That even childbirth now falls under the old slogan “the personal is the political” may shock. Yet it follows naturally from each camp’s bundle of larger ideological commitments. For conservatives, increasing fertility in the West is part of the defense of its civilization. Europeans and other groups that were at its heart are no longer reproducing themselves. Across the OECD, the total-fertility rate has slid to 1.5 children per woman; in Italy and Spain, it hovers near 1.2, and even in the United States, the latest CDC release puts the rate at just 1.63—far below the 2.1 replacement benchmark. For many conservatives, every newborn is a vote that the West remains worth inheriting.

The religious right also has theological reasons for favoring procreation. The Abrahamic religions share the injunction to be fruitful and multiply. All greatly value motherhood. The most iconic image in Western art—the Madonna with Jesus—is an encomium to the pairing of woman and child. Bearing children affirms the belief that God made a good world. We may fall short of that promise, but the act itself testifies to the cardinal virtue of hope.

Natalism also gains support from the right’s rawer political calculations. The crisis of fertility among its native populations contributes to the graying of population and the reduction of its workforce. Yet all Western democracies have pay-as-you-go social security systems dependent on a high ratio of workers to retirees. These brute facts create a fiscal dilemma. Across Europe, leaders duck pension reform but recognize that raising already high taxes would strangle growth. In the United States, leaders likewise dodge entitlement reform and propose hiking taxes only for the top 2 percent. Soaking the rich will not put much of a dent in our record peacetime debt. The obvious solution is to increase the worker-to-retiree ratio by making the population younger. Conservatives would rather accomplish that through increasing birth rates rather than massive increases in immigration. The latter is thought to threaten the distinctive national cultures they value and destabilize politics.

The left does not share these positive reasons for supporting fertility. It does not think Western civilization is one that necessarily should be continued, and is generally indifferent to religion. But the left has other reasons of its own to resist natalism.

One is feminism. Many feminists have persistently argued that social structures keep women from being equal to men in achievement—in the arts, in the sciences, and in business. One of the greatest impediments is the family structure where women undertake more unpaid labor than men, particularly in raising children. Increasing child-care subsidies and supporting early education might look like a fix. Yet nations that lavish money on day care still see women falling behind men in pay and prestige. Once they have children, most women still want to spend more time nurturing than men. Thus, the only way to prevent women from becoming parental specialists is not to become parents.

Another reason that some on the left are not enthusiastic about bringing children into the world is the environment. More people create more pollution and burden the Earth’s biosphere. In some more radical views, new generations are likely to be despoilers of the natural wonders of the earth that need preservation.

If low fertility is causing a fiscal and economic crisis, in the West, the left’s solution is to fling open the borders to more migration. The left believes that foreigners have as much right to enjoy the higher living standards in the West as those who already live there. Indeed, among some more radical voices, they may often have a greater moral claim, because their poverty is caused by the West’s colonialism. The left welcomes the multicultural transformation of the West that great inflows will bring. “Diversity is our strength” is its mantra.

To be fair, the left is no monolith; plenty of progressives still toast big families. Yet, as with transgender orthodoxy and erasure of national borders, it is the activist vanguard that writes the party script. Their chill toward procreation flows from faculty lounges to platform planks, then filters down to voters who sense disdain. Elite ideas tug Democrats leftward long before the rank-and-file notices

It might be argued that what is really depressing fertility is not ideology but economics. Housing costs, student-debt burdens, and delayed marriage no doubt matter. But citizens of the West, including the young, are far wealthier and live far more comfortably than in past eras, where fertility rates were much higher. Medical assistance, like IVF, increases the effective reproductive span of women. But Sweden and Hungary show that baby bonuses and family leave pad wallets, not bassinets. Values and culture, not subsidies, rock the cradle.

The contest over childbearing carves a deep rift in today’s political landscape. The left-radical position is likely to damage their party’s political standing. The impulse to have children is deeply ingrained; indeed, from an evolutionary perspective, children are the goal of human life. It is true that contraception has cut the close link between sex and reproduction, but human nature prompts the desire for children in ways other than through sexual desire. Children are cute, and there are few other ways most of us can leave an enduring mark on the world. Thus, this latest left position is going against the human grain.

Moreover, the ideological reasons for skepticism about bringing children into the world may be seen by many as the reductio ad absurdum of left positions. If feminism means that women must avoid having children from being beguiled into an unequal relation with men, feminism then demands that women give up a great source of human fulfillment to be true feminists. If environmentalism opposes the propagation of humanity, such environmentalism seems to prefer the rest of the natural world to the one animal that can see it whole. Treating immigration as a stand-in for native births slips into oikophobia—those who, in Gilbert & Sullivan’s jab, “praise, with enthusiastic tone … every country but their own.”

History, however, shows that creeds hostile to the cradle soon confront their own demographic sunset. The Shakers—an eighteenth and nineteenth millenarian sect who enjoined celibacy on their adherents—are unsurprisingly no longer around. While children do not directly inherit their parents’ political beliefs, there is a correlation in the ideology between parent and child. A growing distaste for having children on the left will, other things equal, push the nation toward the right.

In terms of contemporary politics, the stance against children is sure to continue to push the so-called “normies” (this generation’s echo of the “silent majority” of the 1960s) away from the left. The “normies” now shaping American elections are the large, loosely organized bloc of middle-of-the-road voters—disproportionately non-college, suburban or ex-urban, and culturally conventional—who recoil from both progressive identity politics and hard-right theatrics. Their irritation with the left concerning issues such as transgender athletics or “defund the police” policies stems from a mix of practical worries (fairness in sport and public safety), moral intuitions grounded in mainstream religious or communal norms, and a perception that progressive elites impose niche values without democratic consent. Outnumbering the zealots on both flanks, normies now choose who governs in close races.

Few positions will rile normies more than contempt for the desire to have children. Enthusiasm for having children has been a widespread and religious cultural norm for virtually all of human history. Skepticism of having children is the paradigm niche issue pressed by certain elites. A preference for immigrants over native children is an extreme version of open borders that normies also reject.

It is true that some of the pronatalism of the right may also be off-putting. Some celebrity advocates for more children hardly model the stable families most parents envision. Even the very name “natalism” can alienate ordinary people because it appears to create an odd term for something that comes naturally. Even so, the quirks of the famous and a pompous Latinate label will offend less than open hostility to child-baring.

Whatever one thinks of baby bonuses or child tax credits as policy matters, the fertility fight lays bare the deepest fault line in modern politics. The left, increasingly doubtful about the worth of the West, treats birth as a lifestyle choice to sometimes be discouraged. The right regards it as constitutive of human flourishing. The quarrel over the cradle is thus no social-policy sideshow. It is the distilled essence of two rival creeds. Tell me where an ideology stands on the need for babies, and I can tell you where it will stand on much else.

The post Politics of the Cradle appeared first on Law & Liberty.

The history and function of this rule are both intriguing and revealing. The dynamics of a papal election are not comprehensible without understanding the rule. It also illustrates important truths about supermajoritarianism, which has a prominent place in secular politics, particularly in America’s own Constitution.

In the beginning, the College of Cardinals did not elect the Pope. Local clergy, laity, and neighboring bishops selected the Bishop of Rome. Monarchs of the area also influenced the election. But by the early part of the second millennium, the rules were set: the pope would be selected by a two-thirds majority of the college of cardinals.

The two-thirds rule has endured for centuries. Sometimes, it proved difficult for anyone to gain the requisite supermajority. Yet the church needed a pope, particularly as the bishop of Rome had become the ruler of a large part of central Italy—the so-called papal states. After the death of Clement IV in 1268, a lengthy stalemate lasted two years and nine months. It was resolved only when the infuriated locals of Viterbo—where the election was taking place—cut the cardinals’ food ration and then removed part of the roof from the place of their deliberation!

Soon afterwards, Gregory X made cutting rations part of the formal rules governing the conclave. If, after three days, the conclave had not selected a Pope, the cardinals would face an enforced diet. Though medieval in origin, the ration-cutting rule squarely tackles a real weakness of supermajority voting spotted by modern theorists: spiraling decision costs. James M. Buchanan and Gordon Tullock observed in The Calculus of Consent that as a voting rule demands greater consensus, the decision costs, including the time required to make the decision by persuading others, increase. Starving the electors is a dramatic means of forcing a quicker, though potentially sub-optimal, agreement.

Over time, the threat to the cardinals’ nutrition has disappeared. It is no surprise that the policy was very unpopular with cardinals and fell into desuetude, given that by its nature, there was no reigning pope to enforce it. John Paul II got rid of all previous conclave rules that he did not reaffirm, so it is not in effect today.

By contrast, the two-thirds majority rule has persisted to modern times. Today it is clear, as it was not in earlier times, both that votes are secret, and that candidates can vote for themselves. These two rules are intertwined: there would be no way to enforce a prohibition against boosting oneself because of the secret ballot. And given that candidates can now vote for themselves, the two-thirds requirement rounds up whenever necessary. Thus, for the 133 eligible cardinals well enough to attend the current conclave, the majority required is 89.

John Paul II introduced the conclave’s most substantive rule change in eight hundred years. He decreed that after 34 ballots, a majority of the conclave could elect a pope by a mere majority. The rationale apparently was fear that otherwise conclaves could go on and on—the same kind of concern that led to the food supply rule. 

The sainted pope had many virtues, but he was not a game theorist. Game-theoretical analysis reveals that the change dilutes the supermajority safeguard and creates perverse incentives. One must reason backward from the final ballot to see how the lower threshold reshapes incentives from the conclave’s very outset. Given that a determined majority could elect its preferred candidate on the 35th ballot, the rule encourages such a faction to remain united through those early ballots in the expectation of getting their candidate when the majority is authorized to change the rule.

The rule might well also extend the length of conclaves, because such a majority would wait it out rather than finding a compromise candidate earlier on. It might be thought that it would be hard for a majority faction to stick together for 34 ballots. But because ballots occur four times a day after the first session, a determined majority could trigger the rule shift in only ten days. The church was fortunate that the 2005 conclave was the only time his rule was in effect, and then the substantial support for Cardinal Joseph Ratzinger made its salient differences from the traditional rule academic.

As Benedict XVI, Ratzinger proved more traditionalist than his predecessor. He changed the rule back to make the two-thirds majority requirement again apply throughout all the voting rounds of a conclave. After the 34th ballot under the new rule, which governs the current conclave, however, the cardinals would be restricted to the two front runners.

Benedict’s revision has complicated effects: by restoring a one-third veto, it encourages the cardinals to build coalitions early and to settle on compromise candidates. Because no easier threshold ever arrives, a faction must persuade rivals to achieve the two-thirds mark; it cannot merely wait them out. This makes strategies of simple obstinacy unadvisable. The runoff requirement means that if coalition-building fails early, however, the final choice may be difficult to resolve. A conclave could stalemate if the two finalists each have steadfast blocs opposed to each other. While Benedict’s rule eliminates the risk of a pope with only the narrow majority support that John Paul II’s rule made possible, it creates some risk of a longer interregnum without any pope.

Thus, Benedict’s rule is not obviously superior to the old rule, where compromise candidates continue to be possible at any point. The concern that traditional rule may lead to exceptionally long conclaves has not been borne out in modern times. The intense global criticism that the Church would receive from such prolonged indecision may well be sufficient to deter prolonged deadlock.

The two-thirds majority rule has many functions, some of which were more historically salient than now. Sociologically, its function remains existential: to avoid schism within the church by assuring that the winning candidate is broadly acceptable. The rule is the background of the famous Italian saying, Chi entra in conclave papa, ne esce cardinale: He who enters the conclave as pope exits as a cardinal. It is not enough to come with a crowd of intense supporters who have gotten your bandwagon going. A successful candidate needs backing from many different quarters, even ones that are cautious and silent.

Even in recent times, the supermajority rule has fulfilled its purpose of maintaining at least a façade of unity through compromise. In the second 1978 conclave, in early ballots, the conservative Archbishop of Genoa, Giuseppe Siri, faced off against the liberal Archbishop of Florence, Giovanni Bennelli. Neither could win a consensus, and so the result was the election of an alternative, more obscure candidate, Karol Wojtyła, as John Paul II.

This historic function is as important today as ever. To an outsider, the Catholic Church appears to be split between what seem to be liberal and conservative factions that are increasingly polarized, like much of the rest of our political world. The risk of the supermajority rule is that it may sometimes encourage candidates who paper over sharp differences and leave factions seething beneath the outward appearance of unity. Even so, from an institutional point of view, prolonged trimming is preferable to outright schism.

Theologically, the supermajority rule has an epistemic role. Believers may well credit a supermajority as better able to provide the moral certainty about the wishes of the Holy Spirit than a narrow majority. In making his change, Benedict XVI himself did admit, however, that even a supermajority was no guarantee of sound decision-making. There have been popes, like Alexander VI, whose character at the time of the election and performance in office may refute any simple conclusion that the Holy Spirit is always behind the choice.

The rule also had a political function—protecting the property and civil rights of those under papal rule. The two-thirds supermajority rule emerged as the pope became a powerful ruler of a large territory in the Papal States. Prospective changes in autocratic rule increase uncertainty among the citizenry as property and other rights may be changed under a new regime. Monarchies deal with this problem by heredity rule. Sons are likely to have similar interests to the current ruler. Moreover, they are known quantities around whom citizens can plan. That is one reason that monarchies lavish attention on the heir, sometimes giving him a special name, like the British Prince of Wales or the French Dauphin, and a substantial presence at court. Conversely, the absence of an heir can lead to instability in a kingdom. The hereditary principle helps ensure that the subjects feel their rights will be as secure as ever.

Of course, popes could not leave their office to their children. Nevertheless, a rule that required a supermajority made it more likely that there would not be radical shifts that would threaten rights. Mancur Olson, the great political economist, suggested that the broader the coalition that is required to hold power, the more encompassing is its interest. As a result, a broad coalition would internalize the costs of its policies and act in the general interest rather than exploit one faction in favor of another. As popes have lost secular power, this function of the papal supermajority rule has lost its importance.

But it is this latter function that most resembles that of supermajoritarianism in our own political system. Americans have constitutional rights that can be changed only by the strictly supermajoritarian amendment process—generally by a two-thirds vote of both houses of Congress and ratification by three-quarters of the states. Even ordinary legislation is effectively supermajoritarian because passage requires majority votes in two houses, elected in different jurisdictions and at various times, as well as the agreement by the president in the absence of two-thirds support. The Senate’s filibuster rule even makes the process more strictly supermajoritarian for most legislation.

The appropriate stringency of these secular supermajority rules is—and should remain—a matter for debate. Yet even without claiming the Holy Spirit’s imprimatur, America’s supermajoritarianism carries moral weight: it obliges factions to seek partners and to temper victory with accommodation. By compelling citizens to ask what they share, it transforms bare winners into broad coalitions and converts fragile majorities into more durable consent.

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Ironically, the left, now alarmed by the federal government’s intrusive reach, bears direct responsibility for crafting the very legal weapons wielded against the universities it dominates. Almost four decades ago, progressive legislators demanded sweeping amendments to civil rights law, expanding federal oversight over higher education. The sequence of events reveals a cautionary tale of political hubris: progressive confidence that state power would reliably serve their ends overlooked the reality that governmental authority, once unleashed, recognizes no ideological master. Today’s circumstances starkly illustrate how expansive federal control over civil society, originally celebrated by progressives, returns to haunt its architects. The left’s outrage ought to focus not on this particular administration but on its own reckless empowerment of the state.

The story begins with Grove City College, a small Christian institution in northwestern Pennsylvania. Grove City sought independence from the federal government and its proliferating regulations to preserve a distinctive faith-based education. To that end, it refused all direct government funding. Some of its students, however, received federal Basic Educational Opportunity Grants (Pell Grants) to pay tuition. The Department of Education argued that because the college benefited indirectly from those grants, it must certify compliance with Title IX’s prohibition on sex discrimination. Grove City refused, insisting that accepting students who had federal aid did not subject the entire college to federal rules. The dispute reached the Supreme Court in 1983.

The Reagan administration inherited this enforcement proceeding but tried to take a nuanced approach to protect against giving the government power over all the operations of a private university.

Solicitor General Rex Lee, for whom I had the privilege of briefly working, argued that Grove City was indeed subject to Title IX because the college received indirect federal funding through students’ financial aid. Lee, however, also focused on a limitation contained in the statute, arguing that the restrictions on discrimination only applied to the “program” that received the federal funds—in the case of Grove City, that was the financial aid office—not the entire institution. Thus, Lee’s argument reflected the Reagan administration’s broader policy concern for protecting civil society, including religious institutions, like Grove City, from federal rules that could transform their campus.

By a 6–3 vote, the Court agreed with the Reagan administration’s position. It held that Title IX applied only to the specific program that received federal funds—in this case, the college’s financial aid office—rather than to the institution as a whole.​ In practical terms, this meant that Grove City College only had to ensure its financial aid operations did not discriminate on the basis of sex. This “program-specific” principle allowed self-determination for much of the college’s operations. It implied, for example, that Title IX would not cover a college’s athletic department unless that department itself received federal funds. It also followed that should a university refuse to end its discrimination in a program, the federal government could only withhold funds from the program that engaged in the discrimination.

As George Liebmann recently wrote for Law & Liberty, the left was enraged by the Reagan administration’s position and the Supreme Court’s decision. It pushed Congress to overturn it immediately. And after debates in Congress, in 1987, both the House and Senate passed the Civil Rights Restoration Act, which made all federal funds received by an educational institution subject to being cut off if there was discrimination by any unit. President Reagan vetoed the bill, warning that “would diminish substantially the freedom and independence” of universities. He saw it as a federal overreach—what he pungently labeled a “big government powergrab … cloaked in the mantle of civil rights.” Or, as Liebmann nicely put it in his recent essay, “Such power … allows the federal government to strangle institutions that don’t fall in line with its vision of social order.”

It is worth recognizing the intellectual roots of Reagan’s veto. Reagan was deeply influenced by Friedrich Hayek’s seminal work, The Road to Serfdom. He frequently quoted Hayek in speeches and hailed Hayek’s contributions when his successor, George H. W. Bush gave Hayek the Presidential Medal of Freedom. Hayek feared that central planning by government would crush autonomy not only of markets, but of civil institutions. Reagan’s veto was a direct application of Hayek’s liberal precepts.

But, despite Reagan’s veto, Congress nevertheless passed the bill over his veto. As a result of this change in law, all subsequent presidential administrations have enjoyed enormous leverage over universities. Any violation of Title VI or Title IX anywhere within the institution, as defined by an administration, puts a university at the risk of the loss of all federal funds in all its operations. Modern universities receive substantial federal funds. Virtually every university relies significantly on federal student aid. Research universities like my own receive substantial additional federal funding, particularly in biomedical research and in defense contracting.

And Democratic administrations made aggressive use of this leverage to change practices at college campuses in heavy-handed ways. The Obama administration’s “Dear Colleague” letter in 2011 effectively mandated that universities overhaul their procedures for sexual abuse and harassment cases or face total loss of federal funding. For instance, the letter asked that guilt be determined by a bare preponderance of the evidence standard, despite the heavy costs to a student from a guilty verdict and expulsion. It also undermined due process by discouraging cross-examination and mandating training in which investigators were encouraged to believe the accusers. The government was deploying its enormous power to dictate processes to universities and regulate their relations with their students and, by extension, students with each other.

The Obama administration did not limit itself to regulating conduct; it aggressively extended its authority to police campus speech. It argued that speech that listeners thought was of a sexual nature could lead to a finding of a hostile environment actionable under Title VI, even if that conclusion were not based on objective facts, but on subjective feelings. Such interventions encouraged speech codes and chilled debate.

In 2016, the Obama administration issued guidance interpreting Title IX to cover gender identity, advising schools that transgender students must be allowed to use facilities and participate in programs consistent with their gender identity or else be in violation of federal law.​ This requirement included access to bathrooms, locker rooms, and sports teams corresponding to their identity. Again, this interpretation represented an aggressive and expansive reinterpretation of Title IX. It seems plainly inconsistent with this language, which prevents discrimination based on sex—a concept that at the time of Title IX was passed—referred to biological sex. But colleges did not want to risk their federal funding by flouting such government ukases.

While many on the left decry the Trump’s administration’s attempt to use its power under the Civil Rights law to reform higher education to its liking, they did not lodge similar complaints against the Obama or Biden administrations’ exertion of power under the same authority.

Such expansive government authority validates Ronald Reagan’s Hayekian prophecy that empowering government inevitably undermines civil society’s autonomy. Hayek’s critique lays bare the dynamic of the current funding‑cutoff regime. A free society, he insisted, rests on rules that are general, abstract, and prospectively applied; once administrators may pursue favored social ends case by case, law dissolves into politics. Yet Congress now empowers federal agencies to “effectuate” anti‑discrimination norms by terminating—“in whole or in part”—every stream of federal aid to a university, while the Office for Civil Rights may invoke “any other means authorized by law.” Universities can thus face a remedial roulette, unsure how—or how severely—evolving notions of “hostile environment,” “pregnancy‑related conditions,” or “gender identity” will be enforced. The rule‑of‑law certainty Hayek prized yields to the horse‑trading of administrative justice.

Hayek also warned that central planners cannot marshal the dispersed knowledge lodged in local practice; uniform mandates inevitably misjudge context and breed perverse incentives. One federal definition of compliance now governs thousands of heterogeneous campuses. Because a single slip can imperil grants for physics or medicine, counsel imposes campus‑wide prophylaxis: mandatory trainings, speech codes, and quasi‑judicial procedures that outrun the statutory text. Washington’s abstractions flatten the landscape of academic life—precisely the epistemic error Hayek when centralized control becomes stronger.

Finally, Hayek identified a ratchet of increased government power: each discretionary intervention invites the next, converting temporary power into permanent dominion. As detailed above, Title VI and Title IX trace the pattern. Program‑specific oversight gave way to institution‑wide sanctions; race and sex have expanded into an ever‑widening catalogue of identities. Every “modest” extension prepares the ground for the next, tightening the lever and nudging higher education farther down the road to bureaucratic serfdom. Bureaucratic mandates by the government require more bureaucrats in the university who gain more power over university life, displacing the more varied perspectives and knowledge of the faculty.

Even under the old regime approved by the Supreme Court in Grove City, the government would have had influence over universities, because it could have cut off funds from units that violated its view of Title VI and Title IX. But its power would have been appropriately limited. Universities need not have feared the loss of all federal funds. They would have been in a better position to engage in a dialogue with the government rather than react to its dictates on any interpretation of Titles VI and IX.

Clumsy governmental dictates on contentious matters such as transgender rights do not merely settle disputes; they inflame societal divisions by transforming moral disagreements into winner-takes-all political battles. Civil society, by contrast, thrives precisely because it embraces diversity and facilitates compromise, allowing pluralistic communities to coexist peacefully without being conscripted into ideological warfare. The left, fixated upon uniform outcomes, consistently undervalues the power of voluntary cooperation and cultural persuasion. Their shortsightedness has delivered into the hands of their opponents the very instruments of coercion they forged, vividly confirming an enduring truth: the power you grant government today will inevitably be wielded tomorrow by your adversaries.

In the long term, the wisest course would be to return more autonomy to civil society, including private universities, by reducing the heavy hand of federal regulation. The Trump administration has demonstrated to progressives that governmental power over education is indeed a double-edged sword. Perhaps, having felt the blade’s sting, the left might now join friends of liberty in sheathing it.

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An aggressive deregulatory agenda provides the most plausible political response to America’s fiscal dilemma—the surge of the national debt. At approximately 120 percent of GDP in 2023, this debt eclipses even the level during the expansive Great Society programs and the Vietnam War, which in 1969 stood at a mere 35 percent. The budget is also now composed of types of spending that are difficult to cut and on autopilot to rise; old-age entitlements alone, currently comprising about 36 percent of the federal budget, threaten to include more than half of all federal expenditures within a generation. Coupled with necessary defense spending at around 16 percent and rising interest obligations at around 13 percent, the federal government’s fiscal maneuverability rapidly diminishes. Cuts in discretionary spending, already whittled down as a percentage of the national budget, will not reverse the trajectory of debt by themselves. Moreover, substantial reductions would likely require congressional agreement.

Neither party today seriously entertains the possibility of raising taxes sufficiently to curb this spiraling debt. Democrats propose increasing taxes only on the wealthiest two percent, a move insufficient to stabilize the nation’s finances, particularly since higher taxes on this productive segment dampens overall economic vitality. Republicans, meanwhile, continue to pursue further tax cuts. It is also true that neither party has a program to curb the growth in old-age entitlements in a nation with an aging population.

Given this political landscape, significant economic growth—fueled by broad deregulation—provides the only remedy for the growing debt. A swelling national debt does not merely threaten economic prosperity; it undermines America’s fiscal capacity to meet unforeseen crises, jeopardizing national security.

This deregulatory program also aligns with the most important social development of our time: artificial intelligence. AI represents an unprecedented innovation, the mass production of intelligence itself, potentially to be integrated into all facets of economic activity. The productivity enhancements AI promises can yield sustained economic expansion—but only if regulatory barriers do not bottle up innovation and prevent it from suffusing the entire economy.

The presence of tech leaders at President Trump’s inauguration symbolized the importance of AI right from the beginning of his administration, and his immediate reversal of President Biden’s restrictive AI regulations signaled a clear commitment to unleashing AI’s potential. Vice President J. D. Vance’s unequivocal statement in Paris that “AI’s future will not be owned by handwringing about safety” captures the administration’s recognition that deregulation must move swiftly and decisively to unlock the full economic promise of AI.

It is good that our leaders recognize the importance of creating a healthy regulatory environment, but there is plenty more work to be done. Three central pillars support a coherent deregulatory strategy: transparency, presidential control, and substantive deregulation where permitted by law. Thus far, many of the new administration’s statements and actions accord with them.

The first pillar emphasizes transparency, arguably the simplest and most broadly appealing component of deregulation. One of the Trump administration’s initial actions was to restore a directive from his first administration requiring that all agency guidance documents be publicly accessible online in one centralized location. This executive order also mandated a notice-and-comment period prior to the issuance of agency guidance. Such a process enables affected individuals and businesses to identify overlooked compliance costs, fostering more rational regulation. Permitting regulated parties to demand declaratory orders to clarify agency regulations would also help citizens avoid unfair regulatory ambushes by agencies. By clarifying government expectations, transparency reduces uncertainty, enabling businesses to plan with greater confidence and spurring economic growth.

The second deregulatory pillar is robust presidential oversight. Trump has strengthened executive review through orders expanding the authority of the Office of Information and Regulatory Affairs (OIRA), a critical instrument of centralized presidential control established by President Reagan in 1981. Recently, Trump extended OIRA’s oversight to encompass independent regulatory agencies like the Federal Trade Commission and the Securities and Exchange Commission. These agencies are now required to submit significant regulatory actions to OIRA for comprehensive cost-benefit analysis to the extent permitted by law and adhere to statutory interpretations provided by the Office of Legal Counsel. Bringing in the independent agencies under the umbrella of presidential regulatory review assures that the president’s directives will be fully reflected across the entire federal government.

Further underscoring his commitment to executive oversight, Trump has directly asserted presidential authority by removing certain commissioners, notably at the National Labor Relations Board, whose terms traditionally offered protection from dismissal without cause. While some of these removals have prompted legal challenges, their intent is clear: removing bureaucratic obstacles to regulatory reform. Moreover, Trump’s proposed “Schedule F” employment category for civil servants involved in policy decisions further aims to streamline presidential policy implementation by reducing bureaucratic resistance. Republican presidents are likely to meet more such resistance because the federal bureaucracy leans sharply left.

Another order requires agencies to provide the best interpretation of the statute, not simply the reasonable interpretation to which courts in the past were supposed to defer under the precedent of Chevron defence. This rule is premised on the well-grounded assumption that most “reasonable” as opposed to correct interpretations of statutes tended to favor more regulation. A reasonable interpretation of a statute that permits more regulation than a correct one makes bureaucrats more powerful and increases the value of their outside options. While one might think that regulated companies may have substantial power to push back on excessive “reasonable” regulation, they often like more expansive regulation to create an expensive moat that makes it more difficult for new smaller upstarts to storm the citadels of their established businesses. Since AI can help fledgling companies grow fast, moving to the correct interpretation of statutes that are likely less expansive should help bring the benefits of AI to the marketplace as well as reduce regulatory compliance costs generally.

The third pillar of a coherent deregulatory approach involves substantive reforms crafted specifically to dismantle entrenched regulatory inefficiencies and curb the relentless expansionism of administrative agencies. One high-profile directive mandates that agencies remove ten existing regulations for every new rule they implement. Although dramatic on its face, this policy addresses a genuine and critical problem: regulatory ossification—the stubborn persistence of outdated rules due to cumbersome procedures required for their repeal. By forcing agencies regularly to reassess old regulations, the administration ensures that government rules remain relevant, efficient, and less burdensome. Trump also has ordered agencies to raise the discount rate for future benefits and costs of regulation back to what it was before Biden lowered it in order to create “a better benefit-cost picture of costly regulations that promise future benefits.”

Beyond these cross-cutting reforms, Trump’s administration thus far has implemented substantive deregulation in crucial economic sectors. He issued executive orders aimed explicitly at increasing domestic energy production and established an executive branch council dedicated exclusively to energy deregulation. These actions will broadly lower energy costs and bolster economic growth. More specifically, they will directly facilitate the advancement of artificial intelligence—a technology that fundamentally relies on abundant and affordable electricity, embedding intelligence as seamlessly into the broader economy as electricity itself.

Trump’s decisive actions against Diversity, Equity, and Inclusion (DEI) programs at colleges represent another significant facet of substantive deregulation. DEI policies had transformed opportunities from merit-based allocations to identity-based distributions, thereby undermining economic efficiency. By prioritizing merit and talent over identity, Trump’s deregulatory measures ensure optimal allocation of talent, maximizing economic productivity and growth. As Heather Mac Donald has compellingly documented, DEI regulations had even begun encroaching upon STEM fields, the very disciplines essential to America’s continued innovation and economic dynamism.

If the Trump administration is indeed committed to serious domestic deregulation, it would be profoundly consequential. The credibility of its promise to “Make America Great Again” hinges on achieving accelerated economic growth, revitalizing public confidence, and averting fiscal dangers. Cutting discretionary spending will not make much of a dent in the debt. Tariffs will not ignite economic growth. Instead, it is deregulation, if carefully structured and rigorously pursued, that presents a genuine opportunity to boost American economic prosperity, particularly given the opportunities AI will present. When unjustified regulation retreats, individual creativity and innovation flourish, turning liberty itself into the engine of national prosperity and renewal.

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Revoking the ABA’s authority to accredit law schools would break the ABA’s monopoly and encourage more diverse, less expensive pathways to legal practice. This measure would not only reduce many students’ tuition, but also spur institutions to compete on affordability and pedagogical creativity.

If the Department of Education rescinds the ABA’s accreditation authority, then, conservative states would likely adopt more flexible models that reduce both cost and dogmatic teaching, pressuring other states to follow suit. The result would be a more dynamic legal education marketplace, prompting law schools nationwide to offer innovative programs that better match the needs and budgets of students. Moreover, there is no need for the Education Department to use the ABA. To fulfill its function of protecting students from substandard law schools, it could simply use bar passage rates and employment rates of students who enroll as criteria for student-loan eligibility. 

Increasing Costs

One primary reason for runaway tuition is the ABA’s myriad accreditation standards that inflate institutional expenses. Note that these are expenses of a professional graduate school that come after already paying for an undergraduate education. Lawyers, operating through the ABA, have an incentive to sustain high barriers to entry. Steep costs help limit new entrants, shielding established lawyers from increased competition. Chief among these burdensome dictates are rules on teaching. Under Standard 404 for legal education, the ABA requires law schools to maintain a core of full-time faculty with tenure or “tenure-like” job security, compelling them to invest heavily in permanent staff. Because such faculty generally command higher salaries than adjuncts or practitioners, schools shoulder persistently large payroll obligations. The mandate for a full-time law librarian further elevates baseline costs, hampering schools interested in leaner, more cost-effective models.

By imposing a one-size-fits-all approach to faculty and administrative structure, the ABA’s requirements hamper creative efforts to deliver legal education more affordably. Institutions that might harness technology, rely more extensively on adjunct expertise or experiment with shorter, skills-focused programs. They are effectively discouraged from any such experimentation under the existing standards. This is especially burdensome for law schools aiming to serve lower-income communities, where prospective graduates cannot command the salaries needed to justify exorbitant tuition.

A further driver of escalating law school expenses emerges from Standard 311, which compels a Juris Doctor program to span at least 83 credit hours over no fewer than 24 months. This rule effectively cements a costly, time-intensive structure that restricts student choice and stifles creative program design. For instance, a streamlined 18-month curriculum with concentrated coursework could furnish competent graduates at a fraction of the price, but ABA guidelines bar such an approach. This extended timeline, in turn, raises both tuition bills and living costs, heightening the burden on students and particularly discouraging those from socioeconomically disadvantaged backgrounds. By entrenching a rigid and lengthy credentialing process, Standard 311 fosters unsustainable levels of student debt and diminishes the accessibility of legal education.

By mandating a multi-year commitment, the ABA prolongs the window before students can join the workforce, compounding their overall financial obligations. Such requirements ignore the reality that some students—particularly older ones or those with significant life responsibilities—may be better served by accelerated or alternative tracks. Yet under the current structure, all must march through the same multi-year process, accruing more debt and pushing back the start of their careers. Ultimately, this standard model works against social mobility, shutting out qualified individuals who cannot afford years of foregone income, and thereby undermining the very diversity and innovation that legal education should encourage.

Stifling Innovation

A modern legal profession demands creative approaches to teaching and training, but ABA Standard 306 restricts a student’s distance education credits to no more than 50 percent of the total. By limiting the scope for online instruction, the ABA hinders institutions seeking to capitalize on technologies such as live-streamed lectures, interactive simulations, and asynchronous platforms. These digital tools have demonstrated significant promise for working adults, rural populations, and other underserved students who may struggle to attend traditional, on-site programs. Schools thus cannot pioneer fully online JD offerings that could broaden access and reduce costs.

By discouraging distance learning, the ABA narrows the range of student demographics and precludes transformative teaching methods. Standard 306 underscores a deeper aversion to educational experimentation, forcing schools to preserve antiquated methods of delivering instruction. Even those institutions that see clear pedagogical value in new formats fear jeopardizing their accreditation status. Consequently, many law students remain bound to a model designed for an era of blackboard lectures, missing out on the adaptive and potentially cost-saving benefits that modern technology can provide.

Another illustration of ABA overreach comes from its expanded requirements for experiential courses. While clinics and hands-on training can be beneficial, compelling every student to follow the same experiential path fails to acknowledge the diverse goals of modern legal education and different jobs open to graduates in the profession of law. Indeed, as the legal scholar Brian Leiter has pointed out, “Law schools differ, in their student bodies, in their employment outcomes. Law students differ, in their personal and professional goals, and in their intellectual interests. There should be a very strong presumption against any proposal of the form that, ‘200 law schools, and 40,000 law students all must do X.’” Thus, while a mandate for clinical experience may serve certain ABA constituents—e.g. lawyers who prefer students to arrive pre-trained—it risks marginalizing equally valuable academic, theoretical, or unconventional program designs. If we want a profession that speaks to a whole constellation of needs, schools themselves (and the students they serve) must remain free to innovate and determine the most fitting curriculum.

Finally, the ABA’s insistence on graduate-level status for legal education excludes another innovation that prevails internationally: undergraduate law degrees. As Russell Mangas and I have noted, countries such as the United Kingdom and Australia allow students to embark on legal studies immediately after secondary school, facilitating quicker workforce entry and reducing overall costs. Without the ABA’s stringent oversight, certain states might experiment with an undergraduate option, offering an alternate pathway that benefits those eager to start practice earlier. This avenue would hardly fit every aspiring lawyer, but in a profession as variegated as the law, there is no single path that best serves all students. By blocking this possibility in America, the ABA deprives future lawyers of a proven global model that could meet diverse needs, diminish debt loads, and spark new forms of interdisciplinary innovation. This kind of obstacle shows how the ABA may serve not only the interests of lawyers as a guild but also the existing status quo of graduate law schools.

Promoting Left-Liberalism

Beyond using its monopoly power to inflate costs and suppress innovation for the sake of certain vested interests, the ABA actively endeavors to embed left-liberal ideological views in both the structure and delivery and legal education. Through Standard 206, which addresses diversity and inclusion, the ABA compels law schools to take “concrete action” to ensure representation of underrepresented groups—even in the face of the Supreme Court’s ruling in SFFA v. Harvard. The standard’s vague wording grants accreditation authorities ample room to pressure institutions to adopt policy changes aligned with a specific ideological agenda, including de facto quotas in admissions and faculty hiring. As this essay was going to press, the ABA “suspended” this requirement given the executive order requiring universities to end diversity initiatives under the threat of losing federal funds. But you can be sure that if the president’s order is enjoined in Court or repealed by a subsequent president, the ABA will put it back into effect an order that it refuses to repeal. 

In 2022, the ABA introduced Standard 303, which requires instruction on bias, cross-cultural competency, and racism at multiple junctures in the curriculum. A group of chaired Yale Law professors—many of them self-described liberals—criticized this new standard as an attempt “to institutionalize dogma” by prescribing course content irrelevant to core legal skills. They correctly argued that determining what to teach and how to teach it should rest with individual professors, not an accrediting body imposing a uniform worldview.

The George W. Bush administration recognized the dangers of lawyer-driven oversight when it removed the ABA’s Standing Committee on the Judiciary from its privileged position in the judicial nomination vetting process. Lawyers’ interests often clash with public interests: they profit from complex rules and an expansive sphere of legal practice, but society benefits from clarity and limits on the legal system’s reach. Similarly, today’s attorneys reap tangible gains from the ABA’s hold over legal education. Costly law school programs restrict competition by raising barriers to entry, and the rules against innovation reduce the chances that fresh competitors will introduce superior offerings. Left-liberal ideology further serves many lawyers’ partisan preferences while championing ever-more regulation, thereby fueling a steady demand for legal services.

The Trump administration now has an opportunity to unshackle legal education from ABA control and reshape the profession itself, loosening the grip of ideological gatekeepers that may make for a more left-liberal profession. By stripping the ABA of its accrediting authority, policymakers would empower states to design less strict requirements for becoming a lawyer. Freed from artificially imposed uniformity, law schools could better serve their varied student bodies, foster real pedagogical innovation, and lower tuition for aspiring lawyers.

This single act would advance the strong deregulatory agenda of the Trump administration. It would reorient the legal profession away from the control of a self-serving regulatory cartel toward a more open, affordable, and authentically pluralistic future—one that better aligns with the public interest rather than entrenched professional advantage.

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Regulation by enforcement has become a flashpoint. Last month, Judge Stephano Bibas of the Third Circuit Court of Appeals noted: “Nearly a century ago, Congress created the SEC to serve as a watchdog for securities markets, including by developing rules. The SEC insists that its old rules apply to the novel crypto market but refuses to spell out how.” He then opined:

Crypto companies like Coinbase are confused about how to comply with the law and have repeatedly asked the SEC to clarify. Instead of doing so, the SEC sues the companies individually. It wants to proceed with ex post enforcement without announcing ex ante rules or guidance. … Its old regulations fit poorly with this new technology, and its enforcement strategy raises constitutional notice concerns.

In a recent article, we show that there is a statutory tool, as old as modern administrative law itself, admirably adapted to combat these ills. Section 5(d) of the Administrative Procedure Act (APA) commands government agencies to issue “declaratory orders” to clarify the legal status of regulated conduct before the regulated party faces adverse consequences. A declaratory order is a binding, noncoercive ruling that definitively declares whether a proposed or ongoing activity complies with the law. If it sounds too good to be true for regulated persons, that might explain why agencies have resisted it—after all, bureaucrats often seize the advantage over ordinary citizens by maintaining maximum flexibility. But by ignoring or underusing declaratory orders for decades, agencies have frustrated Congress’s original vision. Restoring that vision can foster economic growth and revive key rule-of-law values in our administrative state.

The Dangers of Regulation by Enforcement

No one disputes that government has a significant role in protecting the public and correcting market failures. However, the regulatory apparatus can become dangerous when agencies rely too heavily on enforcement actions to clarify what the law demands. Instead of laying out clear rules, agencies may wait until a business moves forward with a new product, practice, or service. Then, if the agency disapproves, it slaps the business with sanctions, fines, or other penalties.

This approach deprives citizens of fair notice. An innovative firm might invest years of effort and millions of dollars only to discover that its innovative product is outlawed by some unannounced bureaucratic interpretation. The blunt force of enforcement then chills the next wave of innovation.

The Original Meaning of Section 5(d) 

Courts are beginning to pay more attention to the original meaning of the Administrative Procedure Act (APA), just as they have with the Constitution. This would be another good case for applying originalism. In 1946, to reconcile the rule of law with administrative power, Congress enacted the APA. The APA established a rule-of-law foundation for the regulatory state. One of the Act’s neglected provisions is Section 5(d), authorizing—and indeed requiring in some circumstances—agencies to issue declaratory orders “to terminate a controversy or remove uncertainty” in matters that fall under their authority. The basic idea is straightforward: rather than forcing a regulated party to guess whether they comply with a host of complex rules, the firm can ask the relevant agency for a formal, binding answer ahead of time. If the agency issues a declaratory order approving the proposed activity, the business can proceed in confidence. If the agency issues an unfavorable order, the business knows whether to change its plan or seek a change in the regulatory framework.

Unfortunately, even though the APA’s language is quite plain—an agency “in its sound discretion … may issue a declaratory order”—few agencies have embraced the device in any robust way. It is true that they sometimes opt for nonbinding “advisory opinions” or “no-action letters” that offer no guaranteed security.” But these mechanisms leave room for the agency to reverse course—without notice. By contrast, a proper declaratory order binds the agency, subject, of course, to valid reasons for revisiting the ruling in the future, and provides legal certainty so businesses can plan accordingly.

One might ask why agencies are not free to refuse declaratory orders whenever they want. After all, the APA’s text states that the agency “may” issue a declaratory order. Yet that same sentence also invokes the phrase “in its sound discretion”—the only time the phrase is used in the APA. “Sound discretion” was a legal term of art in 1946. At that time, “sound discretion” in the courts meant equitable, reviewable discretion: judges could not arbitrarily refuse to issue a declaratory judgment if the facts were concrete and issuing that ruling would “remove uncertainty or terminate a controversy.” This limited kind of discretion required a genuine balancing of interests. No court has ever taken the position that an agency’s decision whether to issue a declaratory order is dependent on its whim. But courts have yet to understand the robustness of the sound discretion standard.

Congress borrowed that standard from judicial declaratory judgments and embedded it in the APA, intending for agencies to follow suit. At the time of enactment, the judiciary was required to provide a declaratory order whenever a party faced actual harm, unless there was a good reason not to. Similarly, in administrative procedure, where a regulated party faces real risk from an unclear rule, the agency must either give an answer or provide a good reason for refusing. Fear of additional costs or inconvenience to the agency does not, by itself, trump Congress’s command. Indeed, the APA specifically authorizes agencies to charge filing fees for declaratory orders, so that resource concerns need never become an excuse for refusing them.

Moreover, agencies remain free to deny or postpone a declaratory order when someone brings a frivolous request or when key facts are still in flux. If the question is purely hypothetical or if the relevant law will be examined in a pending enforcement matter already underway, the agency has latitude not to issue the order. But absent such legitimate grounds, a refusal to provide clarity undermines both liberty and the rule of law.

Declaratory Orders After Chevron

By its terms, section 5(d) applies only to formal adjudication, and much agency adjudication is informal. But the Supreme Court precedent, followed by lower courts, has applied section 5(d) to informal adjudication as well. Thus, statutory stare decisis supports this broader scope even if it was wrong as an original matter.

Moreover, even if the Supreme Court revisited the scope of declaratory orders and narrowed its ambit to formal adjudications, more agency adjudication is likely to become formal after Chevron’s demise. Chevron permitted agencies to interpret in favor of informality any ambiguity about whether they were required to hold formal hearings. Given the greater ease of informal procedures, some agencies exploited ambiguity in just that way. But now, post-Chevron courts must decide whether a statute mandates formal or informal hearings for the agency. Courts, as neutral arbiters that are intimately familiar with process, are likely to interpret statutes as providing regulated parties with the more ample procedures of formal adjudication.

In any event, the new administration could itself reinvigorate declaratory orders. First, it could order agencies to follow the original meaning of “sound discretion” in section 5(d). Second, it could go even further than Congress’s command and tell agencies to provide declaratory orders whenever they are not forbidden by law, and the public benefit outweighs the administrative cost. Agencies have substantial discretion to provide more process than the APA requires them to provide. This executive order would comport with the superb administrative approach adopted by the first Trump administration, which tried to make it easier for citizens and companies to plan. For example, the administration required all agency guidance to be publicly available. An executive order on declaratory orders would provide another boon to planning and therefore to liberty.

The Payoff of Declaratory Orders

Consider the present-day scenario of a firm hoping to list a novel cryptocurrency exchange-traded fund (ETF). As highlighted last month by Judge Bibas, such products exist at the forefront of both technology and finance, creating uncertainty about how they fit within longstanding securities rules. Multiple companies have tried to get approval for these crypto-related funds, but regulators have been hesitant or slow to act.

A declaratory order from the SEC, by contrast, would provide definitive clarity on whether the specific structure of the proposed ETF complies with the rules. If yes, the firm can proceed confidently, attracting investors and encouraging broader market development. If not, the firm knows that it must modify its approach or seek a different path. In both cases, the free market benefits from clear signals on how to innovate in a lawful manner.

The same reasoning applies across the regulatory spectrum. Think of environmental permitting: a company wants to deploy modern technologies to reduce emissions, but it is not entirely sure whether those new processes meet the Clean Air Act’s requirements. Or think of telehealth platforms that leverage advanced software for patient care but remain unsure if certain privacy protocols meet federal health regulations. In each case, a declaratory order could provide certainty and thus encourage innovation.

Declaratory orders, properly applied, reflect the “better angels” of our administrative system. They turn agencies into partners who, far from threatening enforcement at every turn, share their expertise upfront. Citizens do not fear investing in the latest ideas because they know they can rely on the agency’s declared position—subject, of course, to any genuinely new developments that might require reevaluation.

We prosper when entrepreneurs can engage in a dynamic marketplace governed by sensible, consistent rules. Yet we need regulations to prevent companies from wrongly imposing costs and dangers on our citizens. One overlooked but important mechanism permits bold enterprise and necessary regulation to flourish together. That mechanism lies in the original understanding of the APA, in a provision enacted by Congress to afford private actors the ability to force answers from agencies. Mandating the broader use of declaratory orders would not only implement faithfully Congress’s directive but would also restore confidence and creativity in our commercial republic.

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This tectonic shift raises a central question: How does the political New Right differ from the postwar political Right it seeks to supplant? The answer is not monolithic. Paradoxically, this New Right’s universal nationalism renders it deeply particular, shaped by the unique history of the nations it inhabits. Its vision varies from country to country depending on national identity, historical grievances, and local traditions.

France offers a case study in continuity as well as its potential extremity. The old French political Right, defined by Gaullism, was never a friend to classical liberalism. It championed dirigisme, the belief in an expansive and interventionist state, alongside an ethos of cultural unity and national independence—often skeptical of NATO and disdainful of American influence. The Rassemblement National radicalizes this legacy. Economically, it calls for more state spending and tighter control. Geopolitically, its embrace of Russia reflects an intensified version of Gaullist autonomy from the United States. Culturally, its anti-Muslim stance transforms the old republican secularism into a harsher, more authoritarian vision of national identity. The New Right in France is not a rupture but an amplification—a louder echo of familiar themes.

The political New Right in the United States diverges from its French counterpart because the American Right has never mirrored France’s rejection of liberalism. The United States was born as a liberal state, its founding principles rooted in individual liberty, free markets, and religious pluralism. Unlike France, where conservatism was often synonymous with nationalism and statism, American conservatism largely sought to preserve the classical liberal order.

Modern American conservatism emerged as a fusionist project—a synthesis of libertarian ideas and traditional moral order. It rested on the conviction that liberty requires virtue: without personal responsibility and adherence to shared moral values, freedom risks decaying into license and disorder. This principle echoes the nation’s Federalist origins, where conservatives like George Washington and John Adams argued that moral virtue, undergirded by religion, was indispensable to the American experiment in self-governance.

The power of this tradition is evident in the nature of the political New Right in the United States. While some intellectuals on the right and an increasing number of right-wing activist groups and think tanks openly repudiate the fusionist project, much of the practical politics of the New Right—led of course by the once and future President Donald Trump—may be understood as pursuing long-term goals of the project in a very hostile world. Nowhere is this clearer than in its response to the administrative state, a long-standing foe of the American Right. For decades, conservatives have understood the dangers of an unaccountable bureaucracy. They opposed the New Deal for granting expansive, discretionary powers to unelected officials. In the 1950s, they fought for procedural safeguards like the Administrative Procedure Act. By the Reagan era, conservatives recognized that mere procedural checks were insufficient, leading to reforms like cost-benefit analyses overseen by the Office of Management and Budget.

The political New Right, building on this legacy, sees structural reform as the key to restraining a bureaucracy that increasingly leans ideologically left, particularly in domestic agencies like the EPA and HHS. The Trump administration’s first term made headway by prioritizing regulatory rollback and curbing agency discretion. A second term promises to go further, tackling the structural obstacles that frustrate conservative governance. Two measures stand at the forefront of this agenda.

First, the administration will likely seek greater control over independent agencies by curbing their insulation from presidential authority. This idea is not new—it has been debated in every Republican administration since Reagan—but the New Right views it as a necessity to ensure agencies reflect presidential rather than bureaucratic control.

Second, the Trump administration will likely reintroduce Schedule F, a classification that allows for the replacement of entrenched career bureaucrats with political appointees. Critics argue that such a measure risks cronyism and incompetence, but the structural risks of an ideologically homogenous career bureaucracy may be graver. The challenge is to weigh the dangers of political patronage against the dysfunction of an administrative state immune to electoral accountability. If the New Right succeeds, it will restore the primacy of democratic accountability over bureaucratic inertia, safeguarding the promise of limited government. If it fails, the administrative state will likely continue to grow, impervious to the political will of the people.

The American political New Right’s emphasis on tax cuts and limiting the size of government is not an innovation but a long-standing feature of right-leaning administrations for over a century. Critics argue that its current program lacks the spending reductions necessary to render these tax cuts fiscally sound. Yet such objections are hardly novel. The Reagan administration faced identical accusations when its sweeping tax cuts expanded the deficit. The logic underpinning this approach is the familiar “starve the beast” strategy: by reducing revenue, the growth of government can be constrained, especially when left-leaning parties inevitably return to power. However, one salient critique remains—the New Right seems to have largely abandoned entitlement reform, even as entitlements drive unsustainable government spending in a rapidly aging nation.

The political New Right’s answer to this charge lies in both policy and politics. On policy, its vision prioritizes radical deregulation to unleash economic growth, which, in theory, may generate sufficient wealth to sustain entitlements. On politics, the reality is more sobering: curtailing popular entitlements seems an electoral impossibility. A conservative movement can resist political gravity only so far before being broken as the Federalists and Whigs learned to their peril. Thus, the New Right opts for economic expansion over entitlement reduction, aiming to navigate between fiscal prudence and political survival.

This New Right’s embrace of social conservatism also reflects continuity with the fusionist vision of classical liberalism that once defined American conservatism. What distinguishes the New Right, however, again is its structural focus—this time on cultural institutions—institutions that, since Reagan, have been increasingly dominated by the left. Unlike their predecessors, the political New Right sees these institutions not merely as battlegrounds but as systems requiring reform or replacement. It seeks to break the ideological monopoly of cultural elites by opening up existing institutions or building alternative ones.

The rise of social media has further catalyzed this transformation. In the modern age, digital platforms have become the public square, yet until Elon Musk’s acquisition of Twitter, these platforms disproportionately suppressed right-leaning voices and curtailed legitimate debate. Confronted with this new reality, the New Right has grown more willing to wield government power at least ostensibly to protect free discourse on these mediating institutions, preventing them from becoming tools of ideological suppression.

It is with regard to foreign policy issues that the political New Right appears, at first glance, to diverge most sharply from the traditional American Right. It is less enthusiastic about military interventions abroad and generally more skeptical of internationalism. Yet this perception may reveal more about the exceptional nature of the post-World War II Republican Party than about the New Right itself. Before the mid-twentieth century, the Republican Party maintained a healthy wariness of international entanglements. This skepticism was not merely partisan but deeply rooted in America’s founding principles.

George Washington famously warned against “foreign entanglements,” and John Quincy Adams articulated the quintessential conservative American political posture in global affairs: “Wherever the standard of freedom and Independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be. But she goes not abroad, in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own.” The political New Right’s approach to international affairs thus reflects a return to an older tradition—one that prioritizes national sovereignty and prudence over moral crusades and global adventurism.

The more interventionist foreign policy of the Cold War was justified by a singular and existential threat: totalitarian communism’s relentless drive for world domination. That struggle shaped every corner of America’s foreign policy, from military alliances to proxy wars. Today, the geopolitical challenge is fundamentally different. While nations like China, Iran, and Russia are authoritarian and expansionist, their ambitions fall short of global conquest. These powers seek regional dominance, not world hegemony. Still, when their actions directly threaten American interests or its close allies—such as China’s attempts to turn the South China Sea into its private dominion, Iran’s nuclear ambitions, or the Houthi’s efforts to interfere with the freedom of the seas—the political New Right demands a sharp and decisive response, supported by robust military capabilities. It rejects military adventurism but embraces military strength. Unlike the neoconservative commitment to nation-building, the New Right understands the classical liberal truth: governments lack the foresight to reconstruct foreign societies and the steadfastness to see such grand projects through.

The New Right’s departure from free trade similarly reflects a return to older American instincts. The pre-World War II Right was staunchly protectionist, and today’s enthusiasm for tariffs flows from two other premises of the New Right. First, if the United States limits its military interventions to conflicts where vital interests are at stake, economic tools such as tariffs become more central to its foreign policy arsenal. Second, the fiscal realities of New Right governance impose constraints. If personal and corporate taxes are cut while entitlements remain untouched, tariffs provide an alternative revenue stream.

Many Reagan-era conservatives now feel like Federalists in Jacksonian America—without a political party that fully represents them. The disorientation is understandable. But it can be argued that the political New Right confronts a world defined by different challenges—the rise of China, entrenched bureaucracies hostile to conservative governance, and cultural institutions captured by an ideological monoculture.

There is room for vigorous debate about whether the political New Right’s adaptations honor or distort the principles of American classical liberalism and fusionist conservatism. Such debates are both necessary and healthy. Political movements cannot stand still; they must adjust to new circumstances while remaining rooted in enduring principles. For friends of liberty in America as opposed to France, this is a time for careful reflection rather than uncritical celebration or wholesale rejection.

The political New Right’s rise poses essential questions about the future of American conservatism: Can a new emphasis on United States economic independence coexist with classical liberal commitments to free markets and limited government? Can a political focus on maintaining a culture conducive to conservatism remain compatible with pluralism? These are questions worth answering, because the fate of American conservatism—and the classical liberalism it has long upheld—depends on striking the right balance.

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Wood’s brilliance lies in his capacity to place the Founders’ decisions within the constraints and opportunities of their time while illuminating their enduring relevance. Wood possesses a particular capacity to anchor his analysis in the lived realities of the Founders, demonstrating how their ideas sprang not from our hindsight-laden narratives but from the constraints and opportunities they faced. This is most evident in his treatment of slavery. Wood reveals how the Revolution and its Enlightenment ideals cast a new moral light on an institution that had persisted for millennia. The Founders therefore recognized slavery as a moral evil, but their response to this evil was hampered by an incorrect factual belief. Misled by the assumption that slavery was economically unsustainable and nearing its natural end, they underestimated how technological advances like the cotton gin would revitalize the institution. By situating their choices in the uncertainties of their time, Wood compels us to judge the Founders not by our standards but by their lived context.

Even more importantly, Wood demonstrates how the Founders’ experiences echo through the centuries, shaping not only our legal and political structures but also our very frameworks of thought. As we approach the 250th anniversary of the Declaration of Independence, this later contribution is all the more relevant. The revolutionary generation not only broke with an empire but forged new ways of thinking about liberty, democracy, and governance that remain foundational to American identity. Wood’s explication of these intellectual legacies helps us understand not just who they were but who we are.

In his most recent book, Power and Liberty, Wood does for American constitutionalism what his teacher Bernard Bailyn did for the American Revolution in The Ideological Origins of the American Revolution. He demonstrates how the Constitution grew organically from the debates about political power animating the revolutionary generation. While constitutional lawyers often view the Constitution as an abstract text, Wood reminds us of how it was forged through historical struggles, and how those struggles continue to inform how we deploy it. For constitutional law, the past is never truly past. It is present in our debates, in our doctrines, and in our very understanding of governance.

One of Wood’s key contributions is his analysis of the Constitution as a written document—a foundational concept of constitutional law since Marbury v. Madison. Wood traces this commitment to writtenness to the experiential logic of the Revolution itself. The colonists’ debates with Britain revealed the instability of an unwritten constitution, where fundamental premises were endlessly debated but never settled. This experience of ambiguity naturally led the Framers to demand a written Constitution—something solid, clear, and enduring. As Wood in Power and Liberty quotes the observation of William Paterson, constitutions drafted after the Revolution were notable for their “written exactitude and precision.”

Indeed, this precision helps explain why the Constitution, though enacted in the name of the people, is written in the language of law, as Mike Rappaport and I have argued. Legal language, with its technical rigor and interpretive rules, provided a foundation for the clarity and exactitude prompted by the revolutionary experience with ambiguity and lack of clarity. Thus, when constitutional lawyers today draw careful inferences from the text and apply interpretive rules, they are not merely engaging in legalistic exercises but continuing a tradition rooted in the very origins of American constitutionalism.

Wood’s scholarship can also help us understand how the revolutionary experience transformed the very meaning of a constitution. In Britain, as Wood aptly quotes Lord Bolingbroke, a constitution was merely “an assemblage of laws, institutions, and customs,” with no authority above ordinary legislation. By contrast, the Americans revolting against Parliament conceived of a constitution as supreme law, binding even the legislature.

This shift created a political conundrum. If a constitution were to restrain legislatures, it could not be enacted by ordinary legislative processes. From this necessity arose the idea of special conventions to ratify state constitutions. These conventions reinforced the view that constitutions were acts of the people themselves. The majestic preamble of the federal Constitution, beginning with “We the People,” is a direct result of this revolutionary logic.

Wood’s analysis of how the revolutionary generation distinguished American constitutions, state and federal, from the British constitution sheds light on a critical contemporary debate in constitutional law. Jonathan Gienapp, in his provocative book The Second Creation, argues that the Constitution should not be seen as fixed, drawing an analogy to the British constitution’s fluidity. Yet Wood’s insights suggest otherwise; his revolutionary focus on writing, precision, and ratification by special assemblies underscores the idea that the Constitution’s meaning was intended to be fixed at its creation.

Moreover, sovereignty itself underwent a transformation. In Britain, sovereignty resided in Parliament, but the American Revolution located it in the people. This change makes it more implausible to argue that the Constitution’s meaning was unsettled at enactment. As Wood quotes Samuel Adams declaring in 1768, “In all free States, the Constitution is fixed. And as the supreme Legislature derives its powers and authority from the Constitution, it cannot overleap the bounds of it without destroying its own foundation.”

A written constitution enacted by the people also solved another problem exposed by the Revolution: the problem of divided powers. British critics claimed the colonists’ demand for divided authority between parliament and the colonies created an imperium in imperio, violating the principle that sovereignty must be in Wood’s summary “final, supreme, and indivisible.” But by locating ultimate sovereignty in the people, the Constitution allowed the Americans to delegate powers as they chose, thereby dividing sovereignty. This innovation, which Wood aptly describes, enabled the Framers to “split the atom of sovereignty,” granting enumerated powers to the federal government while leaving the residuum to the states.

In my view, this principle of enumerated powers has direct relevance to today’s debates over the scope of federal authority. Those who argue for plenary federal powers overlook the Framers’ conceptual commitment to enumerated powers as a reflection of the sovereignty of the people. For the revolutionaries, enumeration was not merely a technical constraint but a profound assertion of popular will.

Creating a supreme fundamental law for the people leads directly to the idea of judicial review. It is no surprise that state constitutions embraced judicial review even before the federal Constitution, because the very nature of the Constitution suggested judicial enforcement. As Wood quotes James Iredell, a constitution was no longer “a mere imaginary thing, about which ten thousand different opinions may be formed, but a written document to which all may have recourse, and to which, therefore, the judges cannot wilfully blind themselves.” Their revolutionary experience created a type of constitution that, unlike the British constitution, was amenable to running as law in the courts.

One of the broader lessons I take from Wood is the power of political theorizing. Judges in colonial America had a poor reputation, often viewed as merely the British Crown’s elite enforcers. However, the dialectic of fundamental law in the new republic restored their essential role as guardians of constitutional principles. The logic of politics can, at times, overcome the passions of politics.

Wood’s analysis of this experiential logic dismantles the claim that judicial review was a usurpation by the Marshall Court. More interesting, however, is the nature of judicial review that Wood argues flowed from revolutionary experience. It did not make the judiciary the sole arbiter of constitutional meaning. The people, having actively engaged in revolutionary constitutional debates, expected shared interpretive authority. Thus, Framers like Madison believed their representatives had a “concurrent right to expound the Constitution.” This insight is also highly relevant to modern debates, supporting the constitutional stance known as Departmentalism: courts can expound the Constitution in cases before them, but officials in the legislative and executive branches can also do so as part of their duties.

Wood also describes the character of judicial review at the Founding. While judicial review followed logically from revolutionary thought, it was not the robust judicial supremacy we see today. Many Framers, including George Washington, believed in a presumption of constitutionality, with laws to be invalidated only if clearly unconstitutional. Wood argues that the Marshall Court later collapsed the distinction between fundamental law and regular law.

I see more continuity between the Marshall Court and the other Founders in this respect than Wood. To be sure, on the specific question of the standard for judicial review, I agree with Wood and have argued myself in the Duty of Clarity, that at the time of the Constitution’s enactment, it was recognized that a statute had to be plainly and clearly invalid to be unconstitutional. But Chief Justice Marshall agreed with that standard at least in theory when he himself acknowledged that the judiciary should not decline to follow a statute when the incongruity with the Constitution was subject to doubt.

More generally, in interpreting the content of the Constitution much like ordinary law, specifically like statutes, the Marshall Court was not innovating but following a strand of thought already present at the Founding. In Federalist #78, Publius had already likened the judicial task of measuring statutes against the Constitution to that of comparing statutes to see which applies, thus analogizing statutory to constitutional interpretation. Moreover, Wood himself quotes Hamilton as he asserts in his opinion on the constitutionality of the Bank of the United States that the Constitution should be interpreted according to “the usual and established rules of interpretation.” The opinion was written in 1791—substantially before Marbury. The Constitution’s own Supremacy Clause itself refers to a previous interpretive legal rule applied to statues by the using the phrase “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” That phrase was a legal term of art used in statutes to block another legal rule that would have required courts to try to harmonize conflicting rules. Its presence demonstrates that the Framers thought the ordinary rules of statutory interpretation were applicable to the Constitution.

In my view, at the time the Constitution was enacted, judicial review was already becoming surrounded by the interpretive rules governing other laws. It had been recognized that as law, constitutions could not be seen as created ex nihilo. Instead, like all law, it must be understood against the rich backdrop of prior jurisprudence.

But, whatever the resolution of this particular issue, Wood here raises a central challenge for originalism: while history flows like a river, originalism must try to bottle the flow at a particular moment. How do we pinpoint at a particular time the meaning of complex concepts, like judicial or executive power, that may be evolving?

We live in difficult times for writing history, as Wood observes in the introduction to Power and Liberty. Today, historians question even the possibility of objectivity. Yet our republic was founded on truths that require evidence as well as those that are self-evident. It is, therefore, an essential task for historians of the early republic to make the case for those enduring truths. In this endeavor, Gordon Wood has succeeded as much as any historian in our nation’s history.

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This debate brings into relief two contrasting currents of Enlightenment thought. On one side stands the view that man, like other elements of nature, can be scientifically molded for his own good. Richard Pipes, in The Russian Revolution, traces this idea to John Locke, who saw human understanding as fundamentally shaped by sensory experience. According to Locke, our knowledge—and by extension, our choices and actions—are determined by the inputs we receive. Man’s will, therefore, is not an exercise of autonomy but a reaction to external stimuli. This radical empiricism laid the groundwork for a deterministic view of human behavior, suggesting that if one could control the sources of input, one could ultimately direct human action.

One thinker who fully embraced the political implications of Locke’s theory was the eighteenth-century Frenchman Claude Helvetius. He argued that if human actions are the results of sensory input, then the path to a better society lies in controlling those inputs. Social engineering, then, becomes a logical project of this view. The notion is straightforward but sweeping: by directing what surrounds man, one can mold his thinking, even his moral character. The mission of politics, therefore, is not merely to govern but to educate and, if possible, to remake the citizens. In Helvetius’s hands, Locke’s epistemology transformed into a radical program for societal redesign.

This philosophy demands not just control over a few aspects of life but a comprehensive system of influence. As Pipes notes, for Helvetius, “education” encompasses everything that shapes man’s mind—the ideas and stimuli that frame his worldview. To fulfill this vision, society requires a cadre of intellectual elites devoted to creating a rational environment that cultivates certain desirable responses. These elites, guided by their view of reason, would assume the role of social architects, shaping the context in which individuals think and act.

Armed with this ideology, the modern intellectual class reshaped society’s ruling structure and supplanted the nobles and clergy who had previously held sway. In Russia, as Richard Pipes notes, they became known as the intelligentsia. In Britain, Samuel Taylor Coleridge dubbed them the “clerisy.” Under the influence of Enlightenment thought, this new class assumed responsibility for society’s education, charged with crafting and disseminating the information believed to advance humanity.

Progressives today see this arc of influence as aligning with the “arc of history bending toward justice,” because their class is in a prime position to guide this bend. Unlike other sectors of society, intellectuals are compensated specifically for their work in shaping opinions and disseminating ideas. Some, such as political activists and journalists, do so directly and with immediate effect; others, like academics, establish the long-term agenda by teaching future generations. Artists and writers, meanwhile, influence the cultural environment, with each segment supporting the others in a symbiotic web of social influence. Journalists review certain books, critics shape the arts, and together, they wield substantial power over the direction of society’s beliefs and values.

However, the disintermediation of media has eroded this intellectual monopoly on shaping information. The Internet enabled new forms of communication, such as blogs, that allowed a wider range of voices to reach the public. Social media platforms like Facebook and Twitter took this democratization even further, while YouTube and podcasts broke the mainstream networks’ grip on public discourse. With these transformations, the intelligentsia could no longer control what information the public consumed or direct it toward preordained conclusions. Media’s radical democratization introduced a plurality of perspectives and voices that weakened the intelligentsia’s once-tight grip on social direction.

It is therefore unsurprising that many within the intelligentsia now call for crackdowns on so-called “disinformation” in these new media forms. No longer the gatekeepers of information, they see this diffusion of influence as a threat to the cultivated order they once imposed. In their view, unrestricted information flows create a kind of sensory chaos that could undermine the carefully structured narratives essential to their vision of progress.

Disintermediation has rendered it impossible for the clerisy to maintain their former role as gatekeepers of knowledge, pushing them to enlist government bureaucracy as a surrogate. This bureaucracy, sharing the intelligentsia’s educational background and ideological leanings, can effectively fulfill this second-best function by filtering and shaping information on their behalf. Hence, there is a growing enthusiasm for laws mandating that media platforms remove “misleading” information. Europe offers a model of this new regulatory structure, with digital content laws that set the standard. Recently, Europe’s chief digital regulator even warned Elon Musk to avoid “harmful content” after his platform aired an interview with then-presidential candidate Donald Trump. The underlying concern was not simply “harmful content”; it was the unfiltered reach of an unapproved interview, one not curated by the “right” journalists to frame it for the public.

This pivot to regulation reveals a deeper truth about the clerisy’s philosophy: under the Helvetian view, the First Amendment serves as an instrumental right—useful insofar as it advances the collective good, rather than fundamental individual liberty. Free speech, in this view, is valuable only as long as it educates the public in a way that aligns with the clerisy’s version of reason. When free speech no longer serves as an instrument for educating society in this way, the clerisy’s commitment to it wanes.

By contrast, free speech has a sturdier foundation in a different strand of Enlightenment thought. Oddly enough, this perspective also originates with John Locke, though it stems from his political philosophy rather than his epistemology. For Locke, individuals possess natural rights to property and liberty, and the government’s purpose is to protect these rights. This Lockean framework shaped James Madison’s approach in drafting the First Amendment, as Madison justified free speech as a “property” in one’s opinion. While Locke did allow for the restriction of property rights to prevent harm to others, the First Amendment was born from a profound fear of government overreach in political speech. The concern was not simply potential harm but the greater threat of governmental suppression in the name of public good, making it dangerous to grant government broad authority to stamp out “digital misinformation” it deems harmful.

These opposing Enlightenment strands are starkly evident in the ongoing debate over Twitter. The clerisy’s discomfort with Twitter was notably less pronounced when the platform rigorously monitored content, banning figures from satirists to a former president, and even suppressing coverage of inconvenient information, such as details about a candidate’s family. Though those making content decisions at Twitter were not themselves intellectuals, they often mirrored the social and political perspectives of the clerisy, thus maintaining the platform’s alignment with their values.

Then Elon Musk purchased Twitter, now X, promising to overhaul its content moderation policies and permit a wider array of voices. The clerisy’s response was one of immediate alarm. They warned of disinformation’s dangers, abandoning the platform in droves for alternative services more aligned with their standards. Yet these alternatives lacked X’s reach and influence, diminishing the clerisy’s capacity to direct public discourse. This retreat, while principled in one sense, was tactically self-defeating, as it conceded the educational influence they sought to maintain.

Faced with this loss of influence, the clerisy has increasingly turned to government intervention, advocating for laws similar to those in Europe. In the absence of legislation, they hope the executive branch might pressure social media companies to remove problematic content. However, the Supreme Court has recently ruled that such government “jawboning” may violate the First Amendment, recognizing the inherent dangers in bureaucratic overreach into the domain of public speech.

The other strand of the Enlightenment places greater confidence in spontaneous order to separate the wheat from the chaff on platforms like X. Under Elon Musk’s leadership, X has sought to promote sound information not through government mandates or even unilateral corporate edicts, but by tapping into the collective wisdom of users. This approach finds expression in X’s “Community Notes”—a crowdsourced system designed to add context to tweets. Community Notes allow users to collaboratively clarify or supplement information in tweets that might be misleading. Individuals propose notes, and others evaluate them. An algorithmic process then ensures that only notes reflecting a cross-ideological consensus appear. This mechanism exemplifies how a model of enlightenment rooted in free individual choice and voluntary cooperation can address disinformation, not by decree but through the organic interplay of diverse perspectives.

The clash between these two Enlightenment visions continues to fuel the debate over disinformation, particularly as new technologies expand how ideas are circulated. Large language models (LLMs) are now reshaping the transmission of information, and the clerisy has already voiced concerns about how these models should be constrained. Many in this class argue that LLMs should be programmed to avoid certain viewpoints and to promote a particular set of values. The results of this bias-driven “alignment” have occasionally veered into the absurd. For instance, one model recently generated an image of the Framers of the Constitution as a diverse assembly of men and women of various ethnic backgrounds, a depiction no doubt intended to reflect contemporary ideals of diversity, equity, and inclusion.

Musk’s approach to AI, much like his stance on content moderation at X, challenges the clerisy’s preference for control. His new LLM, Grok, promises to be less politically constrained—a stance that has already generated consternation among those who view technology as a tool to guide public opinion toward “correct” viewpoints. The coming debates over AI regulation will span a range of issues, but at their core, they will once again confront the question of control: to what extent will the clerisy be allowed to use technology to direct human thought and development, insulated from the competitive pressures Musk and others wish to preserve? The future of human freedom may well depend on this choice.

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On the surface, it may seem that the leftward lean of most professors and journalists is enough to explain the ferocity of their attacks—the current Supreme Court does not reliably produce the decisions they would prefer. But their discontent runs deeper. The Court is unique among the branches of government in that it transparently reasons through its decisions. While the intelligentsia may dismiss the other branches as driven by raw political passions and base interests, they cannot easily accept that the Court—an institution that, like themselves, offers reasoned explanations and arguments—might represent something besides what they consider the forces of light. The fact that the Court’s justices attended the same elite schools as many journalists and professors only deepens the anger when it delivers outcomes they consistently oppose. It is not simply the decisions that enrage them but the effrontery of a Court whose analysis undermines their sense that history is ineluctably bending to their worldview.

To understand the weakness of these left-wing critiques of the Court’s legitimacy, it is essential to dissect the arguments one by one. These critiques are not rooted in principle but are polemical attempts to persuade members of the public, who understandably often lack detailed knowledge of the Court, that something is fundamentally wrong, when the criticisms boil down to mere disagreements with the Court’s decisions.

First, consider the argument that the Court has lost legitimacy because it is unpopular. Critics frequently point to public opinion polls, noting the Supreme Court’s low approval rating, standing this year at 47 percent. Some progressives have suggested that a Court’s legitimacy should be measured by its popularity. But the role of the judiciary is to interpret the law, not to chase public opinion. Judicial review, by its very nature, demands that the Court give primacy to its interpretation of the Constitution, even over laws that are popular enough to pass through state legislatures or Congress. The Constitution’s very design was to provide a deliberative framework that protects against the whims of transient majorities, what Justice David Brewer aptly called the protection of “Peter sober against Peter drunk.”

Moreover, in fact, the Court is not more unpopular than it has been in recent times. Over the past twenty-five years, its approval ratings have fluctuated between 40 and 60 percent. There is no reason to believe that its current dip—driven by the decision in Dobbs—will not be temporary, just as the Court rebounded from the widespread discontent following Bush v. Gore. At 47 percent approval, the Court is still more popular than the sitting president, presidential candidates, and, by a wide margin, Congress. Even if one thought that popularity was somehow the lodestar of legitimacy, it is relative popularity that would matter most. So long as the Court remains more trusted than the political branches, it will continue to possess the diffuse support necessary to ensure that its rulings are not defied by those same branches.

Next, consider the complaint that the Court’s “radical” methodology, originalism, places it outside the bounds of legitimate constitutional interpretation. But this critique is unfounded. Originalism, as a method of interpretation, has been a fixture in constitutional law since the Republic’s founding. Indeed, as Howard Gillman, no conservative himself, has demonstrated, originalism was the common ground in constitutional disputes throughout the entire nineteenth century. Even today, William Baude has argued that almost all Supreme Court decisions at least gesture toward original meaning as the foundation of their reasoning. While Baude’s assertion that originalism is “our law” may be a touch exuberant, it underscores that originalism has always remained a legitimate, if in modern times contested, method of grounding constitutional interpretation. Given this deep historical pedigree, it is hard to see how originalism can be dismissed as an illegitimate constitutional approach.

Another line of criticism focuses on the fact that the Roberts Court has overruled precedents. Yet, overturning precedent is a longstanding feature of Supreme Court jurisprudence. The Court has been revisiting and revising its past decisions for over a century. In fact, the Roberts Court has overturned precedents at a slower rate than either the Warren or Burger Courts—the former being lionized by many of the same critics, and the latter at least not branded as illegitimate. The selective outrage here is palpable and unconvincing.

Critics also argue that Dobbs is unique because it represents the first time the Court has overturned a right on which many Americans relied. But this claim ignores history. The Court erased substantial economic liberties when it overruled Lochner v. New York and gutted constitutional protections for contracts in Home Building and Loan Ass’n v. Blaisdell, holding that the Contract Clause could be disregarded during economic emergencies—the very moment when such protections are most critical. These decisions eliminated rights that Americans had depended on, rights that were enshrined in the original constitutional framework.

Moreover, the distinction critics attempt to draw between rights provisions and structural provisions of the Constitution is untenable. The constitutional system of federalism assigns powers to state and federal officials not for their own benefit, but for the benefit of the people. This division of powers serves vital purposes, including satisfying diverse preferences and fostering competition among the states, and between the states and the federal government, to best serve the public. When the New Deal Court effectively dismantled the system of enumerated powers—granting the federal government near-plenary authority—it overruled many prior decisions and, in doing so, undermined important rights of the people. One may disagree about whether these overturned cases were rightly decided, but Roe v. Wade was also highly disputable. The inconsistency in how these critics evaluate the Court’s treatment of precedent suggests that their concerns about legitimacy are less about the principle of precedent and more about dissatisfaction with particular outcomes.

Another misleading complaint leveled against the Court concerns its use of the emergency docket, often derisively referred to by critics as the “shadow docket.” The term “shadow docket” can evoke a sense of opacity and subterfuge, playing on the negative connotations of the word “shadowy.” But the reality is far more benign. This docket is used when the Supreme Court is asked to enjoin a lower court’s decision without a full hearing on the merits. Critics argue that these emergency decisions are less transparent, deliberated, and reasoned, given the Court’s lack of time for full briefing, oral arguments, and detailed opinion writing. While it is true that the emergency docket operates under compressed timelines, this critique ignores a key reality: all courts maintain emergency dockets precisely because the alternative is worse.

Without an emergency docket, courts would be powerless to prevent potentially erroneous lower court decisions or statutes from causing irreparable harm to citizens. For instance, the Supreme Court extensively uses its emergency docket to stay executions and the Court’s current critics do not complain about the practice. During the Covid-19 pandemic, the Court issued several controversial decisions through the emergency docket, particularly when government restrictions imposed unprecedented burdens on liberties. The Court was right to act swiftly when these constraints affected rights, such as the constitutional right to worship or property rights. Critics on the left decried these rulings, but their objections are rooted in disagreement with the outcomes, not in any valid critique of the process itself.

Finally, the Court’s critics have launched a fusillade of attacks on the ethics of individual justices. Justice Samuel Alito, for example, was criticized for participating in January 6-related cases after his wife briefly displayed an upside-down American flag, a symbol some associate with sympathy for the Capitol rioters. Similarly, Justice Clarence Thomas faced criticism for receiving gifts from a wealthy friend over several years, with a few of those gifts initially omitted from his financial disclosure forms. Yet, these actions do not seriously undermine the legitimacy of the Court. Nothing has shown that the justices acted with the intention of wrongdoing or that their decisions were influenced by these incidents. Their rulings align with their long-established jurisprudence, not personal favors.

These supposed ethical lapses pale in comparison to the conduct of Justice Ruth Bader Ginsburg, who openly called Donald Trump a “faker” and expressed shock that he had avoided releasing his tax returns. She later sat on a case that hinged on whether the House of Representatives could subpoena Trump’s tax returns, and yet, few claimed that Ginsburg’s ethics undermined the legitimacy of the Court. This double standard reveals the true ideological nature of the current ethical criticisms.

None of these rebuttals to the ideologically driven claims of illegitimacy should suggest that the Supreme Court could not improve. In the age of social media, where baseless accusations can spread like wildfire, shielding the Court from such unfair accusations may need prophylactic measures. One such measure could be for Congress to enact laws preventing justices from accepting gifts of substantial value, reinforcing the Court’s ethical standards. Even absent congressional action, the justices would be wise to adopt such practices on their own accord, recognizing the prudence of maintaining an unassailable public image. Additionally, as demonstrated in Ohio v. EPA, the Court can, when possible, place cases on the emergency docket on an expedited briefing and oral argument schedule. This practice would allow for greater deliberation and transparency, thereby mitigating concerns critics raise about the emergency docket’s perceived lack of thoroughness.

The primary responsibility for defending the Court’s legitimacy does not rest with the justices, however, who are constrained in their comments outside their opinions. That duty falls on the broader legal profession and the academy. It is incumbent upon lawyers, scholars, and commentators to protect the Court from malicious critiques that aim at the institution itself. Criticizing particular rulings is part of the vibrant legal discourse that helps improve the law over time. It is also fair game to advocate for constitutional amendments or statutory changes in response to Court decisions, so long as these efforts stay within constitutional bounds. But undermining the legitimacy of the Court threatens the very foundation of the rule of law. By eroding trust in the final arbiter of constitutional meaning in the cases brought before it, such attacks jeopardize the stability of our legal and constitutional order.

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