The various strands of the just war tradition in themselves present a curious mix of justification for state action and ethical guidance to practitioners. The justificatory side of the tradition is almost as useless as a practical matter. No one in power elects to start a war they see as truly unjust, and at best, one can try to persuade the population forced to fight that their cause deserves no moral sanction. Tyrants may deny that rules of justice apply—that the strong do what they will and the weak suffer what they must—but even Vladimir Putin has argued for the righteousness of his cause. Most of the time, the leadership on both sides in a war are fully convinced of the justice of their cause.

Just war doctrines find a readier audience when it comes to the actual practice in combat, and most students and military professionals accept the argument that the means a nation or movement deploys in combat can color or delegitimize the ends they seek.

As Israel responds to Hamas’s brutality, we will increasingly see commentators and politicians argue that war is not the answer, that a cease-fire is in everyone’s best interests, and especially, that Israel’s combat operations are disproportionate to the situation or violate the norms of war. No reasonable person denies that states should be forced to endure atrocities without response. It shouldn’t have to be said (but seemingly does) that Israel’s declaration of war on Hamas is entirely justified. We should be clear about what this authorizes them to do, however, and clearly understand what a “proportional” response entails. In his classic Just and Unjust Wars, Michael Walzer writes:

We must grant that soldiers are entitled to try to win the wars they are entitled to fight. That means that they can do what they must to win; they can do their utmost, so long as what they do is actually related to winning. Indeed, they should do their utmost, so as to end the fighting as quickly as possible. The rules of war rule out only purposeless or wanton violence.

Proportionality in the just war sense Walzer sets out here means that we ought to judge whatever operations Israel undertakes in terms of whether they will eliminate the threat Hamas poses—and of course, taken by itself, it suggests that Israel has a free hand within these limits. It is certainly true that the Israelis should avoid acts of cruelty or simple vengeance and spare the innocent wherever possible, but as they respond, we should also remember the degree to which Hamas has rendered it impossible for anyone to pursue them without killing large numbers of civilians. They must also seek to reestablish peace for Israel and seek an end to the war that makes that peace possible.

Western militaries operating within a just war framework tend to understand war as a coordinated but limited use of violence meant to achieve specific political ends. The moral frameworks that constitute the just war tradition implicitly assume certain basic limits, even if sometimes they are purely pragmatic ones driven by soldiers themselves. One does not kill or abuse the enemy’s wounded today because, in the chaos of war, you may find yourself at your enemy’s mercy tomorrow. Other precepts focus on respecting the humanity itself, as Walzer notes:

Lawyers sometimes talk as if the legal rules were simply humanitarian in character, as if the ban on rape or on the deliberate killing of civilians were nothing more than a piece of kindness. But when soldiers respect these bans, they are not acting kindly or gently or magnanimously; they are acting justly. If they are humanitarian soldiers, they may indeed do more than is required of them—sharing their food with civilians, for example, rather than merely not raping or killing them. But the ban on rape and murder is a matter of right.

However firmly philosophers state these rules, as a workable ethic, justice in war relies on reciprocity. When one side in a war begins with a gross violation, it is hard to see how that does not factor into the defender’s sense of what a proportional response entails.

In The Ethics of Insurgency, Michael L. Gross argued that unconventional warriors ought to be judged by similar constraints as those serving a nation-state:

Despite legitimate grievances, guerrillas do not always have cause to wage war. When they do, the method they choose should be the best: the one that promises to rectify legitimate grievances at the least cost. … Just guerrilla warfare strives for national self-determination and, like state warfare, will pursue those means, violent or nonviolent, that are cost-effective and respectful of the fundamental rights of combatants and noncombatants.

Hamas largely avoided military targets in their initial attacks. Instead, they focused on murdering, raping, and torturing innocents of all ages while also taking hostages back to Gaza. These are not incidental to other actions but the very core of their mission in ravaging Israeli settlements—and they shared large portions of it on social media with glee.

Indeed, Hamas’s strategy is one based around the comprehensive disrespect of the just war tradition. Their refrain of “from the river to the sea” is a clue to the absoluteness of their ambitions. In his Ethics of War, A. J. Coates argues that theological or ideological claims like this give rise to a militarism that renders war total, and one’s enemies absolute:

An absolute enemy is an enemy without rights against whom total war must be waged. Extermination is the only fate worthy of the “infidel,” the “AntiChrist,” “the Great Satan,” the “verminous Jew,” the “bourgeois,” the “Bolshevik,” the “Hun,” the “kulak,” the “untermensch.” In all its forms, dehumanization or demonization of the enemy leads to the barbarization of war.

Over the course of the last week, dozens of commentators have justified Hamas’s actions in terms of their greater cause of “liberation” or “decolonization.” Yale’s Zareena Grewal responded to those outraged at the attacks on innocents, “Settlers are not civilians. This is not hard.” This is precisely the sort of rhetoric that (quietly) insists that in pursuit of Hamas’s goals, any means are justifiable. We should also recognize that it is an aim that makes lasting peace in the region utterly impossible.

In these pages, David Goldman recently summarized Israel’s perilous situation:

For the time being, Israel will keep Gaza under siege. It has a grace period due to the world’s revulsion at Hamas, but this will not last forever. As pictures of starving Gazans circulate in the coming weeks, world sentiment once again will turn against the Israelis. If Israel cannot strike a killer blow against Hamas on the ground during the next few weeks, its strategic position will be permanently weakened.

The terrible events of the past several days make clear that the existential urges of the ancient world cannot be erased with the bland brush of modernity—something that the Serbs of Kosovo, the Armenians of Nagorno-Karabakh, and the Ukrainians of Donetsk, Luhansk, and Kherson learned already.

Israel aims at destroying a barbaric enemy who has entrenched themselves with hostages, and among their own civilian population—a people Hamas seems intent on keeping in harm’s way.

Just war has no meaning apart from the peace that nations seek through war. It remains to be seen what peace Israel can secure from this conflict. But minimally, a peace that fails to reestablish their security and deter future aggression will, as Goldman suggests, place them on a path to self-destruction. Hard choices lie ahead for Israel’s leaders. We should all pray that Israelis find ways to conduct their war with restraint, for they will bear the scars of this tragedy for generations to come, as well as the consequences of whatever peace they achieve, or don’t.

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To that side of my extended family, I became the stereotype of a coastal liberal, writing for the New York Times and wholly out of touch with the real America. In fact, I’ve always prided and defined myself as an anti-tribal thinker, and sometime contrarian, working firmly within a left-of-center black tradition—a tradition populated by brave and brilliant minds from Ralph Ellison and Albert Murray to Harold Cruse, Stanley Crouch, Orlando Patterson, at times even Zadie Smith and James Baldwin. I’d never been a stranger to my own group’s ire, but I’d also intuited this tradition’s ideological limits. I really didn’t even know exactly what else was on offer. Which is to say, it wasn’t that I actively avoided the work of black conservatives, it was that the work existed entirely out of my frame of reference. Conservative ideas in general, and black conservatism in particular, were not things anyone I knew would even think to bother refuting.

To hear my aunt speak approvingly of Sowell put me immediately in mind of the other famous black conservative named Thomas. My brother’s name is Clarence. To pair our names together formed the most ferocious epithet at the playgrounds of my youth. It was exceedingly difficult even for me to arrive at a mental space and degree of curiosity at which I could allow myself to engage with Sowell’s thinking. It took the happenstance of personally meeting and admiring the writer Coleman Hughes, a brilliant young Sowell acolyte, along with the release of a new documentary from the Free to Choose Network, Common Sense in a Senseless World, narrated by Jason Riley, for me to finally give him a hearing.

Riley, a longtime columnist at the Wall Street Journal and fellow at the Manhattan Institute, has made it something of a personal mission to alter the dynamic of prejudgment and casual dismissal I have outlined, or at least to bring the ideas of Sowell to as wide an audience as possible. In May he will publish Maverick, a biography of the thinker, now 91 years old and in semi-retirement since 2016. The documentary relies on archival footage as well as hours of interviews that Riley has recorded with Sowell who, since attaining his Ph.D. in economics from the University of Chicago at the seasoned age of 38, has conducted one of the most prolific and long-running careers in public thinking in recent memory, publishing over 30 books on a variety of subjects from Marxist political economy to late-speaking children, and thousands of syndicated columns, despite his near total absence from the mainstream American imagination.

Sowell’s rise was not predestined. His father died shortly before he was born to a single mother in North Carolina in 1930. By the time that he was eight, his mother had also passed away, and he was raised in Harlem by his aunt and uncle—a devastating twist of fate that Sowell insists on describing as a stroke of fortune. “We were much poorer than most people in Harlem or most anywhere else today; it was my last year or two at home that we finally had a telephone; we had a radio, but we never had a television,” we hear him explain in voiceover. “But in another sense, I was enormously more fortunate than most black kids today.” He describes his family as being “interested” in him, and it is that interest and their dedication to developing his obvious talents that was crucial to his future. A family friend exposed him to the public library and lit a fire in his imagination. He won admission to the ultra-competitive Stuyvesant High School, but dropped out to serve in the Marines before eventually graduating magna cum laude from Harvard in the late 1950s.

It was his first job at the Department of Labor that, in today’s parlance, red-pilled Sowell out of the Marxism he’d held onto until that moment. “The vision of the left—and I think many conservatives underestimate this—is really a more attractive vision,” he declares with a wry smile and his thick New York accent early in the movie. “The only reason for not believing in it, is that it doesn’t work.” This idea of contrasting visions—and their comparative efficacy—would become a central facet of his thinking. But it was the period in his life spent teaching at UCLA and Cornell, where a group of black student radicals took over a student center, that seems to have permanently disillusioned him. Like so many aspects of his life and work, the situation feels wildly contemporary. It was not simply the behavior of the student activists but the total capitulation of the administration in the face of a mob that so dismayed him. By 1980, he left teaching entirely and pursued his quiet scholarship at the Hoover Institute at Stanford, shielded from campus politics but also fully ensconced outside the Overton window.

The documentary is an inviting introduction to a fascinating figure many of us have been mistakenly led, one way or another, to fear or ignore, but the film is unable to do for Thomas Sowell what Raoul Peck’s I Am Not Your Negro achieved for James Baldwin. It does not crackle with that kind of televisual electricity. That may have as much to do with the ambitions and constraints of the filmmakers as it does with the oratorical talents and demeanors of the respective subjects. Whatever the case, Common Sense will appeal to the legions of Sowell’s conservative fans who are already familiar with his ideas and also serve as an effective means of leading the more curious members of the uninitiated to his books, which I imagine is the film’s real purpose. And it is there, in those bold and exhaustive texts, that one encounters the full, unadulterated impact of Sowell’s ranging brilliance.

In this season of racial reckoning and pseudo-religious panic over identity, it is genuinely shocking to realize that Sowell not only anticipated these same debates several decades ago—he refuted many of the positions now in ascendance. Many people wondered last summer why, for example, on the Black Lives Matter website the organization declared (and has since deleted) a “disruptive” stance on the nuclear family. What did that have to do with mobilizing against police violence? Why did BLM describe themselves as Marxists? In his 1995 book, The Vision of the Anointed, Sowell argues persuasively that, “The family is inherently an obstacle to schemes for central control of social processes. Therefore the anointed [essentially his proto-term for “woke”] necessarily find themselves repeatedly on a collision course with the family.” This is because, he continues, “the preservation of the family” is fundamentally a source of freedom. “Friedrich Engels’s first draft of the Communist Manifesto included a deliberate undermining of family bonds as part of the Marxian political agenda.”

After the death of George Floyd last May, the Minneapolis city council experimented with ill-conceived calls to defund and even “abolish” their local police forces. This was presented—often by white progressives—as being in the black community’s best interest despite that very community’s often vocal opposition based not on conjecture but painful experience. Sowell had already demonstrated the flaws in this form of reasoning with regard to the LA riots of 1992 (which recall Minneapolis as well as Kenosha, Wisconsin). “Many of the anointed justified the violence and destruction by shifting to the presumed viewpoint of ‘the black community’—when in fact 58 percent of blacks polled characterized the riots as ‘totally unjustified.’” You wouldn’t know it from social and much mainstream media, but those numbers have remained startlingly consistent.

One of the most influential and widely cited books on race in the current era, Ibram X. Kendi’s How to Be an Antiracist, has popularized the notion that any significant discrepancies between so-called racial groups are necessarily indicative of racist policies. Again, Sowell not only anticipates but refutes this newly fashionable line of thinking—some 26 years before it was published:

Many differences between races are often automatically attributed to race or to racism. In the past, those who believed in the genetic inferiority of some races were prone to see differential outcomes as evidences of differential natural endowments of ability. Today, the more common non sequitur is that such differences reflect biased perceptions and discriminatory treatment by others. A third possibility—that there are different proportions of people with certain attitudes and attributes in different groups—has received far less attention, though this is consistent with a substantial amount of data from countries around the world.

And that is the revelation in a nutshell: reading Thomas Sowell has this déja-vu quality. The most important realization you are left with is not that he possesses the final word on every subject but that he wields profound insight and reams of data and comparative research into many of the very debates that still consume us. As a conscientious liberal it leaves you with a nagging question: Why haven’t you or anyone you know ever so much as acknowledged the existence of his output? If we are lucky, this documentary and Riley’s biography will be part of the necessary and overdue work of rectifying the oversight. I suppose I owe my aunt an apology.

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Bauserman is not alone in these ideals, though his article is especially compelling due to its visual cues: an image of children laughing as they race together across a field. But we see a very different picture in Kurt Vonnegut’s “Harrison Bergeron” (1961), a dystopian story in which government regulations and agents have finally forced individuals into “equality.” No one is smiling, much less laughing.

In fact, the protagonist, fourteen-year-old Harrison, is grossly handicapped to render him “equal” to his fellow citizens: earphones distract him with auditory assaults, black caps disguise his perfect teeth, and massive weights slow him down. “In the race of life,” the narrator explains, “Harrison carried three hundred pounds.” 

Vonnegut’s tale remains a classic because, as others have observed, it illustrates the consequences of totalitarian attempts to impose “equality”: they limit individual rights, impose unfair rules, and undermine productivity, which leads to greater poverty and even death. Defy the rules, like Harrison, and risk execution by the Handicapper General.

But the urgent question is not whether we want government officials with double-barreled shotguns hunting down teenagers. It’s why people in Vonnegut’s tale ceded not only their own rights but those of everyone else, including their children. Where did George and Hazel Bergeron go wrong? And how can we avoid the same mistakes?    

The Politics of Envy

The first step is understanding the current use of “equity” and how it differs from “equality.” The latter term refers to treating individuals equally, even if applying the same rules to everyone leads to unequal outcomes. “Equity,” as used in a recent executive order, refers to correcting this imbalance, striving toward equal outcomes by treating people differently. For the political and educational elite, unequal treatment of individuals is therefore the only way to be “fair.” 

Vonnegut’s tale explores the same government imperative toward “fairness,” though in this dystopia, it physically tries to make individuals “equal” in order to achieve equity. He begins,

The year was 2081, and everybody was finally equal. They weren’t only equal before God and the law, they were equal every which way. Nobody was smarter than anybody else; nobody was better looking than anybody else; nobody was stronger or quicker than anybody else. All this equality was due to the 211th, 212th, and 213th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.

Of course, the existence of a Handicapper General proves that such equality cannot be legislated. Only the semblance of it can be achieved by hamstringing people.

So the goal is not really equal treatment but equal outcomes. In this dystopia, such outcomes protect feelings. Ballerinas, for instance, perform on a television program while masked and weighed down with bags of birdshot, “so that no one, seeing a free and graceful gesture or a pretty face, would feel like something the cat dragged in.”

George Bergeron is required to wear a radio in his ear that emits distracting noises so that he cannot take “unfair advantage” of his brain or think of his “abnormal son,” who has been taken by the Handicapper General’s men. His average wife, Hazel, “couldn’t think about anything except in short bursts,” so she has no handicap.

Yet this lack only reminds her of George’s superior intelligence. Hazel, “a little envious,” says she thinks hearing the sounds in his ear radio would be “real interesting.” No laws or handicaps can eliminate envy, which Vonnegut associates with sadistic impulses.   

In fact, Hazel fantasizes about being the Handicapper General so that she could select torturous sounds, such as chimes on Sunday. When George says that he could actually think if he only heard chimes, she replies, “Well—maybe make ‘em real loud.” Hazel, the narrator notes, resembles the real Handicapper General, Diana Moon Glampers.

The Sanction of the Victim

George agrees that Hazel would fulfill that role “good as anybody.” Such equality is the norm, though George’s acceptance seems slightly masochistic. While he is not being literally shot for his strength, he wears a reminder of violence in his handicap: “forty-seven pounds of birdshot in a canvas bag, which was padlocked around George’s neck.” 

Hazel encourages him to “rest the bag for a little while,” generously adding, “I don’t care if you’re not equal to me for a while.” But George resists: “I don’t notice it any more. It’s just a part of me.” At some point, Vonnegut suggests, individuals come to accept the punishment for their gifts and talents. And in ceasing to use those gifts, they lose what makes them unique. 

But why do individuals agree to a system that punishes them for their strengths? In addition to the violence, there are financial penalties. If George attempted to lighten his load by removing the birdshot, the cost would be $2000 per ball. But the real issue is more philosophical:

“If I tried to get away with it . . . then other people’d get away with it—and pretty soon we’d be right back to the dark ages again, with everybody competing against everyone else. You wouldn’t like that, would you?”

“I’d hate it,” said Hazel.

“There you are,” said George. “The minute people start cheating on laws, what do you think happens to society?”

George has internalized this principle of “equality” as surely as he has accepted the weight of the birdshot. He believes that to compete against others is an immoral regression to the “dark ages.”

In reality, Vonnegut shows that forced “equality” leads to the very cultural and economic decline George fears. In “Harrison Bergeron,” the lack of competition has not only leveled the playing field but flattened the entire society. 

Now all are “equal,” so anyone can pursue any occupation. Witness Vonnegut’s television announcer, whose speech impediment prevents him from articulating even three words.   He finally passes his announcement to a ballerina with “a very unfair voice”:  the prisoner Harrison Bergeron has escaped.

The Endgame of Equity

Fortuitously, this fourteen-year-old prodigy then enters the television studio, his grotesque handicaps making visible the consequences of “leveling the playing field.” If Vonnegut’s characters are stunned, readers might reflect on how this scene illustrates the consequences of “equity” in education or employment or government funding. How do some colleges practice similar crimes in handicapping Asian-American students, insisting on higher admissions standards for them? Why should Chinese-Americans, like Harrison Bergeron, carry a heavier burden than others?

Or consider how some high schools are eliminating regular classes in favor of honors for everyone, regardless of academic level. Educators tout this approach as necessary to correct group imbalances in honors classes, and students embrace it because it creates “a more even playing field.” Many parents are unpersuaded: “That’s like saying our entire population is gifted.”

It is a lie, just as “equality” is a lie in “Harrison Bergeron.” Such lies advance the careers of educators and politicians; they may even soothe the envy of the world’s Hazel Bergerons, or pacify the qualms of those like George who have “unfair” advantages. But they do incalculable damage to students at all levels seeking to achieve their best as individuals.  

Harrison is unconvinced that his own handicaps benefit him or anyone else, and his actions—escaping prison and rushing to a television studio—are desperate moves toward freedom. While the government tries to control everyone, shifting them around the chessboard of equity, Vonnegut’s story suggests that is not always possible. People are not simply playing pieces. As Adam Smith warned, sometimes they move of their own accord, generating chaos.

What motivates Harrison is a teenager’s sense of possibility. He casts aside his handicaps and bellows, “Now watch me become what I can become!” Talented yet immature, he forces the orchestra to play and invites a ballerina to join him in his dance. 

This is the only moment of beauty in the story. The two whirl, leap, float to the ceiling, and kiss each other. Fantastically, “not only were the laws of the land abandoned, but the law of gravity and the laws of motion as well.” Rather than hiding their individual abilities, they cultivate and enjoy them.

Vonnegut invites us to imagine the magic of releasing that potential. Freed from society’s unjust regulations, what might Harrison be able to accomplish? And how might his brilliance benefit society as surely as the dance mesmerizes his audience?  

Perhaps it is that potential that motivates Diana Moon Glampers, Handicapper General, to execute Harrison and his partner. Perhaps she, like Hazel, envies the brilliant. Or perhaps she fears the chaos they represent. What if others imitated Harrison? In any case, she arrives with a loaded gun and fires without warning, determined to enforce equality in the only way truly possible: death.

Fortunately, we have no United States Handicapper General to compel citizens into equity. We do have advocates for giving greater power in businesses and schools to Diversity, Equity, Inclusion, and Anti-Racist (DEIA) Committees. Such committees, writes one advocate in a recent Newsweek essay, can “require changes in daily behavior.” But to achieve these goals, “DEIA must be effectively implemented. It is not possible for DEIA to have too much power” (emphasis original).

Diana Moon Glampers would agree: pursuing equal outcomes requires unlimited power, whether of one’s local DEIA administrator or the federal government. Do we really want our government officials—unelected as well as elected—to wield such power?

The Quick and the Woke

In Vonnegut’s dystopia, citizens like Harrison’s parents have ceded power over their own lives as well as their children’s. George does not even know that Harrison died. Distracted by noises in his ear radio, he wanders into the kitchen for a beer. When he returns, Hazel is still on the couch, having witnessed the execution and now crying without knowing why: “It’s all kind of mixed up in my mind.”

This is the second tragedy of Vonnegut’s tale. The Bergerons are “woke” in their commitment to equality, even if it entails handicaps like George’s. But having embraced such conformity, they remain unable to think or protect the son dependent on them.

Conversely, Harrison shows what it means to reach for joy and possibility. However briefly, he lived.

If Vonnegut’s tale teaches us anything, it is to protect our future Harrison Bergerons by rejecting government attempts to engineer equity, even when our leaders insist it is what “faith and morality call us to do.” Betraying the next generation into mediocrity while limiting their freedom can never be “moral.” Like Harrison, they deserve a chance to become what they can become.

The post Harrison Bergeron’s Equitable Tyranny appeared first on Law & Liberty.

With a GDP of $14 trillion, a population of 1.4 billion brimming with confidence and nationalist fervor, and an assertive Communist Party commanding a modern military, China is determined to again become the Middle Kingdom and to erase the humiliation of Western dominance of China over much of the last two centuries.

China’s calculated use of “hard power”—its offensive weapons buildup, its draconian suppression of free speech and assembly in Hong Kong, the constant military maneuvers and warnings aimed at Taiwan, and the “colonization” of the South China Sea—are troubling enough. But we should also focus on China’s use of “soft power,” especially through its United Front Work Department (UFW). Although benign sounding, the UFW “aims to influence the policies of foreign states toward Chinese ends, through means that may be legal, illegal, or exploit gray areas,” June Teufel Dreyer writes in a 2018 Foreign Policy Research Institute report. Target #1 of China’s global offensive is the United States.

With an annual budget of an estimated $2.6 billion, the United Front Work Department has influenced American universities, academic presses, think tanks, schools and school boards, corporations, movie companies, and political lobbying. The UFW is exploiting America’s open democratic ways to advance its authoritarian aims and influence U.S. policy. In the words of Secretary of State Mike Pompeo, the Chinese government has “decided to exploit our freedoms to gain advantage over us at the federal level, the state level, and the local level.”

The public face of the UFWD is the Chinese People’s Association for Friendship with Foreign Countries (CPAFFC), which routinely approaches American officials in various states, offering trips to China and discussing possible investments in technological industries affecting U.S. national security. The association is well prepared for its discussions; a Beijing think tank has assessed the attitudes of all 50 U.S. governors toward China, grading them as “friendly,” “hardline,” or “ambiguous.”

CPAFFC does not hesitate to apply pressure once a relationship has been established. In one case, Secretary Pompeo revealed, a Chinese official threatened to cancel a Chinese investment if a certain governor traveled to Taiwan, whose democratically elected president is deemed by Beijing to be too independent. No one is unimportant in CPAFFC’s calculations—its people cultivate county school boards and local politicians through so-called sister city programs.

But China’s idea of “brotherly love” is far removed from the American concept. Last year, the association pressured a Chicago high school that uses its Chinese language materials to cancel their invitation to a Taiwan expert to participate in a climate-change panel.

For Beijing, political warfare is waged everywhere. While direct federal campaign contributions by foreign nationals and companies are illegal, indirect contributions through U.S. subsidiaries are legal. The CPP takes advantage of our federalist system—many states do not prohibit foreign contributions in local races. Also legal is the hiring of former senior government officials by foreign companies. One former U.S. representative lobbies for the U.S.-China Transpacific Foundation, a Beijing-backed organization that brings delegations of U.S. congressmen to China to “enhance” their understanding of economic and other developments in the mainland.

The CCP knows that in Washington, D.C., lobbying is a must. Chinese companies acknowledge spending $3.8 million on federal lobbying in 2017, and a total of $20.2 million since 2000. For example, Wanhua Chemical, a Chinese state-owned company, joined the American Chemistry Council (ACC)—which, according to “The Intercept” publication, is “unusually aggressive in intervening in American politics.” The significance of Wanhua contributing “dark money” to the ACC was spelled out in an “Intercept” series of articles about foreign influence on U.S. elections. The publication reported that a Chinese-owned real estate company had directly donated to the super PAC supporting Jeb Bush’s unsuccessful presidential campaign.

And there is the more recent case of Hunter Biden, who, when his father was vice president, joined the board of BHR Partners, a new Chinese private equity fund backed by China’s largest state banks (and therefore the CCP). A Hunter Biden spokesman said that Biden did not acquire his 10 percent financial stake in BHR until after Vice President Joe Biden had left office. In April 2020, Hunter resigned from the BHR board but retained his 10 percent stake. The president-elect’s son has admitted that his taxes are under federal investigation.

After years of overlooking China’s aggressive lobbying and technology theft, the United States has taken the offensive in its soft war with China. Last summer, the State Department closed down the Chinese consulate in Houston because China was using it “for highly aggressive espionage efforts against U.S. intellectual property and American citizens of Chinese ancestry.” Among the espionage priorities of Chinese agents was the penetration of “defense and tech sectors in Houston and in the so-called Silicon Hills area of Austin.” The consulate also tracked and harassed Chinese Americans, who the CCP believes should be loyal to the Xi Jinping regime.

In addition, significant targeted economic sanctions against Chinese companies were put in place by the Trump administration, a policy supported by Republicans and Democrats in Congress that might continue during a Biden administration, given China’s blatant use of privately developed technology for the aggressive and repressive political ends of the state. Last December, the Commerce Department added a major Chinese semi-conductor and drone manufacturer to an export blacklist. The sanctions followed evidence of activity between the Chinese company and China’s military industrial complex. “We will not allow advanced U.S. technology to help build the military of an increasingly belligerent adversary,” said Commerce Secretary Wilbur Ross. The department explained it was adding the drone maker for enabling high-tech surveillance in China, a clear abuse of human rights.

Also added to the blacklist were several Beijing universities for acquiring or attempting to acquire “U.S.-origin items in support of programs for the People’s Liberation Army.” The blacklist now includes more than 300 Chinese companies or entities, reflecting a U.S. resolve to protect itself against theft of American technology.

China’s central weapon on the American campus is the Confucius Institute, which offers language classes and hosts seemingly harmless events such as Chinese New Year celebrations, cooking classes, and speakers. Three years ago, according to the National Association of Scholars, there were 103 Confucius Institutes in the United States. In August 2020, an alarmed Trump administration designated the Confucius Institute as “a foreign mission of the Chinese Communist Party” supporting “Beijing’s propaganda and influence operations” inside the United States. The number of institutes plummeted from over 100 to 67, and the College Board announced that it would sever its financial ties with the Confucius Institute’s headquarters.

Not every American university, however, is ready to cut off the bountiful flow of Chinese yuan. Johns Hopkins University’s School of Advanced International Studies (SAIS), a leading Washington public affairs institute and graduate school, receives funds from the China-United States Exchange Foundation (CUSEF), a Hong Kong-based non-profit organization registered with the Department of Justice as a foreign agent.

Chinese Student and Scholars Associations (CSSAs) are a more direct vector of Chinese Communist Party influence on American campuses. According to a Hoover Institution report and confirmed by Secretary of State Mike Pompeo, the CPP directly “manages” CSSAs, which are funded by Chinese embassies and consulates.

“American universities that host events deemed politically offensive by the Chinese Communist Party and government,” say Hoover Institution scholars Larry Diamond and Orville Schell, “have been subject to increasing pressure.” For example, student members of the University of Maryland’s CSSA were praised by Chinese embassy officials for having sharply rebuked a Chinese student who favorably contrasted American democracy with the Chinese authoritarian alternative in a commencement speech.

In addition to the college-level Institutes, the Chinese government has promoted, funded, and supplied teachers for Confucius Classrooms, tailored for students from kindergarten through 12th grade. As of February 2020, there were over 400 Confucius Classrooms in American elementary, middle, and high schools. The goal of the Institutes and the Classrooms is to increase China’s global soft power by presenting the most favorable portrait of the nation and its culture—while avoiding any discussion of China’s systemized denial of basic human rights.

The Chinese Communist Party and its satellite organizations are expert in the art of disinformation. According to National Security Adviser Robert O’Brien, Chinese propaganda persuaded so many Americans that a U.S. soldier had brought the coronavirus to Wuhan—as opposed to the truth that Wuhan had given the virus to the rest of the world—that the soldier and her family needed a personal security detail to protect them from death threats.

The Party brooks no deviation from the party line: last December, a Chinese court sentenced a former lawyer who reported on the early stage of the coronavirus outbreak to four years in prison. Her alleged crime was “picking fights and provoking trouble.” Her real but unacknowledged crime was telling the truth about China’s essential role in the spread of the virus.

Nothing escapes the all-seeing eyes of Communist China’s propaganda managers. At China’s insistence, Taiwanese flags were dropped from Tom Cruise’s flight jacket in the forthcoming Top Gun sequel Maverick. At Beijing’s “suggestion,” MGM changed the identities of the invading military from China to North Korea in the Red Dawn remake. When the general manager of the Houston Rockets professional basketball team tweeted his support for the peaceful Hong Kong demonstrators, the CCP announced that the team’s games would not be shown on Chinese TV. The general manager quickly apologized.

China has launched a blitzkrieg which, in Attorney General William Barr words, is calculated “to seize the commanding heights of the global economy and to surpass the United States as the world’s preeminent technological superpower.” A primary Chinese weapon in this global conflict is the aforementioned United Front Work Department. The UFWD takes its lead from Lenin, Stalin, Mao, and other dictators, for whom, says Australian government official John Garnaut, “words are not vehicles of reason and persuasion. They are bullets … for defining, isolating, and destroying opponents.”

America’s response must be many-tiered. For one thing, we must understand that China is not a harmless competitor, as we once imagined, but a determined opponent that will stop at nothing to achieve its goals. We must also employ every necessary weapon such as: impose tighter targeted economic sanctions on companies and individuals involved in human rights abuses; establish reciprocity in travel and media access; bar U.S. investment in PLA-controlled companies, particularly in technology; close down all Confucius Institutes and Classrooms; challenge China in every international forum from the United Nations to the World Health Organization.

We have the resources, the talented people, and the entrepreneurial spirit to defeat Communist China in this soft war. It only remains for us to adopt a strategy of victory over a very determined opponent.

The post China’s “Soft” War against America appeared first on Law & Liberty.

Ebert might as well have congratulated himself on never hearing about a painting good enough for him to consider looking at it. If you have never played a video game, you have never actually engaged with it in the manner appropriate to its form. Whether it is art or not is a subject on which you are thoroughly unqualified to opine. Ebert should have known better: his own art form of choice, after all, is one which famously suffered all manner of belittlement and disregard before the academy granted it the lofty status of “Art” with a capital A.

Cinema, wrote Max Horkheimer and Theodor Adorno in Dialectic of Enlightenment, “denies its audience any dimension in which they might roam freely in imagination.” Nobody would contest today that the director Martin Scorsese is an artist. But Scorsese recalls having to defend himself and his fellow filmmakers against the same aesthetes who now shower them with praise: “we stood up for cinema as an equal to literature or music or dance.”

Video games now have champions of their own. They have been featured in prestigious museum collections and defended in rousing thinkpieces. But plenty of cultural gatekeepers remain suspicious. Much is at stake on both sides of the debate: if any old dreck can be “art,” then the concept itself is cheap and meaningless. This has been a major problem ever since Marcel Duchamp called a urinal a sculpture. On the other hand, if we hold each new form to the standard of the one before it, we beclown ourselves by sniffing in this decade at work we will fawn over in the next.

Here, again, Ebert’s errors are instructive. “One obvious difference between art and games is that you can win a game,” he argues. Well, fine: one obvious difference between music and sculpture is you can hear music. They’re both art. Why does being “winnable” make something “not art” in Ebert’s estimation? It’s because a video game “has rules, points, objectives, and an outcome.” In this, just like those before him who faulted cinema for being too visual and not verbal enough, Ebert has accidentally hit on the secret of video games’ appeal. The fact that games have rules and structure doesn’t disqualify them from being art. It’s precisely what makes them our most exciting living art form.

I will fully concede: video games are highly structured. They can be repetitive, and this is one of the challenges against which designers have to work if they want to tell a fluid, organic story. Slashing down your 100th minotaur in God of War (2005) does not teach you anything about your character or his journey that you didn’t already know from slashing down the first one. Games also tend to have recurring structural features like levels, bosses, puzzles, and powerups. Fire up a new platformer, even a highly innovative one, and you are likely to recognize its basic elements from any number of similar titles.

But the conventionality of games isn’t in itself a strike against them. In fact, it’s what makes them stand out from older forms of art, which have become dissipate and amorphous in the wake of modernity. We are long past the days when it was shocking for James Joyce to write a “sentence” of 3,687 words or for Mark Rothko to bathe a canvas in pure color. The traditional rules and limits of the literary and visual arts have been so thoroughly exploded that innovation in them has no meaning any longer.

By contrast, gamers were riveted in 2005 by Indigo Prophecy (AKA Fahrenheit), whose storyline depended on players’ choices to a greater degree than had ever been tried. Each decision in the game led to outcomes and consequences, just like in real life. Those consequences determined how the narrative developed and concluded. There were kinks still to be worked out, but the medium was clearly advancing to new levels. “Despite its flaws, Indigo Prophecy is the definitive interactive story,” wrote one critic. “Not only does it perfect the genre, it redefines it.”

You can only “redefine” a “genre” if there are typical patterns it tends to follow—if its forms and conventions are understood and agreed upon by a community of artists and audience members. Virgil,  Dante, and Apollonius of Rhodes are significant epicists because of how they modify, subvert, and repurpose the tropes of Homer’s masterworks. William Turner’s glowing landscapes are thrilling in part because of how they deviate from the sharp precision of masters like Nicolas Poussin and Claude Lorrain. When the free-form narrative techniques of Indigo Prophecy caught on in more polished games like Assassin’s Creed (2016), everyone could see that a new kind of storytelling was being born against the backdrop of an established tradition.

A persistent misapprehension of our era is that rules stifle creativity and betoken a lack of imagination. A highly stylized form like the sonnet seems intolerably artificial to us, as if imposed from the top down by fusty ideologues. In fact, though, sonneteers like Giacomo da Lentini and Francesco Petrarch chiseled the form out of ballads and folk songs, honing rhythms and rhyme structures which were already common practice. Contrary to the going assumption, structure often emerges organically in art out of popular demand.

People love rules and the cogency they enable. They are part of how we express the rational order we perceive in creation. And yes, of course those rules can gradually become calcified and oppressive—witness for example the stultifying rigor of late French Baroque drama. But without any conventions at all we become unintelligible to each other, which is how you end up with a $120,000 banana duct taped to a wall (Maurizio Cattelan’s Comedian, which inspired ridicule and incomprehension among all but the elect few who “got it”).

This dysfunction—the total breakdown of structure and the reduction of high culture to absurdity—now plagues almost every kind of art, from painting to poetry to music. For that matter, it plagues our politics and our communal life: we no longer agree on the meaning of America, the conventions of marriage and gender, or the importance and role of religion. This leaves us completely at sea and makes us look either ridiculous or evil to one another: we caricature each other as “blue-haired libs” or “white supremacist rubes” because we do not share even the most basic premises about who we are or what the rules should be.

Video games do not suffer from this problem. They are a creative form with rules and constraints. This makes both community and meaning possible. Gamers can team up across the globe, can celebrate the triumphs of their form, can experience the heights of elation and wonder that living art so often inspires, because they are working within a recognizable medium upon whose conventions they can build. The lyrical fairytale of Ico (2001), the melancholy parable of Braid (2008), the tense and fluid drama of Inside (2016): these achievements were hailed by gamers because they used the rules—and broke them judiciously—to convey moving and truthful accounts of the human experience.

There is a word for something which uses color, light, sound, and language to convey what it is like to live a human life: we call that art. It is a structured creation that expresses emotions and experiences which cannot be expressed in any other way. “The objects of imitation are men in action,” wrote Aristotle in his Poetics: events and the people who make them happen are the great subject of that elaborately symbolic communication called mimēsis.

This communication is what video games accomplish. Like all new forms, they achieve their particular kind of representation by new means, with new challenges and drawbacks—but also new possibilities. They have a kind of emotional immediacy which only holding a controller in your hands can provide. Try to play Resident Evil III (1999) without squealing in terror, or Final Fantasy VII (1997) without tearing up at least once. There is real visceral power here, and practically unlimited potential for growth. I wonder whether the same can be said at this point of cinema.

And like all art forms before them, video games are about more than mere entertainment. They foster new ways of looking at and acting in the world. They have unleashed powerful new energies that can be mobilized for both good and ill. Most importantly, and perhaps most appealingly for conservatives, games encourage respect for the laws of cause and effect which our politics so often seems to defy: what you choose to do in a game has consequences.

This is an antidote to the irrational and often arbitrary way in which honors are conferred and punishments meted out by our ruling classes. Many young people are tempted to view even our most hallowed institutions as surrealist jokes: the Dow Jones soars while jobs evaporate. State governors shutter small business while dining out at fancy French restaurants. And politicians call for “unity” while making lists of undesirables to shun. Over and against the despair this state of affairs provokes, games suggest that there is a real world in which real people can get real things done by developing skills and applying them. Thus despite the seeming hopelessness of the age, the gaming mindset is inspiring consequential endeavor and action in real life.

The GameStop stock drama this January, for example, was an instance in which community action online literally gamified the financial system. There are people who have taken the obsessive, repetitive energy of playing games like Minecraft and translated it into real-life discipline at the gym—if you can hack incessantly away at little pixelated trees, you can hack incessantly away at bicep curls.

Even the 2016 presidential election is acknowledged, by both its celebrants and its detractors, to have been shaped in no small part by internet communities of young people schooled in the digital language of memes. This language employs a huge vocabulary of video game references whose significance is taken as understood. In an era full of decline and dissolution, a generation hungry for meaning is finding that the digital world offers coherence and beauty unimpeded by postmodern skepticism. For this generation, no art is more urgent than video games.

The old guard of the art world, even those who fancy themselves highly “relevant,” are proving remarkably ill-equipped to recognize or comment upon these phenomena. In Glittering Images, an otherwise quite enjoyable survey of art history, Camille Paglia lumps video games in with “electronic billboards” and “sports telecasting.” Then she writes them all off as overstimulating drivel involving “dizzily swooping compressions and tunnel-like visions of space. The eye is assaulted, coerced, desensitized.”

Really? Has Paglia ever played a game through to completion? Certainly there are some titles which merit her critiques. But no one who has spent time with Final Fantasy XV (2016) could reasonably consider its artwork “dizzy” or “compressed”—in fact I challenge Paglia to find a landscape painter living who can match the sweeping grandeur of Tomohiro Hasegawa’s vast panoramas. Or else plunge into one of the long, meditative horseback rides in Shadow of the Colossus (2005): those woods are lovely, dark, and deep. There is no “tunnel-like vision of space” to speak of in either of these games; it is a mischaracterization so extreme that it can only be based on ignorance.

“Lord, what would they say / Should their Catullus walk that way?” asked W.B. Yeats in “The Scholars.” Theorists, at their worst, can only recognize what they’re used to. Really vital art doesn’t look to them like art because it doesn’t look like other things they’ve seen. What our own academicians are used to is disorder: the breakdown of convention, the unmaking of form. They do not realize that this once-rebellious attitude has become tired, empty, and drab.

The new art form, the one staring its opponents right in the face, is an art form of cohesion, community, tradition, and representation. It is part of a revolution in mores and behaviors that can help lead us out of the nihilism to which we have all fallen victim. Conservatives, if we’re smart, will take note.

The post An Art That Offers Choices appeared first on Law & Liberty.

Editor’s Note: This essay is part of a symposium on vindicating a prudent politics within the GOP.

We can start with one thing, for sure: Donald Trump is most decidedly not the future of conservatism. In fact, he’s not really even its present.

Yes, yes, Trump is the Republican Party’s unquestionable leader, and, even now, he continues to inspire an unsettlingly cult-like devotion among self-described conservatives. But that’s a matter of personality and style, rather than of politics. Despite his admirers’ many attempts to make coherent shapes out of abstract clouds, it remains the case that, ideologically, conservatism has had a bigger effect on Donald Trump than Donald Trump has had on conservatism. There is a reason why, after a while, Trump’s biggest admirers stop insisting that he radically changed conservatism, and instead start listing all of his conservative achievements, and that reason is that Donald Trump did not radically change conservatism.

Trump’s term in office contained a round of tax cuts combined with too much federal spending; the rolling back of business regulations and the expansion of energy production; the stocking of the federal judiciary with judges picked by the Federalist Society; hostility toward international organizations such as the UN and WHO; and outspoken opposition to abortion and gun control. There were a few unusual steps, certainly. On the question of immigration, Trump differed from Ronald Reagan, George W. Bush, and John McCain, but not a great deal from Mitt Romney (except, perhaps, on asylum and family reunification). On foreign policy, he reflected the dovish, pre-Eisenhower side of the conservative movement that had been steadily reviving its influence since 2008. And, on trade, he broke more dramatically with postwar conservative orthodoxy than any recent Republican leader, albeit not entirely with Republican Party practice—which, as both Presidents Reagan and George W. Bush showed, does not line up with the orthodoxy as neatly as is often assumed. Overall, though, Trump’s presidency did not differ a great deal on policy than would have, say, a presidency run by Ted Cruz.

There has always been a tension in the case made by Trump’s most ardent supporters. On the one hand, they insist that Trump “took over” the Right, having wrested it from the much-hated beltway “donor class.” On the other hand, they insist that that donor class should have loved Trump because he managed to do so many of the things that they have always wanted a president to do. Naturally, both of these things cannot be true, which is why, if one pushes too hard, the conversation will be steered back to tone and attitude: “But he fights!”

Were this true, it would be tempting to conclude that what American conservatism needs is a Trump-like figure who, while more pugnacious in style than a typical politician, is happy to swallow the catechism whole. Thing is, though: it’s not really true that Donald Trump was more likely to “fight” than was anyone else. Trump was president for four years, and during that time he did not meaningfully fight for anything that wasn’t already favored by the people he dispatched in the Republican primaries. Despite its centrality to his campaign, the border wall was relegated to afterthought status until after the 2018 midterms had made it impossible to achieve. Trade, likewise, was approached haphazardly: a handful of executive orders here, a press release here, a negotiating party there, but no attempt to institute anything that would survive the end of his presidency. On foreign policy, Trump spoke differently than conservatives usually do—and sometimes he spoke disgracefully, as when he praised dictators in the hope he could butter them up—but his actions were mostly within the mainstream, and, occasionally, his total lack of regard for the niceties pushed him to do things that conservatives had been talking about for decades, such as move the American Embassy to Jerusalem.

“Ah, but he won.” That’s got to mean something, right? Well, yeah, he won—once. But it is not at all obvious that Donald Trump has taught conservatives much about winning elections. Such as it is, the case for Trump’s brilliance rests heavily on the fact that the two previous Republican nominees lost their bids for the presidency whereas Trump won his. But this ignores the cyclical nature of American politics, as well as the circumstances in which those unsuccessful elections were held. Worse still, it presumes that the only office within the American system of government that is worth winning is the White House. In order to make the case that Trump was special, it must be assumed that neither John McCain nor Mitt Romney would have beaten Hillary Clinton in 2016, that none of the other Republican candidates who sought the nomination that year would have beaten Clinton, either, and, by extension, that Trump would have beaten Barack Obama in 2008 or 2012. But, again, it is not clear why one would assume any of these things. In 2008, John McCain ran for a third consecutive Republican term against Barack Obama, a generationally talented politician and the first ever black nominee for president, in the midst of the worst economic meltdown since the Great Depression and against the shadow of an unpopular and costly foreign war. In 2012, Mitt Romney ran against that same Democratic candidate, just as the economy was beginning to improve, in the midst of one of the most hostile media environments in American history. It’s not that surprising that they lost.

Were Trump’s two showings especially impressive? Not really, no. In 2016, Trump managed to beat Hillary Clinton, but he did not gain more votes than she did, and over the four years of his presidency his party bled support at all levels of government except for the U.S. Senate. In 2020, Trump expanded the number of votes he received, but still got seven million fewer than his opponent, the 78-year-old, barely coherent Joe Biden, and then, having lost, set about losing the party its control of the Senate. If one were looking for advice on how to win elections, wouldn’t one rather look to the much-reviled George W. Bush, who won both of his elections, rather than to Trump? Or, if not, wouldn’t one look to Ronald Reagan, who bestrode the scene like a colossus?

To ask these questions in earnest is to accept the premise that conservatives have a problem winning elections or advancing their ideas. But they don’t—not really. Conservatism will always be a harder sell than its alternatives because it involves telling people hard truths, because it does not pretend to have all the answers at hand, and because it is fundamentally anti-utopian. And yet its political vehicle, the Republican Party, often prevails at the polls. Since 1994, when it finally broke the Democrats’ long monopoly on legislative power, Republicans have controlled the House for all but six years and controlled the Senate for all but nine. Since 2006, meanwhile, only five states have failed to elect a Republican governor for at least one term. Texas and Florida, the second and third most populous states in the union, have not elected a Democratic governor or state legislature since the mid-1990s, while both California and New York—the first and fourth more populous states, respectively—have had a mixture. If there is something truly wrong with the Republican Party’s priorities, one might expect this to show up more clearly in the data.

So, yes, you can put me firmly in the dinosaur camp. Or, to borrow a fashionable pejorative, you can serve me the “dead consensus” until I’m full up. Why? Well, because I don’t think that it’s dead. In my estimation, the future of conservatism should not be too different than the past of the conservatism, because most of what conservatives have historically stood for is still true. It is true that the Constitution is the best government system we can expect to live under, that we should amend it carefully and explicitly, and that we should demand that our politicians and judges interpret it according to its original public meaning rather than whatever linguistic fads are currently being taught at the universities. It is true that a free and open market yields opportunity and prosperity and that while it may not be a good idea to cut taxes infinitely, it is most definitely a good idea to keep them low. It is true that we cannot spend what we do not have forever without going broke. It is true that government programs, however well-intentioned, tend to collapse into inefficiency, inertia, self-dealing, and dependency. It is true that the Bill of Rights contains timeless and unalienable liberties, rather than contingent preferences that can be whittled away at the whim of the state. It is true that war comes to the weak and unprepared, and that a robust national defense is the best way to avert disaster. It is true that one cannot limit religious liberty without limiting conscience, and that governments that limit conscience find it hard to turn back before it is too late. And it is true that character matters—yes, even if those of poor character are capable of bringing about positive change.

It is a matter of considerable irony that President Trump sold himself as the silver bullet that would kill off “zombie Reaganism,” but ended up showing the wisdom and endurance of precisely the ideology he believed he’d been sent to reform. They say that past is prologue. I, for one, hope that’s true.

The post The Character That Brings Change appeared first on Law & Liberty.

But a return to this past of evidence-free, due-process deficient guilty verdicts is not possible.

Feminists who are now focused on un-doing the new Trump Title IX regulation face a new barrier, one that the Obama-appointed Office for Civil Rights (OCR) never encountered: the courts. In the years since Catherine Lhamon headed Obama’s OCR and issued her notorious extra-legal Dear Colleague Letter (“DCL”) reducing due process protections, numerous suits have been brought by former students aggrieved that their rights had been trampled. In many of these cases, the plaintiffs have prevailed and we now have a substantial body of case law that cuts against practices adopted under the Lhamon directive.

The DCL opened the gate to abuses in the form of college “Title IX investigators” who often ignored the rights of the accused. Former Education Secretary Betsy DeVos took on the difficult project of developing actual regulations to remove these excesses by rescinding the DCL in 2017 and recentering enforcement of Title IX on the actual letter of the law, which ensures equal access to education free of sex discrimination.

Biden’s appointees will almost certainly do their best to skirt this DeVos reform, but they will now find several appellate court opinions stand in their way. It turns out that the DeVos rule is just one brick in a much larger brick wall of required fundamental fairness. That means that campus due process must be respected even in the new, Lhamon-leaning Biden administration. Schools hoping to avoid lawsuits should take note.

In fact, the scope of Title IX due process protections is now primarily with these federal courts, which themselves recognize other, long-standing authorities in support of due process basics. These sources include state common law, state administrative codes and also traditional treatises such as Black’s Law Dictionary. All of these inform the meaning of the word “fairness,” guaranteed not only in agency rules but also in school conduct codes that apply to students, faculty, and staff.

The most significant such federal case to interpret a student code was last year’s Third Circuit opinion in John Doe v. Philadelphia University of the Sciences. There the court looked to state jurisprudence, the Pennsylvania Administrative Code, legal dictionaries, and other circuit opinions to understand the meaning of “fairness” guaranteed in the Student Handbook. It found that it meant “in accordance with due process” which, according to these sources, must include live hearings and cross examination, both of which were unlawfully denied to John Doe. The court emphasized that both the Sixth and Seventh Circuits had defined fairness and due process similarly, the latter in an opinion written by now Supreme Court Justice Amy Barrett.

Significantly, none of these opinions involved the new Trump/DeVos rule. Yet all confirmed the obligation of schools to observe basic due process rights in their disciplinary adjudications—including at private schools, such as the Philadelphia University of the Sciences. The court reminded, “As a private university, U Sciences is not subject to the Constitution’s due process guarantees. Nevertheless, we observe that federal notions of fairness in student disciplinary proceedings are consistent with those recognized in Pennsylvania’s jurisprudence. They require … the basic elements of federal procedural fairness [including] … the opportunity for cross-examination of witnesses,” among other things.

In sum, schools can no longer cut corners when it comes to the due process rights of students accused of Title IX sexual misconduct, whatever the fate of the Trump rule.

The claim that these cases deserve special treatment because they involve private conduct with few witnesses is commendably addressed, however, by the new rule’s requirement that complainants must be offered supportive measures such as counseling, deadline extensions, and campus escorts– but not any compromise in due process protection for those they accuse.

Interestingly, courts have also ended up using the DCL, and the culture it created, against schools, as proof of illegal bias against male students, when combined with other evidence of pressure to be tough on sexual assault. The Third Circuit explained: “[U]niversity overreaction to DoEd or other public pressure is relevant to alleging a plausible Title IX discrimination claim.” It then noted that U Sciences failed to investigate confidentiality breaches by the female complainant and also that both Doe and Roe were “comparably intoxicated” and therefore both were less able to provide real consent to sex. School officials never inquired, however, if the complainant had initiated relations without Doe’s consent. Considering this, along with the DCL and its pressures, the Court concluded, “Doe plausibly alleges that U Sciences enforced the Policy against him alone because of his sex.”

Another issue raised by the DCL culture and hopefully soon to be addressed by the courts is the overbroad application of Title IX to crimes rather than educational access, a highly questionable and enormous expansion of power and jurisdiction of the Title IX office. As a recent Report found, the purpose of educational access now “appears to be completely lost on Title IX offices,” which focus, instead, on student sexual encounters gone bad. The DCL culture meant that the Title IX office began to neglect the jurisdiction it does have—over educational opportunity—while exercising jurisdiction it was never intended to have—over crimes. In practice, Title IX staff are now more sex monitors than access monitors.

Thankfully, the days of this arbitrary and even discriminatory Title IX administration are coming to a close because of the case law in favor of due process. The last word is no longer with the campus Title IX office, or the Oval Office, but is instead with controlling federal appellate authority. And university counsel must advise their institutions accordingly.

The post The Due Process Brick Wall appeared first on Law & Liberty.

At an individual level, participating in an election also doesn’t satisfy our responsibilities as citizens because the act of voting itself is largely an expressive signal of support for one “team” or another. We are acting as Democrats or Republicans and not necessarily as Americans. As Anthony Downs argued long ago, your individual vote plays essentially no tangible role in the outcome of an election. People decide to vote because the satisfaction they receive from participating outweighs the costs of voting—the time spent researching candidates and actually going to vote. An inexpensive symbolic act like voting is particularly insignificant in a system such as ours in which voting in the vast majority of states will not tip the balance of the Electoral College. What’s more, voting by mail has lowered the actual “costs” that a voter pays to participate. The problem with viewing democracy and the health of the republic merely through the lens of an election is that we are blind to the problems that run much deeper.

Voting is an individual decision made in the privacy of a voting booth. By contrast, citizenship is the action of an individual engaging with their fellow citizens in the maintenance of a healthy social order, solving political problems, discussing major events, and building towards consensus on both the values that support the social order and the policies that we will pursue when governments are formed. We will always disagree—Publius understood that factions are inevitable. What doesn’t have to be inevitable are factions destroying self-government. We must meet together and be able to talk even if we hold different positions. We do that in groups and as communities, not alone with a ballot.

Tocqueville’s keen observations about the United States, limited as they were by the regional bias of his travels, show us the extent to which democracy in the early stages of our history was not merely the simple act of voting and holding elections. Studying America with an eye to understanding the early 19th century, Tocqueville observed the actual practice of democracy in early America through town meetings, political discourse, and community based governance. He was particularly struck by what we would today call “civil society” in the U.S. He was impressed by the role that “associations” played in maintaining a sense of community and solving social problems.

Tocqueville was one of the first observers of America who saw that civic associations played a number of important roles in the early republic. Civic associations played a functional role by handling things the government shouldn’t. So charitable organizations rather than the government took the lead in providing assistance to the poor in 19th century America. Today churches and other groups still provide a large percentage of aid and assistance to those in need. And in their activities, these associations taught Americans behaviors necessary for the new republic’s survival. By bringing people together in groups to solve social problems, civic associations both moderated desires and conveyed a broader sense of self interest rightly understood while also modeling a way of life to maintain a broader sense of responsibility to the community not merely one’s self. Citizens cannot simply pursue their own interests in a self-governing system. That establishment and reinforcement of “self-interest rightly understood” helps develop citizenship—not merely solves collective actions problems. People work together to solve common problems, but they also learn how to be citizens through such organizations.

In her recent book Civic Gifts, the sociologist Elisabeth Clemens shows just how right Tocqueville’s analysis was. She argues that while conventional American history has focused on the role that the state has played in handling crises as diverse as the Revolutionary War, the Spanish Flu and the Great Depression, those actions happened against a backdrop of significant voluntary and charitable activity. She notes that while FDR is famous for the expansion of federal power through his New Deal, he was instrumental in working with Carl Byoir to forming what eventually became known as the March of Dimes—a charity to fight polio. Civil society has also allowed the American public to maintain relatively higher levels of community and philanthropy while simultaneously supporting their government and maintaining individual liberty.

Today we are surrounded by an America with two distinct challenges to the bulwarks that Tocqueville and Clemens identify as critical to the survival of the republic. The first major challenge is that public discourse is broken. A large and significant group of voters have withdrawn or been effectively excluded from the public exchange that has been crucial to the functioning of representative governance since the Athenian democracy and the town meetings that Tocqueville observed. Our public discourse does not include a broad enough range of public opinion to reflect broadly held values. What should be a key component of any functioning representative form of government is polluted by intolerance and calls to reject any arguments for one side. We now see claims from both sides that the other is engaging in seditious activity—either by illegally rioting at the Capitol or stealing an election. Calling the other side traitors to the republic makes public discourse exceedingly difficult. It becomes all too simple to reject your opponents’ positions as treason. One of the foundational freedoms necessary to maintain liberty is that of opinion. As the American Founders, J.S. Mill, and countless others have argued, without an arena that accepts a wide range of publicly accepted views we cannot call ourselves free. And right now one part of the electorate believes they are not free to express themselves.

Polling errors in the 2020 general election reflect this starkly. Supporters of President Trump were either lying to pollsters or simply not part of the samples of most major polls. It’s been obvious for quite some time that many people quietly support the president and simply do not feel comfortable discussing that support publicly or believe that the system is biased against their views. Belittling their choices and berating them as racists will not solve the fundamental problem here. Whether or not one supports the President, bets on elections, or simply cares about the health and openness of public exchange and the liberal model of free expression, we cannot expect a representative form of government to survive if so many people do not believe their right to free expression will be respected. Conversely, if so many others cavalierly paint the views of their opponents as beyond what is respectable we cannot have any public discourse.

This brings us to the second real danger we face today—alienation from our friends, neighbors and fellow citizens. This obviously damages our personal relationships, but it adversely affects our ability to participate in exactly the types of civil associations so necessary and fundamental to the survival of our political and social institutions. Social media began to expose the growing distance and accepted uncivil hostility between individuals of different beliefs. We live in comfortable echo chambers where our priors are merely confirmed and never challenged. There is no exchange and updating. Instead of moderating public views through debate, a fundamental part of any democratic system, we are marginalizing and stigmatizing our enemies. That’s no way to heal divisions.

But our Covid policies have thrown gasoline on the fire. Isolation has bred misanthropy and undermined a sense of community. Quarantines and lockdowns have encouraged vitriol in place of discussion and listening. Separated by physical space we can describe our opponents as faceless, nameless individuals in groups, not as individuals. Even when we do encounter people outside of our homes and bubbles we see them almost dehumanized wearing masks and warily maintaining distance. While this is wise for public health, it’s deadly for rebuilding community. Nazis, the Soviets, and other assorted totalitarians used to dehumanize their enemies and ascribe characteristics to classes not individuals with opposing views. We are veering into extremely dangerous territory.

And this isolation is even more damaging to civil society. Consider the recent attacks on religious organizations in the US both through limits on their practices and condemning the behaviors of their members. Church services are often characterized as super spreader events and highly dangerous. But setting aside the comfort individuals draw from practicing their faith, it’s important to remember how critical churches are in helping the poor through charitable acts. Churches often serve as the bulwark of civil society, kinship, and community activities throughout the nation. By singling out the functioning of organized religion, we may prevent the spread of the virus, but at what cost to the society and individuals who worship in them?

Unless we bridge our physical divide and return to the practice of real politics, face to face, in conversation and accommodation, we risk allowing politicians to become demagogues and many politicians, even the ones you support, are inches away from becoming one. As civil society withers, the temptation for politicians to step into that void and take on more responsibility and power becomes more likely. If we demonize those with different viewpoints we allow for politicians to use that division to galvanize power. Liberty and responsibility will suffer until we can physically see our fellow citizens as people, hear their viewpoints and relearn the practice of being Americans.

Finally we must try to reconstruct the organizations that were core components to the civil society that have always made America the country and polity so special. While I have always thought Robert Putman’s Bowling Alone was overstated, his main point about the decline of in-person association now seems more relevant when we see the wasteland that is political discourse on social media. We learn to scream on-line; we learn toleration and patience when we discuss face to face and work with individuals who have a diverse set of backgrounds and views. We must return to our clubs and churches. We need to relearn how to be social and civilized again.

Now that this election is over, we must leave our isolation and rebuild the social and political fabric that has been destroyed. We cannot allow demagogues to isolate and separate us. We must respect all citizens and accept our fellow Americans and their views. We don’t have to agree, but we must stop demonizing and degrading, either through actions or words. Voting is part of our job, but building ties, neighborhoods, communities, organizations, businesses and society is a much more important task with which we are charged. It’s fundamental to any representative government. We quickly need to get our world reopened as a way to repair the fractures, disarm the demagogues, and join back together again.

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The wilder conspiracy theorists believe it was all planned from the outset, even that governments created the offending virus expressly for their nefarious purposes; the more moderate conspiracy theorists believe that governments have merely been opportunist. But the end result is the same: an inexorable slide into totalitarianism, all in the name of public health.

This, in the opinion of the conspiracy theorists, explains the grossly disproportionate reaction to the epidemic which, after all, has still killed considerably fewer (in proportion to the world population) than the Asian and Hong Kong flus of fifty and sixty years ago. It is nothing like the Black Death, which killed a third of the population of Europe, or even the epidemic of plague in Marseille and Provence in 1720, which likewise killed a third of the population (since when only sporadic cases have been known in Europe). Moreover, the deaths due to Covid have been predominantly among the old: and age remains by far the most important risk factor for death from Covid infection.

I admit that once it became clear, as it did quite quickly, that it was the old (among whom I am now obliged to count myself) who were by far at the most risk, my favoured response to the situation was to confine the old—those over 65, say—in their homes, and also other especially vulnerable groups, and let the rest of the population go about its business normally. Of course, there were exceptions to the generalisation that it was the old who were in danger: a small proportion of the young fell victim to the disease. But to close down a whole society to avoid a few such deaths was like prohibiting all road traffic because young people are sometimes killed in accidents.

There were respectable epidemiologists who suggested some such scheme. And surely, I thought, it was within the capacity of our giant apparatus of welfare and social services, to say nothing of supermarkets, to ensure that the old were supplied with food and not otherwise neglected.

Whether the scheme, or something like it, would have worked now cannot be known, as well as whether it would have had to have been enforced rather than adopted voluntarily. As I look around me in Paris, the day before the 6 o’clock curfew comes into force, I see that many people are openly flouting precautions, probably because (understandably) they feel at little personal risk; but among the flouters of precautions, there are almost no elderly. They seem to have taken the epidemiology to heart.

One objection raised to the scheme when proposed publicly was that it was a kind of apartheid, except that it was apartheid by age rather than by race. This objection was the triumph of slogan over thought, for the age groups were to be treated differently because of important and relevant differences in their situations. One might as well say that paediatric or neonatal wards in hospitals impose a kind of apartheid because they separate human beings by age.

A more serious objection to the scheme was that, even though the numbers of seriously affected younger people requiring hospital admission might be small as proportion of their total numbers, yet still it might be a very large number in the absolute, so large in fact that it would overwhelm the medical resources available to treat them. Thus many might die who would never have contracted the disease if, either voluntarily or compulsorily, they had followed proper precautions and had been locked down.

Not many governments, understandably, have been prepared to take the risk of pursuing such a policy: for if in fact it resulted in additional deaths, or appeared to do so, no government would dare to face its electorate and say, “Well, we think it was a price worth paying for the sake of preserving some semblance of normal life.”

This in turn brings us to the value that we place on human life. We live in an age, after all, in which we hope to wage war without losing a single soldier. In a sense, this must represent a moral advance over a time when generals could send thousands, even tens of thousands, of young men to their deaths for the sake of a military advance of not more than ten yards of muddy ground. And the fact the lives saved by strict sanitary measures that are destructive of everyday life will be mostly those of over eighty will not be allowed to enter into the public debate because to allow it to do so would be to devalue the lives of the old: even if, in our hearts and our daily life, we do not really value them.

Thus governments must be seen to be trying to save human life, whether or not they actually succeed in doing so, irrespective of the collateral damage, so to speak, caused to the economy and social life of the country. Because of the sentimentality of their electorates it is politically impossible for governments to say to their electorates that public health is anything other than an absolute good, and human life must be preserved at all cost. The public does not want to consider the question of what price we are, or ought to be, willing to pay to save one life, a hundred lives, a thousand lives, ten thousand lives. Since the value of human life is incalculable—even to allow thoughts in terms of value is to become brutish—we cannot stop to consider the question: which, however, has every day to be decided.

If one of the consequences of closing down the economy to save human life is the bankruptcy of small businesses and the further concentration of wealth in the hands of the already-possessing classes, this has either to be borne or dealt with later by, for example, the imposition of a wealth tax on the richest 1 per cent of the population. The fact that the truly wealthy will always manage to avoid such taxation will only serve to concentrate wealth further.

“Precisely!” exclaims the conspiracy theorist. But, of course, he forgets that everything that happens, even as a result of human volition, is not what is aimed at.

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Detailed negotiations had progressed, remotely, which as anyone who’s used Zoom knows is no mean feat. Even after coronavirus felled both Boris Johnson and the EU’s chief negotiator Michel Barnier, the UK refused to extend the Brexit transition period. “No deal” (remember that?) predictions became ever more common and ever more intense, but then the EU (as is its wont) began to show willing, dropping much of its intransigence. The spectacle of people on both sides undertaking the painstaking job of ruling out all the restaurants on Deliveroo—and being forced to stand outside in the rain as the local chippie shut down for the night—receded.

Of course, the stragglers of Continuity Remain—now reduced to a demented and conspiratorial rump—kept lighting up the internet with demands to stop Brexit and hold a People’s Vote, even unto December 31st. For all I know, they’re lighting it up still. Meanwhile, a sense of resignation (coupled with the start of the UK’s coronavirus vaccine rollout, a subject of considerable media attention to which the deal had to play second fiddle) began to emerge. One wonkish political obsessive produced a Brexit board game. “We are all Brexiteers now” ran not a few headlines.

Brexit was over. Elvis had left the building.

Is the deal a good one? As Chou En-Lai is alleged to have said about the French Revolution, “it is too early to tell.” The two sides have achieved their shared ambition to remove tariffs and quotas on all goods. This goes further than any other EU trade deal with a third country. It will prevent additional taxes on products that would have made some UK businesses, in sectors like agriculture and car manufacturing, less competitive. This alone is remarkable, and has ensured that most delays at ports in both jurisdictions have been due to coronavirus and its concomitant constraints on any sort of movement, not Brexit.

The situation with services is murkier, very much left at wading-pool depth, though it has never formed the deep end even within the EU’s treaties. This is typical of free trade agreements and reflects the reality that governance elites are happy to expose unskilled labour to the chill winds of competition via immigration while protecting their own interests in a manner reminiscent of medieval guilds. In a 1200-page document, “financial services” appears six times, while “fish” appears sixteen.

To the extent that they already exist, mutual recognition of professional qualifications will end. This means UK professionals will have to comply with qualification requirements in each EU member state in which they want to work, which could involve having to pass additional examinations or a need to demonstrate a certain period of work experience. This will make it harder and more expensive for businesses to provide services in the EU. The City, of course, has known this was coming for a while, and as is always the case, has proven skilled at looking after its interests. There has been a flurry of activity when it comes to setting up EU “branch-office” operations and obtaining equivalences.

A brief outline of the situation with respect to my own profession, law, captures the lie of the land. While the UK–EU FTA goes further than most free trade agreements in its coverage of legal services, member states can still impose total bans on UK lawyers advising on their own law. Even if advising on UK law, they may be subject to particular rules. In the Czech Republic, for example, UK lawyers will have to be resident to provide legal advice, while across the border in Austria they are specifically prohibited from being resident and must give legal advice on a cross-border basis. Many individual member states already prohibit UK lawyers from any ownership or control of law firms in their countries. In some member states, UK lawyers will be able to fly in, provide legal advice, and fly out again without work permits. In others, this will be subject to an economic needs test.

In many respects, the regime has reverted to what obtained before 1973, where European businesses of whatever stripe made use of English and Scottish courts because of the old rule of thumb that common law countries had better commercial, corporate, and agency law, while civilian (Roman law countries) had more sensible family and property law.

Scotland, of course, has always been a pleasing mixture of both Roman and English law coupled with timely English enforcement, so Edinburgh remains an attractive second choice for Europeans if London gets too pricey. In addition, the traditional rules of private international law (sometimes called “conflict of laws”) will likely matter more. This subject had been on the decline in the UK. I suspect it will now replace or at least supplement EU law in most UK law degrees.

The two sticking points, and the last to be resolved, were Northern Ireland and fisheries. Fisheries came close to blowing up the whole agreement. At eight pm on the evening of December 21st, Boris Johnson delivered a message to Ursula von der Leyen, president of the European Commission, stating that he would not sign a Brexit deal with the EU. Earlier that day, the EU had produced its final card, a clause von der Leyen called “the hammer,” granting Brussels the right to retaliate across the board if Britain sought future reductions in access to its waters for EU fishermen.

The no deal threat worked and von der Leyen folded, throwing the EU’s “hammer” overboard. Then on Tuesday, she ditched demands that its vessels should continue to enjoy their current quotas for seven or eight years. And yet. What sense was there in endangering the rest of the UK’s economy over fish? Each year, Britain exports just short of £300 billion, or about USD$400 billion, worth of goods and services to the EU—some 40 percent of everything it sells abroad. Of this, fish sales are worth a little more than £1 billion, or a third of 1 percent of the total. Britain was thus threatening to make more than 99 percent of its trade with the EU more difficult and expensive, just to defend the fish.

For cod’s sake, don’t sacrifice the fish, British-American writer Lionel Shriver wrote in January 2020, capturing in a single sentence the pained cri de coeur of an historically seafaring island’s loss of a substantial part of its diet and maritime heritage. It has passed into folklore how, in 1973, Ted Heath’s infamous sell-out—“swallow the lot, and swallow it now”—saw undercompensated British fishermen in places as far apart as Norfolk and the Scottish Highlands forced to burn their boats.

Despite von der Leyen’s climbdown, the UK probably gave away more than it would have liked on the matter of fish. Nonetheless, the amount caught in UK waters by UK vessels will increase significantly, Britain has maintained tariff- and quota-free access to the EU market, and the agreement establishes the UK’s status as an independent coastal state. It is undoubtedly an improvement on the status quo ante and will contribute to the revitalisation of our fishing industry, especially in Scotland.

In this, there is method to Boris’s madness. Scotland’s fisheries are where a unique group, the so-called “Double Leavers,” make their homes: they are Scots who voted both Leave in 2016 and in favour of Scottish independence in 2014. Make it clear to them that they stand to gain more from their traditional industry thanks to Brexit than they will from an independent Scotland within the EU, and Boris the Etonian may hive off enough votes to undermine support for Scottish independence in any future referendum. There is also the related point that—had “No Deal” eventuated—British fishermen simply did not have the capacity to catch all the fish available. It is difficult to do so effectively without enough boats.

So far, so sound, until we come to the Northern Ireland Protocol. Put bluntly, this subjects Northern Ireland to different regulations from the rest of the United Kingdom. Those regulations emanate from a political entity of which the UK is not a member. At least in part, the European Court of Justice still has jurisdiction there. An arrangement like this is not compatible with Northern Ireland being a sovereign part of the UK.

And how did this come about? Because the EU has hard borders with what EU treaties call “third countries,” and the UK is now a third country, the logical consequence is a hard border between the Republic of Ireland and Northern Ireland. Except a hard border between Ireland and Northern Ireland is not possible, because of the 1998 Good Friday Agreement. The Good Friday Agreement is based on referendums in both Northern Ireland and Ireland.

It’s partly an international treaty, partly an agreement between the parties. It isn’t part of UK domestic law but it binds us in so many areas it may as well be. It guarantees Northern Ireland access to the European Court of Human Rights—a major reason David Cameron couldn’t repeal the Blair-era Human Rights Act. It was drafted on the understanding both Ireland and the UK were part of the EU so it didn’t envisage what either country’s commitments could be in relation to the border in the event of either leaving. The deal ensures there is no hard border, but nonetheless Northern Ireland has become the UK’s cat-flap of doom, simply because the EU was (rightly) concerned that importers could use it as backdoor into the customs union.

It is entirely possible the price of Brexit may be breakup of the Union, although for those seeking a united Ireland (including many people in England and Wales who resent how much the Province costs the Exchequer), paying that price (however accounted) will be no bad thing. To quote Bernard Woolley of Yes, Minister fame: “Ireland doesn’t make it any better; Ireland doesn’t make anything any better.”

As the ink on the deal dried, there was public speculation in certain quarters about the emergence of a movement to re-join the bloc in the near future. I do not think this likely, at least not for a long time. One of the observations that comes out of debate since its passage through Parliament after Christmas is that even sensible Remainers (not the conspiracists on social media) have a problem with what I’m going to call “mid-level arguments.” Almost everything they said or say, in 2016 and now, is either minutiae about trade cumulation rules (to give one example among many) or these big, thumping abstract ideas like peace between nations or the “Europe Project.”

The Leave side had its thumping abstract ideas (sovereignty being the main one) and its minutiae (product standards, the ECJ and so on), but it also had a mid-level narrative about distant and/or self-interested EU officials and the erosion of British institutions. This was a narrative that had its origins in the Maastricht debate and Britain being bounced out of the European Exchange Rate Mechanism on “Black Wednesday” in 1992. It evolved over time, responded to events, and ultimately shaped people’s perceptions of what it meant to be in the EU.

That kind of rhetorical storytelling is enormously important in politics and the Remain side just didn’t do it and still don’t get why it’s necessary. Part of this comes down to hyper-specialisation among the sort of people who like the EU (academics are a good example), leaving them capable of making highly detailed arguments in their own sphere, but lacking the skills needed for mid-level storytelling. This meant Leavers were subjected to a series of technical lectures or got battered about the head with enormous ideas, the apotheosis of which was of course Donald Tusk’s suggestion that—if the UK left the EU—Western civilisation was at risk.

So, no. Brexit, like Elvis, has definitively left the building.

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