Category: Michael Novakhov – SharedNewsLinks℠

Just as Odysseus tied himself to the mast to resist the sirens, our constitutional rules bind leaders against the lure of expediency, safeguarding free speech, pluralism, and long-run economic prosperity. Constitutional rules are those that exist because they are the most tempting for leaders to break, and they give us a helpful lens through which we can view today’s free speech debate. From Attorney General Pam Bondi’s calls to go after “hate speech” in the aftermath of the Charlie Kirk assassination, to the Jimmy Kimmel free-speech fallout after FCC calls for intervention, to renewed efforts to criminalize flag burning, populists of the New Right are pushing politics into short-term power grabs to quell speech in ways that erode institutional integrity. All these efforts to quell Americans’ First Amendment rights set a dangerous precedent by normalizing executive overreach and discretionary censorship. Today’s debate isn’t just about civility or platform access; it’s about whether we still understand the economic rationale behind constitutional limits.

The New Right has been politically potent because it has mastered populism’s simple moral drama. Divide the world into two antagonistic camps, the virtuous “people” and the corrupt “elite,” and then promise power as the instrument of justice. Because populism is a “thin-centered” ideology, it readily fuses with other commitments like nationalism, cultural conservatism, and industrial policy. The current flavor of populism has produced an elastic coalition that includes Midwest factory workers who feel displaced by globalization, voters suspicious of credentialed expertise, citizens frustrated by immigration disorder, and even some small-government conservatives who see the state as a temporary sword to cut through captured institutions. Many of the New Right’s current policies would have been familiar to the Left a decade ago: tariffs and industrial policy; fixation on the trade deficit as a national scoreboard; a growing willingness to police speech in the name of public morality or national cohesion; and an eagerness to bend independent institutions to executive will. This is a politically marketable package because it translates frustration into concrete action: use the state. The rhetoric is crisp, the villains are named, and the time horizon is now.

But this is precisely why rule by populist diktat is so dangerous when the subject is speech. Tariffs and subsidies waste resources, regrettably, but discretionary censorship degrades the constitutional order that makes wealth creation and civic peace possible in the first place. Whether it is pressuring agencies to “do something” about disfavored pundits, threatening to make offensive expression a criminal act, or floating schemes to subordinate independent economic stewards to presidential whim, the logic is the same: expand discretion and promise it will be used for the “right” ends. Nevertheless, powers created to punish enemies never remain in friendly hands. The next administration will inherit the enlarged toolkit and repurpose it. In game-theoretic terms, precedents are strategies over time; once you normalize ad-hoc exceptions to speech protections, you change the repeated game from rule-guided cooperation to tit-for-tat escalation. The country then spirals into a contest of retaliation and control rather than a society governed by predictable, general rules.

Classical liberalism approaches the matter of free speech through the lens of preserving institutions that protect individual rights and pluralism rather than maximizing immediate leverage. It is less concerned with who wields power today and more with designing constraints that minimize damage when power is inevitably misused tomorrow. Classical liberalism values free speech not because every utterance is virtuous, but because open contestation is the only mechanism that reliably disciplines error, exposes falsehood, and diffuses power. Its time horizon is long, its disposition humble about knowledge, and its focus fixed on the rules of the game, not the score of the current inning.

Constitutional economics makes the stakes legible. Begin with a simple question: why don’t constitutions bother with petty theft? Ordinary criminal law handles it. The answer is that there is no social temptation to suspend the rule against theft; its violator is an obvious loser in the eyes of almost everyone, and allowing theft doesn’t generate short-run gains that are tempting to the rest of us. By contrast, speech, due process, religious liberty, and property rights are precisely the arenas where the temptation to “make an exception just this once” is recurrent and strong. Sometimes violating a right looks like it might produce a neat, measurable benefit: raid privacy and you might catch more criminals; outlaw a repugnant protest and you might avoid offense; gag a demagogue and you might reduce social unrest; force a critic off the air and you might spare the public from “misinformation.” That is the lure of ad-hoc discretion: visible benefits now, invisible costs to the system that protects all of us over time.

We bind ourselves in advance to the mast of free speech, free press, and free exercise because we know the sirens of expediency will sing.

Here, Friedrich Hayek’s “generality norm” does important work. Good constitutional rules are general, abstract, and equally applied with no special favors for friends, no special burdens for enemies. They are framed without reference to named persons or groups, and they do not depend on the virtue of whoever currently holds office. Because, as Hayek emphasizes, none of us knows our future station, we might be a majority today and a minority tomorrow, we have reason to support constraints that protect us in bad situations as well as good. Buchanan and Tullock’s seminal work, The Calculus of Consent, presents the economic logic behind the significance of constitutional rules. They describe how people living under uncertainty seek rules ex ante that make cooperation cheaper than conflict, reduce the opportunity for rent extraction, and limit the scope of high-stakes, winner-take-all politics. Stable, general rules transform zero-sum political contests into positive-sum production by clarifying rights, lowering transaction costs, and letting entrepreneurs mitigate uncertainty. The aim is to channel self-interest not through the hope of benevolent officials, but through institutions that make predation costly and production rewarding.

Constitutional rules, therefore, must be designed to resist precisely those situations when leaders feel the urge to break them. They should be difficult to change, with costly procedures like supermajorities, multiple veto points, judicial review, and federalism, so that no faction can recalibrate the rules in a spasm of partisan passion. Yet they also need orderly adaptability: amendment procedures and interpretive doctrines that allow learning from experience without relying on emergency exceptions. Constitutional law invites citizens to consent to the constraints because they know that, in the long run, the surplus from stability dwarfs the thrill of short-run victories. The general and abstract nature of these known rules makes it possible for millions of strangers to coordinate their plans without central command. Applying this to our First Amendment protection of free speech, a bright-line commitment to protect even offensive, foolish, or hateful expression, paired with narrow, content-neutral limits for truly imminent threats, provides the predictability society needs. Open-ended carve-outs like “misinformation,” “hate,” or “national morale” invite partisans to weaponize enforcement. The reason we do not trust discretionary censorship is not that we deny harm, but that we know human beings cannot wield such discretion impartially.

The Odyssean analogy is apt. We bind ourselves in advance to the mast of free speech, free press, and free exercise because we know the sirens of expediency will sing. We accept that a free press will sometimes be cruel and inaccurate; we accept that a public square with robust speech will sometimes be vile; we accept that religious liberty will sometimes shield practices we find strange or even offensive. We accept these costs because the alternative—empowering officials to decide which jokes, which protests, which orthodoxies cross a line—is worse. A society of general rules is a society where citizens can predict the consequences of speaking, organizing, and investing without waiting to see who holds office. It is also the only environment in which truth emerges reliably from contestation rather than from decree.

Populism rejects institutional limits, defining politics as the rectification of injustice by a single will. It prizes power over process, mistaking righteous discretion for justice. In practice, it simply empowers new elites and rewards whoever can punish the “right” villains. That’s why Left and Right populists alike tend toward censorship; silencing opponents feels like victory, but it corrodes the pluralism that keeps power accountable. There is a political temptation to argue that populism “works” because it wins attention and elections. The American Founders knew better: they built a system that channels ambition through structure, protecting rights and dispersing authority. Property rights and free speech are twin pillars of that system; one secures material creation, the other intellectual discovery. A society that censors itself stifles both.

Although the current fervor for populism is high, beneath the daily tumult are signs of a public hungry for meaning, order, and durable institutions. Millennials and Gen Z are filling pews of more traditional religious denominations; young men are especially drifting rightward on some issues; and there is a broader weariness with politics as a permanent emergency and a search for stable ground in a technological whirlwind. These currents will not automatically produce constitutional renewal, but they create an audience for it. And because Americans instinctively understand themselves as citizens of a nation of laws, not plebiscites, the rhetoric of constitutional generality is native to our ears. We do not have a deep tradition of populism; when it has surged, it has usually burned itself out on the rock of our constitutional structure. Our task is to keep that structure intact.

Friends of liberty, then, have two duties in the current free speech fight. One is outward: to make the positive case for pluralism and for the economic logic of rules that are general, predictable, and hard to bend. The other is inward: to push back against their own side when it flirts with using the tools of censorship for friendly ends. That is the moment of real statesmanship. It is easy to defend free speech when it protects your allies; it is harder and more important to defend it when it shields those you distrust or dislike. The Constitution’s design asks us to trade the satisfaction of ad-hoc victories for the prosperity and peace that only stable, impartial rules can sustain. If we recover that logic, the sirens of expediency will keep singing, but our ship will keep moving, and the republic will remain a place where the answer to bad arguments is not the policeman or the regulator, but a better argument made in public by free people.

On November 10, fifty years ago, “the witch of November came stealing,” breaking apart and sinking the Great Lakes freighter Edmund Fitzgerald on Lake Superior. The ship and all 29 men on board disappeared in one of the fiercest storms of the century without a trace or a final distress call. The poetic description of the storm, of course, is from Gordon Lightfoot’s folk rock ballad that memorialized the wreck and made it part of American cultural consciousness. Without Lightfoot’s unexpected hit, the wreck may be remembered today mainly as a piece of historical trivia, and its anniversary likely would not have been the subject of feature essays and a new book.

“The Wreck of the Edmund Fitzgerald” is not only a fitting remembrance of the men who died in the frigid waters of Lake Superior, but also a searching and haunting reflection on the human condition that conveys the smallness and fragility even of modern man.

In the Romantic idiom, Lightfoot channeled a sense of the sublime. Law & Liberty readers are, of course, familiar with Edmund Burke as a political and constitutional theorist. In his own day, his treatise on aesthetics, A Philosophical Inquiry into the Origin of Our Ideas of the Sublime and Beautiful, was also well-received and often cited. There, he sharply distinguished between beauty and sublimity, and examined the material causes of our sense of each.

The sublime, he argued, springs from our fear of death and desire for self-preservation. Things that would fill us with terror if experienced directly will, when presented artistically from a safe distance, cause a certain kind of delight and wonder. The sublime conveys to us a sense of our own weakness and vulnerability. It silences our reasoning and puts us in awe of what we are beholding.

Shipwreck is, for good reason, a perennial artistic motif, and the prospect of death at sea naturally summons up the emotions appropriate to the sublime. The sea is a restless, boundless, and untamable power, and its seeming infinitude means there is likely no relief to be found should disaster strike. Lightfoot’s ballad makes use of several elements that Burke identified with the sublime: conveying a sense of vastness and infinity; describing great strength and power laid low; and utilizing a “judicious obscurity” in describing the disaster. All of these leave the listener to wonder in awe at what the 29 sailors on board experienced that evening, and to feel our own smallness in the cosmos.

Vastness and Infinity: Perhaps the most immediately recognizable quality of the song is its repetition. The same, simple melody is repeated over and over across seven long verses without a chorus, bridge, or solo. Lightfoot strums the same chords continually on his twelve-string acoustic, accompanied only by an eerie pedal steel guitar, which almost seems to emanate from below the waves. In the opening and in between the verses, the top line is accentuated by an electric guitar, ringing out like a ship’s bell, as if to say, “what has always been here now demands your attention.”

Far from making the song simplistic, though, the repetition serves an essential purpose. Repetition, Burke noted, suggests to us the infinite, just as a continual sound like a pounding hammer seems to continue to echo in our ears even after it is over. Not only does the song’s repetition mimic waves, but by going on and on forever, it conveys a sense of the empty horizon and vastness of the lake—that very quality that makes the shipwreck such an evocative image. To perceive something solid, even at a distance, that we can aim for and take our bearings from is of great comfort, and to lack any such guide is a cause of distress. The song’s lyrics hint at this as the story shifts from the wreck itself to the aftermath:

Does anyone know where the love of God goes
When the waves turn the minutes to hours?
The searchers all say they’d have made Whitefish Bay
If they’d put fifteen more miles behind her

The deep, existential question goes unanswered; the only response is the vain yearning for a safe harbor. If only things had been different … The mention of the safety of the bay comes only after the wreck has taken place, serving merely to accentuate what the sailors did not have. The Fitzgerald was indeed making for Whitefish Bay, but its radar was knocked out, and the radio beacon and light of the bay’s lighthouse were also both dark. The listener must face the storm as the sailors did—with no visible sign of hope.

Along with that sense of the physical vastness of the lake is also a sense of distant time horizons. The lyrics begin not with the ship or its crew or its voyage, but with a legend passed down from generation to generation—“from the Chippewa on down” (inspired by a Newsweek article that had sparked Lightfoot’s imagination). And the ending conveys that the story will remain for time immemorial. What happened on the sea that day, which now captivates us, was but one new part of the legend, only a chapter in the lake’s endless story.

Lightfoot knew he hadn’t written just another ditty. He had penned a chapter in the timeless story of man facing helplessness and mortality.

Power and Weakness: Burke described power as the wellspring of the sublime. “I know of nothing sublime which is not some modification of power.” And a great amplifier of the sublime is to see something great and powerful brought low (as any reader of Shelley’s famous “Ozymandias” knows). “Edmund Fitzgerald” accordingly emphasizes the size and power of the ship in the first two verses. “Bigger than most,” she was the “pride of the American side,” commanded by a “crew and good captain well-seasoned,” and carrying twenty-six thousand tons of iron ore.

It is because the song drives home the strength and size of the ship that its demise becomes not so much an object of pity but of wonder. What power could possibly bring such strength to naught? “That good ship and true was a bone to be chewed.”

Uncertainty: Another way the sublime is summoned by art, Burke said, was through “judicious obscurity.” We fear things that we cannot fully see or understand. “When we know the full extent of any danger, when we can accustom our eyes to it, a great deal of the apprehension vanishes.” Thus, images that are incomplete or difficult to discern leave an impression on our imagination that our reason cannot easily account for. We are left only to stare in wonder at what we cannot fully understand.

Lightfoot often leaves details to the imagination, emphasizing what is not known. As the storm first approaches, it is only a suspicion: “Could it be the north wind they’d been feeling?” It then reveals itself like a phantom, only with “a tattle-tale sound” of the wind whipping the ship’s wires.

The sense of uncertainty, however, is most obvious when it comes to the sinking itself, which is not described at all:

The captain wired in he had water coming in
And the good ship and crew was in peril
And later that night when his lights went out of sight
Came the wreck of the Edmund Fitzgerald.

The listener is suddenly pulled far away from the ship, its captain, crew, and the old cook. He is forced to strain his eyes from a distance to glimpse in the darkness only a dim, faraway light as it disappears into nothing.

What happened, we are not told: “They might have split up or they might have capsized/ They may have broke deep and took water.”

The imprecise depiction of the sinking and aftermath, of course, comports with Lightfoot’s (and our own) limited knowledge of what exactly took place. The image of the lights going out comes from the point of view of the Arthur M. Anderson, which had been trailing behind the Fitzgerald by a few miles, and was the last to see any sign of her. And to this day, it is not known for sure what precisely caused the struggling ship to sink so suddenly. Nevertheless, Lightfoot could have taken artistic license to fill in details. That he chose not to was much to the song’s benefit.

When he first introduces the legend in the opening verse, Lightfoot sings, “The lake it is said never gives up her dead.” By the end, the lake has earned its name: “Superior they said.” Even modern man, who sometimes fancies himself to have “conquered nature,” still cannot claim that title from her.

Almost as famous as the song itself was the reverence that Lightfoot always showed for the story, the victims, and their families. As John U. Bacon recounts in his new book, Lightfoot hesitated even to record it out of fear that he would be seen as an opportunist making money off of tragedy. He had direct contact with many family members, and he refused to ever perform it in a way that might appear flippant.

He knew he hadn’t written just another ditty. He had penned a chapter in the timeless story of man facing his helplessness and mortality. As a remembrance of former things, it was deeply personal to some, and as a remembrance of things to come, it is needful for all. 

There’s a certain kind of film that weighs heavily on America’s collective nostalgia for kinder and gentler times. Yet in the same breath that we yearn for this simplicity, we often can’t help but scoff at it.

For most of us, there is a specific film that comes to mind: one that we remember fondly from childhood, or the one we watch each year on the holidays. After tearing up at human kindness, the triumph of virtue, and the redemptive power of love, faith, and family, we quickly go back to life’s little drudgeries. And while we appreciate such fine sentiments, we know this isn’t real life—as any savvy modernist will tell you. 

The Sound of Music, re-released in 4K to commemorate its 60th anniversary this year, is the quintessential example, precisely because it hits on the extremes. It’s cloyingly saccharine in both style and substance, so much so that critics initially deemed it an emotionally manipulative flop. Yet it proved the test of time, sweeping the Oscars to become one of the highest-grossing movies in history and a staple lesson in both morality and musical education. Far from taking it as an insult to their intelligence, successive generations have come to love the film and its message at face value.

The critics were ultimately wrong and audiences were right: the film is surely sentimental, but remains earnest in its aesthetic, message, and overall intent. But what have we lost in today’s cynical culture that makes this obvious truth far more difficult to see?

As the film opens, the first thing you see is the mountains. Often, sweeping panoramic shots use nature to evoke fear or dread: the opening scene of The Shining, for example, builds tension following Jack’s car up the Colorado mountain road, while Werner Herzog famously used the untamable jungle to mock man’s ambition. Yet The Sound of Music evokes the opposite feeling in its opening scene: A sweeping crescendo of orchestral music builds as the viewer flies above the peaks of the Austrian Alps, and the hills quite literally come alive with the sound of music. We’re struck by a sense of awe and wonder at man’s place within all of this—not his alienation from it—and winding down to the valley, we come to find Maria exactly where she belongs. 

Maria is torn between duty and self-realization, courage and self-doubt, faith and desire; how to reconcile her individuality with her commitment to being a good nun, or governess, or eventually a wife and mother? She’s a faithful novice, she tells us, at the convent, but at the same time she’s a free spirit inspired by love, music, and the beauty of the world around her. The tension does not arise because we doubt the sincerity of her faith, but because we understand and empathize with these earnest distractions of the soul. The nuns see the tension as well, so they test her resolve by sending her to the von Trapp estate to serve as governess to Captain von Trapp and his seven children, where the two eventually fall in love. Perhaps God has a higher purpose for Maria?

There is a parallel tension in the Captain, whose duty to his children, his Baroness fiancée, and his beloved Austria comes under strain. At first, like the nuns, he cannot reconcile his strict ways of child-rearing with Maria’s cheery and tender approach. His engagement to the Baroness offers a practical match that ensures social and familial stability, but true, passionate love—the type he comes to feel for Maria—is noticeably absent. And as the Nazis annex Austria and conscript his military service, he must choose whether to serve a regime he despises or abandon his homeland. The film has a happy ending, of course, with the now-wedded von Trapps and the children escaping over the same hills of the opening scene into neutral Switzerland. Yet we’re never meant to question whether the Captain rejects duty in favor of license. Rather, as the sound of music softens his heart, he too finds a higher purpose. 

The Sound of Music has stood the test of time, whereas more cheaply manipulative films of the same vein and era have faded into oblivion.

The story is based on the memoir of the real-life Maria von Trapp, and critics latched onto the simplification of the historical record: the family’s wealth was extravagantly exaggerated; the timeline of the real couple’s 1927 courtship romantically revised against the backdrop of the Anschluss; and the suspense of a geographically impossible escape route. Yet all of this speaks only to the critics’ own cynicism—not the film’s. 

Despite its artistic license, the film’s intent remains earnest. We’re not meant to apply a “critical” lens to the characters or their motivations. Although the characters’ internal conflicts are ultimately resolved, that does not imply that duty, faith, and discipline are mere tools of social control, rightly discarded when they conflict with other goods. A similar, but far lesser film, Footloose, preached that lesson two decades later, but in The Sound of Music, we’re meant to understand that a good life has a proper balance of both higher meaning and personal fulfillment. 

Maria doesn’t give up on being a nun to “be herself” with a life of music, frivolity, or even chasing a man. The Captain doesn’t ease up on his children because they deserve license, or leave his fiancée and country because he no longer cares to uphold his obligation to them. Both see a higher calling in each other and the life they build together, in the tender vitality they feel through music, and in the preservation of the children’s innocence, which the music allows them to maintain in their escape. Their love for each other, the children, and music brings them personal fulfillment, but they still stand for faith, flag, and family—just in a different way than both originally thought. One does not have to be devoutly chaste or a military hero to lead a meaningful life; sometimes, for some people, the simple love of a family is a moral purpose in itself. 

In today’s environment, it feels instinctive to be just as cynical as the critics. Life doesn’t really work like this; meaning and fulfillment are fleeting and material, if they even exist at all. The films of the subsequent eras—even the greats and now-classics—often instruct us to this end. We can watch The Sound of Music, tear up genuinely, and then move on with our day—but can we really appreciate such a simplistic film as meaningful art with a timely, or even timeless, message?

Through a contemporary lens, it feels there ought to be a tension between simplistic sentimentality and “real life.” Surely both can’t resonate with millions across cultures and generations. Yet the whole point of universality is to reduce the human experience down to its bare framework, something we can all share, admire, or aspire to. The sentimentality of the film may feel manipulative to a cynic, someone who foregrounds the complications and injustices of life and, absent any independent meaning, finds it only in the struggle against those. Obviously, the film does simplify the messier aspects of life, and real interpersonal relations rarely play out so elegantly; we all know this in our own lives. But in centering those things which hold actual meaning while allowing the messiness to fall to the background, the film affirms where real meaning lies. The Sound of Music never manipulates us into believing something that we don’t already believe, but pushes us towards what we already feel.

In truth, the human experience boils down to how we feel, or want to feel, about ourselves and others, rather than how we coldly reason our way through the world. We all earnestly want to see our own happy ending, the fulfillment and meaning of a life well lived, however one generation or culture may define it. And when we see our own earnest desires reflected in art, we can’t help but identify with it at some intuitive level—even when prevailing wisdom says otherwise. 

It only feels as though there is a tension here because the values underfoot have shifted. It’s difficult to pinpoint a particular heyday for sappy and simple films like The Sound of Music: when and how they arose, and why they trailed off. They are typically mid-Century, but can’t fully be attributed to sheer post-war optimism; Frank Capra was piling up Oscars nearly a decade before Pearl Harbor. And while their decline coincides with the shattering of that optimism in Vietnam, they did not disappear altogether. Consider Spielberg’s E.T., for one, along with Pixar films that continued to deliver for decades. Yet it’s undeniable that the overarching current in art, particularly in Hollywood, which so greatly defines our common culture, over the last 60 years has trended towards pervasive irony and cynicism. 

The Sound of Music has stood the test of time, whereas more cheaply manipulative films of the same vein and era have faded into oblivion. That we still watch it in awe—that there’s still a demand for theatrical fanfare 60 years later—suggests there’s an instinctive way that humans wish to and ought to live. The very modern manner of cynicism and irony is not it.

This is what we can still take from the film, and any work of art—which it indeed is—like it. For centuries, Western art existed to express truth as perceived by the artist, his deeply felt reality about life, emotion, or the human condition filtered through a subjective, and ideally superlative, lens. He filters this insight, shaping it with imagination, form, and emotion, resulting in a work that communicates something inwardly personal but resonates outward, inviting others to see, feel, or understand the world in a way they might not do on their own. The Sound of Music fits into this tradition far more than the postmodernist perversion that questions, undermines, and provokes—truth be damned. Its time and place may be so hard to pinpoint precisely because it fits into this grander tradition, which, through the sheer coincidence of modernity, began to decline just as film itself became the dominant form of art. 

It’s not that the message in The Sound of Music is so simple that it lacks meaning, but that there exists a false belief that we’re too evolved to find meaning within it. The truth is that earnest simplicity and optimism can very well define “real life.” We must only recover the will to manifest it. 

In 1983, the Reagan administration commissioned a group of experts to produce a report on the state of education in the United States. The result was A Nation at Risk, which marked a turning point in educational policy, aiming to restore excellence. The report was far from complacent. The experts barely made it through the third paragraph before delivering their verdict: “If an unfriendly foreign power had attempted to impose on America the mediocre educational performance that exists today, we might well have viewed it as an act of war.” Kindness and moderation are virtues neither for the surgeon nor the sociologist. Most, if not all, of the report’s signatories have passed away, but I would bet that if they were to evaluate today’s educational standards, they would be even more severe.

A Nation at Risk highlighted declining scores in mathematics, science, and reading. It noted a reduction in study time and academic rigor. It criticized the lack of preparation among many teachers, even though, at the time, they could not check teachers’ personal Instagram or TikTok accounts. Finally, it pointed out a growing disconnect between education and economic competitiveness.

Almost every generation believes the next is less well-educated, uses poorer language, dresses more vulgarly, and listens to awful music. Personal aging may account for some of these perceptions, but the shortcomings of postmodern educational systems are evident when examining many young Westerners: individual responsibility is out of fashion, an obsession with personal rights pervades everything, distrust of meritocracy is growing, and it is nearly a miracle to find a young person who has ever been told that, in society, the primary motivation in performing a job should be the desire to contribute to the common good.

There is no need to invent ingenious solutions for today’s educational systems; most of the work has already been done. In Ancient Greece, Aristotle laid the foundations for an education that could form good citizens. Fulfilling the citizen’s obligations to the polis was also the basis for exercising their rights. Life in society, prosperity, and the true progress of our nations still require the same today: good citizens. Postmodern education, however, seems focused on a notion of individual autonomy that can be enjoyed without any sense of responsibility for oneself or obligations to others.

Today’s educational models have created an atrophy that throws into the workplace and society young people who, from an early age, know all their rights but have barely heard of their obligations. That sort of freedom is illusory. They claim their status as free individuals, yet they have often been educated under the most restrictive doctrines, with a narrow worldview that only some will broaden once freed from indoctrination and able to embark on the true journey toward freedom.

Too many teachers today, perhaps because they are products of “our times,” have little interest in opening students’ minds—except to fill them with their own ideas, leaving no room for critical thinking, reflection, or genuine freedom. Witnessing teachers in American universities or European schools lecturing students about the conflict in Gaza, caricaturing such a complex war, portraying Palestinian terrorists as if they were Mother Teresa, Israel as if it were Satan, and even gathering students for anti-Semitic demonstrations during class, gives a clear picture of how indoctrination is education’s greatest enemy. Ideological polarization in the streets does not justify educational institutions or teachers conveying partisan perspectives. Education should always aim to remove the blindfold from a student’s eyes, not put one on.

“The business of education is not to make the young perfect in any one of the sciences,” John Locke wrote in Some Thoughts Concerning Education, “but so to open and dispose their minds as may best make them—capable of any, when they shall apply themselves to it.” Locke’s insight is perhaps the clearest vindication of the importance of forming minds that can soar freely and exercise responsibility.

Leftist educational models imposed in social-democratic Europe, and in many public (and unfortunately some private) institutions in the United States over recent decades, have proven, like their policies, radically opposed to freedom—even if they claimed otherwise. Training automatons is not training “good citizens.” The good citizens Aristotle envisioned for the polis—and that our nations need today—are free and equal individuals, who assume their obligations before claiming their rights and seek excellence and merit as the best path for themselves, aware that this is also their greatest contribution to society and the common good.

Without virtuous and educated citizens, nations weaken, and society as a whole suffers.

It is no coincidence that Aristotelian education, and later all models derived from classical education, considers self-discipline—i.e., responsibility—the starting point for freedom. A Nation at Risk emphasized the same idea. John Stuart Mill, the great theorist of liberty across centuries, also argued that education should instill a sense of moral and social responsibility.

Freedom without self-control, without awareness of being indebted before being a creditor, inevitably degenerates into dangerous selfishness and plunges individuals into a kind of moral or intellectual slavery. If some thinkers argue that the great evil of the twenty-first century is immaturity, it is precisely because maturity—once the toll of youthful education has been paid—consists of freeing oneself from childish selfishness, taking control of oneself, and committing to authentic freedom.

Outside classrooms and universities, today’s perennial educator is the therapist or psychologist. Yet much of popular psychology, or pseudo-psychology, spread via forums, books, and digital platforms, far from correcting the flaws of an education based on solid ideas, only reinforces the ideological vices that afflict us. A review of self-help bestsellers reveals instantly concepts repeated endlessly without philosophical foundation: readers are told they can achieve anything by simply desiring it; to cut ties immediately with “toxic” people—as if humans were arsenic; and that they deserve all possible rights.

It is therefore unsurprising that discussions of obligations are rare, that young people are seldom told that desire without effort is futile, that life is often unfair and unpleasant, or that relationships cannot be discarded overnight without consequences. In this context, popular psychological currents seem to reinforce the immaturity many students carry upon finishing school.

In the last century, philosopher José Ortega y Gasset criticized educational models that ignore duty: “The mass of men believes his rights are infinite and his duties, none.” Ortega saw university education as a means to form select minorities who could guide society boldly and excellently. While some may reject this approach, insisting on universal education, his idea aligns with Aristotle and other classical thinkers: without virtuous and educated citizens, nations weaken, and society as a whole suffers.

Philosopher Jacques Maritain proposed in his writings on education a comprehensive education that included reason, spirit, and morality—nothing new, as it had been successfully practiced for centuries in the Christian West. One cannot claim the same success for secularist experiments in Western countries today. Could anyone claim that children educated in modern secular systems are freer, in the fullest sense, than those educated in classical, Christian-based systems? After all, Christian education was founded on a principle secularism never affirmed: “The truth will set you free.”

More recently, perhaps the most inspiring voices on the need to recover essential classical and traditional educational notions are Karl Jaspers, with due respect to J. H. Newman, who devoted himself to the same task. In his book The Idea of the University, Jaspers defends something countercultural: the goal of education is not utility but the development of moral conscience and personal responsibility. Jaspers envisions a university of greater transcendence, a space for the unconditional pursuit of truth—a space of intellectual freedom. Only in this way, he argues, can it be truly useful to the nation, from a citizen’s perspective; and only this way can academic freedom be exercised justly and effectively by the teacher for the benefit of society.

Against the notion of the teacher who indoctrinates, or the researcher who already knows the conclusions they seek, Jaspers advocates the Socratic professor, working hand in hand with students toward shared ideals: “The Socratic teacher turns his students away from himself and back onto themselves; he hides in paradoxes, makes himself inaccessible. The intimate relationship between student and teacher here is not one of submission, but of a contest for truth.”

After all, the educational excellence that is so often bandied about today is not merely a bunch of happy statistics about skills acquired during schooling. It is part of a broader project: the transmission of knowledge, human understanding, and contribution to the nation’s good. It encompasses rigor, meritocracy, and the selection of the best. Roger Scruton once wrote: “The state has a duty toward each child, and no child must be made to feel inferior to any other. Although that is true, the state has another and greater duty, which is a duty toward us all—namely, the duty to preserve the knowledge we need, which can be passed on only with the help of children able to acquire it.”

In short, perhaps it is time to return to A Nation at Risk, though repeating the research may be unnecessary. Its conclusions are likely just as applicable today and in any future period of educational crisis.

The electoral results in my unsuccessful 2000 Republican primary election campaign for governor of Montana revealed an odd phenomenon: I’d lost Gallatin County (Bozeman), even though I swept most of the state’s other urban counties. Moreover, an ally of mine running for the Republican nomination for state senate in Gallatin County won by a margin somewhat smaller than expected.

The apparent explanation was that in the run-up to the election, the state’s teachers’ union urged their normally Democratic Gallatin County members to cross over into the Republican primary to vote against both of us. As a result, Democratic voters helped select the Republican nominees.

This maneuver was perfectly legal under Montana’s “open primary” law. In fact, Montana is one of many states with election statutes permitting non-party members to vote on party nominees.

Some of these statutes were enacted as ballot box initiatives. They are successful examples of a “Baptists and Bootleggers” coalition. In this case, the “Baptists” are left-of-center activists who favor diminishing the institutions (such as political parties) that mediate between the individual and government. The “Bootleggers” are wealthy donors who benefit when political parties are weaker, because their money can buy more political influence.

The victims of such coalitions are ordinary people of modest means: Working- and middle-class citizens who wish to influence political affairs traditionally opt for party activism, because it enables them to substitute shoe leather for cash. Reducing the role of parties lessens the ability of such people to influence. Electors not involved in politics can rely less on party “brands” as sources of information about the nominees. Candidates of modest means likewise suffer, because it costs more to run a campaign when one must address questions such as “How many non-party members are likely to vote?” “What kind of non-party member will vote?” “Whom will they vote for?” and “Is there likely to be a strategic invasion of the primary?”

When participating “unaffiliateds” amount to five times the winning candidate’s margin of victory, one cannot be confident that party members are the ones choosing their nominees.

Open primary laws are constitutionally suspect. Earlier this year, the Texas GOP filed a lawsuit to overturn its state’s open primary law. The Texas attorney general, who normally defends state laws, has decided not to do so in this case because he believes the measure is unconstitutional. The open primary’s defenders have been forced to seek other legal counsel.

In 2016, Colorado voters enacted an open primary initiative called “Proposition 108.” In 2023, the Colorado Republican Party challenged it in federal court. Proceedings are still pending.

Kinds of Primaries

Primary elections fall into several different categories, and the terms used to describe the categories are not always precise. For purposes of this essay, I’ve adopted the following nomenclature:

• In a closed primary, only registered party members may vote for candidates for the party nomination.
• In a partisan blanket primary, any voter, irrespective of registration, may vote for any candidate in any party. The winner of each party’s primary proceeds to the general election.
• In a non-partisan blanket primary, the parties may nominate in any manner they wish, but nomination does not guarantee a place on the general election ballot. Instead, in the primary election, voters select among a range of candidates. The candidates may indicate a party preference through ballot language, even if the party repudiates that candidate. The top few vote getters in the primary (usually two or four) proceed to the general election, irrespective of their party affiliation. A non-partisan blanket primary is sometimes called a jungle primary. This system is used in Alaska, California, Nebraska, and Washington State.
• In an open primary system, unaffiliated electors may vote in the party primary of their choice. Some states, such as Montana and Texas, do not register electors by party, so all voters are unaffiliated. In other states, such as Colorado and North Carolina, those registered by party are limited to that party’s primary, but unaffiliated electors may opt for any party’s primary. The Colorado-North Carolina system is sometimes called a “semi-closed” primary. Yet both kinds raise much the same constitutional issues, so this essay treats them together as “open.”

An Overview of Constitutional Questions

The First Amendment to the US Constitution guarantees freedom of religion, speech, petition, assembly, and the press. Freedom of association is an incident to these rights and, as the Supreme Court recognizes, generally includes the right not to associate. Thus, political parties may exclude people hostile to their views. Civil rights laws create some exceptions to the right of non-association, because of the compelling governmental purposes they serve.

The Supreme Court acknowledges that states have considerable flexibility in crafting their election procedures. The Constitution recognizes this explicitly for federal elections—both congressional (Article I, Section 4, Clause 1) and presidential (Article II, Section 1, Clause 2). The judiciary balances state interests against freedom-of-association interests by applying strict scrutiny to state rules that impose severe burdens on associational rights and rational basis scrutiny on rules that impose lesser burdens.

In my view, the Court effectively ruled in Democratic Party of the United States v. Wisconsin ex rel. La Follette (1981) that open primary laws do not survive constitutional scrutiny. To understand the context, though, it is best to start with a 2000 case, California Democratic Party v. Jones.

In Jones, the Supreme Court struck down California’s partisan blanket primary law. The Court held that the law imposed a severe burden on freedom of association because it permitted electors who refused to affiliate with a party—and, indeed, might be hostile to its goals—to participate in the selection of party nominees.

California argued that the law was constitutional despite the burden it imposed, because its purposes were compelling. Among those purposes were promoting “moderate problem-solvers” over “party hard-liners” and promoting “elected officials who better represent the electorate and expanding candidate debate beyond the scope of partisan concerns.” The Court found that these were just ways of saying the state wanted parties to nominate candidates other than those the parties would prefer to nominate. Indeed, it is hard to see how this kind of official viewpoint discrimination is even a legitimate state purpose, much less compelling.

The Court also suggested, although it did not hold, that a non-partisan blanket (jungle) primary might be permissible, because it does not impact internal party processes. The Court did not address the constitutionality of open primaries, but did cite favorably the 1981 La Follette decision.

In 2008, the court decided Washington State Grange v. Washington State Republican Party. Some writers claim that this case definitively upheld the validity of non-partisan blanket (jungle) primaries, but that is really not true. The court merely rejected a “facial challenge” to the law, where the plaintiffs had presented no evidence that their rights of free association were impaired. It is unclear what the result would be in an “as applied” challenge with a developed evidentiary record.

Now we can turn to the La Follette decision. Central to the case were three facts:

1. Wisconsin law established an “open” presidential preference primary in which electors voted for their favorite presidential candidates, but in which delegates to the national convention were not elected. (Events like these sometimes are called “beauty contests.”)
2. Political parties selected their own delegates in a closed process.
3. But state law required those delegates “to vote at the National Convention in accord with the results of the open primary election.”

Based on these facts, the Court voided the Wisconsin system as a “substantial intrusion into the associational freedom of members of the National Party.”

Although the Court claimed it wasn’t ruling on the validity of an open primary per se, in legal effect, it did so. A requirement that delegates vote in accordance with the dictates of open primary voters is much the same as a requirement that delegates be elected in an open primary. Furthermore, the core issue is the same: May the state force a political party to admit non-members to the process of selecting its nominees?

In LaFollette, the Court answered with a clear “no.”

The Colorado Primary Law

In 2016, Colorado voters adopted Proposition 108 by a 53-47 margin, after a campaign in which the proponents (a classic Baptist-Bootlegger coalition) raised $5.3 million in contrast to the opponents’ $71,000. The measure retained the state’s system of party registration, but opened the primaries of “major parties” to unaffiliated voters. In Colorado, “major parties” are those whose gubernatorial candidates received at least ten percent of the vote in the last election.

Proposition 108 strongly incentivized electors to avoid party affiliation by (1) allowing unaffiliated electors to vote in any major party primary while (2) preventing affiliated electors from voting outside of their own party. Moreover, an unaffiliated voter may change his primary from election to election. Not surprisingly, since 2016, the unaffiliated share of the Colorado electorate has risen from a third to a half. There are now twice as many “unaffiliateds” as Republicans and almost twice as many as Democrats.

This has had a dramatic effect on primary voter composition. In the 2022 state Republican gubernatorial primary, for example, the winner’s margin of victory was only 48,970. But 246,341 of those who voted—nearly 37 percent of the total—were not, in fact, Republicans.

Colorado’s Proposition 108 impairs associational rights by manipulating the primary process to promote nominees with officially preferred political views.

Proposition 108’s drafters inserted a mechanism by which a party can “opt out” of an open primary. However, it is almost impossible to qualify for an opt-out, and no party has ever successfully done so. The mechanism requires a three-quarters vote of a party’s central committee—not three-quarters of those voting, but of all members, voting or not. (Colorado party central committees have hundreds of members.) To preserve the opt-out, the procedure must be repeated annually.

In addition, Proposition 108 inflicts severe consequences on any group that does opt out. A closed primary is still not permitted; the party must choose its candidates by an assembly or convention procedure. This prevents the party from using a method that demonstrates electability. Nor may the assembly or convention select an open primary for some candidates and a convention nomination for others.

So even if a party were to meet the required three-fourths threshold, Proposition 108 would lock it into a method of selection that is (1) less than optimal and (2) brings with it the inevitable charge of being “undemocratic” and making decisions in “smoke-filled rooms.”

The drafters of Proposition 108 may have included the opt-out to reduce the apparent burden of the measure on the right of association. In reality, the opt-out is merely an ad horrendum device, designed never to be used.

The Constitutional Problems with Open Primaries

There are several reasons for believing that Proposition 108 may not survive Supreme Court review. First, as noted earlier, by the logic of the LaFollette case, the Court already has decided that open primaries are unconstitutional. Second, as the electoral numbers presented above demonstrate, the effect of Proposition 108 on the associational rights of party voters has been severe rather than marginal: When participating “unaffiliateds” amount to five times the winning candidate’s margin of victory, one cannot be confident that party members are the ones choosing their nominees.

Third, among the reasons recited by the sponsors of Proposition 108 were to produce candidates who “better represent all Coloradans” and “are responsive to the viewpoints of more Coloradans” and “are more responsive to a broader range of interests.” These were purposes the Supreme Court disallowed in Jones.

Finally, I-108’s opt-out provision, rather than lightening the burden of the law, operates as a prohibitive tax on the right of free association that no party will ever be able to pay.

In 2023, the Colorado Republican Party asked a federal district judge for a preliminary injunction against Proposition 108. The judge denied the request, partly on the ground that the opt-out provision rendered the measure’s burden on association rights less than severe. The judge also held that the state had a compelling interest in raising primary election turnout, and that after Proposition 108 was adopted, primary turnout increased.

As explained above, however, the opt-out mechanism really does not reduce Proposition 108’s burden on freedom of association. It is also unclear why raising the number of voters in a primary necessarily serves a “compelling” interest. Perhaps an education campaign encouraging qualified electors to vote might serve a compelling interest. But it is hard to say the same about waiving voter qualifications merely to encourage people to participate in a party they did not care enough about to join.

Colorado has a history of adopting measures that violate the First Amendment—only to see the Supreme Court strike them down. In the two latest cases, the court voided actions by which state authorities attempted to restrict First Amendment rights so as to promote an officially-preferred political ideology. Proposition 108 is a similar case: It impairs associational rights by manipulating the primary process to promote nominees with officially preferred political views. For this reason, Proposition 108 likely will not survive judicial review.

In recent years, there has been growing concern with right-wing attacks on liberalism broadly conceived. A “post-liberal” movement came into being, spearheaded by Patrick Deneen’s 2018 book Why Liberalism Failed. While post-liberalism as an organized intellectual movement seems to have petered out, its ethos has lived on and appears to be growing more and more popular among young people who not only question liberalism in the abstract but are alienated from the concrete institutions and ideas that make up our liberal society and see little value in them.

No doubt this is an alarming trend, and many people find it even more alarming to see young people on the right openly embracing a politics of confrontation and open hostility while tossing out the concern for norms and decorum that have characterized much of conservatism in the past few decades. A powerful symbol of this rejection is the embrace among some right-wing populists of the National Socialist political theorist Carl Schmitt and his concept of the “friend-enemy distinction”.

In a recent piece, Thomas Howes joins a chorus of writers who look with alarm at Schmitt’s rising popularity. In particular, he emphasizes how this Schmittian approach is at odds with America’s heritage of constitutional limited governance and the rule of law rooted in the liberal tradition.

However, I fear that Schmitt’s Nazi affiliation and the young right’s penchant for populist pugnaciousness is leading to defenders of the liberal order to miss the structural forces at work in our society that are incentivizing this increasingly common outlook of political total war. Accordingly, they focus their ire against the fact that disenchanted minds are turning to men like Schmitt rather than directing their efforts at thinking through the serious ruptures in society and the creative solutions necessary to correct them. Often (Howes may or may not be guilty of this), they rest their case with a lame appeal to constitutionalism, which fails to acknowledge the decayed constitutional order as it actually exists. Instead of dismissing those who embrace illiberal thinkers out of hand, it would be more beneficial to understand the broader, structural reasons why such thinkers are becoming popular at all.

One need not be a fan of Carl Schmitt to understand that politics is an inherently conflictual enterprise stemming from the violent and conflict-filled potential of human social life. Indeed, Leo Strauss considers a Hobbesian understanding of social life to be essential to the development of liberalism, going so far as to suggest that Hobbes may be the “founder of liberalism.”

Similarly, Ludwig von Mises, quite a different flavor of liberal than Strauss, also placed the foundation of his liberalism on a utilitarian method aimed at reducing social conflict in a hostile and dangerous world. In Mises’s telling, property is the essential aspect of liberalism because it provides a clear set of rules that minimize conflict and can, therefore, facilitate social cooperation and coexistence. Mises is clear that the social order rests upon the state’s ability to use violence to uphold the institution of property, stating that “without the application of compulsion and coercion against the enemies of society, there could not be any life in society.”

One may say that liberalism, at least of a certain kind, is ultimately about establishing an institutional framework in which the numerous competing interests, drives, and temptations to defect from social cooperation are suppressed by making the costs to defect outweigh the benefits. Writ large, liberalism aims to balance the social power of the core institutions of society in such a way as to ensure that persons are ensconced in overlapping layers of institutions that provide both existential meaning and security.

The entire liberal project begins to collapse when people begin to question the ability of the state to act as an impartial mediator.

However, the entire liberal project begins to collapse when people begin to question the ability of the state to act as an impartial mediator to protect rights and/or property from encroachment. As this occurs, people naturally begin to consider defecting from the current (in their minds failing) constitutional order, and to instead begin to embrace pre-constitutional methods of securing their life, liberty, and property.

The United States is currently in a paradoxical situation where the massive growth of the state has not led to a Hobbesian Leviathan, which would at least entail some degree of secure equality under the sovereign’s power. Rather, as the state has grown larger, the danger of conflict has only increased and, in a sense, led to a condition growing ever closer to anarchy.

I have previously discussed at length sociologist Frank Tannenbaum’s theory of the balance of power in society, in which a healthy society is characterized by each of the core social institutions (the family, the church, the state, and the market), each carrying out its natural functions, which provide both meaning and security to its members. However, Tannenbaum argued that due to the fixed nature of social power, when one institution grows, it can only do so at the expense of the others; institutional growth, then, is a zero-sum game. This, in turn, creates an imbalance that breeds insecurity and conflict to control the commanding heights of the dominant social institution, in our case, the state.

The contemporary American state is not a neutral institution. Government takes in, and in turn redistributes, over 36 percent of GDP, establishing a system of legal patronage. At the same time, mountains of regulations are written via regulatory capture, and the central bank-administered inflationary currency system promotes the financialization of the economy that benefits certain people and sectors over others. Even more seriously, growing numbers of people on both the left and the right have become skeptical that the state’s core function of providing security and meting out justice via the court system is being carried out in a neutral manner.

As society’s mediating institutions falter, the state becomes the only source of security. In this situation, the only method to ensure personal security is for one’s crude, cobbled-together tribe to seize the state.

Tannenbaum’s “balance of power” framework naturally lends itself to analyzing America’s current disorder through the lens of the theory of structural realism. Though almost exclusively associated with international relations (IR), realism is technically a theory of how groups behave in an anarchic system. While it is true that the US is not living in a Mad Max world, the system continues to accrue more and more characteristics of anarchy.

In IR, the international system is often described as anarchic due to the fact that there is no higher power, like the police, for states to call upon when one is in trouble. The international system is a self-help world. In reality, the differentiation between anarchy and order is a sliding scale, rather than a pure binary switch. When you live in a bad neighborhood and the police fail to show up after your house is broken into, it’s not exactly anarchy in the USA, but it can hardly be classified as order either.

This feeling of anarchy and constitutional decay is further amplified when the institutions of the state no longer appear to be more or less neutral arbiters of disputes, but rather as a method of distributing resources to patronage networks and shielding one’s friends and allies from consequences while punishing one’s enemies: Will the police show up if I am victimized by a crime? Will I be arrested for trying to stop a violent, drug-addled man on the subway? Will my competitors be able to secure lucrative government contracts or engage in regulatory capture at my expense?

The answer to these questions increasingly does not hinge on the rule of law but rather on which political group holds state power.

Liberals can heed this warning, acknowledge these issues, and take the difficult steps to solve them, or they can ignore them and content themselves with defending a system that has brought us to the present crisis.

This framework also explains why opposition to immigration is on the rise and has reached a fevered pitch. In a scenario with less disorder and more social balance, immigrants are not necessarily a threat, especially when introduced at a manageable pace. But currently, immigrants are
merely another group that one must compete with for state resources and patronage, and, as fears about the deteriorating rule of law continue, they are feared as unknown, and therefore potentially dangerous, threats to one’s life and property. This is especially magnified when there is the perception, whether correct or not, that certain immigrants, such as Somalis or Indians, are maintaining their ethnic identity group and use it to accrue political and social power. 

Under an offensive realist theory of human behavior, the natural and logical response to this state of affairs is to secure as much power for one’s group as possible, so it is not surprising that more and more people are turning to theorists, like Schmitt, who they believe speak to this unpleasant reality. The alternative is to be at the mercy of one’s enemies, and since the world is radically uncertain, we can never know what those enemies will do to us, though both the right and the left have no shortage of imagination when it comes to envisioning what terrible fates await.

If there is to be any chance of liberalism surviving, this tragic reality must be acknowledged.

It would be wise for liberals to adopt the realist understanding that it does not matter if you think someone is insecure; it only matters what they think. It does not matter that I think many leftist fears seem to be straight out of la la land; it only matters that they do, in fact, fear. This is, of course, equally true for right-wing fear and insecurity. Dismissing these insecurities as being a tribalistic character flaw is an excellent way to ensure that one loses all credibility and is, in turn, dismissed by those one is trying to persuade.

Relatedly, any response to growing insecurity is hampered by the constantly increasing credibility issues that plague basically every institution of society. Young people, in particular, and especially those who endured the Covid lockdowns as children, are deeply suspicious and cynical about basically everything. In fact, a 2023 poll found that Gen Z has the lowest support for democracy at all, with only 27 percent strongly agreeing it is the best form of government, and 32 percent agreeing somewhat. In contrast, a full 31 percent are just ambivalent, with 11 percent disagreeing partially or totally!

Those who desire to preserve America’s liberal tradition must wrestle with this unpleasant reality. People hunger for security, and if actually existing liberalism cannot provide it, then people will turn elsewhere.

Liberals must put forward a bold program that addresses the structural issues in American society that have set us on a road to increasing conflict and violence. Such a program will need to address the failures of our institutions and systems without nostalgia for a past that has ultimately led us to the point where we are now. It must acknowledge the harsh political realities and declining standards that any attempts at reform face. And it ultimately must embody a maturity reflected in moral realism and versatility that is able to navigate today’s rapidly changing circumstances without succumbing to the temptation to take comfort in rationalistic and idealistic conceptions of morality that are incapable of dealing with the present crisis. 

Schmitt’s increasing popularity is a warning that our liberal constitutional order is failing to provide the security and order that are necessary for life in society. Liberals can heed this warning, acknowledge these issues, and take the difficult steps to solve them, or they can ignore them and content themselves with defending a system that has brought us to the present crisis. Those who do the latter cannot claim to be surprised when Schmitt’s ideas supplant their own.

In recent months, the Supreme Court has indicated that it will again take up the question of the president’s authority to dismiss a member of the executive branch without cause. In a recent Law & Liberty article, “Removal Power and the Original Presidency,” Ilan Wurman argued that the president “always has the right to remove” members of the executive branch who are appointed by the president to carry out his policies. Things are less clear, however, when the employee has an element of independence associated with his or her appointment. For example, when Congress establishes an independent agency to adopt and pursue policy in a particular area, the president’s removal power should not be unrestricted.

This was the unmentioned issue in Seila Law v. Consumer Financial Protection Bureau. There, the Supreme Court held that the head of any agency with a term of office of several years could be terminated by the president and replaced at any time, without cause. This is the question likely to be soon before the Court, and it is not specifically addressed in the Wurman article.

The CFPB was headed only by a single administrator, appointed for a term of years, but the Court made clear that it would also take up a case of a multi-headed body at a later time. The Court’s decision, however, clearly suggested that its decision for a multi-headed body would not be different. Meanwhile, President Trump—obviously anticipating the forthcoming power to do so—began to remove officials from several multimember bodies such as the Federal Trade Commission, appointed for terms of years, without any claim of deficient performance.

The Court’s position in Seila Law, written by Chief Justice Roberts, was the first of its kind, and the theory the Court was using produced an unusual outpouring of disagreement in the academic community, with many respected constitutional scholars arguing that the Court was wrong to hold that the president had the unbridled authority to dismiss the head of the CFPB or any other executive agency who had been appointed for a term of years specified by Congress.

Out of many academic specialists disagreeing with the Court’s decision, two in particular stood out.

One was Caleb Nelson of the University of Virginia Law School, to whom Ilan Wurman responded. Nelson, a former clerk for Justice Clarence Thomas, wrote:

It is true that Article II [of the Constitution] vests the executive power in the President. But Congress is in charge of creating offices within the executive branch, and the Constitution does not give the President unilateral power to dictate who will fill those offices or what their authorities and duties would be. … To my way of thinking, neither the Vesting Clause nor anything else in Article II compels the inference that after officers have been duly appointed … the President must be able to terminate the appointments … at will, or to dictate how such officers must use any discretion that the law attempted to give them.

Professor Nelson then continued:

If most of what the federal government does on a daily basis is “executive” and if the president must have full control over each and every exercise of “executive” power … then the president has an enormous amount of power—more power, I think, than any sensible person should want anyone to have, and more power than any member of the founding generation could have anticipated.

This is a vitally important point, since we are now living in a time when the president is expanding his power in an unprecedented way; it is important to define the limits that are likely to have been reasonably imposed by the Constitution.

Highly relevant to this question is the work of Boston University Law School Professor Jed H. Shugerman, who described in minute detail the debate in the first Congress over whether the president should have the ability to remove officers of the government at will. Shugerman’s 100-page paper is a minutely detailed description that covers virtually every vote and every relevant statement by a member of the first House and Senate on this issue, during a debate on the president’s removal power that proceeded for several months in the first Congress.

If the Supreme Court were now to adopt the removal idea as its own, it would be contravening the only known will of Congress on the subject—the weakest position for the Court.

According to Shugerman, James Madison pressed the House repeatedly to approve a removal power by the president, but over four months never received an affirmative vote for this idea in either the House or Senate.

The fact that the issue was seriously considered in Congress at one time in the past—and contemporaneously with the states’ approval of the Constitution itself—is significant on the question of the president’s removal power. Up to now, most constitutional scholars had not been exposed to such a detailed review of the debates in Congress on the removal question.

That doesn’t necessarily mean that presidential removal is not appropriate in any circumstance—especially where the officials to be removed would not or could not carry out the president’s specific directions or policies.

But it also means, even more significantly, that if the Supreme Court were now to adopt the removal idea as its own, it would be contravening the only known will of Congress on the subject—the weakest position for the Court—and, as the Court has probably thought, deciding an issue of purely constitutional interpretation. In this case, however, the Court would in effect be overturning an actual refusal of Congress to do what the Court is now doing.

Whether the members of the Court would feel comfortable proceeding with this is a serious question that the Court’s proponents of unrestricted removal should address.

After his detailed analysis of the debates in the first Congress, Professor Shugerman notes that in Free Enterprise Fund v. Public Company Accounting Oversight Board, and again in Seila Law, Chief Justice Roberts supported his position by relying on self-serving letters that Madison had written after he lost the votes in Congress.

Shugerman writes: “only nine of the fifty-three participating members of the House explicitly endorsed even the weaker version of the presidentialist interpretation of Article II: a presidential removal power without resolving whether Congress could set conditions. … Even fewer suggested that the President had a constitutional power to remove at pleasure.”

Ironically, as Shugerman notes in his paper, Madison’s efforts, although never coming close to approval in either House in the first Congress, only succeeded two centuries later—as the Roberts Court, Chief Justice Roberts himself, and other supporters of a presidential removal power—came to rely on Madison’s letters about the debates in Congress, with no reference to how the debates themselves actually turned out.

This is not the only time that the Court has failed to understand the proceedings in the late 1780s. At the Constitutional Convention, the members were so split on the question of whether to have a president who was an individual (instead of a group) and elected by the people instead of Congress, that this issue was the last major item decided before the convention adjourned. Many delegates did not want an elected president, for fear that he would use that support to become a monarch, an issue that is relevant even today. The issue was finally resolved by creating the Electoral College, which, in its original form (valid until 1804), did not have anything to do with the popular vote, but just the presidential preferences of some elites at the time.

Yet, in Seila Law, the Court said, “The Framers made the president the most democratic and politically accountable official in the government. Only the president (along with the vice president) is elected by the entire nation.” This was not true, for the reasons noted above, until 1804, when a new Electoral College was created to follow the popular vote in each state. And it’s not even literally true now: in 15 cases since 1844—including 2024—the College has elected a president who won the electoral vote, but who had not received a majority of the popular vote. Moreover, in the scramble at the convention to finish up in 1787, there was no discussion of whether the president would be “politically accountable,” let alone “democratically elected.” The Court’s history here is way off base.

Nevertheless, because of the Court’s error, Madison, who was defeated in Congress, might still win in the Supreme Court 238 years later.

This essay has been updated to correct a misquotation of Ilan Wurman’s “Removal Power and the Original Presidency.”

In Breakneck: China’s Quest to Engineer the Future, Dan Wang offers readers a paradigm through which to understand China and the United States: China is an engineering state; America is a lawyerly state. The Chinese Government and the Chinese Communist Party (CCP) are staffed by engineers; the American Government is run by lawyers. China builds; America litigates. 

The paradigm undergirds Wang’s central argument: There are advantages and disadvantages to both. The ideal would be that China adopts some of the American legal culture in order to mitigate the authoritarian tendencies of the CCP, and that the United States learns from China and rediscovers its heritage as an engineering state. This will lead to a system convergence, which will improve both countries and reduce tensions between them.

While many of Wang’s observations ring true for both countries, and there are many informative descriptions and insightful ideas, the paradigm misidentifies the real causes of China’s rapid industrialization, and of America’s seeming inability to renew its industrial prowess, and so undermines the argument for mutual learning and system convergence. 

China, the Engineering State

There are several aspects in which this book is excellent and well worth reading. One among them is Wang’s description of China’s “breakneck”—aptly named—construction program. In spite of his admiration for the Chinese engineering state, however, Wang remains clear-eyed about both its extraordinary productive power and its failures.

In terms of productive power, Wang highlights the Fourteenth Five Year Plan, which is stunning in the ambitions it sets forth for the Chinese state—interstellar exploration, a Mars orbiter, X-ray free-electron lasers, cosmic ray observation stations, heavy ice breakers for polar exploration, 3,000 km of urban rail transit, hydropower facilities with ultra-high voltage transmission lines, water diversion projects, water reservoirs and flood control projects, and the expansion of e-commerce to rural areas, just to name a few. 

The results have been spectacular and troubling. Wang uses the province of Guizhou as emblematic of the nation as a whole. In Guizhou, we are told, the engineering state has pushed one hundred years of American development into just twenty years, with the construction of forty-five of the world’s one hundred tallest bridges, eleven airports, five thousand miles of expressways, a thousand miles of high-speed train track, and data centers that support the development of artificial intelligence.

However, underneath all this modern, high-tech glitter, Guizhou is “mired in poverty,” with a per capita income below that of Botswana, and 40 percent below the Chinese national average. Guizhou’s showcase infrastructure has done little to improve the livelihood of its people. According to Wang, revenue from the bridges is insufficient to pay for the high price of their construction, and, although the eleven airports are underused, there are yet three more under construction. The result is that Guizhou is “one of China’s most indebted provinces.” 

Wang’s warning is this: if America does not recover its heritage as an engineering state, more like China, China will win the competition to shape the future.

Much worse, and darker, is Wang’s description of another initiative of the Chinese engineering state—the one-child policy. His chapter on this policy reads like a parable of the engineering state and its penchant for massive misallocation of resources, motivated by a plan drawn up by engineers (in the broad sense to include economic and social planners), with only a tenuous and gauzy grasp of the myriad details of social and economic reality. The predictions confidently made by the planners in the 1960s, and policies based on them implemented in the 1980s, turned out later to be complete “bunk,” leading, at great human cost, well and poignantly described in the book, to the serious consequences China now faces: a dearth of population and an aging society that could make Japan’s present condition as a nation of retirement homes look puny by comparison. 

Another case Wang highlights is the PRC’s Covid policy. China’s severely draconian response to the pandemic, which appears to have been caused by bioengineers in the first place, featured mass testing and strict isolation, neighborhood lockdowns, centralized quarantine facilities, and severe restrictions even down to the level of the individual family apartment. Wang chronicles the implementation of these measures, their breakdown, and ultimate failure in his excellent discussion of the 2022 Shanghai lockdown. 

 His critique of these policies is trenchant:

The one-child policy is one of the searing indictments of the engineering state. It represents what can go wrong when a country views members of its population as aggregates that can be manipulated rather than individuals who have desires, goals or rights. … The one-child policy brought the Communist Party to reach deep into women’s bodies; the digital surveillance developed as part of zero-Covid has allowed it to control even a person’s daily access to her shower, … engineers will simply follow the science until it leads to social immiseration.

Given all these serious problems, a question comes to mind: Are the virtues of the engineering state the real cause of China’s breakneck industrialization, or is it a matter of political economy? 

One of the key features of the engineering state, as Wang defines it, is what he calls communities of engineering practice, the prime example of which is the city of Shenzhen. “The magic of Shenzhen is the combination of the world’s most creative hardware engineers sitting in a sea of components that improve every year amid a labor force of millions who know how to put together electronics.” This labor force was created when “Chinese companies leveraged the Chinese workforce into the production of high-tech engineering practice.”

But this is only part of the story. The engineering state paradigm misses China’s emulation of Japan’s export model; the indulgence offered by the United States in the form of Most Favored Nation trade benefits and support for China’s application to the World Trade Organization before it achieved the required market economy status; massive technology transfer from Japan and the West; and the stimulative jolt given to the economy by access to world trade and financial markets under the CCP’s post-Mao economic policy of reform and opening (改革开放), which introduced markets into China’s Socialist economy, and opened the country to foreign trade and investment—“Socialism with Chinese characteristics.”

One of the most important measures of reform and opening was the creation in 1980 of four Special Economic Zones, designed to be Capitalist enclaves in a socialist system that would attract foreign money, technology, and management expertise. Shenzhen was one of them. It was a cooperative venture between the Chinese regime and American, Taiwanese, Japanese, and Hong Kong companies that produced the transformation of Shenzhen from a sleepy village into a high-tech enclave with global importance.

Shenzhen’s success was due to these major changes in China’s macro political economy, not the preponderance of engineers over lawyers. The architects of the reform and opening program were not the main engineers. Deng Xiaoping, Hu Yaobang, Zhao Ziyang, and Chen Yun were not engineers. Granted, Jiang Zemin and Zhu Rongji did have engineering degrees. But they were in power essentially as the second generation of reformers who extended and deepened the original program, not designed by engineers.

Engineers are created when the market demands them and organizes them. That is what happened in Shenzhen. Consider the contrast between Stalin and Deng. Stalin ruled a government dominated by engineers, but he did not reform the Soviet system with market incentives, as Deng did. One led to Brezhnev and a dead end; the other led to the manufacturing powerhouse we have in China today.

America, the Lawyerly State

So, what do we make of Wang’s dual prescription for American industrial renewal? First, that we learn from China’s engineering state; and second, that we reduce the number of lawyers in government in favor of engineers. 

Wang asks, “How can the United States do better?” His answer: learn from China. Wang suggests that Chinese EV battery companies should be allowed to open factories in America so they can teach Americans how to revive manufacturing. Wang claims that China’s global dominance in the EV battery market is due to the accumulation of deep engineering process knowledge in communities of engineering, like that which he claims made Shenzhen so successful. As we have seen, though, Shenzhen was a creature of political economy. Such is also the case with China’s EV battery industry. It is the result of mercantilist government policy, which included very substantial subsidies, tax breaks, and research and development and infrastructure investment, along with a requirement that foreign companies transfer technology to Chinese partners in any joint ventures. These policies gave substantial advantages to Chinese firms in both domestic and international markets. This is not something Americans should learn from China. It is something American policy should force China to abandon, not a model, but what should be a Section 301 case.

The problem isn’t the dearth of engineers in government. The engineers are right where they belong, in private companies like SpaceX and Nvidia.

Nonetheless, many of Wang’s observations about the deindustrialization of America are accurate: large construction projects, like the California light rail project, are almost impossible to undertake successfully. Once-dominant companies such as US Steel and General Motors have declined to the point where they have survived only due to bailouts and protection. And the crumbling infrastructure of major American industrial cities is obvious, not to mention the hollowed-out towns that make up the rust belt. Wang argues that the problem is over-regulation and litigation due to an over-abundance of lawyers in American government. Is this true?

Once again, as in the Chinese case, Wang underappreciates the significance of political-economic ideas and their implementation in actual policy. It’s not just about the presence of lawyers. Wang himself acknowledges this when he says the barriers to renewal are not uniform across all regions of the US: Texas, Arizona, and the southern states have “built new skylines and masses of new homes … but in the largest cities in the Northeast and California, the default is toward rigidity.” 

Here, Wang perhaps inadvertently acknowledges that the lack of infrastructure construction in America is a problem of the left. In one example, Wang describes how the environmental movement frustrates its own efforts with regulatory contradictions. Clean energy projects face crippling delays due to permitting laws that require exhaustive environmental analysis. He also decries policies in New York and San Francisco that block the construction of new housing. 

Wang asserts that the problem with the American right “is that they diagnose the causes of inefficiency as a lazy work force rather than the mountains of procedure that civil servants labor under.” But he gets the right wrong. The right’s main criticism is not with lazy workers, but with over-regulation and the government bloating that goes with it. The solution of the right involves deregulation and supply-side tax policy, both designed to give markets maximum freedom to innovate and create. The problem isn’t the dearth of engineers in government. The engineers are right where they belong, in private companies like SpaceX and Nvidia. What they need is a government that remembers the limits placed upon it by the founding generation.

Wang dismisses the right with a caricature rather than an argument and proceeds to propose industrial policy led by engineers rather than lawyers as his answer to American industrial decline. Wang praises the Biden Administration for attempting a form of industrial policy, one key provision of which was the construction of “electric vehicle charging stations across the United States.” Of these, Wang says, only seven have become operational. He faults the Democrats for this. But the real fault is with the policy itself. Just like the EV mandates, also passed during the Biden years, it completely ignored real market conditions, which did not warrant such heavy investment in EVs and EV infrastructure. The logic of the policy had no relationship to reality. 

In the end, Wang’s warning is this: if America does not recover its heritage as an engineering state, more like China, China will win the competition to shape the future. With this, my feeling of deja vu all over again is complete. In 1979, Ezra Vogel published a book called Japan As Number One, which argued that the Japanese economy, guided by industrial policy, formed and implemented by the Ministry of International Trade and Industry (MITI), would surpass the American economy and lead the world into the future. In MITI and the Japanese Miracle (1982), an exhaustive study of Japanese industrial policy from 1925 to 1975, Chalmers Johnson, in response to widespread calls for an American MITI, concluded “the United States might be better advised to build on its own strengths and to unleash the private, competitive impulses of its citizens rather than add still another layer to its already burdensome regulatory bureaucracy.” 

In 1990, the bubble burst and Japan slid into 30 years of stagnation. America, having rejected industrial policy in favor of growth-oriented tax policies and deregulation, led the world over the same period in economic growth and technological development. 

Johnson was right in 1982. The same conclusion is unavoidable now. The path to a revival of American industry is through the American tradition of limited government, pro-growth policies, and free markets, not emulation of China’s engineering state.

For most of the twentieth century, conservatives argued for a strong Congress whose closer connection to voters could check the grand delusions of presidential administrations. Now, however, everyone seems to have opted for Wilsonian, top-down executive leadership. Philip Wallach explains how we got here, why Congress remains indispensable for republican self-government, and what sort of structural reforms could help it reclaim its place in our constitutional system.

Related Links

Philip Wallach, Why Congress (2023)
Philip Wallach, “Choosing Congressional Irrelevance,” Law & Liberty
Yuval Levin, “Congress Is Weak Because Its Members Want It to Be Weak,” Commentary (2018)

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, informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor and associate professor of public affairs at the Institute of American Civics at the University of Tennessee. I’m here in person—this is a rare treat for me—with Phil Wallach, who’s his senior fellow at the American Enterprise Institute. We’re going to be talking about his latest book, Why Congress, which is published in 2023 with Oxford University Press. Dr. Wallach, welcome to the Law & Liberty podcast.

Philip Wallach (01:13):

So good to be with you.

James Patterson (01:14):

So the great thing about your book is that it gave me my first question, which is “why Congress?” But of course, the thing about Congress is that it hasn’t gotten a lot of conservative attention, and this is strange. Conservatives are very interested in the Supreme Court and federal courts and interpretation in the judiciary and we’ve had a very strong interest in the presidency and things like maybe the limitation of the imperial presidency, but also the unitary executive theory. There are these really big ideas there. So is Congress sort of the left out branch here for the right?

Philip Wallach (01:53):

I think if you go back to the time of Franklin Roosevelt, conservatives were very interested in Congress and very pro-Congress. They believed Congress was a kind of earthy bulwark that really was connected to the public, to the people close to the ground. And the classic statement of this is Wilmore Kendall’s essay that he is still writing at the end of the 1950s, talking about the two majorities. But he really portrays the congressional majority as embodying this sort of home-spun wisdom as opposed to the utopian, quixotic tendencies of the presidency, which tends to appeal to people’s grand aspirations and engage in world changing projects. And that’s also representing a real tendency that Americans had. But the way of representing the other thing in Congress was he thought as a very important counterpoint. And so there was that time when conservatives and you saw James Burnham write a book around the same time really appreciating the same sort of thing about Congress, but then you see Democrats control the majorities in the House of Representatives from 1955 until 1995—four solid decades.

(03:18):

Of course the Republicans do control the Senate from 1981 to 1986, but Congress just comes to be thought of as a democratic institution first. Of course, Democrats were half a conservative party at the beginning of that period, but by the end of that period, Democrats are a liberal party and they’re very much in control of the Congress. And so the modern conservative movement of the 1970s and eighties defines itself in opposition to Congress. They think of Congress as a corrupt liberal place and the emblematic figure of that is Newt Gingrich, who comes in, from the very first time he starts campaigning, talking about how awful and corrupt Congress is and how we can’t work with this congressional majority—we Republicans need to find ways of throwing it out. They eventually do, they succeed at that, but in that course of those decades, they’ve really sort of lost the sense of what it is a Congress is supposed to be for.

(04:17):

I would argue that conservatives came to adopt a much more leader-centric, Wilsonian model of what politics looks like, including Newt himself. And so in some ways, Congress is sort of without its ideological support from the right for many decades now. And you saw maybe a little bit of efforts to rediscover it around the Tea Party time and when people thought Hillary Clinton was going to be a president, but that’s not what happened. And so conservatives have mostly gone off in a very different direction and don’t genuinely have a lot of use for Congress these days.

James Patterson (04:57):

So there’s been a kind of great forgetting among conservatives and, to a lesser extent, among Republicans about the operations of Congress. Is there also maybe also a kind of change to the institution of Congress itself? Centralization under leaders, for example; it’s not as deliberative as it used to be. That’s led Congress to become less of an object of study.

Philip Wallach (05:24):

Well, it goes along together for sure. If you think of members of Congress, first and foremost, the most important thing they can be is members of the team, good foot soldiers for the party, then you don’t have a whole lot of use for deliberation. The deliberations should sort of happen elsewhere, and then Congress should put through the conservative agenda. I argue in the book that not deliberating well actually handicaps the Republican Revolution to some extent in the mid-nineties, that they sort of don’t actually have a good sense of where they can succeed and where they can’t. And so they make some real missteps because of that. But yeah, generally I’d say this comfort, including amongst members themselves, with the idea that the institution should reorganize itself on a purely partisan basis and that the main thing is teamsmanship in that environment. And of course, if you’re setting things up in that way, then leaders at the top and organizing sort of discipline followership is what matters.

James Patterson (06:37):

I’m remembering one of my favorite sketches in the history of SNL was on Newt Gingrich becoming Speaker. Do you remember this? It is actually kind of hard to find. I’m not sure why, but I had wanted to find it so I could use it in class and I only found an edited version of it, but it’s Chris Farley as Newt Gingrich and he’s becoming increasingly frantic as he’s gaveling in all of these Contract with America ambitions and by the end of it he’s just screaming and hammering on the dais. And that does sort of point to, I thin,k the way that Republicans understood their position in Congress when they finally attained a majority. What do members of Congress do? Do they legislate? Do they fundraise? Do they go on to television shows? It’s sometimes hard for people to pin down because it isn’t abundantly clear that Congress does anything.

Philip Wallach (07:34):

It’s definitely possible to overstate the point, and I think if you literally imagine members of Congress as a bunch of lazy bums, you are seriously deceiving yourself. They are very hustling people. They’re going from one thing to another all the time. A lot of that is to try to maintain organic connections with their constituents. They spend a lot of time trying to be at events in their home district, get out, shake hands, listen to people—that hasn’t gone away. It’s hard to represent a congressional district of 750,000 people, which is around the average today, or most senators, of course, have states considerably bigger than that.

(08:21):

And so they do spend a lot of time on that. And of course, the fundraising part of it also does create connections with the district, but it also creates connections with all kinds of elements of the donor class that might be sympathetic to them, which is not always so geographically oriented, but they spend a lot of time cultivating connections with donors. And legislating is really a reduced part of the portfolio. It hasn’t gone away. There are still quite a few earnest legislators on Capitol Hill. But yeah, I’d say it used to be the case that if you wanted to have a chance to exercise legislative power, there was more of a clear sense that you put in your time over the years on your committee, you prove your worth by making yourself an expert in these matters and showing your colleagues that you know what you’re talking about.

(09:13):

And after a while, once you’ve proved your bona fides there, you get to write the legislation, and the legislation will then get considered and given its chance to become actual on the law books. I think people are much less confident in that path these days. They think if they put in all that time investing and making themselves an expert, it’s likely to go nowhere, that it’s likely to just be a waste of their time. And so I do think a lot of the more ambitious members have reacted to what they see as the incentives showing them. They think actually the way I’m going to get ahead and become a powerful person is by cultivating my national public profile by attending to the new media in all the different forms that takes

James Patterson (09:59):

The way Alexandria Ocasio-Cortez does Instagram live?

Philip Wallach (10:02):

Yes. She’s obviously one of the most successful at sort of taking her position in Congress and turning it into a platform for her to become a major political celebrity who people talk about becoming the president, and it is funny in how many members that is the goal that’s animating them. Maybe that’s not such a new feature of today, but the sort of clarity that the path to getting there is through media celebrity rather than legislative accomplishment is distinctive to our moment.

James Patterson (10:37):

So no doubt. We’ve talked a little bit about the things in your book, Why Congress, but why don’t you give us the elevator pitch, the summary statement that we have so far missed?

Philip Wallach (10:50):

Well, the title of the book is Why Congress, no punctuation. It’s meant to imply that there is an answer, and so the book is an apology for having a strong Congress as the center of our constitutional order because, the way I see it, having this body which is defined by its multiplicity is actually more capable of representing the diverse interests that make up America than a system in which we let everything collapse into this sort of Manichean war between one side and the other. And when we sort of collapse everything into presidential politics, that becomes the natural tendency of our system is to just make every single presidential election seem like this existential conflict. You get people putting their great hopes in their leader as somehow going to redeem the American soul one way or the other.

James Patterson (11:50):

I don’t think that’s in the enumerated authority of the president in the Constitution.

Philip Wallach (11:55):

Fair. It’s really not, but that’s sort of so Why Congress is trying to explain, well, when we had a functioning pluralistic Congress back in the day, what did that get us? My contention is that it better legitimized the federal government than what we’ve got today. What we’ve got today is a lot of people imagining that whenever they lose, it’s the end of the world almost literally in those words, people are willing to make the argument and they’re taken seriously and that’s not healthy. That’s not a way—its’ not been working. We haven’t seen Trump or Biden become a wildly popular figure with the majority of the country. They sort of do their shtick and find it difficult to tread water even. So I don’t think that we have a successful alternative to Congress. We’ve let Congress atrophy and that’s in my view, a much larger part of the story of why our politics are so deranged in the 2020s than people realize. I think people don’t even bother thinking about Congress much anymore.

James Patterson (13:08):

Another figure who really has done a lot to return our attention to Congress is Yuval Levin. He wrote the very important essay in Commentary magazine. I think it’s “Congress is Weak Because Its Members Want It to Be Weak” or something like that. Is there something you would add to the argument that he makes, and what is the argument that he makes?

Philip Wallach (13:28):

Well, that metaphor of using Congress as a platform that I already spoke out before comes directly from that piece from Yuval. It’s, it’s a very powerful metaphor that he develops in his book, A Time to Build. Also, we have a whole lot of institutions without institutional loyalties and without a sense that institutions are supposed to shape people. Instead, we have people who come to sort of inhabit the institutions but use them as a platform again to launch themselves as personal brands in the larger sort of media ecosystem. And you see that not just in Congress, but in a number of walks of life, and Yuval is a real believer in sort of the integrity of institution-specific ethics, role moralities, right? If you’re a judge, you’re supposed to act like a judge. You’re not supposed to act like an op-ed writer. If you’re doing that, you’ve lost the plot in some very important way, and he looks around at a lot of different institutions in American life and sees people having basically disregarded the idea of that sort of role specific morality and instead just sort of throwing themselves into the big culture war that preoccupies so much of us in so many ways, and for Congress specifically, again, that makes Congress a less interesting place.

(14:59):

It means that really Republicans and Democrats feel like they can’t have anything interesting to say to each other, or sympathies to build across the aisle because well, “if you’re on the other side of all that stuff, we must be enemies. Our leadership tells us don’t work with those people because you might give them comfort, you might give the enemy comfort and we don’t want that.” So Congress becomes less interesting. It sort of desiccates our politics, and Yuval and I would like to see some people pushing against that. It’s a hard thing to turn it around. We’re kind of in an equilibrium now. It’s not easy for one person to just break out of it because it’s a coordination problem, but we have to sort of at least start to build the awareness that something has really gone wrong here and that Congress can be a big part of the answer if its members are willing to try to take this leap. Our pitch is, “this isn’t pie in the sky because we have seen this institution operate in this way before. It really is a choice of the members should they decide that they want to take it.”

James Patterson (16:12):

How much of this is structural? How much of this is the result of changes to congressional authority, especially in the way they’ve delegated it either to the bureaucracy or to directly to the president?

Philip Wallach (16:32):

I think that a lot of what makes the teamsmanship work as opposed to having to reconcile with the other side and figure out how to do bipartisan lawmaking, is our willingness to circumvent Congress and to make policy through the executive branch. And you’ve seen this in case after case in the last 20 years, where first the president says, “Oh, I can’t do this all by myself. I need to go through Congress.” And then he gets frustrated with Congress not doing what he wants, and they said, “Oh, actually, it turns out I can do this.”

James Patterson (17:08):

Everyone discovers their pen and their phone.

Philip Wallach (17:10):

Yes, so I mean certainly thinking back to Obama and the DACA program, the immigration program that he fashioned for people who were brought to America illegally as children, and that’s a very sympathetic class of people. There was a legislative push to do something about them. It didn’t pass, and then Obama cut it off. He said, “Okay, never mind. I’m not going to work with Congress to pass this law. I’m going to create this program through a massive use of my prosecutorial discretion not to bring actions against these people and actually because I’m not going to bring actions, I’m going to create this weird permitting program that doesn’t really have any legal basis.” That’s DACA. And Democrats in Congress did not say, “Oh my gosh, why are you cutting us out of this process?”

(18:01):

They said, “Good for you, Mr. President. You’ve reacted to Republican obstructionism and the only way that’s really reasonable by making progress for the American people, bravo.” And that’s the story of our politics today is members of Congress sort of wanting to be cut in, but if they don’t get what they want right away, then saying actually maybe cut us out. And I’m afraid that’s a bipartisan story. By now, we’ve sort of lost our will to really struggle through the hardest problems in the legislature. As soon as we see they’re really hard, we say, “Okay, never mind. This isn’t a legislative agenda item anymore. This is something that the big people over in the White House and the Supreme Court building are going to go figure out.”

James Patterson (18:53):

Another structural problem, one that’s not really the result of anything the members have done, I get from a book by Morris P. Fiorina called Unstable Majorities, and he talks about how the way that parties have now sorted so ideologically—that was once the objective, and I think it was in the 1954 American Political Science Review, they wanted more ideological parties. They thought the Democratic Party was too internally incoherent. So now here we are with a case of be careful what you wish for. We have very ideologically sorted parties, but they also don’t have a single majority. The old political science term for this was a “sun party” and then the minority party, we called the “moon party” and there would be this effort of the minority party to kind of figure out a way to pivot into a majority position. Instead, it’s a 50-50 country, and so members of Congress are always waiting until they can clear a large enough majority in Congress. I think what’s the majority in Congress now for the Republicans, like three, two?

Philip Wallach (19:54):

Oh, in the Senate?

James Patterson (19:55):

In the house.

Philip Wallach (19:56):

It’s gotten real slim.

James Patterson (19:58):

So the problem is that you’re not going to be able to legislate that much with that, and you can always wait until the next two years, when maybe you’ll have a larger margin, and then you can really go for it.

Philip Wallach (20:08):

Yeah, I think to be fair, we haven’t stopped seeing legislation. We had a really big important enactment this summer that we shouldn’t pretend didn’t happen. So that was a case of all the Republicans except for very few getting together such so they could pass an all Republican giant spending law.

James Patterson (20:29):

Right. Yeah. This is the one big beautiful bill?

Philip Wallach (20:30):

That’s it.

James Patterson (20:35):

One of the greatest names of a piece of legislation. It is exactly what it says.

Philip Wallach (20:39):

Well, the keyword is one. They really put everything they could put in there, subject partially to the whims of the Senate parliamentarian adjudicating the details of the bird rule, which is what exactly is allowed in a reconciliation.

James Patterson (20:57):

So maybe not beautiful.

Philip Wallach (20:58):

They put an awful lot of stuff in there. It’s a substantively very important law. People shouldn’t lose sight of that. They don’t have much of a legislative agenda after it passed, to be clear. There are exceptions you can find, but it’s kind of striking how little of the president’s ambitions run through Congress now. He has a lot of stuff he wants to do, and pretty much none of it depends on convincing congressional majorities. I think you going back to the Fiorina book, political scientist Francis Lee has a lot of similar discussions, they’re very convincing. There is something structurally about being on the knife-edge where every election is decisive. We really don’t know who’s going to control Congress after the next election, and that does change the way things look quite a bit. So yeah, that’s part of why it’s so hard to get, there are an awful lot of features of this equilibrium that are rational and so are we stuck in it until the structural features change? Maybe I would say there are a lot of margins that members could push at, and we have seen them pushing at some, right? We ejected a Speaker of the House in the middle of a term just a couple of years ago, and we’ve seen an increase in the use of the discharge petition in the House of Representatives.

James Patterson (22:20):

What’s the discharge petition?

Philip Wallach (22:22):

Basically, when leadership or committee chairman are bottling something up, not letting it come to a vote, a majority of the members in the chamber can sign a discharge petition, file it with the clerk, and then they have a right to call up that bill whether the leaders want it or not. So we’ve seen a lot more use of the discharge petition all of a sudden in the last couple of years. We’re seeing a very high-profile fight with it right now about the Epstein, some kind of legislation to force the government to release more of the Epstein materials.

James Patterson (22:54):

For those who don’t know, there’s the Epstein list is what, I’ll let you handle that question.

Philip Wallach (23:01):

No, let’s go on.

James Patterson (23:01):

The issue with Congress is then not as, sometimes people portray it where members go to their offices, take calls from donors and then go on to cable news. They’re actually working and in many cases are pushed in a lot of different directions, as you said. What are some of the things that members of Congress do that we don’t see?

Philip Wallach (23:21):

Well, I don’t want to dispute some basic correctness to what you just said. I think members really do spend a lot of time sitting on the phone calling donors, and that’s really unfortunate.

James Patterson (23:35):

They have quotas, right, don’t they?

Philip Wallach (23:36):

Yeah. Basically getting ahead in committee placements these days is just very sort of straightforwardly connected to your fundraising prowess,

(23:48):

Your ability to kick dollars up into the team, not just your own bank account, and yeah, I think that’s not great and it’s not great just as a time use problem actually. It really is something that legislators half a century ago would’ve been horrified by because it has become much more of a chase. So that is a big thing. I think the whole connection with constituency is still more important than people realize, and legislators do hustle to try to know their constituents, to try to perform constituency service. That’s an old Fiorina standby. The bureaucracy creates lots of problems. One of the ways people try to deal with these problems is by contacting their member of Congress’s office. A good portion of the staff on Capitol Hill spends their time trying to do constituency service, make things right that have gone wrong for people and members involve themselves in that at some level, that’s part of how they learn about what’s going wrong in the federal government, so that’s constructive.

(24:55):

It’s a perfectly respectable use. I think that it can sometimes crowd out bigger thinking. If you keep tending to the symptoms of a problem, but you never fix the problem, there’s something going wrong there. I think members do spend a lot of time trying to figure out some angle that they can take into the fight of the day. They’re always looking for certain way that they could hold that hearing that’s going to get on the news, that they could be the member who makes themselves the main character of a news cycle. That takes a fair amount of craftiness and scheming and a lot of trying without succeeding.

James Patterson (25:36):

One of the more startling examples of that really having a major effect was when former, she’s not a representative, Elise Stefanik. She, I’ve blanked on this. Is she still in the House, or did she take up? Anyway, Elise Stefanik created a moment in higher education in her interviews. She didn’t pass legislation. She used the hearing as an opportunity to kind of expose some pretty serious issues. Is that something of what you have in mind with Congress taking on its more traditional role ,or is that an example of the problem?

Philip Wallach (26:14):

I mean, I wouldn’t want to gainsay the success of that particular example. She clearly performed very well in this very well-created forum where Congress asking some tough questions to powerful people made a big difference. I think that kind of oversight function that doesn’t necessarily have to route through legislation can be very successful. So period, congratulations for that. But at the same time, okay, now the Trump administration is in, we’ve got Republicans in control of both chambers of Congress. Maybe this is the big chance for Congress to try to steer a new course in federal higher education policy, and I mean indeed it is. We are seeing that, but it’s almost all just through executive branch action.

James Patterson (27:05):

Grant cancellations and stuff like that.

Philip Wallach (27:07):

Even taking the civil rights laws and finding whole new interpretations of them that are favorable to the sort of right-wing suspicion of affirmative action, instead of, so we see, again, people make use of strategies that are available to them in this environment. Some of them are good at that. To me, it’s regretful that some of the most potent tools are left neglected and that there’s opportunity to really fight things out in a deliberative way on the floor of Congress is often also just neglected, and so we don’t feel that we sort of make a lot of progress. We sort of have one side get its advantage for the moment or the other side, and we kind of expect things to flip back and forth in a fairly mechanical way when the election results change. It would be better if we actually had a way to figure out a modus vivendi that we can make more stable.

James Patterson (28:08):

The issue with Congress right now is that we have a shutdown. We have another shutdown. I remember when this was a huge deal. I was a younger guy when we had the shutdown during the Gingrich speakership and we’ve kind of had these shutdowns. Why can’t Congress pass a budget? Why can’t it handle fiscal issues the way that you would think are existential for the Republic?

Philip Wallach (28:40):

There’s a lot—as a Congress pedant, first I just have to slap you with a wet noodle for saying “the budget,” right? Our budget process is a complete mess. The only thing it’s used for anymore is budget reconciliation laws, which they used it for back in July, right? The whole budget process is supposed to be the opportunity Congress takes to look at the big picture and chart a long-term course that makes sense. Again, we’ve just completely disregarded that as a real opportunity to do real work. It’s become a partisan tool. It’s a disaster. Our annual appropriations process, which is what we’re having trouble with right now, why we have a shutdown, only controls a very small portion of federal spending, about a third.

(29:28):

Most federal spending is on autopilot as a result of entitlement laws. The thing driving us into fiscal peril is largely stuff that Congress doesn’t even pretend to touch on a year-to-year basis. But we have annual appropriations, something like $2 trillion that we are talking about allocating every year. The past year we’ve just been on a continuing resolution where they said, “actually, we’re not going to be able to figure out anything. We’re just going to continue the spending levels from the previous year,” and there’s a pretty darn good chance at this point that we might see that. Again, so levels that were agreed to under President Biden just continue those

(30:11):

And somehow assume that the Trump administration will do some on-the-fly adjustments of dubious legality to make things work out. That’s where we are right now. In the bigger picture, the shutdown itself is a little bit perpendicular to all that. It’s a little bit random or strange or something. Why do we have it? Because Democrats feel like they can’t say yes to anything involving Trump right now. They feel like their base is so sick of them seeming compliant that they needed to take a stand, so they took a stand and didn’t allow a continuing resolution into November or December, which is common as dirt in our system. That’s what Congress does every year, and the Republicans were not making any big policy asks to get that. It’s just that Democrats felt they had to say “no” to something, so they said no to this, and now it’s not quite clear what the way out of the impasse is.

(31:04):

They need to be given some kind of concession that they can spin as a win, but Republicans aren’t actually inclined to give them, and meanwhile, even if they were to agree on a short term continuing resolution, that doesn’t fix the larger problem, the Democrats don’t really feel like they can bargain with Republicans at all because they’re so afraid of how Trump is going to renege on the bargain. It’s kind of a big problem where even in Trump’s first term, we saw bipartisan cooperation happen on a fairly routine basis, and we really are at a point just now in the fall of 2025 where it seems like partisan cooperation might be something we just can’t do, and our government is not set up for that situation.

James Patterson (31:48):

See, the downside of doing these in person is getting hit by a wet noodle. I don’t know if we should do this again, but there are lots of people who have lots of ideas about how to make this better. I’ve heard removing cameras so that it’s not so much of a public display, increasing the total number members, excuse me, the total number of members in the House of Representatives. Obviously, you can’t do that in the Senate without pretty significant change to the Constitution. What is it in your book? Why Congress that you have in mind for improving this state of affairs?

Philip Wallach (32:25):

I do want to see us get back to committees. So there are structural things we could do to make committees stronger and to give them more of a clear share of agenda control. I’ve articulated my sort of preferred slate of structural changes, but I have to admit that the how question really seems quite secondary. It’s like whether we actually want to fix this problem, and based on what I’ve seen in the last year, the answer is just no. That pains me. I would like to be somebody helping this institution move toward relevance and move toward a sense of revival and understanding its place in the constitutional order, but that’s just not where we’re at this particular moment. The sort of more we can just get by the skin of our teeth at the moment is kind of the more realistic hope for right now. The larger turn back toward Congress has to come because people feel totally burnt out on this president-centered government and the way that it creates whiplash, and maybe more and more people who take these existential stakes that they perceive literally and try to solve problems with bullets. I would say that seems like a pretty predictable feature of the politics of this country in the coming years. So that’s bad. I would love to turn away from that, but we need to get to a point where people actually are ready to turn away, and right now, I just think people want to be in control of that chair.

James Patterson (34:05):

You’re right. The sources of political authority and political change become increasingly scarce, and as they become scarce, the stakes for securing those become higher and then they start to engage in things like firing on presidential candidates, and it seems like such a major opportunity for whichever party can mobilize in Congress that they can seize like a tremendous amount of political authority in Article One, Section Eight powers to say the least. So, is that what you think it’s going to take, this kind of catastrophe in dealing with some kind of presidential issue that leads us back to Congress, or is there even a way back?

Philip Wallach (34:46):

I guess I also tend to believe that we need some major disruption to our partisan organization, which Trump himself has been a major disruption, and I think I would push back a little bit on the idea that we are very well ideologically sorted anymore.

(35:07):

I actually think that if you try to figure out what do people in the Republican party believe about issues X, Y, and Z, from trade to should we legislate on morals to taxes? I think that the Republican Party is actually full of internal dissension, and so I think that there is more multipolarity out there in the electorate than we realize. Our political system really is set up to effectively shut it down, and it does a good job. But I think that some kind of forcing event could come through and kind of shake things up, and we could find ourselves unstuck and Trump, the most predictable event that we know should be coming is Trump’s withdrawal from the scene.

James Patterson (35:59):

Yeah.

Philip Wallach (35:59):

Don’t know when that’s going to come. You can argue about that.

James Patterson (36:02):

Well, there’s all these conspiracies that he’s building this ballroom, so clearly he wants to stay. I think he just likes to build stuff. That was his job before all this, right before game show host.

Philip Wallach (36:15):

But in any case, clearly the Republican party has organized itself around him over the last decade, and it will have to do something other than that before too long. So that creates some kind of forcing event for some kind of big fight where we try to figure out what this Republican party is all about. I think there is a fight about what the Democratic Party is all about going on. I don’t know how much it’s going to break through, but yeah, I think possibly the structural changes in Congress need to come downstream of a sense of political disruption, a sense that to accomplish something politically, some frustrated, bipartisan, cross-cutting coalition needs to make its move. Right. The touchstone moment that I look back to is the revolt in 1910 in the House of Representatives. So you had an extremely powerful speaker of the House, Joseph Gurney Cannon, a fascinating figure well worth learning about. He ruled the house with an iron fist, and he had a very orthodox Republican sense of what his party was about, and the fact that there was a growing progressive segment of his party who was frustrated with his leadership did not interest him very much. He felt that they should make their arguments in the party conference and have their say there, but once it came time, they needed to be good party regulars.

(37:53):

And eventually, these progressives made common causes with the Democrats, stripped him of many of his powers as Speaker of the House to get their legislation moving. They thought regulating the railroads was that important that they were willing to blow up their party coalition. What’s the something that’s going to make people get to that moment in the 2020s or the 2030s? I don’t know. I try to come up with a scenario in my book, and it is not a convincing scenario.

James Patterson (38:22):

What about entitlements blowing up?

Philip Wallach (38:26):

Yeah. Gosh, that’s really not so far over the political horizon anymore, right? Having to figure out something about the funding of Social Security and Medicare. I actually don’t think there’s a lot of bipartisan disagreement on these. In some ways, it’s about the mix of taxes and benefit cuts that we have to agree on, and it’s so painful that no one’s willing to get out ahead and incur political costs for no reason. So we have to kind of wait until we hit the wall. But actually I’m a little bit of a quietest on that one. I kind of think the parties are in enough substantive agreement that they’ll have to come up with some answer, so I think they will, but it’ll be ugly.

James Patterson (39:09):

And not a moment earlier than they have to.

Philip Wallach (39:11):

Not a moment. No, no, that’s for sure. So Trump, not his problem.

James Patterson (39:15):

That’s right.

Philip Wallach (39:16):

That’s very much clearer to him, and he’s just like all the other politicians we have right now. In that respect. There’s nothing special about it.

James Patterson (39:26):

Well, it’s been really great having you on the Law & Liberty Podcast. The book is Why Congress, the guest is Philip Wallach. Thank you so much for coming on.

Philip Wallach:

Pleasure, James. Thank you.

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.

The effects of the European Union’s Digital Services Act (DSA) on freedom of speech have been a topic of heated debate in Washington and beyond. The DSA, which was passed in 2022 and came largely into force by mid-2023, is the EU’s flagship online regulatory legislation. It is supposed to ensure a “safe online environment,” but to this end requires online platforms—in particular, social media platforms—to implement robust “content moderation” measures. In other words, they must delete content and/or accounts or otherwise suppress their visibility. The latter can be done, for example, by restricting the shareability of posts. Platforms whose “content moderation” efforts are found wanting by the European Commission risk fines of up to 6 percent of their global revenues.

Given that the Internet is global, the issue, as raised, for instance, by the House Judiciary Committee in a recent interim staff report on the DSA, is whether the required “content moderation” implies censorship not just of Europeans, but indeed of the entire world, including Americans. The role of what the law dubs “trusted flaggers” has been a particular matter of concern. 

The law requires online platforms to maintain “notice and action” mechanisms that allow users to flag illegal content for removal, with “illegal” here referring to EU law and the laws of each of the 27 EU member states. This is already a problem from an American perspective, since the laws of many EU countries include all sorts of speech prohibitions that are obviously incompatible with America’s First Amendment. 

Thus, in a letter to the European Commission signed by over 100 free speech experts, the Alliance Defending Freedom (ADF) has protested that the EU country with the most speech-restrictive laws risks setting the standard not only for the entire EU, but indeed the entire world. Germany undoubtedly represents this “lowest common denominator,” as the letter puts it. German law, for instance, includes not only prohibitions on alleged “hate speech,” a notoriously slippery concept to begin with, but even on mere “insults” and “disparagement.”

In addition to flagging by individual users, however, the DSA also makes provision for flagging by organizations that have been certified by an EU member state government as possessing expertise in some relevant domain and hence whose reports should be given expedited, priority treatment by the platforms. These are the “trusted flaggers.” 

In its interim report, the House Judiciary Committee has warned that “trusted flaggers” are not truly independent—notably from the EU governments that, after all, appoint them and, in some cases, as the report notes, fund them—and that they will increase the pressure on platforms to censor. 

In a critical response to the Committee report, however, Democratic members note reassuringly that it is up to the platforms themselves to decide whether to remove the flagged content. “The trusted flaggers ‘don’t have a magic delete button,’” the authors explain, citing an expert source:

These individuals merely provide extra resources to platforms that do not have an affirmative duty to search for and remove illegal content by themselves.

Regrettably, it is obvious from these remarks that the Democratic members have not done their due diligence on the subject: as touched upon above, the “trusted flaggers” are not individuals but rather organizations that are supposed to have relevant expertise in certain areas of the law. 

In some cases, they are prima facie uncontroversial even from an American perspective, since their areas of specialization involve laws that are largely identical on both sides of the Atlantic. One can hardly object, for instance, to the activity of the many “flaggers” dedicated to the protection of minors or those specializing in intellectual property rights and consumer protection—at least if their brief is truly limited to their ostensible area of expertise. (A full list of the 43 “trusted flaggers” named thus far is available from the European Commission here.)

It’s another matter when their area of expertise is speech crimes. Ironically, the expert source quoted by the Democratic members—“Trusted flaggers do not have a magic delete button”—is Managing Director of precisely one such organization: Josephine Ballon of the German organization HateAid. 

In June, the German government—more precisely, the German telecommunications regulator, the Bundesnetzagentur—named HateAid as a “trusted flagger.” The Bundesnetzagentur (or “Federal Network Agency”) serves as Germany’s national DSA implementing authority or “Digital Services Coordinator” (DSC).

Moreover, HateAid was not only appointed by the German government, it is also funded by it. According to data in the German government’s Lobby Registry, it received nearly €1.3 million in support from two different government ministries in 2024, for instance.

If Americans would not regard “flagging” of speech for removal by an organization that is appointed and funded by the American government as anything other than government censorship, why should they regard it as something else when the organization is funded and appointed by the German government? 

Hundreds of German citizens have had their homes raided by the police on account of social media posts.

Ballon is, of course, right that “trusted flaggers” do not have “a magic delete button.” Platforms are not required to remove all the content flagged by the “trusted flaggers.” But were they to remove none, given the official function assigned to the “flaggers,” they would clearly be non-compliant with the DSA and hence risk the massive fines that the European Commission is empowered to apply under the law. The only option for an American company wanting to avoid the fines would be to leave the EU market altogether.

As its name suggests, HateAid specializes in providing assistance to victims of “hate.” This does not mean victims of “hate crime,” as understood in American law, but rather of “hate speech”—i.e., “speech crimes”—which, needless to say, is not even a category in American law. HateAid’s very raison d’être is thus, by definition, incompatible with America’s First Amendment. 

An example of the aberrations to which German “hate speech” laws have led is provided by the case of the German retiree Stefan Niehoff. Niehoff had his home raided by German police last fall merely for having retweeted a meme that, in a play on the name of the German hair-care products brand Schwarzkopf, jokingly referred to Germany’s then Minister of the Economy, Robert Habeck, as a “professional moron.” Under §188 of the German Criminal Code, commonly referred to as the “lèse-majesté” law, public officials enjoy heightened protection against “insults.” 

Moreover, while Niehoff’s case received wide publicity, it is worth noting that the raid on his home occurred on one of the to-date 12 “days of action against criminal hate posts” in which hundreds of German citizens have had their homes raided by the police on account of social media posts.

Of course, Americans need not fear their homes being raided by German police should HateAid or some other European “trusted flagger” denounce their posts. But what they can fear is that their posts will be removed or otherwise suppressed.

Perhaps such fears are unfounded or exaggerated, as some academic defenders of the DSA have suggested. The DSA does not, after all, require platforms to remove posts globally. They also have the option of merely removing them in the particular jurisdiction or jurisdictions in which they would constitute crimes, or, in other words, geo-blocking.

What platforms could do in theory and what they do in practice—viz., to meet the law’s requirements in a manner that is both technically-feasible and cost-effective for them—are, however, two different things. The proof of the pudding is in the eating, and what is clear from the available data on DSA compliance is that the law is having massively extraterritorial consequences already. 

“Very Large Online Platforms” and “Very Large Online Search Engines,” which fall under the DSA’s strictest provisions, are required to publish periodic reports on how they handle notifications under the DSA and their “content moderation” more generally. Consider, for instance, the latest “DSA Transparency Report” posted by LinkedIn. Given that EU member state governments have only recently begun appointing the “trusted flaggers,” little data is available on platforms’ response to
their notifications in particular. LinkedIn notes that it did not, in fact, receive any notifications from “trusted flaggers” in the reporting period.

It did, however, receive nearly one million “EU reports” from users via the required DSA “notice and action” mechanism. In response, the platform removed nearly 5,000 items as “hateful speech” and another nearly 3,000 items as “misinformation.” The LinkedIn report does not indicate that any content was merely geo-blocked. The only other enforcement actions listed by LinkedIn are two types of visibility filtering: i.e., LinkedIn did not remove the items outright but restricted their visibility.

Moreover, the DSA also creates an expectation for platforms to be proactive in suppressing “illegal” speech by way of both automated systems and human “content moderators.” LinkedIn reports that, during the 6-month reporting period, it removed another nearly 24,000 items as “hateful” and over 12,000 items as alleged “misinformation” on its own initiative. Needless to say, both allegedly “hateful” speech and alleged “misinformation” are constitutionally protected speech in the USA. It is not up to the government to decide what is “hateful,” much less what is correct and/or incorrect information.

Unfortunately, the DSA “transparency reports” are not in fact so transparent. The report does not tell us just whose posts were thus being removed as “hateful” or “misinformation.” But lest it be imagined that the “content moderation” was only targeting posts by Europeans, leaving Americans unscathed, consider also the data that LinkedIn provides, as required by the DSA, on the “linguistic expertise” of its content moderation “team.” Of LinkedIn’s 1,623 content moderators, 1,443—or nearly 90 percent—are English-speakers. But post-Brexit, only roughly 1 percent of the EU’s population are native English speakers. It is clear, then, that this “content moderation” is not only occasionally, but indeed overwhelmingly affecting non-Europeans: above all, Americans and other English speakers.

DSA reporting on the “linguistic expertise” of its content moderators makes clear that the platform’s “content moderation” is overwhelmingly affecting English-speakers: hence, non-Europeans.

According to X’s April 2024 “DSA Transparency Report,” the platform took “enforcement action” on no less than 226,350 items reported to it during roughly the prior five months via the DSA “notice and action” mechanism. Given that the company received 238,108 reports in total, this gives an astonishing 95 percent enforcement rate even on content flagged by ordinary users! Fully 40,331 of the items were globally deleted, and 62,802 were geo-blocked in the relevant EU member state or states. 

This means, however, that 123,217—or the great majority of the “actionable” items—“merely” had their visibility restricted, in keeping with the X “enforcement options” linked in the report and the company’s self-avowed FOSNR “enforcement philosophy.” FOSNR stands for “freedom of speech not reach.” But global “visibility filtering” is every bit as much an extraterritorial effect of DSA reporting as global removal.

Here again, X’s DSA reporting on the “linguistic expertise” of its content moderators makes clear that the platform’s “content moderation” is overwhelmingly affecting English-speakers: hence, non-Europeans. Of the 1,726 members of X’s “content moderation team” at the time of the submission of the cited report, fully 1,535—again, nearly 90 percent—had English as their primary language.

Finally, according to Article 16 of the DSA, the “notice and action” mechanism is only supposed to apply to “illegal” content: i.e., as we have seen, illegal per the standard of EU or EU member state legislation. But is this limitation in fact being respected?

The answer is already evident from the platforms’ “DSA transparency reports.” As noted above, in response to DSA notices, LinkedIn not only removed “hateful” content, which may well be illegal in certain EU member states, but also alleged “misinformation,” which is not. “Misinformation” falls under the second major plank of the DSA, requiring platforms to mitigate “systemic risks” ostensibly arising from speech that is precisely not “illegal,” but that is deemed in some way “harmful.” Thus, whereas the X reports make no mention of “misinformation” per se, the categories of ostensibly “illegal” content listed include “illegal or harmful speech”—i.e., speech that is explicitly not illegal—as well as “negative effects on civic discourse or elections.”

Here again, the DSA “transparency reports” provide no real transparency. They tell us nothing about just what speech is being treated as “harmful misinformation.” But the censorship of alleged “Covid-19 disinformation,” to which we will return momentarily, can give us an idea of what is meant.

It should come as no surprise, then, that the responsibilities of the “trusted flaggers” de facto also include content that is not illegal, not even in EU member states. How do we know this? Well, consider the “Guidelines” provided by the aforementioned German regulator, the Bundesnetzagentur, for potential applicants for “trusted flagger” status. 

Appended to the document is a list of sorts of “impermissible content,” that, according to the agency, was “prepared by a sub-group of the Digital Services Coordinators in collaboration with the European Commission.” The list includes not only a whole series of sorts of “prohibited speech”—a category that, needless to say, should immediately set up red flags for Americans, as well as civil libertarians worldwide—but also, for instance, “negative effects on civic discourse or elections” (the same category that we came across in the X data) and even “danger of environmental harm” and “public health threat”! 

These are not categories of crime. They are categories of ostensible or potential harm. The latter category in particular—“public health threat”—should recall the widespread suppression of entirely legal, but dissident opinion on, for instance, lockdowns and the safety and/or efficacy of Covid-19 vaccines that marked the Covid period. Unbeknownst to most Americans, the European Commission was at the time running a full-fledged “Fighting Covid-19 Disinformation Monitoring Programme,” in which all the major online platforms were participating and which served as a kind of dry-run for ostensible “risk mitigation” under the DSA.

It is clear that there is a systematic ambiguity between illegality and harmfulness affecting the entire apparatus of the DSA. And if platforms could, at least in theory, block access to “illegal” speech just in the jurisdiction in which it is illegal, what then of speech that is flagged as allegedly harmful? Here, there is no jurisdiction. Whatever measures are taken, whether outright removal or “mere” visibility-filtering, will necessarily be implemented all around the world.