might otherwise have gone on guns,” observed Financial Times columnist Janan Ganesh.

It is obvious that Europeans will never defend themselves unless they have to defend themselves—which means when Americans stop defending them. This is certainly evident from Donald Trump’s experience. Nearly a decade after he began hectoring NATO countries about their contributions, and even longer after Russia’s seizure of Crimea and intervention in the Donbass, Europe remains far short of defense self-sufficiency. According to a recent study from the International Institute for Strategic Studies, “The gaps in military hardware and software are considerable, and the IISS estimates that replacing key elements of the US conventional military capabilities assumed to be assigned to the Euro-Atlantic theatre could cost approximately USD1 trillion.” Such contingencies can be remedied, but where will the money come from? Warned the IISS experts: “European NATO members took just over ten years to increase spending from an average of 1.4% to 2.1% of GDP, so the new commitment will require even greater uplifts and difficult policy choices, raising doubts as to whether it is achievable for all allies.”

In his first term, Trump was effectively neutralized. At the 2018 Brussels NATO summit, averred Stoltenberg, “he was really afraid that President Trump would leave” and “that NATO would stop functioning that day.” In response, Stoltenberg turned to flattery: “I was quite deliberate on the wording I used: that the message from the president is having an impact.” Similar is how Mark Rutte, Stoltenberg’s successor, has handled Trump’s second term, even referring to the latter as “Daddy.” Politico described “Rutte’s broader approach to the president, leaning heavily into public and private flattery.”

Individual European leaders have helped by acting as imperial vassals of Trump. For instance, in September, the British government hosted its second state visit for the president, apparently pleasing him greatly. An embarrassed Ganesh endorsed the ostentatious humiliation: “The reason for courting Trump isn’t (just) to puff up Britain on the world stage or to secure AI investments. It is to keep him engaged in Ukrainian and European security. Just be glad that he does respond to flattery and obeisance. Imagine if he didn’t.”

An American-dominated NATO made sense when it was established in 1949. The transatlantic alliance, however, was always supposed to be about security, not charity.

In fact, this tactic has proved to be a great success. Although Poland and the Baltic states have chosen to greatly hike their outlays, few other European governments share their commitment. In June, a disunited alliance adopted a new guideline committing members to spend five percent of GDP on their defense. Members will be allowed, however, to count as 1.5 percent of “military expenditures” civilian projects, dubiously said to serve military ends, perhaps including Italy’s long-proposed bridge to Sicily. Even so, Europeans emphasized the many challenges to meeting the standard, while Spain brazenly rejected the new requirement. The formal mandate doesn’t take effect until 2035, six years after Trump leaves office, allowing the allies to revise the requirement once there is a new occupant of the White House. As for Europeans worried about the administration’s ongoing global posture review and rumors of troop redeployments to Asia, The Times offered reassurance: “Several sources briefed on the matter said Washington had signaled through back channels that the cuts in the Colby review would be nothing like so drastic as previously feared.”

Oddly, the president appears to be encouraging this sustained subterfuge. Far from insisting that the Europeans take over their own defense, he appears to be using America’s defense dominance to force continental concessions on economics. Apparently, many of the Europeans have decided this is a good deal if they can avoid bearing the costs and risks of defending themselves. Explained Ganesh: “How, if not through a smaller welfare state, is a better-armed continent to be funded?” Better to pay off Washington than make politically painful social welfare cuts!

In its recent trade negotiation with Washington, Europe’s Eurocratic elite essentially did the full monte. Observed Carnegie Europe’s Stefan Lehne: “Faced with the double threat of a trade war and of the United States abandoning Ukraine, European leaders decided to bow to the wishes of the Trump administration. But this pragmatism came at a high price. They accepted a deeply unequal trade deal, betraying their commitment to WTO rules. They made promises on military expenditures and on investments in the United States that will be almost impossible to keep. They showered Donald Trump with praise and flattery, which will hurt their image back home and probably also their self-esteem.” European Trade Commissioner Maroš Šefčovič admitted the obvious: “It’s not only about … trade: It’s about security, it is about Ukraine, it is about current geopolitical volatility.” Ganesh wrote more concisely and crudely that Europe must sacrifice the “ultimately not existential matter of trade” and “assume the position.”

For Europe, including nations once ruled by avid nationalists such as Otto von Bismarck, Winston Churchill, and Charles de Gaulle, submission and humiliation are now preferred to sacrificing cash and risking blood. There are some dissenting voices. Federica Mangiameli of the international think tank GLOBSEC complained that “what’s unfolding is not pragmatism, but appeasement.” European governments, however, appear to believe that paying America tribute is the most effective way to force increasingly reluctant publics to underwrite their defense. After all, a Pew Research Center survey found that most Europeans did not support fighting on their neighbors’ behalf, even as they expected Americans to go to war on their behalf.

The continent’s capitulation, with Americans continuing to pay so Europeans don’t have to, is not to America’s advantage. The United States would be better off with competent, committed allies capable of defending themselves than whiny cheapskates desperate to stay on the Yankee defense dole. Then Washington and Brussels could cooperate as equals on issues of common concern, without Americans being dragged into conflicts—think Yugoslavia, Libya, or Ukraine—of minimal security interest to the United States. Europeans could defend themselves. They will never do so, it seems, unless left with no choice but to do so.

With neither the Trump administration nor the Europeans currently serious about transferring defense responsibility, it is especially important not to further expand the alliance. Every new member is a military burden, not an asset, for the United States. Washington has always provided the practical combat power necessary to defend NATO members. At least recent additions Montenegro and North Macedonia, while irrelevant to American security, are unlikely military targets. Ukraine would bring war into NATO. The burden of protecting Kyiv, with nuclear weapons if necessary, would fall almost entirely on Washington. If it wasn’t in America’s interest to defend Ukraine before the Russian invasion or intervene after the Russian invasion, it won’t be in America’s interest to defend Ukraine when the invasion ends. Washington’s principal responsibility is to protect the American people, not the rest of the world, no matter how warm the former’s feelings toward the latter.

An American-dominated NATO made sense when it was established in 1949. The transatlantic alliance, however, was always supposed to be about security, not charity. The justification for a US-dominated transatlantic alliance expired decades ago. If Europeans fear aggression by Russia, they should spend the money, raise the manpower, and provide the materiel necessary for its defense. The United States shouldn’t expect the transformation to be immediate, but should insist that the transformation be certain. The time for treating the continent as a helpless child is long past.

What comes next for the nondelegation doctrine? In “Nondelegation Without Chaos,” Professor John O. McGinnis offers some characteristically insightful thoughts. In particular, he outlines obstacles standing in the way of a reinvigorated nondelegation doctrine, and offers a proposed means of overcoming them. While I agree with much of his analysis, he overlooks one of the most important obstacles to reinvigorating the nondelegation principle, and I wish to offer an alternative means of reinvigorating the nondelegation principle. I am therefore pleased to accept the editors’ invitation to offer this response.

Background

The Constitution’s nondelegation principle limits Congress’s ability to delegate congressional powers to other entities. The principle is a crucial and inherent feature of our Constitution, which vests only specific powers in specific federal branches. Article I of the Constitution vests “all legislative powers herein granted” in Congress, Article II vests “the executive power” in the president, and Article III vests “the judicial power of the United States” in the federal judiciary. By limiting Congress’s ability to delegate its legislative powers to other entities, the nondelegation principle helps courts maintain the constitutional separation of powers.

Unfortunately, the federal judiciary has not done a great job at enforcing the nondelegation principle. As McGinnis explains, “the Supreme Court’s only current limitation on delegation is that Congress must have articulated an ‘intelligible principle,’” and the Court “has applied this test so leniently that it has never struck down a delegation since the New Deal.” In short, history has proved the “intelligible principle” test to be a failure.

Why, then, has the Supreme Court not replaced the failed “intelligible principle” test with a test better able to enforce the nondelegation principle? McGinnis offers two explanations—which he describes as two “obstacles” to reinvigorating the nondelegation principle. First, he notes that replacing the lax “intelligible principle” test with a strengthened test would “endanger a large number of administrative delegations in environmental, consumer protection, and other areas of regulatory law.” He therefore thinks that “revising the delegation doctrine would implicate vast reliance interests and generations of precedent.”

The second “obstacle” flagged by McGinnis is the major questions doctrine. That doctrine requires administrative agencies to identify clear congressional authorization to regulate matters of “major” economic and political significance. And McGinnis suggests that the major questions doctrine reduces judicial interest in the nondelegation principle, given that the major questions doctrine can serve as a partial substitute for a reinvigorated nondelegation principle. As he puts it, the major questions doctrine “operates as a shadow substitute for a full-blown revival” of the nondelegation principle, and thus “achieves many” of nondelegation’s “objectives without inviting the chaos that would follow from striking down swaths of the US Code or destabilizing entrenched regulatory regimes.”

After outlining those two obstacles, McGinnis turns to proposing how the nondelegation principle could nonetheless be reinvigorated. Specifically, he proposes that the Supreme Court adopt a form of “prospective overruling,” a concept that he has defended elsewhere with Professor Michael Rappaport. Prospective overruling would allow the Court to “announce” a new “governing standard” for delegation cases, but then apply that new standard only “in subsequent cases.” The new governing standard proposed by McGinnis is rather straightforward: “Congress must make the policy choices,” while “administrators may implement the law and find facts.” And the upshot of prospectively adopting that standard is that “future delegations would … have to conform to” the new standard, while “existing statutes … would remain enforceable” because they fall within “a safe harbor for preexisting delegations and the regulations issued under them.”

As McGinnis sees it, “the virtue” of his prospective overruling proposal is “that it would apply the [Constitution’s] original meaning to a single, recent enactment rather than to numerous statutes enacted over a lengthy period, thereby minimizing reliance costs while reestablishing the proper separation of powers.” By comparison, he worries that “if a stricter delegation rule were applied to the past, Congress would face enormous pressure to replace, in short order, a sprawling body of law.”

Three Points of Disagreement

McGinnis and I agree on a good deal. But I will focus here on three points of (rare) disagreement. The first relates to his identification of the relevant obstacles. The second and third relate to his proposed solution.

First, I think McGinnis overlooks an important impediment to reinvigorating the nondelegation doctrine—namely, the difficulty in creating a judicially manageable standard. It is one thing to say that the nondelegation principle constitutes a crucial component of our governmental order. It is another thing to say that federal courts are equipped to enforce the nondelegation principle in real cases.

Consider the views of Justice Scalia, who explained that although “the doctrine of unconstitutional delegation is unquestionably a fundamental element of our constitutional system, it is not an element readily enforceable by the courts.” Justice Scalia’s demand for a judicially manageable test is a demand that has been difficult to satisfy. I therefore think McGinnis overlooks a significant obstacle when he fails to address the difficulty in developing a judicially manageable standard.

The current nondelegation doctrine should be transformed into multiple nondelegation doctrines, with each doctrine corresponding to one of the many different legislative powers vested in Congress.

Second, and relatedly, I do not think McGinnis’s proposed standard adequately addresses Justice Scalia’s concern. McGinnis’s proposed standard, which would require Congress to “make the policy choices” while allowing administrators outside of Congress to “implement the law and find facts,” sounds eminently reasonable in the abstract. But the standard does not offer much in terms of practical guidance. To say that courts must distinguish between law, fact, and policy is to largely restate the problem that the nondelegation doctrine is supposed to address. Jurists like Justice Scalia would seem to need more.

Third, McGinnis’s “prospective overruling” proposal would leave unaddressed a mountain of unconstitutional actions. By creating “a safe harbor for preexisting delegations and the regulations issued under them,” his proposal would be of little help to Americans who are today subjected to existing federal policy that is promulgated and enforced in ways that do not comport with the Constitution’s original design. McGinnis suggests that courts should leave those existing delegations and regulations in place—presumably as the price for making a reinvigorated nondelegation doctrine more palatable. But I am not sure federal jurists can strike that type of bargain. As Justice Gorsuch has rightfully noted in the nondelegation context, “when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed.”

An Alternative Solution

Having outlined three points of disagreement, I will conclude by offering an alternative solution that might be of interest to McGinnis and other originalists. To state my proposal in brief terms: the current nondelegation doctrine should be transformed into multiple nondelegation doctrines, with each doctrine corresponding to one of the many different legislative powers vested in Congress.

My proposal offers a judicially manageable standard because it would require courts to hue more closely to an originalist understanding of the Constitution’s text. As Professor Robert Natelson has observed, “the Constitution does not delegate to Congress ‘the legislative power.’” Instead, and as was quoted above, Article I vests Congress with “all legislative powers” (plural) “herein granted.” The Constitution then specifically enumerates various “legislative powers” granted to Congress. Crucially, the Constitution uses different words to grant different legislative powers. And because those different words have different original meanings, originalist jurists should be open to the possibility that those different meanings might allow Congress to delegate different powers in different ways.

For example, the historical context surrounding domestic taxation might indicate that Congress could rely heavily on executive officials (e.g., tax collectors) to exercise Congress’s Article I power to “collect taxes,” but rely less heavily on executive officials to make policy decisions concerning how much domestic tax revenue should be raised in the first place. More specifically, and as I have argued elsewhere, the relevant nondelegation tests should run through the text of the Necessary and Proper Clause—at least for those legislative powers vested by the original Constitution. Thus, the text-based nondelegation tests for the legislative powers granted to Congress in the original Constitution would track the language of the Necessary and Proper Clause by asking whether a particular statute constitutes a “necessary and proper” means of carrying a particular legislative power “into execution.”

Rather than ask courts to engage in philosophical debates about “intelligible principles,” or debate where “the legislative power” ends and the executive or judicial powers begin in the abstract, my proposed approach would require courts to instead focus on the original scope and meaning of specific powers. This would not eliminate the need for courts to address tough questions; it might sometimes be difficult to know for certain whether a particular type of delegation would have been considered at the Founding to have been a “necessary and proper” means of carrying a specific legislative power “into execution.” But by narrowing the questions to focus on the historical context of specific words in the Constitution, rather than abstract questions of political philosophy, the judicial task should be much easier for courts to handle.

My approach is similar to Rappaport’s “Two-Tiered” approach, which was flagged by McGinnis. But rather than two tiers—where, as McGinnis explains, a strict version of nondelegation applies to “domestic regulation of private rights” and a lax version applies “in appropriations, foreign and military affairs, and territorial governance”—my approach would start with many more tiers than two. As courts develop and crystallize power-specific nondelegation doctrines over time, it might be the case that those doctrines come to fall within identifiable tiers. But for now, at the start of a rather long-term project, it is best to approach the task on a power-by-power basis and see where the chips fall over time.

Adopting a text-based, power-by-power approach to nondelegation would also account for some of the “reliance” concerns flagged by McGinnis. But it would not account for those concerns by requiring courts to turn a blind eye to unconstitutional delegations that happen to already exist. Instead, “chaos” could be avoided under my proposal because a judicial ruling concerning a particular delegation of one legislative power need not upset other delegations of other powers. The Supreme Court could therefore exercise discretion by first enforcing an originalist understanding of nondelegation in a case concerning a relatively mundane power or government program. In doing so, the Court could explain that its ruling should not be overread as applying to different delegations of different legislative powers. But the Court could simultaneously put Congress on notice of the fact that the Court is prepared to more seriously enforce an originalist understanding of the nondelegation principle more generally.

Having been placed on notice, a responsible Congress could begin to address and amend important statutes before challenges to those statutes reach the Supreme Court. This approach would not give a free pass to unconstitutional delegations that happen to already exist. But it would give Congress time to tighten up broad delegations that are subject to being ruled unconstitutional under heightened nondelegation review.

In sum, I agree with McGinnis on much, including his observation that “the Roberts Court has made less progress for its basic vision on delegation than in other separation-of-powers domains.” The Court has made tremendous progress when it comes to the separation of powers in general, with nondelegation being a notable exception that proves the rule. But I disagree with McGinnis as to the best way to assist the Court in bringing its nondelegation precedent into alignment with the Court’s broader commitment to an originalist understanding of the Constitution’s structure. To properly enforce the Constitution’s nondelegation principle, the Court should begin the long-term project of developing multiple text-based nondelegation doctrines—one doctrine for each of Congress’s powers.

Adam Smith’s Lectures on Rhetoric and Belles Lettres presents Demosthenes, alongside Cicero, as basic to education in rhetoric and humanism. His speeches before the Athenian Assembly are marked, observes Smith, by “austere Severity,” whereas Cicero, navigating Roman politics, is all pomp and flattery. James Romm, Professor of Classics at Bard College, reasons in Demosthenes: Democracy’s Defender that Demosthenes’ style had much to do with the fact that he “lived in diminished times.” 

In these pages, Demosthenes appears as a precursor to liberal universalism, the view exemplified by Francis Fukuyama that liberal democracy is the sole true form of politics. This belief is strong in the US, but, as with Demosthenes, it led to poor policy, for example, the Global War on Terror. Thinking about geopolitics today, the reader may find it worthwhile to ponder this universalist assertion of the Greek rhetorician: “For every king and tyrant is an enemy to freedom and a foe to the rule of law.” 

Demosthenes was born at Athens in 384 BC, a generation after the brutal Peloponnesian War. The city was in a bleak strategic position, and during Demosthenes’ years, that position only got bleaker. City revenues were a quarter of what they had been at the height of its empire, so Demosthenes’ “austere Severity” matched the geoeconomics of his day. 

He is famous for his Philippics, the word used in English to identify, as Romm puts it, “a scorching verbal attack.” In a series of speeches, Demosthenes set out to remind Athens of her dignity and rouse the people to fight Philip II of Macedon. However, a battered Athens was no match for Philip, and the armies of the “great Engineer” (Smith) swept aside what Athens could still mobilize against the sarissa-tipped phalanx. The problem was not just that battlefield innovation had left Athens behind. As Romm explains, so had political innovation: “in truth it was hard for a fleet controlled by assembly to counter a warrior-monarch who simply gave marching orders.” 

At Athens, all adult male citizens could meet in assembly and vote. Close to a pure democracy, the city was “fantastically logophilic” and “verbal dexterity conferred political power.” Romm admires Demosthenes, but this short biography—a 170-pages of lean writing—is not hagiography. Romm laments that too often Demosthenes’ speeches, “summon respect for his eloquence, since his policies did not always do him credit.” He was neither a strategist nor someone of towering virtue but in Greek politics, where oligarchy and democracy vied for loyalty, he was firmly on the side of democracy: 

I don’t shrink from saying that I think you’d do better to have all the Greeks democratic, and at war with you, than for them all to be oligarchies and your allies. For I think you’d easily make peace with those who are free, whenever you chose to, but your friendship with oligarchies would never be secure.

At important moments, courage failed him, yet in a world where a strong opinion meant staking your life, he was steadfast in praising democracy. This loyalty did in fact cost him his life when Athens passed under Macedonian military rule. 

The Rise

Demosthenes led the democratic faction in Athens, albeit unevenly, as his career was marked by setbacks and second chances. “He came to regard himself as that system’s best hope of survival, and its survival as the best hope for the Greeks,” proposes Romm, yet his was an unlikely career. 

Policy debates and trials were conducted in assembly with thousands attending. Rules of procedure and forensic evidence barely existed, so everything hinged on speeches. For this reason, and although anyone in principle could address assemblies and make proposals, interested parties hired rhetores, “public speakers.” Demosthenes’ father died when he was young, and his guardians pilfered the family fortune. Once of age, he had a legacy worth 20 years’ wages; Demosthenes would need money, and his inheritance gave him time to hone a craft. He set himself two goals: to become a “logographos” known for eloquence, and therewith to gain “the high esteem of the demos.” 

Physically, he was ill-suited to the role. Weak-framed with a stutter, Demosthenes was an abstemious loner. Mocked as a “water-drinker,” he was “a tireless worker of words,” and to build stamina and voice, he climbed hills whilst reciting speeches and often stood by the water shouting above the sound of the waves. He put pebbles in his mouth to cure his stutter, and recognizing that democracy is theatre, he took instruction from actors on projection, deportment, and gesturing. Philip would be the whetstone for Demosthenes’ sharp tongue.

In 405, the Spartan, Lysander, blockaded the Hellespont, the narrow opening between the Black Sea and the Aegean. This cut off Athenian trade with the rich farmlands of what is today Ukraine. Etched into the collective psyche of Athens, the food blockade brought to a rapid close the 27-year Peloponnesian War. In 351, Philip moved to take control of the Hellespont. At age 33, as a relative non-entity in terms of Athens’ great rhetores, Demosthenes delivered his “First Philippic.” 

He urged Athens to take the initiative and send raiding parties to Thrace to disrupt Philip’s military buildup. A weary people were unpersuaded. In the second, he denounced Philip as untrustworthy and warned the people against his sympathizers at Athens, the Philippizers, a word Demosthenes coined. Indignation boiling, Demosthenes in his “Third Philippic” took the low road. He railed at Athens, chastising, “You haven’t been defeated, for you haven’t so much as stirred.” He also indulged xenophobia: the “vile Macedonian,” Demosthenes contended, was in no way a Greek, “hailing from where in the past one couldn’t even purchase a decent slave!” Proposing war, he called on collective memory and invoked the city’s fateful inheritance. “It’s you who must do this. Your ancestors won this prize by facing many great dangers, and bequeathed it to you.” With Athenian pride at stake, his words finally gained traction, and Athens went to war.

The Wages of Defeat

Combining with Thebes, Athens fought Philip at the Battle of Chaeronea in 338 BC. So decisive was the loss, Romm says of the aftermath, “Demosthenes’ grand public speeches were mostly behind him, for Athens no longer had big decisions to make.”

Aged 46, Demosthenes had no experience of war, but urging battle, he joined the phalanx. Battlefield talent, experience, and innovation lay with Philip, and besides, the 18-year-old Alexander was about to be unleashed.

The grand, sweeping mission did not end well, for Demosthenes or Athens, and there may be lessons there worth revisiting.

Leading the charge on foot, Alexander shattered the Theban Sacred Band, the legendary elite of the army of Thebes. They were holding the right flank, the flank critical to the integrity of any phalanx. The Band’s mass grave was discovered in 1880. Comprised of male couples, 254 skeletons of the unit’s 300 men were found, the bones showing deep gashes. Details are unclear, but after the battle, Demosthenes was accused of cowardice. He had choked at a critical moment once before. Sent on an early mission to talk with Philip and press the Athenian cause with the king, Demosthenes froze and was unable to speak. Puzzled by the man standing mute before him, Philip urged the ambassador to speak, but to no avail. At the battle itself, Demosthenes ran, but as Romm points out, once a phalanx broke, there was little else to do but run and hope the cavalry never caught up with you.

What happened next, shocked all of Greece. Alexander annihilated Thebes; as Romm puts it, “the leading land power in Greece was wiped off the map.”

Philip had Athenian informants who reported to him what Demosthenes was saying. He knew about the rhetorician’s contention: “Philip does not want to make you his subjects, but to utterly destroy you. He knows well that you won’t be willing to be slaves, nor, if you are willing, will you know how, for you are accustomed to rule. You will be able to give him more trouble than all the rest of humankind.” However, Philip was magnanimous in victory. He permitted Athens to retain its customs and did not garrison the city. Still, he made sure that the future was fully on display. When the Athenian remains were returned, he placed Alexander at the head of the funeral procession. 

Philip was not merciful in exposing Demosthenes. In truth, Demosthenes did not grasp the scope of Philip’s ambition. Philip had far grander things on his mind than enslaving Greece; he was gracious to Athens because he wanted a quiet Greece, for his astonishing design was the Persian empire. 

The Fall

Demosthenes had contacts throughout Greece and remarkably, he was the first person in Athens to be told of the assassination of Philip in 336. He took to calling Alexander “boy” in the Assembly in the belief that the rule of Philip’s son by his fifth wife was hardly secure. On the rumor of 335 BC that Alexander himself had been murdered, Demosthenes produced an eyewitness at the Assembly who claimed to have seen the felling with his own eyes. Urged on by Demosthenes and the promise of troops, Thebes revolted. The rumor was false, and Alexander’s army hurtled to Thebes. The rapidity of his army’s march spooked Athens, and they broke their promise to Thebes. What happened next shocked all of Greece. Alexander annihilated Thebes; as Romm puts it, “the leading land power in Greece was wiped off the map.” Literally, one day, a people known as Thebans existed, and 24 hours later, they didn’t.

Begging forgiveness, Athens surprisingly escaped the fate of Thebes. In light of his significant responsibility for the horror of Thebes, the influence of Demosthenes waned. The affair further illustrated that his policy choices were often poor, as was, in some ways, his character. 

One upshot of Chaeronea, proposes Romm, was that the Athenian “system of governance, exemplified by Demosthenes’ oratory and the sovereign Assembly, had been bested by a warrior-autocrat.” At one level, Demosthenes cannot have been surprised. He knew well enough the power of streamlined judgment. Alongside the Assembly, in the late 340s, he had encouraged the activity of the Areopagus, an institution—sometimes defunct—that operated tribunal rule. More than once, Demosthenes turned to this body for summary judgments to dispatch his enemies. In one case, he accused of aberrant mystical rites one Theoris, a priestess. Along with her family, she was executed. 

His sordid use of the autocratic Areopagus was matched by his admission to friends that he had taken money from public funds. The case is shocking. In 324 BC, a renegade administrator of Alexander’s fled Babylon loaded down with treasure. Athens gave haven but only on condition that the money be held in trust till Alexander sorted out what was going on. By the time the money was to be returned, half was missing. Demosthenes was one of the trustees, so naturally suspicion fell on him, amongst others. Publicly, he vehemently denied peculation, but a jury of 1,500 Athenians found him guilty and stripped him of citizenship. Demosthenes had to go into exile until the Assembly relented. 

Between the theft of Alexander’s money and the baiting and fabrications, Demosthenes just could not stop poking the bear. When Alexander died in 323, Demosthenes argued that Athenian luck had finally changed and issued the rallying cry: “With luck on your side, free the Greeks!” Athens rebelled again, and yet again an allied Greek army was defeated. With their toleration finally worn thin, Macedonians garrisoned the city and, to make nice with its new master, the Assembly proscribed Demosthenes. He took poison before his pursuers could deliver the death blow.

A Warning

The value of Romm’s fast-paced biography includes his gloss on Demosthenes’ assertion: “But you cannot, you cannot have been wrong, Athenians, to have taken on the danger of fighting for the freedom and safety of all.” Romm comments, “He laid out a grand, sweeping mission for Athens: to advance the cause of democracy throughout Hellas and thereby safeguard the chief democratic state.”

It did not end well, for him or Athens, and there may be lessons there worth revisiting. Despite himself, Robert D. Kaplan has concluded from years of travel and geopolitical reflection that there are many valid forms of rule of law, so instead of philippics, we need prudent policies that bargain, compromise, and defend rather than meddle.

The English-speaking world has long enjoyed free speech rights unheard of in other parts of the world. But where did this legal regime come from? And as partisan strife becomes more heated on both sides of the Atlantic, what does free speech’s future hold? In his new book, Law & Liberty contributing editor Adam Tomkins argues that understanding the history of our rights is essential to maintaining a free constitution. He joins James Patterson on the podcast to discuss his book, On the Law of Speaking Freely, as well as several pressing current free speech cases in the United Kingdom.

Related Links

On the Law of Speaking Freely by Adam Tomkins
“The UK’s Speech Problem,” by Adam Tomkins
“From Heresy to Hate Speech,” a book review by Helen Dale
Cato’s Letters by John Trenchard and Thomas Gordon
Areopagitica by John Milton
Adam Tomkins’s Law & Liberty author page
GB News v. OfCom

Transcript

James Patterson (00:06):

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

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty and associate professor of public affairs at the Institute of American Civics at the University of Tennessee. Today with me is Professor Adam Tomkins, who is the John Miller Professor of Public Law at the University of Glasgow. Today we’ll be talking about his book On the Law of Speaking Freely. Dr. Tomkins, welcome to the Law & Liberty Podcast.

Adam Tomkins (01:08):

Thank you so much for having me, James. It’s great to be here.

James Patterson (01:10):

So we have reviewed your book very favorably on our website, and now we are getting to talk to you about it. I’m very excited about this. As I said before we were recording, this is a book that I wish I’d had to assign to students because so much of the history you cover is a common history with the United States and with the UK. So why don’t we start there? There’s a kind of nexus of rights that appear at the dawn of the Reformation. There’s rights of conscience, rights of assembly, rights of publication or press, and rights of speech. How are these all interrelated?

Adam Tomkins (01:51):

Yeah, so I think that’s absolutely right. I write, I’m a law professor and I write about the constitutional law of a country that does not have a codified constitution. So there is no equivalent in the United Kingdom Constitution of the US First Amendment. So I can’t start a book on free speech by quoting what it says about freedom of speech in the text that everybody agrees is the Constitution. I have to work my way towards that. And of course, freedom of expression is protected in British constitutional law. I was going to say just like it’s protected in American constitutional law, but it’s not just the same actually, but of course freedom of expression is protected in British constitutional law. But because we don’t have a codified text, we don’t have any equivalent of the US Constitution in the UK, we need to do the work of showing, of demonstrating where that idea comes from.

(02:48):

And there’s a trend at the moment in British constitutional scholarship to do as if the fundamental principles of the constitution can be taken for granted. And I just don’t think, I think they need to be argued for, contended for and the only place that we can go, I think in order to establish what those principles are, the principles on which the British constitution is based, the only place we can go is history. So unless and until you understand something of the history and the making of the constitution, you really don’t understand anything of the contemporary law of the constitution. I would say that that’s true whatever constitution anywhere in the world you’re looking at, because I think it’s also the case in the United States that the more you understand of the history and making of the US Constitution, the more you’ll understand of the US Constitution.

(03:35):

So even where you have a codified text, you need to have some sense of where these things came from and who was talking about them and why they were talking about them and all of that kind of stuff. So the first question I asked myself in the argument in this book is, well, where does the idea of free speech come from? We know why we think it’s important. That’s quite well received information even in the twenty-first century. We know that there’s a sort of argument about truth, and we know that there’s a sort of argument about participating in a democracy and that freedom of speech is a necessary ingredient of these kinds of things. But where did it actually come from? And when you look back, when you peel away the various layers of the onion and you look to what the starting point is of the story of free speech, you learn two things.

(04:21):

The first thing that you learn is that at least in European terms, it’s a very recent story. And the second thing that you learn is that it doesn’t start off in the domain of politics. It starts off in the domain of theology. And the first battles for free speech were fought only about 500 years ago. Now, perhaps in some of the New World, 500 years feels like an awfully long time ago, but trust me, in a constitutional order that goes all the way back to Magna Carta, which is more than 800 years old, 500 years is nothing, right? So it’s a relatively recent idea. So it’s much more recent than the idea of democracy, which goes back two and a half thousand years. It’s much more recent than the idea of citizenship, which goes back at least two millennia, right? It’s much more recent than the idea of a balanced constitution or even the separation of powers, which are ideas which you can trace all the way back to ancient Rome, if not ancient Greece.

(05:16):

There is no equivalent of freedom of speech in the ancient world. It comes to Europe at the same time as the printing press comes to Europe. Because until the printing press the purpose of writing, very few people of course could write marginally, more people could read, but very few people could write. And the purpose of writing was not to say anything new. The purpose of writing was to try and inscribe what we already knew, principally, of course, it would be biblical texts, it would be the Bible, and monks would sit and for hours and hours and hours and try not to say anything new. What they would try to do is to write down and preserve knowledge. And anything which challenged that knowledge was regarded as heresy and heresy was a capital offense, not just in Britain, but across Europe. And of course the first advocates of free speech are the first proponents of free speech or what became free speech were Protestants in the Reformation in the middle of the sixteenth century who were seeking to break away from the rule of the Catholic church.

(06:24):

Now, Martin Luther was not exactly your conventional twentieth century free speech proponent. Martin Luther burned books himself. It is true that his books were burnt by the Pope, but he also burnt books. So he wasn’t particularly in favor of interpretations of the Bible that he disagreed with, and particularly in interpretations of St. Paul that he disagreed with. But that the struggle for free speech emerged out of the struggle for freedom of conscience, which really starts to come to a head in Europe in the sixteenth century in what we now call the Protestant Reformation. So the first claim I make in the book, James, is to say that you can’t understand anything about the history of free speech unless you accept and understand that it’s deeply entwined in the history of freedom of conscience.

James Patterson (07:10):

That’s right. And the first fights are between Protestants and Catholics. And of course the kingdom of England becomes Anglican, breaks away from the Catholic church, and then there are fights with the Scottish, the nature of the ecclesial order, right? There’s the wars over reformed interpretations of the ecclesial order with bishops not necessarily being allowed, which then means that because the church belongs to the crown, dissent is now a crown issue as much as it is a religious issue. So this brings us to all kinds of different restrictions on the press in the form of licensing. And I find that students often don’t appreciate that when there’s a discussion of freedom of the press, what’s often going on here is the idea of a licensing arrangement and how is this linked to the idea of freedom of speech?

Adam Tomkins (08:03):

Yeah, absolutely. So when the printing press came to Europe, the legal position in English law was simply that the crown assumed the right to license the press right from the very beginning. So there was never a free or an unlicensed press in English history because as soon as printing became a technology which was available, the crown simply assumed the right to license it. And it did that for two reasons. It did that partly because it was terrified of its potentially revolutionary potential, even in a largely illiterate country of what that might mean and what that might become. But also, of course, it was a revenue raising measure, right? As soon as you license something,

James Patterson (08:53):

Yeah, that’s right.

Adam Tomkins (08:54):

Right, you can charge a fee for a license, and printing was a source of revenue for the crown and was a source of revenue for a crown that was always desperately short of money and looking for new ways of being able to tax subjects of the crown without having to ask Parliament for permission. I mean, no taxation without representation was a great mantra of the American Revolution, but with all due respect to the great American revolutionaries, they didn’t invent it.

James Patterson (09:22):

Yeah, we got it from somewhere.

Adam Tomkins (09:23):

They got it from somewhere, they got it from us. And so here was a means whereby the crown could tax its subjects in an extra parliamentary way and also at the same time control the flow of information. And so there was never such a thing as a golden age of a free press. This had to be fought for, it had to be struggled for, it had to be fought for. One of the greatest proponents of an unlicensed press in the English seventeenth century was the great poet, John Milton. And Milton was up to his eyes in what was then revolutionary politics. He was an ally of Cromwell’s. He was a fierce and passionate and extraordinarily brave republican or commonwealth man, to use the seventeenth century expression. He wrote a pamphlet before the King was executed in 1649, arguing that regicide was a constitutional way to proceed.

(10:23):

He argued immediately before the crown was restored in 1660, that it shouldn’t be. So Milton was extraordinarily brave, but he didn’t always agree with Cromwell. And, Cromwell, well, licensing collapsed in the English Civil War. Quite a lot of things collapsed in the English Civil War. Wars can do that to governments. It can be quite hard to hold a government together when the country’s fighting itself. And licensing was one of many things about English government that collapsed in the early 1640s. And when it became clear that Cromwell was winning the Civil War, he sought to reimpose it. And Milton didn’t like licensing even when it was in Cromwell’s hands any more than he liked licensing in the days when it had been in the king’s hands. And he wrote this remarkable pamphlet in 1644, very famous pamphlet called “Areopagitica,” in which Milton argues for an unlicensed press.

(11:20):

And that’s really the first time in our language that there is an argument constructed for what becomes freedom of speech. Now, the freedom of speech that Milton was asking for, was arguing for, was far from complete, and it was also very partial, but nonetheless, it planted seeds which in subsequent generations were allowed to flourish and grow and Areopagitica is an extremely important stepping stone on the way to an unlicensed press. Milton’s argument was unsuccessful. Cromwell did reintroduce licensing, and it wasn’t until the end of the seventeenth century that the licensing act lapsed, and it lapsed under the influence much more of John Locke’s arguments than it did of John Milton’s arguments, and Locke’s arguments were really very different from Milton’s arguments. Milton’s arguments were about the Christian duty that all God-fearing Christians have to struggle towards their own truth, to struggle towards God’s truth. And the only way in which you can do that is by reading works which are bad, wrong, evil, and figuring out for yourself why they’re bad, wrong, or evil.

(12:33):

Milton makes this great distinction between eating poisonous meat that can really do you serious physical damage and reading poisonous words. And he says that the government may very well have the duty to keep its citizens safe from poisonous food, but it does not have a duty to keep its citizens safe from poisonous or bad ideas. That’s Milton’s contribution. And as I say, that argument failed in the 1640s, and licensing was reestablished by Cromwell and sustained thereafter in the restored monarchy of the 1660s and ‘70s. It collapsed eventually in 1695 for an altogether different reason. And the reason that might appeal to a lot of our listeners, it was a reason about trade. John Locke had spent quite a lot of his time in Amsterdam in the Netherlands where there was an unlicensed press, and he liked the fact that books were produced to a very high standard in the Netherlands.

(13:33):

They were well printed on paper that wouldn’t immediately rot and corrode as soon as you tried to turn it. Good quality printing, good quality books. And what Locke hated about the licensed press in England was that because it was a monopoly, it wasn’t a very good product. And he was a writer who wanted his works to be read, and he wanted his works to be read in books, which were a pleasure to read, a pleasure to hold, and wouldn’t fall apart as soon as you started to try and work your way through them. And so his argument against licensing was that licensing was in restraint of trade, and that argument was successful in the 1690s, and the House of Commons voted not to renew the licensing legislation, and it lapsed from 1695. So it’s been the case that from 1695 onwards, the press in the United Kingdom, what later became the United Kingdom, what was then England, has been unlicensed. And that’s what freedom of speech meant even a hundred years later.

(14:35):

So when Madison writes the Bill of Rights, when the third amendment in Madison’s Bill of Rights becomes the First Amendment to the United States Constitution in 1791, what Madison has in mind when he writes those famous words, “Congress shall make the law bridging the freedom of speech,” is we shall have an unlicensed press. That’s what those words meant to start with. Of course, that’s not what they mean anymore. They mean much more than that. But the original meaning of the First Amendment was to put into US constitutional law what had by that point been the position in English common law for a century that the press must be unlicensed.

James Patterson (15:15):

Speaking of Madison, the founding generation was very influenced by Cato’s Letters, and these are kind of like the next generation of defenders after Milton and Locke, right?

Adam Tomkins (15:29):

Yes, that’s right. So Cato’s Letters is not very widely known outside of the academy, right? I mean, that’s right. A lot of people have heard of Milton and not just because of the poetry. A lot of people have heard of Locke and not just because of what he said about licensing, but not many people have heard of Cato’s Letters. Cato’s Letters were written by relatively obscure Commonwealth Whigs, quite radical Whigs in the early eighteenth century, in the 1720s, in the early 1720s to be exact. And most of the Catos, there are about 130 of them, I think. And they were published weekly over the space of a couple of years, 1720, 1722, that kind of period that we’re talking about. And most of the arguments in Cato’s Letterss haven’t got anything to do with free speech at all. Most of them are about corruption. English government, or by now British government, was seriously corrupt in the early 1720s.

(16:24):

The most famous example of it was the collapse or the bursting of the South Sea bubble in which a lot of people lost a lot of money. It’s one of the things that Jonathan Swift, who writes, Gulliver’s Travels later on in that decade in 1726 parodies in Gulliver’s Travels. So the big theme of Cato’s Letters is the striving for a government that is free of corruption. But along the way, the authors of Cato’s Letters, John Trenchard and Thomas Gordon, write four letters in particular scattered throughout the series that are focused on freedom of speech. And the reason why they’re important, James, is because they are so far as we can see the first avowedly secular argument for freedom of speech in the English language. So Milton’s argument in the 1640s is a very Christian argument is a deeply rooted in his own sense of Christian faith and destiny.

(17:22):

Locke’s arguments are likewise imbued with his commitment to religious belief and to Protestantism of course. And Cato’s Letters are written not very long after Locke dies. I think Locke dies in 1704. Cato’s Letters written less than 20 years later than that are the first avowedly secular argument that we know of in our language in favor of freedom of speech. And that’s interesting because it marks a moment when advocates of freedom of speech start worrying a lot less about the power of the church, and they start worrying a lot more about the power of the state. So the way in which I phrase it in the book is to say that we move from the age of heresy into the age of sedition. Okay? So heresy is a crime that you can commit simply by your words. You can also commit it by act, but you can commit the crime of heresy by speaking against the received doctrine of the church.

(18:20):

And it’s recognized as a crime not only in Catholic countries, but also in Protestant countries. And Catholics were burnt at the stake in England and Scotland for their anti-Protestant or anti-Anglican heresy. Sedition is different from heresy because it is a crime that is committed against the government, against the administration, against the ministry of the day, and it is also punished differently. Heretics were burnt at the stake, as I said, burnt alive at the stake, absolutely barbaric, a brutal treatment. Those who were convicted of sedition were sentenced to be pilloried, and that’s a word we still use metaphorically. But the pillory was like the stocks, your hands and your neck would be put into stocks and you would stand in the pillory. Typically, if you were sentenced to stand in the pillory, you’d be sentenced to do that three times in three different places in London.

(19:20):

And the idea behind that punishment was that you would be publicly ridiculed. And that’s, that’s sort of the way we still use the idea of being pilloried. Now you say somebody is pilloried, then they are publicly ridiculed for what they’ve said. The pillory was not a capital sentence. You wouldn’t be killed by the criminal justice system, but you could suffer serious bodily injury in the pillory if the crowds didn’t like you because you’re defenseless. So people could have mud stuffed into their mouths and unable to breathe. People could lose in extreme cases and eye, your eye could be gouged out, your ear could be cut off, your fingers could be broken. So it wasn’t altogether safe to be pilloried. And people did try and avoid it, but it wasn’t …

James Patterson:

I can imagine!

Adam Tomkins:

… it wasn’t the capital offense in the same way that heresy was.

(20:12):

And Trenchard and Gordon and the Cato’s Letters that are focused on free speech are arguing specifically about the law of sedition, and they’re arguing that a sedition needs to be treated with great care. And again, the thing that’s interesting about that is that you cannot commit the offense of sedition until after you have published. So their argument is not an argument simply against pre-publication censorship like Milton’s was, and Locke’s was. Their argument is going much further. Their argument is saying that even after you have used and exercised your right to speech, there are things that the state should not be doing to you because you have the right to use your words in such a way as criticizes the government of the day. You might not have the right to use words so far as to seek to bring down the government of the day or ferment revolution. But at this point in the early eighteenth century, we’re beginning to learn how to distinguish between arguments which are arguments against the constitutional order itself from arguments which are simply opposed to the government of the day. And so long as you’re on that side of the line, you are opposing the government rather than trying to bring down the constitutional order itself. Then the argument in Cato’s Letters is that that is something which ought to be protected by an emergent idea of freedom of speech.

James Patterson (21:36):

Now, the pillory dons the cover of the book On the Law of Speaking Freely, and it looks like they’re being subject to some pretty nasty vegetables or fruit being hurled at them, but I don’t see any broken fingers, so thank you for not putting that on the cover. But “pillory” is one word that we use still to this day. And another one of these terms that we use for restrictions is the star chamber. And so what was the Star Chamber and what does it have to do with the free speech tradition of the Anglo-American variety?

Adam Tomkins (22:16):

The Star Chamber was what we would call a prerogative court. So the prerogative is the power of the crown and what has happened, the story of the British constitution, I mean the classic wig story of the British constitution is that over the course of the last nine centuries or so, the power of the crown has gradually come under control. And that control comes partly from the courts and partly from Parliament. So we have a government that is required to enjoy the confidence of the House of Commons, as soon as the government loses the confidence of the House of Commons, that government has to resign. That’s what happened to Prime Minister Boris Johnson a few years ago. But also we have this idea that the powers of the executive, the powers of the Crown and the powers of the Crown’s ministers are held to legal account.

(23:10):

And it is the common law that has done that work. And from time to time, the monarchs, kings and queens who didn’t really like the idea that their counselors of state should be held to legal account would find ways of bypassing the common law by having different sorts of courts that would uphold different sorts of law. And that Star Chamber was one of those. So Star Chamber was a court that was used by the early Stuart Monarchs, that’s really James I and Charles I in the early seventeenth century to bypass the common law rules that you find in documents like Magna Carta that say that the Crown and its ministers are accountable to law. And there were certainly, I suppose you’d call them dissidents. Now, there were certainly dissidents in the early seventeenth century who were sentenced to be pilloried by star chamber because they were saying things that the Crown didn’t like, and the judges in the star Chamber would do the crown’s bidding for it in ways that the common law courts were beginning to learn not to do. So I think Star Chamber plays a role in the seventeenth century, but Star Chamber’s abolished by Act of Parliament in 1641, and doesn’t really feature in the story after the English Civil War.

James Patterson (24:26):

Yeah, I got things a little out of order, but I want to make sure we got the Star Chamber in there because I find that people say it, but they don’t know what it was. These things all have a very important role, and it kind of speaks to the salience of your book that even though we’re dealing with things that aren’t that long ago by British standards for American standards, of course this is all ancient history, and it’s important that we know what these words mean. So we can move things up a bit closer to the present. Seditious libel, as you said, is not a question of whether what you say about the government is bad, but true, but whether what you said about the government is just bad. So how is it that we move from a standard of saying anything about the government is bad to defenses by truth against government prosecution?

Adam Tomkins (25:18):

So we brought the story up to about, well, we were in the eighteenth century, so beginning of the eighteenth century, you find the first secular argument for free speech, and you also find that argument being made in a climate where people are beginning to distinguish genuinely seditious speech, which is designed to bring down the regime, bring down the entire constitution.

(25:42):

On the one hand, and having that distinguished from just oppositional speech. This is the beginning of the “rage of party” as one recently published book puts it, right? So we have Whigs in one corner and we have Tories in the other corner, and they disagree with each other, but they’re all loyal to the regime. I mean, some Tories actually weren’t loyal to the regime. Some were Jacobites and some wanted the Hanoverian succession to fail. But putting that to one side for the moment, what you had, certainly by the time Blackston is writing in the 1760s, certainly well before the American Revolution or the Declaration of Independence in 1776, it’s well established by then, very well established by then. That political disagreement is part of our political experience. It’s part of it is what we expect. And we very quickly forget by the middle or the middle third of the eighteenth century, we very quickly forget that we somehow used to manage without it.

(26:43):

And then what happens is that the government starts to relax much more than it ever has done before about what people say, and it starts to get much more agitated, or it starts to perhaps continue to be as agitated as it always has been about what people do. And sedition by the early nineteenth century is understood not in terms of speech anymore, but in terms of action. So seditious libel begins to wane very considerably in significance. And instead, things like unlawful assembly start to matter. So it’s when crowds gather physically in town squares or city squares and then start rioting that the government starts to act. And that’s in the very late eighteenth century, very early nineteenth century, we start having this kind of speech act distinction really beginning to crystallize. Now, we know of course that it’s more complicated than that because we know that there’s such a thing as expressive conduct.

(27:45):

We know that even if we aren’t familiar with all of the kind of contours of free speech law or public order law, we know that philosophically there are these things called speech acts, right? So we know that action and speech can’t always be cleanly or crisply distinguished from one another. And yet that is precisely the distinction that the idea of free speech rests on. I mean, imagine for a moment that the First Amendment said that Congress shall make no law abridging freedom of action. Now, there might be some radical libertarians or anarchists who would quite like that, but it would mean that Congress couldn’t make any law at all, right? Because all law abridges freedom of action, Congress wouldn’t be able to make any criminal law at all if the Constitution provided that Congress shall make no law abridging freedom of action. So we must, at some level, be able to distinguish speech from action.

(28:38):

And that distinction starts to work its way through the legal order on my side of the Atlantic in the early nineteenth century. And the government just stops worrying quite so much about what people say about it and starts worrying much, much more about the folk who throw bricks at soldiers or shoot soldiers or start burning down the houses of corn dealers because they think the price of bread is too high. And it’s that kind of public disorder that begins to be understood to be seditious or troubling or riot or whatever you want to call it.

James Patterson (29:13):

There was not that long ago, maybe like six or seven years ago, a short film that someone made where a man is sitting out in the middle of a heath or a bog with a television that mysteriously can turn on, and he’s like, “Finally, I can watch some television without the BBC taking notice.” And he turns it on and out from the water comes a bobby and says, “Oi, you got a license for that, bruv?” So this is one of my favorite things to show, and when I teach a class on medium politics, we have roaring back with the rise of broadcast, a return to licensing that seemed dead in the nineteenth century, as you said, but what is the new impetus for licensing broadcasts?

Adam Tomkins (30:00):

Yeah, absolutely. My book is divided into two parts. So the first part of the book tries to tell a story about where speech comes from, and then how the idea of a right positive to freedom of speech becomes embedded in our law on both sides of the Atlantic, both in the United States and here in the UK and elsewhere in Europe. And then the second part of the book tries to analyze three contemporary free speech problems through the prism of that historical story that I tell in part one. And so the three contemporary problems that I talk about in the second part of the book are media freedom and in particular broadcast licensing. And then I say a few things about hate speech, which we might want to get onto. And then I say a few things about regulating the internet, which also we might want to get onto, if you like James, later on in the conversation, the media freedom chapter is actually the one that interests me most, right.

(30:56):

Because the justification for licensing broadcast was, I think, absolutely compelling. When broadcast was invented, when broadcast was invented, the spectrum was limited, and there was a real problem with interference. I mean, I grew up in the 1970s in a very rural part of England with very bad radio signal. I remember what it was like listening to the radio with lots of interference on it. It was lots of static. You couldn’t hear anything, right? All you could hear was static or it is no good. Nobody can listen to two radio programs at the same time, right? Because you can’t focus on either of them. And so there needed to be some regulation of the spectrum to ensure that radio and then television worked at all. Because if everybody’s trying to broadcast on the same frequency, nobody can hear anything. It’s just static. It’s just interference. And so the purpose of bringing licensing back to regulate speech when broadcast was invented in the early to mid-twentieth century was to enable listeners to be able to listen to anything at all. So it facilitated speech. It didn’t try to limit speech. The purpose of the licensing was not to limit speech. The purpose of the licensing was to enable us to be able to hear anything at all on the airwaves, and at the same time to safeguard those bits of the airwaves, shortwave, and so on and so forth that the emergency services needed, which is also manifestly in the public interest, right? I mean, if you make a 911 call and you can’t get through or whatever it is, then that’s clearly contrary to the public interest,

James Patterson (32:32):

And there’s naval vessels that are trying to navigate, and if they end up with people on their broadband or bandwidth rather than they might crash, right? This is a very serious business.

Adam Tomkins (32:42):

Absolutely. So the purpose of the regulation was not to try and suppress or control or restrict speech at all. It was to enable us to be able to speak to each other over the airwaves at all. Now, that was the technology of the 1930s, if we’re talking about radio. 1950s, if we’re talking about television, that technology plainly doesn’t still exist. I mean, it exists, but it’s not how we use radio and television services anymore. First of all, we had cable or satellite, and then we have digital TV, and there is now no restriction on the number of all of these restrictions are historic. And in the United States, both the Federal Communications Commission and the Supreme Court realized by the 1980s, if not the very early 1990s, that the old justification for limiting and regulating broadcast had gone because the technology had changed. Unfortunately, on this side of the Atlantic, on my side of the Atlantic, we haven’t made that realization yet. We’re 40 years behind you. We’re 40 years behind where the United States is in terms of thinking about how we should understand the relationship between the public interest and the need for regulating speech and the technology that underpins broadcast. And that image that you have of the television emerging out of nowhere in the middle of some heath and then some Big Brother

(34:09):

agent saying, hang on a minute, you can’t watch that because you haven’t paid your license is all too true. That rings absolutely true to the kind of experience that we have. And the European Court of Human Rights has been lousy on this. The UK Supreme Court has been lousy on this. The UK Parliament has been lousy on this. We still have a huge, I mean, it is unbelievable, a huge body of legislative restriction that does now act as a censor on broadcasters. So there are all kinds of things, all kinds of rules that apply to broadcast speech in the Kingdom, but do not apply to the press, and also of course, don’t apply online. And so it’s very difficult to, this is a podcast. I mean, in the United Kingdom, this podcast will be available in the United Kingdom, and it’s not subject to broadcast regulations at all.

(35:02):

But if we were on a radio show rather than talking to each other over the Internet, then we would be subject to all kinds of restrictions on our speech. But it seems to me are now manifestly disproportionate and unarguable, and yet they haven’t been overturned or limited in any way. There is a glimmer of hope because there are now TV channels which seem to have quite deep pockets that are beginning to challenge some of these presumptions in the UK courts. There was one case actually decided after my book went to press, so it’s not in my book, but a book. It’s a case brought by a TV channel called GB News against the UK’s broadcasting regulator, the UK’s equivalent of the FCC, which is a regulator called Ofcom. And the case is interesting because it’s the first time in Ofcom’s history that a broadcasting decision that it has made has been overturned by a court.

(36:04):

So this is a rule that said that politicians may not present the news, right? Politicians may present current affairs programs, but there’s a rule in Ofcom’s code of conduct that says that politicians, elected politicians may not present news programs on the regulated broadcast media. GB News have news magazines, news magazine programs that are partly current affairs and partly news. And when there is breaking news, if you’re in a current affairs part of the show, rather than the presenter having to switch himself off and go to some other presenter who isn’t a politician, the presenter reads the breaking news. This happened. Ofcom fined GB News, a pretty substantial sum of money because there were several of these breaches. And GB News took the matter to the court, and the court held in favor of GB News’s arguments and against Ofcom’s arguments. And that’s the first time, as I say, that’s the first time that this kind of decision by Ofcom has been overturned by a court. But it’s also, even though I’m quite excited about it, it’s a very limited ruling because what the case challenges is not the rule itself, but the application of the rule in this particular case. So the rule is still there. It’s still the case that politicians are somehow unable, somehow unlawful. It’s unlawful because it violates principles of due impartiality.

(37:43):

It seems to me that these are rules which might have made sense in the day when there were only literally a handful of TV channels that you could choose from. But now there are, again, literally hundreds of TV channels that you can choose from. If I want to come home from work and I want to find out what a particular political party or a particular movement in politics is thinking about a story, then surely I ought to have the right as a viewer to choose a news channel that is not duly impartial because I’m not interested in finding out what the received wisdom is. I want to find out what this party thinks or that party thinks. I have a spectrum of newspapers to choose on. I can read communist newspapers, I could read far right newspapers, I could read anything in between, and that’s all unlicensed.

(38:30):

Why can’t I do the same as a television viewer? And actually, the person who made that argument most clearly is good old John Milton, because when you go back to “Areopagitica” and that great trapped against licensing, quite a lot of what he says in “Areopagitica” is an argument in favor of allowing readers to choose for themselves what to read. And I want to be able to choose for myself what to view on television. And if I want to watch on television something which I know is not impartial, but my point of viewing it is simply to find out what that group of people, what that political party is saying about a particular issue. I ought to have that right as a viewer. It seems to me, and we have been extraordinarily slow to see that, at least on this side of the Atlantic.

James Patterson (39:21):

So conservative or right-leaning coverage of Britain here in the United States has stressed the problem of hate speech as a kind of cooling, a chilling effect on coverage of certain issues. In the UK, you don’t have to talk about those issues, but in case that’s not something you want to drift into.

Adam Tomkins (39:41):

No, no, I’m happy to go there.

James Patterson (39:42):

Okay, then is there really a licensed media fear of covering specific issues because they’re afraid of running afoul of hate speech? Or does that cover for some kind cowardice in the face of what their coverage might… Oh, go for it.

Adam Tomkins (40:01):

In my mind, both. So I’ve just talked about the power of the administrative state. I’ve just talked about the regulatory reach of agencies. We call it Ofcom, you call it the FCC. It demands to the same thing, government agencies that are paid by the taxpayer to monitor what is broadcast. That’s the power of the regulatory state. And my view, is that that’s the real threat to free speech right now in Britain. But it’s not the threat to free speech in Britain right now that has caught the attention of some in the American media. And indeed, it’s not the threat to free speech that’s caught the attention of the Vice President. JD Vance has said quite a few things about this during the course of the year, and their focus tends to be much more on criminal law than on administrative law. And I can understand why, because criminal cases get people’s juices flowing and much more interesting to write about a kind of prominent hate speech case than the mundane quotidian administrative overreach of the regulatory state.

(41:09):

But actually, it’s that mundane quotidian overreach of the regulatory state that really matters, not the occasional criminal justice problem. But let me talk about the criminal stuff, right? Because in addition to the regulatory overreach that I’ve just been talking about, we also have a bewildering, dazzling array of criminal offenses, a number of which capture different sorts of speech. So it is, for example, an offense in the United Kingdom to send by email or any other form of electronic communications, a message which is grossly offensive. It is, for example, in the United Kingdom, an offense to stir up racial hatred by using an epithet which is perceived to be insulting. So there are some cases in the UK even now where you can be criminalized for saying something or tweeting something or writing something, not because you’ve said something which is threatening, not even because said something which is abusive.

(42:12):

But because you said something which somebody thinks is either grossly offensive or insulting. And in my view, and the argument I make in the book is that that is drawing the line of criminal liability in the wrong place. A lot of Americans will disagree with what I’m about to say, but my view is that it’s perfectly appropriate to criminalize threatening words. I can’t use my fists in a threatening way. So why should I be able to use my words in a threatening way? I have an argument in the book that defends hate crime when hate crime is understood to be a threat or even an abusive communication. But I absolutely draw the line at insulting or offensive speech, the answer, if you’re offended by what I have to say, the answer is not to silence me or to censor me or to cancel me, or to write to my employer saying that I have brought my place of employment into disrepute or whatever it might be.

(43:09):

The answer to my words, if my words are offending you or upsetting you or insulting you, is to use your own words to explain why I am being offensive and to urge that I should stop being offensive. You don’t meet and capture and deal with and defeat the problem of bigotry or prejudice in society by silencing it. You defeat it by exposing it, and you can only expose it if you’re prepared to engage with it and call it out and defeat it with words of your own. So the argument, this is the classic American position, right? That the argument against offensive speech is not to cancel the speaker, but more speech, right? Your speech showing me or showing everybody, showing my audience why I’m wrong to say what I’ve said. And I absolutely adhere to that view, and I think that the Vice President is right to draw attention to this issue. I think the American media are right to draw attention to the fact that in the United Kingdom, there are far too many instances of the criminal justice system being used to tackle speech, which somebody else is upset about, which somebody else is offended by or somebody else is finding,

(44:27):

claims to be insulting in some way. Now, the picture is not uniformly bleak. There is all sorts of pushback going on in all sorts of places in the media, in public discourse and in the courts. There was a recent case, for example, which gave a lot of us a lot of hope. A man had been convicted of a relatively minor public order offense for burning a copy of the Quran outside the Turkish embassy in London or Turkish consulate in London. And that conviction was overturned on quite strong terms on appeal. And the court gave its reasons and the reasons were very robustly articulated in the context of free speech. And it doesn’t follow from that case that we all have the right to burn a copy of the Quran wherever we see fit. If we were to do that in a way which is deliberately provocative, it could very well be fighting words.

(45:22):

It could very well be expressive conduct that would trigger all kinds of public order liability. But it does follow from that important breakthrough judgment that it will not always be a criminal offense to burn a copy of the Quran, even if there will always be Muslims who find that deeply offensive. And that it seems to me is drawing the line in the right place. So actually, I’m always being accused, James, of being too optimistic, but I am actually quite optimistic that there’s an increasing number of voices in UK society and UK politics, and also now an increasing number of cases being decided by the UK courts in which freedom of speech is being much more robustly defended again than it has been perhaps for some years. And if the Vice President’s contributions to that have been part of it and have helped, then I welcome them.

James Patterson (46:23):

On page 234, you open a section that says, “When the Online Safety Act was passed in 2023, after unusually long and protracted parliamentary passage, the UK government claimed legislation would make the UK the safest place in the world to be online.” What’s the score on that one? Professor Tomkins, are you safe?

Adam Tomkins (46:48):

The Online Safety Act is a nightmare.

James Patterson (46:52):

Sorry to bring you down from your optimism by bringing up your own laws…

Adam Tomkins (46:55):

Words, but this is going to be the cutting edge of free speech going forward. So we need to talk about it, right? Because the students I teach, I’m sure it’s the same for the students that you teach in Tennessee. James, the students I teach don’t obtain their news from any source other than online. They don’t read newspapers, they certainly don’t read books. They don’t read newspapers. They barely watch television. They sometimes do listen to podcasts, but they overwhelmingly, overwhelmingly receive all of their news and current affairs information online. And so we need to think really, really hard about what that means in terms of freedom of speech. And I think that there are, so if you take a Millian approach to this, right? J. S. Mill who wrote this wonderful essay “On Liberty” in the middle of the nineteenth century said that your speech and mind should not be curtailed at all unless it causes demonstrable harm to somebody else.

(47:59):

So if we think about a harm based approach to speech, and this is kind of classic classical liberalism, right? If we think about a harm based approach to speech, then I would go back to my example about threats. It can cause harm to threaten somebody with words in the same way that it can cause harm. To use Oliver Wendell Holmes’s world famous example to falsely to shout fire in a crowded theater, the reason why those sorts of words are not protected by even the world’s amplest protection of free speech is because they cause demonstrable harm to others. So if we use that as our way into this, as our way into thinking about this, then it is, I’m afraid, the case that online speech can be more harmful than offline speech. There is more anonymity online than there is offline. People can hide behind that anonymity in all kinds of ways that are dangerous for people. People also feel that they are able to say things, particularly on certain social media platforms that they wouldn’t say to each other face-to face perhaps because there aren’t any faces online. It’s very difficult. I have teenage kids. It’s very difficult to know what they’re looking at online. It’s very difficult to police that. I know that there are apps available. I know that I can restrict their, I know all of that, but I’m also kind of a liberal, so I don’t really enjoy doing those things.

James Patterson (49:24):

Also, a lot of work to conduct surveillance on teenagers

Adam Tomkins (49:27):

All day. Absolutely. And they’re always going to be more tech savvy than I am, and they’re always going to be quicker to work out their way around it than I can. So it’s kind of futile, right? Again, that’s something that Milton said about censorship. It’s like the farmer who puts a fence around his field to keep the crows out. You’re not realizing that the crows can just fly in. So it’s absurd. It’s futile. So what I’m saying is that I think there is a very good argument for thinking about online speech differently from the way in which we think about offline speech, because I think that the harms that speech can cause online might be different from, and might even be greater than the harms that can be caused offline. But… And you knew there was a “but” coming…

Adam Tomkins (50:10):

We also need to think about freedom of speech online and getting that line, getting that line right between what is permitted and or licensed or criminalized, and what is not is going to be, I think, a work in progress. I’m going to say two things, which I think are unfortunate about the Online Safety Act. First is just complexity. So the legislation itself is fiendishly difficult to understand. I’ve tried to teach it to very advanced law students a couple of times now, and more or less completely failed. It’s very difficult to understand. But that is a problem, which is massively compounded. When you look at the regulatory verbiage that is spewing from Ofcom. We’ve talked about Ofcom already, and it’s the same regulator who are empowered under the Online Safety Act. Within the first year of the Online Safety Act coming into force, Ofcom had published more than 2000 pages of regulatory guidance.

(51:14):

Now, whenever you’ve got 2000 pages of regulatory guidance, you haven’t got much freedom. So this is all stuff that is designed to restrict freedom of speech, and it’s all happening in real time. It’s happening right now. It’s happening without any real democratic accountability because Ofcom are a government agency. The courts, the cases have not yet really started to filter up into the courts. There are very few cases on the Online, so there are one or two, but there’s very few cases on the Online Safety Act. And of course, parliament is not interested because Parliament’s done its work and has enacted the, except for the fact that Parliament is interested insofar as it thinks that the Online Safety Act doesn’t go far enough. So the Online Safety Act is designed to focus on specific harms, but it is not designed to focus on the alleged harm of disinformation.

(52:07):

And there was a parliamentary committee that reported very recently, just the last few months in the House of Commons in Westminster that was focused on the problem of the perceived problem of disinformation online. And it recommended as an all party committee that unanimously recommended that the Online Safety Act already needs to be amended to increase its reach into online speech to begin to capture this problem or a perceived problem of disinformation. So I’m afraid that on this score, notwithstanding my optimism five minutes ago, I’m much less optimistic that the United Kingdom is moving in the right direction or is indeed even facing the right direction. It seems to me at the moment, we’re terrified of what’s happening online. We don’t understand what’s happening online. We dislike what we think we see online, and we are increasingly reaching. The impulse is there in our politics. I’m afraid that lawmakers are reaching for the regulatory tools that are familiar to them from the broadcasting world, copying and pasting, applying them to the online world. And even if that one day makes the Internet a safer place, it’s going to make the Internet a lot less free. And that is a conversation that we need to be having upfront and in public and not under the cover of a thousand pages of regulatory garbage from Ofcom. It’s really, really troubling.

James Patterson (53:38):

Well, I can’t do better than that to close us out, Professor Tomkins. Thank you so much for appearing on the Law & Liberty Podcast.

Adam Tomkins:

You’re welcome.

James Patterson:

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

America’s favorite Frenchman, Alexis de Tocqueville, wrote that, “there is nothing more annoying in the habits of life than this irritable patriotism of the Americans.” We are determined to defend anything about our country, “except perhaps the climate and the soil; and still, one finds Americans ready to defend both as if they have helped to form them.” Right you are, Mr. Tocqueville.

With the 250th anniversary of America’s birth looming, now is a good time to talk about the National Park Service. What are the underlying ideologies that animate the NPS? What role does it, and should it, play in preserving the American story and revitalizing the republic?

That question can best be answered with an overview of the NPS’s history and philosophical influences. Overall, the NPS is doing a good job of maintaining and preserving natural resources such as Yellowstone, a necessary and relatively straightforward task (and not this piece’s concern). Things become more complicated when it comes to historical sites such as battlefields, where a curator’s task naturally entails the telling of history, which has become a more fraught landscape in recent years. It’s worth having a conversation about those NPS historic sites.

Over time, the NPS has tilted more and more in a progressive direction. That’s unfortunate, because the natural law conservationism of the Founding offers a better guide for how to understand the mission of the NPS.

History of the National Park Service

Most Americans probably assume that the NPS preserves, well, parks: places like Yellowstone National Park and Glacier National Park, which are homes to nature’s wonders and beauties. But the history of the NPS, like that of government in general, shows a steady expansion of realms of authority, which experienced a significant uptick during the Progressive era. In 1872, Yellowstone National Park was created through an act of Congress, and Congress also created the federal bureau known as the NPS in 1916. The Antiquities Act of 1906 gave the president authority to designate national monuments. Even mineral springs, memorials, reservoir-based areas, and parkways fall under the NPS.

In 1781, Congress took steps to commemorate American battlefields, and the centennial years of the American Revolution saw an increase in monuments built throughout battlefields. Yet military parks fell under the control of the War Department—that is, until 1933, when President Franklin D. Roosevelt transferred 57 historical sites and battlefields to the National Park Service via executive order.

This altered the NPS in meaningful ways. According to the National Park Service’s own self-published history:

The National Park Service undertook another mission in 1933 as President Franklin D. Roosevelt launched his New Deal: helping to relieve the great economic depression gripping the nation. Under NPS supervision, the new Civilian Conservation Corps (CCC) would employ thousands of jobless young men in a wide range of conservation, rehabilitation, and construction projects in both the national and state parks.

The expansion of the NPS was part of Roosevelt’s broader economic program.

Two years later, through the Historic Sites Act of 1935, “historic preservation became a major responsibility of the National Park Service.” The NPS would no longer simply be in the business of conserving nature, but also in telling the American story and engaging in public education.

Preserving natural wonders and perpetuating the American heritage are quite different, though not necessarily contradictory, tasks. Conservationists and natural scientists, historians, and political philosophers tend to study distinct subjects.

Interpreting Our Heritage

Natural beauties are one thing, and most Americans simply expect reasonable maintenance and access when it comes to those places. However, there is notable disagreement in the current political climate over how to tell the American story. The NPS owns places like the Gateway Arch & Museum of Western Expansion, the Women’s Rights National Historical Park, and the Harriet Tubman National Historical Park. Many such places are doing a terrific and honest job, but some are straying. All of them would be stewarded better if they approached their task with a deep understanding of the civic value of historic sites. 

While there is room for a degree of judicious choice about what to emphasize at any given historic site, there are still standards when it comes to history, and turning historic sites into vehicles for activism undermines their unique value. Cherry-picking in either direction is not in the spirit of liberal education, and primary sources offer guidance to discern if history is being presented fairly and accurately.

Places like Frederick Douglass National Historic Site and the Jefferson and Lincoln memorials are places of public education, where Americans can go with their families, classmates, and fellow citizens to learn about heroic figures, the triumphs and failures in American history, and the principles that define us. That experience could be a positive visit that prompts discussion among citizens, a negative one that encourages kids to imagine themselves as aggressors, or simply forgettable. It is a “touch-grass” opportunity that is increasingly precious as classrooms are failing to offer a robust education. A memory of that kind of visit often remains in people’s minds as adults.

The maintenance of the memory of the American story is necessary for preserving the unity of a single people. Harry Jaffa wrote that

every political philosopher has always recognized, that there must be some conviction, usually embodied in the form of a story that can be told, comprehended, and taken to heart by all, which produces a sense of community and unites the hearts of those who call themselves fellow citizens. Without that fellow feeling there is no basis for mutual trust, and where there is no trust there can be no freedom.

The National Park Service seems to be lacking in such philosophical grounding. One illuminating text on this front is Freeman Tilden’s Interpreting Our Heritage. A journalist, playwright, and novelist by trade, Tilden first wrote his seminal book in 1957, and it remains widely used by NPS guides today. Some even consider it the “Bible” of the interpretive profession.

While Tilden sometimes writes about connecting Americans to their past or preserving a history or legacy, his overarching emphasis is on the self and on relating to visitors on a personal level in order to provoke a unique experience. For example, Tilden utilizes Ralph Waldo Emerson’s quote that, “The world exists for the education of each man. There is no age, or state of society, or mode of action in history, to which there is not something corresponding his own life.” He introduces six principles of interpretation, working around this same theme. Interpretation, Tilden explains, should relate to “something within the personality or experience of the visitor.” “Information, as such, is not interpretation.” Also, “the chief aim of interpretation is not instruction but provocation.” 

Tilden’s work is not without value, but it’s clear that his primary focus is on the individual, not on preserving the American tradition. As College of Charleston’s Kerry Mitchell writes in “The Soul of Things: Spirituality and Interpretation in National Parks”: “More central to scientific literacy or instilling patriotic values, the evocation of personal spiritual meaning stands at the core of Tilden’s agenda for interpretation.”

It’s fair to question how much Tilden has influenced the minds of NPS leadership and park rangers. Such rangers are often lovely people who care about history and/or nature. But ideas do matter; the ideas of elites have a tendency to trickle down over the years, and it is worth asking these questions before historic sites become even more ideological.

Is the mission of the National Park Service merely, or primarily, to entertain autonomous individuals, and is depicting American history simply a means to that end? Or should its mission be to preserve the American story and the self-governing character of a single people?

Progressivism Post-Tilden

Departing from Tilden, Progressivism (as it does) has expanded its influence over the NPS through the decades. A Progressivism that encourages and offers an ever-expansive definition of rights informs the modern NPS in significant ways.

In its centennial 2016 report “A Call to Action: Preparing for a Second Century of Stewardship and Engagement,” the NPS holds out the need to adopt Progressive causes, like combating climate change and developing a workforce “that values diversity and an inclusive work environment.”

A 2018 report by the George Wright Forum, which publishes work related to parks, protected areas, and cultural sites, indicates that the Stonewall National Monument in New York was designated as a historical monument in 2016 because it played a pivotal role in the “nation’s LGBTQ civil rights movement and inspired generations of activists.” This is quite reminiscent of President Barack Obama’s Second Inaugural Address, during which he stated that, “We, the people, declare today that the most evident of truths—that all of us are created equal—is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall.”

The report further contends that:

The 1998 creation of Little Rock Central High School National Historic Site was the foundation for a series of studies that sought to identify, evaluate, and preserve properties associated with the modern Civil Rights Movement, which in turn lent relevance to consideration of places associated with women, Native Americans, Japanese Americans, Latinos, and the LGBTQ communities.

It is, of course, debatable whether it is appropriate or accurate to draw a straight and logical line from the Civil Rights movement to modern-day LGBTQ+ claims.

In terms of historical preservation, the Civil Rights Movement is certainly significant and important, and sites that convey its meaning or that depict central figures like Martin Luther King ought to be commemorated. Such successes as the elimination of slavery and achievement of moral and legal equality are legitimate fulfillments of the “promissory note” that is the Declaration of Independence and the central principle “all men are created equal.” For equality in the Declaration is about the dignity of the human person, rather than sameness.

Analyzing various demographics, such as the driving role Christian women played in charity work and the development of civil society, can also be quite informative and interesting. However, such initiatives are often framed or hijacked by the politically motivated, who group them in with more controversial causes that do not fundamentally center on fair inquiry or demographic considerations. For example, celebrations of LGBTQ+ history rely on conflict theory, which reduces everyone to either oppressor or oppressed categories. Such interpretive grids result in ever-expanding classes of victims.

A thoughtful encounter with nature’s beauty and harsh demands can inherently encourage a connection to and reverence for the transcendent, as well as a hardy resilience respectful of human limitations, so there is good reason to set aside public lands.

The result is that norms are altered, and the Sexual Revolution replaces Civil Rights. For example, until recently (the series of articles has now been removed), the NPS identified the Kinsey Institute as a site connected to LGBTQ+ history. The article lauded the perverse work of discredited sex researcher Alfred Kinsey, and claimed that he “conducted pioneering research to challenge ideas of normativity and discriminatory laws regarding sexual behavior” and contributed to a “heterosexual-homosexual rating scale, placing the sexual behavior of individuals along a continuum.”

Clearly the mission and scope of the NPS have expanded considerably, beyond preserving natural rarities to include a cultural activism animated by a Progressive worldview.

Back to the Founding

As we begin a robust conversation ahead of America 250, this same NPS is “reimagining” exhibits at places like the Jefferson and Lincoln Memorials.

A superb paper by Belmont Abbey College’s Rachel Alexander Cambre, “The Conservative Roots of American Conservationism,” offers some guidance on how to consider natural and historic sites. Cambre particularly examines the philosophy of James Madison, Thomas Jefferson, and Teddy Roosevelt to develop a civic understanding of and approach to conservationism, one grounded in man’s relationship with nature and natural law. A thoughtful encounter with nature’s beauty and harsh demands can inherently encourage a connection to and reverence for the transcendent, as well as a hardy resilience respectful of human limitations, so there is good reason to set aside public lands.

Cambre writes that “the conservation of public lands preserves the ‘common stock’ in part by giving all citizens access to land. … By facilitating man’s reliance on nature and nature’s God, along with the virtues that this reliance fosters, land conservation facilitates republican government.” She continues, “In safeguarding landscapes and species unique to America, the national parks help to endow Americans with an attachment to their fatherland, providing the durability that [Yuval] Levin argues is essential to healthy institutions and societies.”

Societies that foster innovation, as free market republics do, can be characterized by a fair amount of churning, and longstanding institutions and shared principles offer a counterbalancing stability. A republic that disrupts the old ties of hierarchical ancestry and practices like primogeniture and entail must offer binding alternatives—alternatives like civic friendship and the Madisonian recognition that improvements to the land by the dead “form a charge against the living.”

American stewardship of land, through more widespread citizen ownership and reasonable public ownership, reinforces the reality of the principle of sovereignty of the people. The attachment to home, which is both physical and enduring, is a healthy antidote to expressive individualism, and visiting America’s natural wonders and historic sites can encourage such an attachment, conveying that not only do America’s citizens possess the land, they are possessed by it. As long as the NPS adequately maintains natural sites, it achieves those ends. 

When it comes to historic sites, the mission of the National Park Service ought to be a civic one: to preserve the American story and foster the republican virtues necessary for self-government. 

Accurately and fairly portraying the American heritage at historic sites is crucial to reminding us who we are as a single people. Historic sites are places of public education where Americans have buried our honored dead, gathered to listen to words fitly spoken, and been called to adventure by the animating spirit of enterprise. We continue to visit with our families so that generation upon generation can learn and rediscover the American story. They are physical places that encapsulate the character and principles of a people, and we protect those places to preserve the experiment and the tradition that is America.

In the past two hundred years, the acceleration of technological advancement in communications has been nothing short of astounding: the telegraph (1837), the telephone (1876), radio (1895), cinema (1895), television (1927), the Internet (1983), the World Wide Web (1989), social media (1997), the smart phone (2007), and artificial intelligence, such as ChatGPT (2022). This period contrasts with the slower pace of when the Gutenberg printing press (c. 1440) replaced copying handwritten manuscripts (c. 3400 BC). The dazzling speed of technological innovation no longer makes Elon Musk’s dream of developing implantable brain-computer interfaces far-fetched, with the first human clinical trials already underway.

How do we make sense of the rapidity and transformation in these communicative technologies? Grant N. Havers, chair of the philosophy department at Trinity Western University in Canada, looks to his fellow countryman, Marshal McLuhan, for answers in The Medium is Still the Message: Marshall McLuhan for Our Time. Havers resurrects McLuhan’s theories and ideas about the media by presenting them in an accessible manner without sacrificing philosophical depth to understand the digital world in which we live. As the “father of media studies,” McLuhan shows that media are not simply tools of communication: they create new environments that radically change how we think about politics, economics, culture, identity, and religion. Without understanding the power of media technologies, we become enslaved to these creations and make them the new idols of our era.

The Man

Herbert Marshall McLuhan was born in Edmonton, Alberta, in 1911, but his family moved to Winnipeg, Manitoba, two years later. McLuhan obtained his bachelor’s in 1933 and his master’s in 1934 at the University of Manitoba with both degrees in English. He then completed his second bachelor’s degree in English at Cambridge in 1936, a degree that he considered far superior to the ones he obtained in Canada. During this period, he was influenced by G. K. Chesterton, Hilaire Belloc, I. A. Richards, and T. S. Eliot. He converted to Catholicism in 1937 and taught at St. Louis University, where he deepened his study of Catholic scholasticism.

McLuhan and his family finally settled in Toronto, where he took up a professorship at St. Michael’s College, a position he held until his death in 1980. His breakthrough publications were The Gutenberg Galaxy (1962) and Understanding Media: The Extensions of Man (1964). Both works examined the effects of mass media on culture and human consciousness, and where the phrases “the global village” and “the medium is the message” entered the public discourse. “The global village” came from McLuhan’s prediction of the World Wide Web in The Gutenberg Galaxy, where he argued that the visual, individualistic print culture would be replaced by “electronic interdependence.” Humankind would move from fragmented individualism to a new social organization of collective identity known as the “global village.” McLuhan also coined the phrase, “the medium is the message” in Understanding Media, where he proposed that the form of media, not its subject, should be the object of study because the role that media plays in society is determined more by its characteristics than its content.

In 1963, McLuhan established his own institution, the Centre for Culture and Technology, and he continued to write, give interviews, and engage in popular culture in the hope of effecting change while understanding the power and nature of mass media. By the 1970s, he turned to activism, whether it was supporting urban localism and environmentalism or opposing the reforms of Vatican II. In 1979, he suffered a massive stroke that rendered him unable to read or speak in the last year of his life. But before his death, he witnessed the fulfilment of one of his most famous predictions: the transformation of entertainment into politics with the election of Hollywood actor Ronald Reagan to the presidency in 1980.

Rear-View Mirror Thinking

In an age of rapid technological change, McLuhan believed that humans recoil from these new media environments and instead rely on “rear-view mirror thinking”—focusing on the preceding environment to make sense of their new reality. For example, television was initially understood by many as merely an extension of radio, a medium they already knew. By framing new technologies with reference to older, familiar ones, people not only miss the unique potential of innovations in new technologies, but they also can become disoriented when their previous mental frames are unable to navigate the new media landscape. This “total disorientation at all times” makes people vulnerable to political ideologies and tribal identities.

The instability of human identity in an age of rapid technological change was a continual interest of McLuhan, especially where he thought human nature itself could be turned into an object and reshaped at will.

The United States was a case in point for McLuhan by representing a forward-looking society that judged its political identity and institutions according to an obsolete set of traditions and practices. As Americans embraced new communicative technologies like radio, television, and the Internet, its citizens still looked to a technologically outdated print culture of the eighteenth century for its political identity. According to McLuhan, the inability of American institutions to adapt to technological changes led their citizens to engage in “rear-view mirror thinking.” Americans hark back to the age of the Enlightenment with its values of individualism, rationality, and mass literacy as the fixed identity of the republic. In the age of electronic and digital technology, Americans were not only nostalgic for its earlier print culture but were unable to conceive or communicate otherwise, creating “total disorientation” among its citizens and thereby making them susceptible to ideology and identity crisis.

Havers builds upon McLuhan’s insights to account for American political identity and politics today: America’s “admirable celebration of literacy makes it unable to grasp the full effects of electronic (now digital) media.” The failure of conservatives to understand that most Americans are indifferent to the values and principles of the republic’s founding is because conservatives believe their fellow citizens live in a print-literate culture with Enlightenment values. Following in the footsteps of McLuhan, Havers argues that there is nothing left to conserve in America with the transformative cultural, technological, and institutional change in the past two hundred years.

Nothing Left to Conserve?

The democratic deliberation required for serious political debates―the dialogue and back and forth among legislators and branches of government―no longer exists in the age of television and the Internet. Today’s medium would be too “hot” for McLuhan because these media are not set up as if they were a newspaper or radio. The well-known fact that those who listened (via radio) to the 1960 presidential debate thought Richard Nixon won, while those who watched television believed John Kennedy did, underscores McLuhan’s insight that “the medium is the message.” It is not cool deliberation and reasoned argumentation that win current political debates, but the repeated replay of theatrical tactics and well-rehearsed talking points that the public continually consumes.

But are there really no “permanent things” left to conserve from the Founding in today’s America? As some have argued in these pages, there are certain ideals and principles that continue to remain with Americans in their experiment of self-governance: the common good, natural rights, and government by the people. Americans still believe in these ideas in spite―or because―of cultural, technological, and institutional change. This persistent belief is not a case of “rear-view mirror thinking” but an understanding that enduring principles continue to animate in people’s lives regardless of how they are conveyed because they are real and true.

The Magic of Post-Literate Society

McLuhan would not be too sanguine about a digital print culture and instead predicted a “post-literate” society―one where electronic and digital media make literacy less necessary and common. For McLuhan, the decline in literacy and the collapse of an American print culture make it impossible to discover a vantage point to critique the digital world in which we live. As McLuhan humorously put it, “We don’t know who discovered water, but we’re pretty sure it wasn’t a fish.” Fish don’t know water because they are unable to live―and therefore perceive―the environment in which they live. Likewise, for Americans in a post-literate society, they are unable to perceive a culture, politics, and reality other than what is shown on their screens.

The instability of human identity in an age of rapid technological change was a continual interest of McLuhan, especially where he thought human nature itself could be turned into an object and reshaped at will. This transhumanist impulse becomes more prevalent in a post-literate society where science and art have merged together in the creation of new realities. Perhaps no better product captures this than Apple’s iPhone, where technology, science, art, and design are brought together to revolutionize “mobile image making.” Out of its more than 1.5 billion users, very few, if any, understand how the iPhone actually works. As a consequence, the technology of the iPhone is perceived as a type of “magic”―a belief that reality can be shaped according to one’s will.

McLuhan aptly observed that the adoption of these “magic” technologies for communication does not require the use of one’s body: “One of the peculiarities of radio and electric technology is that it moves you instantaneously: you are everywhere at the speed of light, without a body.” The result is a dualistic conception of human nature with the sensual (the body) and the abstract (the mind) existing apart, with the body ignored. This neglect of the body not only led to a type of Gnosticism for McLuhan, but it also created a new form of collective consciousness where, McLuhan wrote, “something is shared by everyone, in some mysterious way.”

This mysterious community is McLuhan’s “global village” where “everyone is involved in everyone else’s business.” Potentially, this place could be one of harmony (remember the promise of the World Wide Web uniting the world?), but more likely it would be a place of tribal politics and conflict. McLuhan at different times predicted both but thought conflict was more probable: “Electric technology creates not the nation but the tribe―not the superficial association of equals but the cohesive depth pattern of the totally involved kinship groups.”

How can the modern person who is so engrossed in an electronic and digital media culture not understand politics but grasp Shakespeare and the Nicene Creed?

As Havers points out, the current debate and controversy over identity politics support McLuhan’s claim. The desire of marginalized people to create communities based on shared attributes and interests to bolster their stigmatized identities is to privilege one group over another. By contrast, the earlier visual, individualistic print culture was associated with the belief that rights extended to all individuals and not to groups or tribes. The rise of digital technologies and social media has yielded the opposite. Being too “hot” and “magical,” the medium of these new technologies has accelerated tribal identity, where the global village is one of strife and hatred instead of harmony and peace.

A Schizophrenic Account

For McLuhan, one of the ways out of this digital mess was the medium of the book to awaken the critical faculties of the mind. Displaced by electronic and digital media, the book was no longer a vehicle of self-expression but “a probe of society”: to examine and critique a postliterate society from a literate perspective. Reading books, and living in print culture generally, was an individual interior experience where people could create private lives for themselves in contrast to the digital world of outward presentations of the self. By studying the relationship between one medium and another, McLuhan believed an “anti-environment,” a place to critique the digital media ecosystem in which we live, could exist. It should come as no surprise that McLuhan welcomed the creation of Robert Maynard Hutchins’ and Mortimer Adler’s “great books” program at the University of Chicago as one way “to probe society.”

Another was religious belief, and particularly in natural law, that enabled people to “keep their cool” amid rapid technological change. By trusting in the inherent goodness of God’s creation, the Christian manifests “detachment and amusement at human gullibility and self-deception.” This psychological distance from the world permits a critique of it, to recognize that digital substitutes cannot replace the unity of the body and soul. To live only a digital life is to live a life free of one’s natural body with its limitations and instead to aspire to a God-like authority over creation. Without an anchoring principle or belief, people will be increasingly dependent upon these technologies for information and their values, the idols of our age. As Havers describes it, “In the absence of a religious consciousness, we will experience nothing but disorder and chaos.”

Unfortunately, these solutions come across as simplistic and contradictory. If the changing technological landscape precludes citizens from appreciating their country’s founding principles, then wouldn’t they equally be incapable of valuing the books of great literature or accepting religious beliefs? Why does “rear-view mirror thinking” only apply to politics but not to culture and religion? How can the modern person who is so engrossed in an electronic and digital media culture not understand politics but grasp Shakespeare and the Nicene Creed?

McLuhan’s remedies not only echo a post-liberal conservatism but are also unconvincing because he is selective about which aspects of human nature are impacted by technology. The person, whether ancient, medieval, or modern, is a unitary entity, both body and soul, as McLuhan, a practicing Catholic, believed. It is therefore strange that his diagnosis and answer to modernity’s crisis is selective―politics is a dead-end but culture and religion are not―and raises questions about his analysis.

The issue may not be whether the medium of new media is “too hot” or “cool” but whether our citizens are civically educated so they can navigate this new world of digital media. Such an education includes digital and information literacy, but also civic knowledge and practice. McLuhan is invaluable for us to understand the role, nature, and purpose that media plays in our lives, but his dismissal of enduring animate principles and skepticism of the renewal power of politics is disappointing.

Nonetheless, by reviving McLuhan’s ideas about the media and its impact on politics, culture, religion, and identity, Havers shows that “human beings do not live well at the speed of light.” Like McLuhan, Havers believes that a print culture provides the conditions for deliberation and reasoned argumentation, whereas electronic and digital media promote our tribal identities and loyalties. While there are questions about McLuhan’s treatments for the ills of a digital media culture, Havers has done an invaluable service by highlighting a thinker who forces us to think about the age in which we live and how we can make sense of it.