The New Deal marked a turning point in the way our federal government operated. It was, to use Jefferson’s phrase, “a little revolution” in our constitutional order. The Constitution makes the legislature Article I for a reason. From the perspective of the Founding, the essential power of government is legislating, writing the laws under which we all live after we the people, collectively, via our representatives, have discussed and debated what our laws shall be. Given our diversity, we can only be well-represented in such a body. An elected president cannot reflect the diversity of opinions and ways of life in the American republic.

Presidents have always had disproportionate influence in our system. What changed in the last century is that their role in lawmaking has expanded exponentially, or perhaps I should say that lawmaking in the executive branch has expanded exponentially. Nowadays, the vast majority of the legal code under which we live has not been approved by Congress. Obamacare, for example, is roughly 1,000 pages of legislation, followed by many, many more pages of legal code made in the executive branch. A central part of our crisis is that fewer and fewer Americans subscribe to the myths that are necessary to justify that practice.

What Madison Knew

To understand our crisis, it helps to go back to the founding, and then consider how the progressives responded to James Madison’s emphasis on the diffusion of power in our system. Across history, republics tended not to succeed. They also tended to be small regimes, covering not all that much territory. The res-publica was a regime with a thick common culture. Madison found that a large republic, covering an extensive territory, would tend to minimize the danger of majority tyranny by making it less likely that there would be a national majority bent on tyranny or self-dealing. As he put it in Federalist #10, “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.” Hence, he concluded, “in the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government.”

There’s a second element that we often forget in Madison’s thinking. Such an extended republic would be a federal republic. Recall that for Madison, “a reliance on the people” is the primary check on bad government. By contrast, checks and balances inside the system were, to him, merely “auxiliary precautions.” Popular control was consistent with the federal aspect of the system. In Federalist #51, he noted that we have “a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controuled by itself.” Classically, republics were small, and they governed life intimately. By contrast, the extended republic governed with a much lighter hand. Such a republic did not assume all Americans would share a common way of life in the robust way that is often the case in small communities. Recall that Madison is the author of the Virginia Resolutions of 1798, protesting overreach by the federal government. In other words, Madison believed that our system only works when the legislative powers of Congress are “few and defined,” as he put it in Federalist #45.

The implication of these elements of Madison’s thought for our situation comes through quite clearly in his “Report of 1800,” his summary report on the political fights of the 1790s. Should federal power increase in a significant way, “one consequence must be, to enlarge the sphere of discretion allotted to the executive magistrate.” Note the echo of his famous language in Federalist #10 in the phrase “enlarge the sphere of executive discretion.” That would, Madison believed, entail the substitution of monarchy for republican government:

This disproportionate increase of prerogative and patronage must, evidently, either enable the chief magistrate of the union, by quiet means, to secure his re-election from time to time, and finally, to regulate the succession as he might please; or, by giving so transcendent an importance to the office, would render the elections to it so violent and corrupt, that the public voice itself might call for an hereditary, in place of an elective succession.

In other words, Madison feared that if we become a national republic rather than a federal or compound republic, the consequence would point toward rule by executive discretion, the antithesis of republican government. The essence of republican government is the active participation of free and equal citizens in managing our own affairs, both as private citizens, and through participation in and management of our government. Across the country, we take on that role primarily through participation in the legislative process at all levels of government via elections.

The Progressive Alternative

The Progressives posited that there was an option unknown to Madison. Thanks to modern social science (the social science PhD was created in the nineteenth century, and brought to the United States largely from Germany after the Civil War), there seemed to be another way to do things. We the people, via our legislature, can remain important, but the real work of writing and enforcing our legal code will be done apolitically, by disinterested, impartial, neutral experts, with tenured civil service jobs.

Experts, not self-interested, amateurish politicians, would decide what health and safety rules to impose, how workers should relate to each other, and how they relate to management, how many guns, or tanks, or ships we need, or how many colleges to have, how to manage federal lands, what the school curriculum should be, how our healthcare system should operate, what departments they ought to have, etc. etc. That would take matters away from the corrupt and corrupting rough and tumble of democratic politics. It would instead be given to apolitical experts who just want to serve the common good. They would have tenured jobs in the government so that they can be free from political control and bias as they go about their job. And, per the Progressives, their job was not political.

The democratic branches would set general goals, and the neutral, scientifically trained experts would merely be filling in the details of policy, details that were nothing by common sense, backed by science. As Woodrow Wilson put it, “Administration lies outside the proper sphere of politics. Administrative questions are not political questions.” And because the work of the administrative state was not political, in the progressives’ view at least, our technocrats would not truly be answerable to the president, for if they were, then one would have precisely the problem that Madison outlined. When the social science PhD was new, as it was in Wilson’s day, this did not seem outlandish to lots of people, and thus was created the administrative state, squaring the circle of democracy and administration by experts.

From the start, some feared that we were constructing an arbitrary government. In the late 1920s, Charles Warren, one of our greatest legal historians, worried about this turn. Warren had worked in the Wilson administration; he was no reactionary standing athwart History. In a 1927 essay he published in the Massachusetts Law Quarterly:

Every citizen is subject today to this vast bulk of law made by Federal Executive Departments or Commissions (and frequently, in practice, by minor officials); and yet tomorrow every one of these regulations may be changed by the sole whim or judgment of a Department or Bureau head. Moreover, violations of a large part of these regulations have been made criminal offenses by Congress, so that, every day of the year, these Department or Bureau heads may, by their sole act, manufacture new Federal crimes and offenses.

If the bureaucrats are truly disinterested and apolitical and not prone to the kinds of temptations that usually beset men in power, then there is little to worry about when unelected people write our legal code and when the same department enforces that very code. On that “if,” the entire problem turns. And today, outside of people with a strong interest in the old myth of a neutral technocratic class, few believe our civil service is politically neutral or that such a thing is even a practical possibility in many areas of our expanding government. Some of the cognitive dissonance we see in discourse on the center-left is from the effort both to embrace the critique of the myth of neutral expertise, and yet retain the status of technocracy. Recall that “woke” originally meant that one had been awakened to the bias inhering in facially neutral institutions and laws.

The Trump coalition might, in fact, demonstrate that the supposedly “neutral” beliefs of the technocrats are, in fact, the very ones we are fighting about in our democratic politics. Their self-image is probably one of the reasons why the tensions are running so high just now. It is also worth noting that the fewer things technocrats do, the more likely it is that they can stay in areas where their work seems relatively neutral politically. As the scope of government has increased, civil service is more likely to venture into highly contested areas of our public life, and, hence, into areas in which all decisions are recognized as political, even if the bureaucrats are extremely reluctant to recognize that reality. And that is our problem today.

Our Crisis

If we no longer take seriously the proposition that our upper-level bureaucrats can be neutral, apolitical experts because they, in fact, have to make political judgments on a regular basis, then the administrative state is in a crisis of legitimacy. And that is what the re-election of Donald Trump represents. The American people don’t elect him in 2016 and again in 2024 if they believe that our institutions have been behaving in a reasonable and apolitical way.

Progressives react with horror at the possibility of a president truly in charge of today’s massive executive branch. Can one really blame them? One need not be a Progressive ideologue or a member of the technocracy with a strong self-interest in the matter to see why the prospect of a president, even an elected one, with all that power at his discretion is legitimately terrifying. Does anyone really want to give a president all that power? The Founders did expect the president to be in charge of the executive branch, but they did not expect the executive branch to have the kind of power it does today. Yet, is it reasonable to expect that we can reduce that power significantly?

And who else should be in charge once we recognize that there is no such thing as apolitical law writing and policy making? In the Obama era, progressives mocked the citizen who said, “Get your government hands off my Medicare.” Today we see the equivalent on the other side—get the elected president’s hands off my democratic administrative state. How can the president be violating separation of powers when he asserts control over his own branch? How can it be undemocratic for the person we elected to be the person in charge of the bureaucracy? Nowadays, many Americans seem to have concluded that the only thing worse than giving one man, even one we elect, so much power in so many areas of our lives might be to have that power in a class of unelected bureaucrats who cannot be fired, and who are accountable only to themselves. Elon Musk’s Department of Government Efficiency project seems to be exposing how the bureaucratic class has gamed the system to help entrench its policy preferences.

One of the policies that triggered the colonists in the years leading up to the American Revolution was the British government’s talk of creating a “civil list,” the eighteenth-century version of elite civil service, in the colonies. From the perspective of the king and the aristocrats and gentlemen who governed Britain, the colonies were much too democratic, with the colonial legislatures, among other local institutions, exercising too much power. They were using their power to push around the royal governors. Moreover, the American colonies were, from the perspective of London, lacking in gentlemen who were worthy of political power. Hence came the desire to foster a larger governing class, paid by the King, to help rule the colonies. The colonists, forced to think about it, decided that they liked self-rule. Perhaps our old DNA is kicking in, and we are in the process of rejecting rule by the modern version of the civil list. Our elite bureaucracy is involved in way too many areas of public policy to accept the pretense that they are acting as neutral technicians. That being the case, we the people ought to have a much larger role.

But assuming the federal government is too big for the Madison scheme to manage, we must find new ways to republicanize big government. The progressive politicians who designed the administrative state did not do this then because they subscribed to the myth of scientific expertise; now, though, we recognize that the administrative state is engaged in political, not scientific work.

Reconciling technocracy with republican government is perhaps the greatest challenge faced by our republic. But in order to meet that challenge we must first recognize what it is and introduce what John Adams called “the checks and balances of republican governments” into the administrative state. Is there a way to reconcile checks and balances with technocracy? That is, I suspect, the $64 trillion dollar question. It will not be easy, but we likely have no good alternative if we wish to preserve the republic as a republic for another 250 years. Fasten your seatbelts, it’s going to be a bumpy ride.

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To the progressive, therefore, conservative or traditional hatred of Jews ​​needs little explanation. A conservative is a supporter of tradition, and hatred of Jews has a long history. You do the math. From the perspective of the modern progressive mind, on the other hand, progressive antisemitism presents itself as a paradox. Progressives like to think that they are for, well, “progress.” And progress is about love​,​ not hate, about liberality, not bigotry. Hence progressives, per their own self-definition, cannot be hateful. Given that self-image, many progressives, particularly progressively inclined Jews, have been surprised by the rise​​​,​ or rather return​,​ of​ high-profile progressive hatred of Jews, Judaism, and Israel. They should not be. 

The deep, and seldom discussed premise of progressive ideology is the belief in comprehensive progress. In the progressive view, there is, nay, there must be an all-encompassing “arc of history.” It is what “progress” in the emphatic sense means, as all humanity moves from lower to higher. Diversity cannot exist outside of that arc. Any such diversity is, by definition, wrong, on the “wrong side of history.” 

This view of history is not new to our age. Today’s version builds upon that of the Enlightenment. Although they could never quite agree on the exact details of history, many philosophes didn’t let that reality get in the way of the premise that there is such a story. Condorcet’s version of the stages of history was only one version created by a philosophe. Some disagreements about the true direction of history are allowed in this perspective, so long as the existence of many different visions is not viewed as evidence that the premise is wrong. 

From at least that time to our own, the prospect of Jews remaining Jews makes that storyline difficult. Jews as an ancient people were easy to fit into that story. They were part of the story before our time. But Jews as a people still walking around, at least if they are more than a small remnant, are a problem. What are they still doing here? That uncomfortable question probably explains some of the longstanding secular animus against Jews and/or Judaism. In European culture, this might be seen as a variant of the common Christian belief that Jews were behind the arc of history for not accepting the new Gospel. 

In the Enlightenment, Voltaire’s hatred of Jews and Judaism is notorious. Other leading Enlightened thinkers, such as Diderot, D’Holbach, and Kant, expressed similarly hostile views of Jews and/or Judaism. Some Enlightened thinkers who expressed such views also opposed the oppression of Jews. Their hope, or perhaps expectation, was that once Jews ceased to be walled off from the mainstream of European culture, they would cease to be warped by Judaism; they would become less Jewish and, in their view, more decent.

​​This ​Enlightened ​anti-Semitism was not unknown in America. Although our third president was personally sympathetic to Jews, he was hostile to Judaism. Jefferson’s views echoed Voltaire’s. The Jews, per Jefferson:

presented for the object of their worship a being of terrific character, cruel, vindictive, capricious and unjust. … Moses had bound the Jews to many idle ceremonies, mummeries and observances, of no effect towards producing the social utilities which constitute the essence of virtue … [and] instilled into his people the most anti-social spirit towards other nations. … [Jesus contended with] the priests of the superstition, a bloodthirsty race, as cruel and remorseless as the being whom they represented as the family God of Abraham, of Isaac and of Jacob, and the local God of Israel. They were constantly laying snares, too, to entangle him in the web of the law. 

Jefferson could be personally friendly to Jews, and he sympathized with their plight. Jefferson was, after all, a strong supporter of religious liberty. But Jefferson almost certainly believed that progress would entail Jews leaving Judaism behind. Note his focus on Jews rejecting Jesus. They were morally backward because they were historically backward.

Thomas Paine, who arrived in the colonies shortly before 1776, expressed similar beliefs. Back in Europe by the early 1790s to work with the French Revolutionaries, he wrote The Age of Reason, in which he expressed sentiments similar to Jefferson’s: “The Jews made no converts: they butchered all.” Paine’s main goal was to use Judaism to attack Christianity. He continued, “The Bible is the sire of the [New] Testament, and both are called the word of God. The Christians read both books; the ministers preach from both books; and this thing called Christianity is made up of both. It is then false to say that Christianity was not established by the sword.”​ For Paine and many others, the rage was against religion in general, and Judaism in particular, blaming Judaism for what they hate about Christianity.

In other words, these Enlightened attacks on Judaism were not unrelated to the attacks of Paine, Jefferson, Voltaire, et al against Christianity as it had been known. Jefferson’s anti-Judaism, like that of other Enlightened thinkers, probably was connected with a large project of liberation from religion as it had been known in Europe and America before the Enlightenment. Ecrasez L’infame (crush the loathsome thing) was Voltaire’s slogan for it. Condorcet had asserted that in an earlier era: “The triumph of Christianity was thus the signal of the entire decline both of the sciences and of philosophy.” Progress would, therefore, be progress away from both Christianity and Judaism, and toward a more Enlightened set of beliefs, and way of life.

Particularly as he grew older, Jefferson increasingly embraced the Unitarianism that he believed to be the true teaching of Jesus, and he convinced himself that that’s what history intended. And history, he believed, was on his side. “It is too late in the day for men of sincerity to pretend they believe in the Platonic mysticisms that three are one, & one is three; & yet the one is not three, and the three are not one,” he wrote John Adams in 1813. Importantly, the context of that remark is a discussion of a bill legalizing anti-Trinitarian teaching in England. “I remember to have heard D^r Priestly say that if all England would candidly examine themselves, & confess, they would find that Unitarianism was really the religion of all.” Back in the US, Jefferson would assert, thanks to disestablishment, “I trust that there is not a young man now living in the US. who will not die an Unitarian.” 

In other words, Jefferson believed that the true, mild, Unitarian teaching of Jesus would have become well nigh universal had establishments and corruptions of his teaching not gotten in the way, a change he expected to take place as establishments were done away with in the United States. Given a religious free market, good teachings would drive out bad, creating an America in which, as a practical matter, all were Unitarians. That would open up a world in which science and reason could make for true global progress.

What did Jefferson’s ideas mean for Jews? They could assimilate as Americans if they reconstituted Judaism along the lines some Enlightened Jewish thinkers were beginning to describe. And in some ways, Reform Judaism moved in that direction in the nineteenth century, with its rejection of dietary laws, and of Zionism, and, what almost inevitably followed from that, a weakening of the taboo against intermarriage. 

Today Reform seems to be on the wrong side of Jewish history. Over 60 percent of Jewish children in the New York City area, for example, are orthodox. That’s not how history is supposed to go, per progressives. Among Christians, Unitarianism is supposed to supersede Trinitarianism, and among Jews, a mild, cosmopolitan Reform (essentially a Jewish Unitarianism), is supposed to replace traditional Judaism. This progressive view is, in part, behind the alliance we often see today between traditional Jews and Christians. Is that alliance part of a general turn or is it temporary? It could be either. For now, it seems to be a strong alliance. But if there is an arc of history only God knows all its turns.

The progressive turn against traditional Judaism has an international complement because Judaism is not merely a religion. It is the religion of a particular people, the Jewish people. To be a Jew is to be part of an ancient nation, or tribe, that has a particular homeland from which it was exiled by the Romans. That, too, presented a problem for Enlightened Europe, for the dream of the Enlightenment was universal peace. Even a thinker as sober as James Madison maintained hope for that visionary goal. In this context, note how Jefferson characterized Jews, blaming Moses for having “instilled into his people the most anti-social spirit towards other nations.” In other words, Jews refused to assimilate; they were, in Jefferson’s day, spread out among the nations. Given his view of Judaism, it is reasonable to conclude that when Paine said, in Common Sense, that “all Europeans meeting in America, or any other quarter of the globe, are countrymen” he did not have the Jews of Europe in mind. In other words, Jews had insisted on remaining Jews for a few thousand years, and this was a problem for the votaries of progress, and universal emancipation.

The scholar Peter Onuf notes that, in Jefferson’s apologia for the excesses of the French Revolution one sees the national dimension in his vision of progress: “The liberty of the whole earth was depending on the issue of the contest, and was ever such a prize won with so little blood? My own affections have been deeply wounded by some of the martyrs to this cause, but rather than it should have failed, I would have seen half the earth desolated. Were there but an Adam and an Eve left in every country, and left free, it would be better than as it now is.” ​​Note Jefferson speaks of “an Adam and an Eve left in every country,” and assumes there will be countries. One pair per country, not two. Two or more rival pairs would create precisely the problem Jefferson was worried about. Some American Zionism reflected a version of that idea. Jews belong in their own country, and should not remain scattered among the nations. But once that project started to become a practical reality, of Jews actually returning to Israel, it became a problem, for the land was then occupied by descendants of people who had themselves moved to and/or invaded the land after the Jews had been exiled. From a view of history that accepts that tragic trade-offs will always exist, this problem is no surprise—yet another in an unending series of human problems. The palimpsest of peoples in Israel is not unusual. But for a people, once exiled (at least for any length of time) to continue to maintain that its true home is its ancient home, gums up the works of progress for those who believe that history is going from lower to higher, for it creates massive, and likely violent conflicts.

And that returns us to today’s progressive hatred of Jews and Israel. The current criticism of Israel is that it represents “settler colonialism,” a charge maintained by people who don’t think all whites should leave the Americas, that we should remove the Spanish heritage that is now pervasive in South and Central America, that mainland Chinese should leave what used to be called Formosa, or, for that matter, that Arabs should leave Israel, which they settled centuries ago. Even recent ​tribal movements within the Middle East are viewed as legitimate. Only Jewish return to our homeland is a problem, it seems. ​​That the majority of current residents are descendants of Jews and Arabs who moved to the land after 1800, is also irrelevant to this narrative progressives seek to impose on modern history.

On the national side, as on the religious side, progressive ideology has precious little room for Jews to remain Jews. That Jews are an ancient people with Judaism as their religion, and, in a sense, Torah as their Constitution and Israel as their homeland does not fit into the conventional boxes of political and religious analysis. As the majority of today’s Jewish residents of Israel are descended from other nations of the Middle East, not from Europe, telling them to “go back to Europe” is a non-starter. And they can hardly go back to the diasporic settlements that kicked them out or, at the least, treated them as second-class citizens. Where else can they go but Israel? Yet that, too, is unacceptable because it means that two peoples have longstanding historical claims to the same piece of land, ​a reality that makes a mockery of progressive dreams of progress and perpetual peace. It means that insuperable political conflicts will always remain here on earth.

Amid hopes for universal and perpetual peace, it might still be true that the best we can do is to minimize war by recognizing that peace is a gift that can only be sustained with difficulty, and that justice for one will sometimes be injustice for another. Peace will mean accepting some injustice as better than war, and sometimes men will, understandably, find that trade-off unacceptable. But tragic choices will always exist. As Benjamin Franklin’s Poor Richard said, “He who lives on hope dies fasting.” From this perspective, the progressive focus on Israel is, in part, scapegoating. It is not that Israel/Palestine is the only place with an extremely messy conflict on earth. But it is easier to blame Jews than it is to recognize that progress has radical limits; if impossible, conflicts like the Jewish-Arab conflict in Israel are not atypical, and never will be, progressivism is a delusion. It’s easier to blame Jews, often turning to old blood libels and stereotypes of greedy Jews, than it is to question the central premise of progressive politics. This need for progress to be possible is one factor behind the rise of otherwise inexplicable groups like “Queers for Palestine.” It turns the focus on Israel for impeding progress rather than on the Hamas government that executes homosexuals.

That said, Jews and Judaism do present a distinct problem to the progressive, post-Christian mind. Judged from a political perspective, Christianity represented a radical break between peoplehood and religion. And that is something that Jews, qua Jews, have always rejected. In other words, the religious teachings of Jews, as opposed to Christians and progressives, do represent incommensurable understandings of the good. Both Christians and Jews seek to do good in the world. Sometimes, inevitably, those competing ideas of the good will come into conflict.

Sometimes there seem to be multiple independent, or seemingly independent, arcs of history. When Leo Strauss said that Jews “represent the human problem,” this problem is probably part of what he meant. Our continued existence as a distinct people brings the question of comprehensive progress into question. Once introduced into practical politics, the idea of a universal history becomes an insuperable problem, unless, perhaps, there truly is a unified and comprehensive progress drawing together all civilizations across the globe, and we can recognize it well enough for it to guide statecraft. If that can be achieved by an act of human Will, it is a rejection of God and His Providence. If it is what God wants of us, a certain humility in how history will get there is in order.

The great student of the Philosophy of the Enlightenment, Ernst Cassirer, (Leo Strauss’s dissertation advisor as history records), noted that for the Enlightenment theodicy became a political problem. Classically, the problem was to explain how, in light of the tragedies and evils of the world, there can be a just God who is the Creator. In the Enlightenment, a challenge presented itself as thinkers sought to explain why comprehensive progress is possible, given the historical record. What, if not human nature or the human condition, explains the bloody record of history? Can we engineer comprehensive progress? Must war remain part of man’s terrestrial existence? To religious believers, the arrival or return of a messiah might be necessary to achieve that end. But the philosophes cannot embrace that hope. They instead believed in merely human means of progress. Hence arose the Jewish Question or Jewish Problem: what to do about Jews as Europe was emancipated? The prevailing view among the Enlightened was that Jews must cease to be Jews in a robust sense of the term. 

To a progressive, the arc of history is taken as an empirical universal, even though it is, in fact, a matter of faith. From God’s perspective, there may very well be such an arc, but it is also likely that any human claim to see a universal arc of history is, in fact, a delusion. What looks like “moving forward” to one is oppression to another. Hence politics will remain central to our lives on earth, as we seek the best possible, given the inevitability of tragic choices. The sober side of the Enlightenment recognized that; the millennial side much less so. In that sense, modern belief in progress is just another in a seemingly unending line of religious beliefs that seeks to replace Judaism, and other religions.

Merely human action can make things somewhat better for an age, but that’s not progress in the robust sense of the term. Progressives hate Israel because Jews represent the reality that true global progress is only possible with Divine intervention. There might be good in that limitation for it also means that good works will always be possible. There will always be real problems to be addressed rather than solved, and important work to do. So long as Jews walk the earth, there will be no final solution to the human problem. 

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Adams may be often quoted, but we seldom consider that his hope was not a mere moral exhortation. It was a statement of practical necessity. In the founding era, the question of executive power was a profound—and profoundly difficult—one. Having separated the colonies from Britain, and having embraced republican government, defined as the antithesis of despotic monarchical government, the question of how to reconcile effective executive power with republican government arose. It is the executive power side of Adams’ oft-quoted line that “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

Several of the early state constitutions, like the US government under the Articles of Confederation, dealt with the question by establishing weak executives. But in the decades after the Revolution, those constitutions were not working terribly well. The people of Pennsylvania, for example, jettisoned the weak executive outlined in their 1776 Constitution in the early 1790s. They found that it simply was not well-suited to governing.

Others in the founding generation believed that executive power could be reconciled with republican principles as long as the holder practiced virtue, in both senses of the term. Virtue comes from the Latin root vir, or man. Our English word “virtue,” partly means “manliness.” And in that sense, it is bound up with executive power, bold decisive “manly” action. As Adams noted in his influential 1776 pamphlet “Thoughts on Government,” the executive should be a single individual so that he may act with “secrecy and dispatch.”

Yet the Founders’ concept of “virtue” also has a Christian and moral element. In the Massachusetts Constitution, Adams included a clause advocating “a frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality.” That constitution, not coincidentally, featured a fairly strong executive, elected by the people, and possessed of a qualified veto on legislation. A virtuous executive exercises judgment in approving or vetoing bills, and, when enforcing and defending the laws and the state, conducts bold, decisive legal action for the common good. A good, republican executive ought to possess the virtues Adams outlined in both senses, Latin and Christian.

Insuperable difficulties are posed to the republic when executive power is held by dishonorable men: men who lack virtue. The kind of men who in private life think it unnecessary to pay their bills, plagiarize, cheat at golf or on their wives, or who use the office to help line their own pockets. Above all else, though, an unvirtuous president would not care to make a good-faith effort to distinguish between reasonable and unreasonable uses of executive discretion.

This sort of man sacks the foundation upon which we build a republican executive. The deference which we must give the executive no longer holds, because we cannot assume that he is acting in good faith when he claims to be enforcing the law. But to function properly, the executive needs deference. Men who can act boldly and decisively when lawyers are constantly looking over their shoulders and pointing to hundreds of thousands of pages of legal code which limits their actions are few and far between.

Adams was, in the founding era, Mr. Checks and Balances. He, more than any other single figure, put that concept on our constitutional map. His notion that “power must be opposed to power and interest to interest” is central to his Defence of the Constitutions. By contrast, Madison’s “ambition must be made to counteract ambition” in Federalist #51 is merely an “auxiliary precaution.” Even so, Adams recognized that there are ways in which it is in the nature of executive power to make structural checks rather hard to create. There are, and must be actions that are matters of executive discretion.

Adams was quite aware of that problem. Consider another, less well-known statement by Adams in an 1812 letter to Jefferson. “Good God! Is a President of US to be Subject to a private Action of every Individual? This will Soon introduce the Axiom that a President can do no wrong; or another equally curious that a President can do no right.” An interesting turn of phrase. The old English line was that “the king can do no wrong.” That line was, as Adams knew, a legal principle. There was no redress against the person of the King. He could not be cashiered, even for gross misconduct, short of revolution at least. Hence, as a rule, one who was aggrieved blamed the King’s ministers. In principle, the King was only empowered to act in ways that were legal, in accord with the very law that made him King, but in practice, there was no way actually to gain redress against the person of the king. In principle, the US wanted to be different. In practice, that was difficult.

What prompted Adams’ comment to Jefferson was an 1811 lawsuit by Edward Livingston against Jefferson for acts Jefferson took when he was president. Livingston had been a Congressman in Jefferson’s party and Mayor of New York, but clashed with the President over land claims in the Louisiana territory. President Jefferson confiscated land Livingston claimed as his own, claiming it was federal property. Livingston sued Jefferson personally, and won in Louisiana’s Courts, but in an 1811 case, Chief Justice Marshall ruled against him, focusing on the question of jurisdiction. Marshall was on Circuit in Virginia, not sitting as Chief Justice in Washington, DC. Jefferson’s residence in Virginia did not, he held, make it reasonable to litigate this case in a circuit Court in Virginia. In other words, Marshall found a way to dodge the case. He understood that courts are not designed to deal with cases like this, where the line between legitimate presidential action and corrupt partisan action is almost impossible to decide in any clear way.

That Marshall found a jurisdictional dodge was in a way, an echo of Adams’ point. Marshall thought that Jefferson was extremely misguided politically. He had no personal desire to save Jefferson’s bacon. Yet he also understood executive power, and the difficult problem it presented a government of laws, not of men. That Livingston might sue Jefferson personally was the key issue, one that trumped whatever the narrow issue of the land claims case was. It was a terrible precedent to make any such action litigable in that way.

Marshall understood that there was no limiting principle to lawsuits targeting the chief executive personally. Given how partisan minds work, to allow personal lawsuits against the president, either during or after his term of office, would almost inevitably entail subjecting every president to regular lawsuits not against the US government, but, instead, against each individual who holds the Presidential chair. When Adams raised the possibility of deciding that “the President can do no wrong,” he was suggesting that the abuse of lawsuits might lead, as perverse incentives often do, to a perverse result, a determination that such lawsuits are always out of bounds.

This problem is particularly acute for us today. The more lengthy and complicated our legal code becomes, the more likely it is that there will be a plausible legal claim against any government action, or private action for that matter. Given the expansion of federal power, there are more areas in which the president will have to exercise judgment. And, given the expansion of our legal code, the number of ways it is possible to be on the wrong side of the law in some technical way has grown exponentially. The number of instances in which good lawyers, acting in good faith, disagree about what is and is not legal grows regularly. Hence it grows ever more likely that policy decisions, partisan political decisions, and legal understandings are very difficult to separate. They always were difficult to separate in many ways, but the more government does, the more the problem grows. Hence there are ever more decisions that might, from this perspective, involve the president personally, rather than merely involving the office, as a matter of law. And a president cannot do his job if he is always worried about legal actions. A president must, as Adams said, be able to act with dispatch. As President Grant said, “I am a verb.”

Adams’s wisdom can help us understand the complexity of the problem. There is a danger either way with executive power. It was a bad idea to suggest that the president would never be subject to lawsuits in his personal capacity, and it was a bad idea to subject him to such lawsuits. Both are problematic.

To say that a president should not be subject to any personal lawsuits was to put him above the law. This was anathema to Adams. The president is not an unaccountable king or emperor. Recall that Adams defined a free republic not as a form of government, but rather as “a government of laws, not of men” in his writings from 1775 onward. Chief Justice Marshall used the phrase as part of his justification of judicial review in Marbury v. Madison. The president, empowered by the Constitution, is subject to the Constitution and the laws passed under it. To say that the president generally is not subject to legal liability for his actions is, given human nature, likely to create abuses by the executive.

On the other hand, as a practical matter, making the president subject to private actions was also problematic because it was extremely likely to gum up the works of each and every administration, at least of any administration that had significant partisan opposition. And that would almost inevitably result in bad public policy.

This dilemma demonstrates the true danger of electing bad men to the presidency. One cannot allow the president to be above the law. On the other hand, the practical reality is that having a president who is regularly subject to personal lawsuits for actions that are legally questionable is a very real problem. And once that turn has been made, it would be, Adams knew, all but impossible to undo it, regardless of who was president. Every president will seem corrupt, even if he is, in fact, much better than average.

In his first night at the White House, John Adams was praying that the US would never have to face the enormous practical problem of corruption, in addition to the more obvious moral one. Adams feared that the result of corruption would be a turn toward monarchy. Interestingly, Madison did too. In considering the problem of holding the president personally liable for the use or abuse of his discretion, in other words, we see a return of the problem of the republican executive.

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On the NHL Network, an analyst suggested that Provorov go back to Russia if that’s his attitude toward Gay Pride. Meanwhile, although Phillips has won several cases on appeal, he keeps being sued. He will probably appeal to the US Supreme Court again—where he has prevailed before. And, as for Provorov, apparently, his jerseys are flying off the shelves.

Note that neither Phillips nor Provorov is going out and preaching hatred or violence against homosexuals or transgender men and women. They are simply asking not to be required to affirm a particular point of view. That refusal is, per our official civil rights enforcement ideology, itself a form of bigotry and discrimination. But that is not the only way to see it.

There are, of course, genuine bigots in America. And many want to make that the issue because it simplifies things. But there is a deeper issue. How can America accommodate the diversity of moral opinions we currently have? In light of that question, we see that we have two warring views of respect for diversity and of toleration. The first is supported by the legal enforcement bureaucracy, as in the Jack Phillips cases, and is reflected in the criticism of Provorov. That view holds that to be tolerant is to give explicit support to particular points of view.

Provorov did not explicitly criticize gay pride. On the contrary, his claim was that he is an Orthodox Christian, and as such, he cannot in good conscience actively support homosexuality because his religion teaches that it is sinful. He does not seek to keep gay players out of the NHL, nor has he, as far as I know, made it a point to preach his beliefs to others. He merely asks not to be required to praise something with which he disagrees. The same is true of Jack Phillips. He makes specialty cakes. He is willing to provide a cake for anyone. But he refuses to make a specialty cake with a particular message that celebrates something contrary to his beliefs.

In other words, Phillips and Provorov, and their supporters, are embracing a rival understanding of toleration—namely, that it is a practice, not a particular belief. To be tolerant reflects the classic idea of magnanimity, embracing what used to be called “liberality,” and accepting the notion that there are different ways of living well, and that a free society must give people space truly to live as their consciences dictate. Such liberality requires that civil society provide space for people to live separately in some regard, including in a private business.

In former ages, that sort of toleration applied particularly to America’s diverse religious sects. In a world in which many Protestants regarded the Pope as the Anti-Christ, religious liberty meant allowing America’s many religious communities the space they needed to live freely, even if they hated each other. It did not require, as the British King had required, one affirms Anglican doctrine to be a full citizen, nor did it require, as the King of France had required, one to be a Catholic. Instead, America merely required that a citizen respect the laws of the community—laws that gave us space to disagree about some very fundamental things. That allowed us to put the wars of the Reformation in the rearview mirror. In short, religious liberty and religious diversity allowed America to practice safe sects.

To be sure, a country, even a large, diverse, federal republic, can only allow so much diversity on moral questions and still function as a country. But America has, for most of our history, allowed what other countries would regard as an excessive amount of religious and moral disagreement.

From the start, however, America has also had those who regard the “Enlightened” or what would come to be called the “liberal” point of view to be the official one: Religion, in this view, is the way of a benighted past, as America moves into a more rational future. Toleration means that one must actively support opinions that represent progress. It affirms certain doctrines and groups that present themselves in opposition to the old ways. Hence Christians, and traditional Jews and Muslims for that matter, have moral beliefs that are themselves “intolerant” according to our governing institutions. Toleration entails progress toward an America where those groups shed such beliefs, and do so in the name of toleration.

In the past sixty or so years, this progressive view has gained a degree of federal power it used to lack. Before 1964, most businesses, other than monopolistic ones, and a few other limited classes of businesses, were free to decide whom to serve and to reject as customers and who to hire. The trouble was that Jim Crow, a legal regime that was fundamentally anti-liberal as it did not merely allow but required businesses to discriminate, had supported a culture of gross racial discrimination across the board. To combat that, the government essentially turned almost all private businesses into semi-public ones that lost their privacy in that they could not choose whom to associate with and on what conditions.

The troubles here are twofold: we have applied the lesson we learned in the fight against Jim Crow to matters of sex and sexuality—questions that, as far as I know, all religions address by creating rules, customs, taboos, and/or other like things. From an Aristotelian perspective, that might suggest they are religious questions by nature. It is likely that the concatenation of ideas we call “woke” would look much less like a religion (as some are, not unreasonably, calling it) were it only about race, and not also about sex and sexuality. On the other side, historically speaking, terms like “race,” “nation,” “people,” and “tribe” are difficult to disentangle. “Race” as a biological construct is historically unusual, and, in our discourse, no longer seems to be the dominant idea.

At the same time, we try to treat issues of sexuality as if they are issues of race, we do not exempt even small businesses, like Phillips’ little bakeshop, from the anti-discrimination regime. The result is that we are in danger of embracing a norm of forced association, speech, and performance, the very things that point us back to the wars of the Reformation. From the perspective of our official civil rights ideology, there ought to be no escape for insular minorities by creating small or closely held businesses, or educational institutions. The trouble is that forced actions, like forced speech, are tyrannical.

It is worth remembering here our terms “economy” and “economics” have their root in the Greek word for household economy and the management of private property. As the household economy and management of private property grow outward, government regulation becomes involved. In other words, it is a mistake to regard economic activity as fundamentally public. Perhaps for a plantation owner in the South, liberty was fundamentally non-economic about what one did off the work of others to provide food, shelter, and other necessities. But in the North, working to provide those goods was an essential part of liberty. Hence it entailed the liberty to decide whom to work with or whom to serve in the vast majority of cases.

Jim Crow was a set of laws that blocked that. It forced Americans to discriminate on the basis of race in their private businesses and in government. In reaction to that, our law forced Americans not to discriminate on the basis of race in our business lives. That’s to the good. Can we apply the same to sexual norms? If and only if we forget that antidiscrimination law also applies to religion. Unless the longstanding teachings regarding sex and sexuality in Judaism, Christianity, and Islam, among others, are soon going to be held only by a small insular rump of these faiths (think of the Amish), to apply the methods our federal, state, and local governments employed against Jim Crow to what is, fundamentally, a religious fight over what it means to be human is a recipe for religious war.

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Thanksgiving is a peculiar holiday, at least in the modern world. Its roots are religious, and the American nation is, at least in law, secular. Its very name speaks of thanks, or gratitude, and gratitude is an ancient virtue. Indeed, Aristotle speaks highly of it. Even so, or perhaps for that reason, it is very American. In his Thanksgiving address in 1922, President Coolidge called it “perhaps the most characteristic of our national observances.” He was not wrong for, as Chesterton wrote, America is “a nation with the soul of a church,” and Abraham Lincoln called us an “almost chosen people.”

The holiday reminds us, in other words, of the peculiar character of the American nation, and of the President’s role in it. Strictly speaking, to be an American is to be an American citizen. When one calls someone an American, the first definition one usually has in mind is political. By contrast, when one says that someone is Chinese or Turkish, the first thought is of an ethnic or racial identity. Even so, there is an American culture. Hence it is very common to say that something is “very American.” Thanksgiving itself deserves that moniker. Is it a constitutional observance?  That’s an open question.

In this holiday we see how the peculiar character of the Presidency compliments our exceptional nationality. Constitutionally speaking, the President is merely the American CEO. His job is to “take care that the laws be faithfully executed,” and in his oath, he swears to “execute the office of the President” and pledges to “preserve, protect and defend the constitution of the United States.”  The oath says nothing about the American “nation.” Indeed the word “nation” does not appear in the Constitution, except in Article I, Section 8 when discussing relations with “foreign nations” and the “law of nations.” Strictly speaking, the President’s job is to put into effect the laws that Congress passes and to defend the “supreme law of the land.” Even so, the President is, in fact, head of state, and the leader of the American people. It is no surprise that the American president has, in time, acquired the trappings of a monarch—think of the entourage he travels with, the way he’s treated at the State of the Union address, the language with which we discuss the “White House’ and its parts, such as the “West Wing.” And a monarch is more than a CEO. He is the leader of the nation, in the classical sense of the nation.

George Washington set the tone for the office in many ways, none more so than in his Thanksgiving Proclamation, given in October, 1789, seven months after he took the oath of office. Why have such a proclamation at all? Where in Article I, Section 8 (the section that lists the powers the people gave the federal government) is the power to proclaim a federal holiday? In 1791 James Madison would criticize Alexander Hamilton’s assertion that the U.S. government has the authority to create a national bank, for nowhere in the Constitution did the people give the federal government the right to create a bank or to create a corporation (an entity that had traditionally been regarded as a “person” in the eyes of the law).   And fourteen years later, the Louisiana Purchase would tie President Jefferson in knots, for nowhere did the people give the U.S. government the right to acquire territory. Yet Madison lost the national bank argument in 1791 and by 1816 he had changed his mind about its constitutionality. Meanwhile, Jefferson didn’t stop the Senate from ratifying the Louisiana Purchase. In other words, he and Madison implicitly accepted that there are some powers that belong to government due to the nature of the thing, and when the people created the U.S. government they, of necessity, allowed it those powers without which no government can function.

The authority to proclaim a Thanksgiving might seem trivial to us—mere words, and an idle declaration.  But it is, in fact, fraught with meaning, for the assumption of such authority highlights the degree to which a President is, by nature, much like a monarch—albeit an elected one. Similarly, it points us to the limits of secular nationalism.

Consider President Washington’s Thanksgiving Proclamation. He begins with the universal “duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor.” But then he stops, as if he knew some might ask why the President is involved. Washington goes on, “Whereas both Houses of Congress have, by their joint committee, requested me ‘to recommend to the people of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a a form of government for their safety and happiness.’” Congress asked Washington to proclaim the day. An interesting request. Congress did not pass a law proclaiming a day of Thanksgiving. Such an act may, according to some constructions of the Constitution, have crossed over into an establishment of religion. Instead, they have merely asked the President to “recommend” such an observance to the people. But if it’s not a law, wherefore does the authority come from? It must adhere in the nature of the thing.

What is the power of a Presidential “recommendation”? Quite a bit, actually. And that is because the President is, as a practical matter, a national father figure. Those of us who are theoretically minded may fuss and fume that there is nothing in the Constitution suggesting such a role, and it is certainly true that there are many Americans who do not see it that way. It is nonetheless true that the President has always had such authority for a significant portion of the country. Even those who object to a particular President or his policies are often reacting as an unhappy child. And that is why a Presidential “recommendation” even of a merely ceremonial sort is simply the nature of the thing. (I am not referring to the modern practice of the President or his minions “recommending” to businesses or Universities that they adopt certain practices. There is no implicit Presidential “or else” in this kind of proclamation.) A few states tried operating without a unitary executive in the years after 1776. The experiment was a failure. By the early 1790s, even Pennsylvania gave up on the effort. And once there is such an executive for the nation as a whole, he becomes “his elective majesty” even if we Americans are loathe to admit it.

That is what is so significant about the opening line of Washington’s Proclamation. He speaks of the “duty of all nations.” Such a declaration implies that nations are all alike in some ways. No nation is or can be exceptional in that regard. A nation, by nature, is a being in a moral universe. In the middle of the Thanksgiving Proclamation, Washington points back to the Declaration of Independence, noting that Americans are grateful “for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness.” Americans should be grateful for the American experiment, the effort to show that men are capable of creating governments based upon “reflection and choice” as the first Federalist puts it. Even nations with governments under constitutions that are delegations of powers by the people cannot change the nature of the thing. And that means that national morality is a fundamental concern. At the start of the Defence of the Constitutions John Adams would link the two: “The people of America have now the best opportunity and the greatest trust in their hands, that Providence ever committed to so small a number since the transgression of the first pair. If they betray their trust, their guilt will merit even greater punishment than other nations have suffered, and the indignation of heaven.”

As Washington noted in his First inaugural Address, nations and individuals alike are judged by a common standard. The Universe being moral, nations that stink with injustice will, almost invariably (the ways of the Almighty being mysterious) suffer, just as individuals who do evil are punished, “since there is no truth more thoroughly established than that there exists in the economy and course of nature an indissoluble union between virtue and happiness; between duty and advantage; between the genuine maxims of an honest and magnanimous policy and the solid rewards of public prosperity and felicity;  . . . the propitious smiles of Heaven can never be expected on a nation that disregards the eternal rules of order and right which Heaven itself has ordained.” President Lincoln would quote the Gospel saying much the same thing “Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.” In other words, just as a national government has certain powers because of the nature of the thing so, too, is it the case that nations must, by nature, behave in certain ways if they wish to flourish and prosper. That being the case, it is fitting that we, the American people, pause at periodic intervals and give thanks to the being who Created us, and who, in Washington’s words, we hope will “grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.” Happy Thanksgiving.

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The root of the word “emergency” is “emergent,” meaning a newly arising situation. And during an emergency, the urgency of the “emergent” situation means that there simply isn’t time to go through standard procedures. Think of President Lincoln suspending habeas corpus to ensure troop trains could make it through Maryland to protect Washington DC at the start of the Civil War. The Constitution places the power to suspend habeas corpus in Article I, the legislative power. Yet Congress was not in session when the war began, and President Lincoln felt obliged to act immediately. Scholars are still debating if his response was prudent and legal or if it was a serious violation of the Constitution. But that is, literally, an academic debate now.

What about Covid policy? Who should be making it? At first, it was reasonable, even inevitable, that executives, deferring to advice from the government’s experts, would make policy. That was the case even though the experts were themselves guessing. The virus being “novel,” there really wasn’t much expertise to be had. But by now, with nearly two years of Covid and Covid policymaking under our belts, science is starting to generate knowledge (although serious questions remain). That means it is time for our legislatures to step up.

Legislatures, Executives, and Experts

Why the legislature? Why not the executive or elite bureaucrats like Anthony Fauci? Fauci is, after all, the official top expert. The job of experts in a democratic republic, however, is to advise those we elect, and not to set policy themselves. Otherwise, we have switched from a democracy to a technocracy. As for the President, his job is to execute, that is, to do. As President Grant once remarked, “I think I am a verb.” Or, as Henry Adams said of Theodore Roosevelt, he “showed the singular primitive quality that belongs to ultimate matter—the quality that mediæval theology assigned to God—he was pure act.” God would, of course, act with pure wisdom. Not so among we mortals. And in our system of checks and balances, the legislature is the locus of deliberation.

In this context, it is important to note that the executive is not, by nature, a deliberative office. The reason why we separate powers, and why we check and balance them is, in part, to try to force politicians to do the hard work that policy-making requires. It is much easier to defer to someone who is or who claims to be an expert and avoid responsibility. And experts, given such a role, have a tendency to claim more knowledge than they actually have. Checks and balances are, in part, designed to block such maneuvers. And in our system of checks and balances, public policy is to be made in the legislature.

In contrast to the executive, the legislature is designed to reflect the people at a deeper level than any individual can. In his 1776 pamphlet “Thoughts on Government,” which Gordon Wood calls “the most influential work” guiding the framing of the state constitutions after 1776, John Adams noted that the legislature “should be in miniature, an exact portrait of the people at large. It should think, feel, reason, and act like them.” Why was that? A good legislature, like a good polling sample, reflects the people as they are, so that public policy can reflect the wishes and needs of the people. As the people seldom have full knowledge of a given situation, its job is often to ensure that the full range of public opinion has the ability to react to a more informed understanding. The deliberative aspect grows out of the discussion, argument, and debates that take place in the legislative chambers.

If the people making laws are not reflective of the people as a whole, they are likely to misunderstand the impact their policies will have on parts of the population, and misjudge the nature of the policy as it is likely to be implemented. The result is often bad policy and/or policy that seems to favor some groups over others without justification. As time passes, is the risk of flying without a mask worth the benefit in comfort and social interaction? That’s a question better addressed by the citizens we elect to make law than it is by any one scientist or group of scientists. And they might decide, as time passes, that it’s a choice best left to each airline. A scientist can help us understand the relative risks, but science cannot tell us what is a reasonable risk, for that kind of reason, prudential judgment, is not amenable to the scientific method.

It is also the case that no single individual is likely to see the impact any given policy will have across a large, diverse population. We have a legislature, and not an elected dictator, because no one person can truly represent everyone. Recall in this context George McGovern’s lament, after he retired from the Senate and was trying to run a hotel: “I also wish that during the years I was in public office, I had had this firsthand experience about the difficulties business people face every day. That knowledge would have made me a better U.S. senator and a more understanding presidential contender.” There is almost certainly a parallel to be drawn between McGovern’s realization about the limits of his senatorial wisdom and the reality that Covid policy hit small business particularly hard.

What is true of individual senators is emphatically true of governors, presidents, and elite bureaucrats. The point of view of small businesses and independent contractors is the one least likely to be taken into consideration by the technocrats who have been setting Covid policy. Likewise, governors have much more interaction with big businessmen than with small. Similarly, the relative value and difficulty of Zoom schooling might have looked very different to bureaucrats and governors than it did to state legislators and city council members getting earfuls of feedback from their constituents.

Facts, Scientific and Political

Open public discussion might even help clarify what science does and does not know about any given problem. In an emergent situation like a “novel” virus, even scientists will be guessing. Which ones should we listen to? And if they are guessing, how closely should we follow their advice? Any given scientist, however well-meaning, and however much experience he has, is likely to have biases. It is also unlikely that the specific scientist in charge of our response, however expert he might be in one or two subfields, is, in fact, an expert in the subfield relevant to a given emergency. He will, therefore, be trusting the judgment of others, rather than relying on his own expertise. Alternatively, he might be reading the data himself, but doing so with less expert judgment than those who study the particular subfield full time.

Recall in this context how Dr. Fauci went out of his way to brand the distinguished scientists from Harvard, Oxford, and Stanford who signed the “Great Barrington Declaration” as “fringe scientists.” They recommended, as the Wall Street Journal notes, “focused protection” of those at high risk to the disease, as opposed to more general lockdowns. Their policy judgment may or may not have been correct, but their views were hardly “fringe.” What they were, however, was outside the Washington consensus that Fauci and the bureaucracy he represented supported. That consensus would seem more authoritative in public if it were the case that only “fringe” scientists disagreed with it. In other words, calling them “fringe” was a political not a scientific judgment. Yet Fauci is paid for his scientific not his political knowledge and judgment.

The trouble with technocracy is that it is never merely technical; anyone in high office must be political. That’s the basic contradiction at the heart of technocracy. Recall in this context that “scientific consensus” is not a tool of the scientific method. We do not decide what science recommends by counting the votes of scientists. Moreover, the skillset likely to put someone at the top of a technical bureaucracy—scientific knowledge and skill at bureaucratic infighting—are not necessarily connected with political wisdom or with good policy judgment. In a recent essay, Matt Welch notes that Francis Collins, the outgoing Director of the National Institutes of Health made a revealing concession: “Boy,” he noted “there are things about human behavior that I don’t think we had invested enough into understanding.'” It’s unkind to say, but nonetheless true, that someone who is so easily surprised by human behavior ought not to be making public policy.

We do not train scientists in the study of American culture and human nature. And good Covid policy is made when science meets precisely the junction of those two things. In other words, scientists are often poorly suited for policymaking.

Despite that reality, many Americans, it seems, have grown comfortable with the idea of letting technocrats set policy that way, and they are uncomfortable with a restoration of a more vigorous role for the legislative branch. Indeed, a turn to the legislature seems strange to many of us. “You’re going to trust those idiots with health policy?” Today, we tend to think that the common citizen cannot be expected to be a reasonable creature, nor his representatives a safe depository of authority.

The turn from rule by legislation to rule by technocrats is perhaps the most undemocratic tendency in our politics. It is, so to speak, the part of the iceberg that is below the waterline. The rise of “populism,” the mass protests against persons, property, and public buildings (from Court Houses to the Capitol), and other like actions in our country are, in part, a reaction to that antidemocratic turn. If we the people don’t see our views reflected in public deliberations and in public policy, we are on the road back to life before 1776, when mass demonstrations, including violent ones, were the only method to make sure one was heard.

It is important to remember that public opinion is a political fact. Whatever opinion happens to be, however rational or irrational it is, effective government, unless it is tyrannical, must work with it. It must begin where the people are and, insofar as their opinion allows it, implement the kind of policy a nation of thoughtful, disinterested, virtuous people would. Moreover, public policy, over the long term, must take into account aspects of human life that are not susceptible to scientific answers. Unfortunately, technocrats often try to treat citizens as if they are so many pieces of metal, to be bent into whatever shape they think science demands, frustrated with the reality that humans are, well, human. Sometimes, assuming that non-scientists are too stupid to understand nuanced advice, it seems they think it best to lie or exaggerate in order to try to manipulate public opinion. The perverse result is that the public reacts in kind, creating a cycle of distrust and overcompensation.

In short, a return to legislative policy-making would be progress back toward democracy, and perhaps, at the same time, point us back toward a more peaceful mode of politics. One of the reasons to create the kind legislature Adams described was, after all, peace. When a government fundamentally does not understand the people it is governing, violence is the common result, as history demonstrates. When as many sub-cultures and factions as possible have their say, it is more likely to produce a consensus in favor of the existing order. And the founders created a federal republic, as opposed to a consolidated one, partly because it allowed for public policy to meet people where they are, culturally speaking. 

Consider the recent Supreme Court ruling on the Biden administration’s attempt to impose a vaccine mandate on businesses. The Court did not rule that the federal government may not impose such a mandate. They ruled rather that under the current OSHA statute, the bureaucracy may not apply such a mandate. If Congress wishes to change the statute to cover such a case, it is free to do so. Or, perhaps, that kind of police power would only belong to the states, in which case the people’s state representatives could impose a measure. That so many influential people don’t seem to recognize the distinction between bureaucratically imposed and representatively imposed regulations shows how far the undemocratic trend has gone.

The U.S. Constitution made the legislature Article I for a reason. It was the to be the prime mover in the government under the Constitution. As the Covid era continues, for the sake of better policy and a better politics, it is well past time for public policy to be made democratically.

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Benjamin Franklin’s Printing Press

Toward the end of Part II of the Autobiography, Franklin discusses his understanding of his rights and responsibilities as both the owner of a printing press and the publisher of a newspaper:

In the conduct of my newspaper, I carefully excluded all libelling and personal abuse, which is of late years become so disgraceful to our country. Whenever I was solicited to insert anything of that kind, and the writers pleaded, as they generally did, the liberty of the press, and that a newspaper was like a stage-coach, in which any one who would pay had a right to a place, my answer was, that I would print the piece separately if desired, and the author might have as many copies as he pleased to distribute himself, but that I would not take upon me to spread his detraction; and that, having contracted with my subscribers to furnish them with what might be either useful or entertaining, I could not fill their papers with private altercation, in which they had no concern, without doing them manifest injustice.

Note the distinction Franklin made, and the argument to which he was responding. Franklin separated the responsibility he had as the owner of a printing press and his responsibility as the publisher of The Pennsylvania Gazette. Meanwhile, on the other side, people demanding Franklin publish something made a “liberty of the press” claim, and analogized the newspaper to a “stage-coach, in which any one who would pay had a right to a place.”

Franklin rejected the argument that the publisher of a newspaper had no right to choose what to publish, even if the customer was willing to pay for publication. As a publisher, he had responsibilities to the readers of the paper who had a certain expectation about the kinds of material that would and would not be in his paper. It is probably worth mentioning that Franklin also had a fairly broad conception of what was an acceptable line of public discussion. He did not object to arguments about controversial subjects of the day. Franklin was, after all, a practicing scientist, and understood that scientific progress is often made by folks who challenge a currently prevailing scientific consensus. Franklin was also an acute polemicist. He enjoyed robust argument. His objection was to slanderous or libelous writing. 

But note that Franklin accepted the argument that the owner of a printing press had an obligation to publish even materials that he thought represented an abuse of the press, however separately from his newspaper, if asked. Presumably, he recognized some limits: He probably would have refused to publish a challenge to duel or brawl, and he probably drew the line at pornography. But nevertheless, he accepted the analogy between a printing press and a stagecoach. That analogy is very much in the news lately.

Common Law Principles

Where does this story get us on the question of the rights and obligations of major social media platforms such as Facebook and Twitter to publish? Common law was, as a rule, the point of departure of American property law. (Jefferson’s attack on entail in Virginia immediately after penning the Declaration is an example of a significant change from English precedent. But such changes were the exception.) And under common law one had a general right to use one’s property at discretion, serving or not serving customers as one chose. The reason why taxation without representation was wrong followed the same logic, incidentally. The government did not have a presumptive right to take whatever it needed for what the King deemed to be the common good. On the contrary, the people decided how much the King’s government would have each year to use.

Even though the general rule was that one had discretion in the use of one’s property, there were exceptions. Certain businesses were understood to be both essential and monopolistic—like a stagecoach. Why was a stagecoach different? Because the kind of business the stagecoach did was unique and essential. Arbitrarily to deprive individuals of use of the stagecoach was arbitrarily to deprive them of the liberty to travel. Sure, they could walk or hire a horse, but those were high burdens. Turning to Franklin’s business as printer, he could tell others that they were free to buy paper and handwrite many copies, but he recognized that would be an unreasonable request. In other words, there are some businesses that become, due to their scope and nature, public, or at least quasi-public.

Modern American law, particularly civil rights law, has obscured this aspect of the law. Our civil rights law treats just about all businesses as common carriers or as “public accommodations,” a parallel classification, when it comes to the categories it protects. Nowadays, government regulates the cases in which the owner of a small private social hall has the right to decide whom to serve. The owners have no general right to decide who may hire their hall. (Formerly, a venue so large as Madison Square Garden might have had that obligation, but not a small venue). Moreover, our law regulates not only who is served under what conditions, but it also regulates the internal operations of the business involving hiring and firing, something outside the scope of the old common carrier rules. From that perspective, the general right to use one’s property as one sees fit is much attenuated. 

These changes have turned us away from the underlying logic of the old rules—there is a general discretion in the use of one’s property, including the right to decide whom to serve and whom to hire, but there are limits to that right that fall upon some essential, monopolistic businesses. In those rare cases, the public aspect of the business was classically understood to be so significant that private rights are diminished. Hence the Supreme Court in the 1920s rejected a New York State regulation of the price of theater tickets charged by scalpers because there is no general need to have an affordable theater ticket. (By contrast, the Court might have allowed for limits on the discretion that the owner of a large theater had in deciding who may purchase a ticket at the going price). Note the way that the logic of the law connected with the kinds of exceptions to property rights that were and were not acceptable.

The Big Tech Crisis

What might this imply for our big social media platforms? Are they more like Franklin’s printing press than they are like his newspaper? In a recent interview with the Wall Street Journal, Richard Epstein, a man noted for his general bias toward the market and against regulation, discussed this idea. A small online forum or list-serve clearly ought to be as open or closed as the folks running it wish it to be. But in cyberspace, a few platforms have grown so large that they are now quasi-public. It might be the case that these few should be classed as common carriers. If that is the case, then the default position with regard to how they are regulated reverses polarity. Facebook, Twitter, and perhaps one or two others, have created what is now essential, public space in which political discussion, the lifeblood of deliberative democracy, takes place.

As deliberative democracy implies that the public is engaged in a freewheeling, open discussion of the issues, it is important to ensure that the discussion truly is free in our public spaces, reflecting American public opinion as a whole. That being the case, the bias in regulation ought to be toward ensuring free and open discussion in these fora. To be sure, there is still room for limits. Presumably, stagecoaches could kick off passengers who displayed particularly bad behavior. But “bad behavior” would have to have the kind of rules and limitations that Franklin applied to his printing press, and not those he applied to his newspaper, or the rules would be arbitrary, given the public scope of the few fora in question.

Does the analogy apply to social media? Franklin was the publisher of his newspaper. As such, he was directly responsible for the content of the paper in a way that discussion platform operators are not. One might argue that their business is providing a space in which customers enjoy the conversation, cat videos, and so forth, making it more like Franklin’s newspaper. Hence the business model of any given social media platform might even require them to decide who to include and who to exclude. Some want to talk only with people on the Left. Others might want to talk only with people on the Right, etc. This competition would resemble the newspapers of the 19th century when partisan bias was a norm in the news business. But can that argument suit the largest platforms? Maybe and maybe not. Epstein is not wrong to be unsure at this point in time. The assumption that the current dominant position of Facebook and Twitter is not going to change might very well be mistaken. 

The initial creation and success of Parler might suggest that the barriers to entry are not so high as to justify such regulation. But recall that Parler was shut down when Amazon killed access to its servers. And Apple booted Parler from its app store. Eventually, Parler found other servers, but it took a while, and only after it changed the way it policed content.

And that might suggest that the common carrier issue, if there is one, lies here. In kicking Parler off its servers and app store, Amazon and Apple were doing what Franklin thought crossed the line. What was done to shut down Parler was the equivalent of telling someone to find another printer to publish their piece back in an age when printing presses were scarce. In other words, it might be that the place where the stagecoach/printing press analogy would apply is at the level of the networks and servers—Verizon and the others must allow access, as must the major server farmers in order to allow the kind of free and open discussion that deliberative democracy requires. Meanwhile, Mark Zuckerberg’s and Jack Dorsey’s censorship reveals the decline, among an influential swath of elite American public opinion, of belief in free, open, and public discussion of contentious issues. But the problem of such decline might be a separate issue from the merits of treating social media platforms as common carriers.

It will take a close policy analysis to find out how the many moving pieces ought to fit together. But it doesn’t hurt to start with the broad principles that Franklin expressed: We have a general right to use our own property in the way we see fit, but the public also has a right to access essential services. It is the role of prudential judgment to decide how best to balance these dynamic principles of freedom and responsibility.

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Cambridge, MA, April 1, 2014

In a move designed to foster diversity and to create a university that “thinks like America,” Dr. Drew Gilpin Faust, the President of Harvard University announced yesterday that the school will embrace egalitarian admissions. The school will no longer give priority to students with good grades, high SAT scores, and impressive extra-curricular activities. Such policies have, Dr. Faust acknowledged, created an “elitist” and “inegalitarian” atmosphere at the college. “It is unacceptable in 2014 to be favoring the intelligent over the unlearned, and the energetic over the slothful,” she proclaimed.

Starting next year Harvard’s incoming class will have SAT scores ranging from six to sixteen hundred to produce, for the first time, a truly diverse freshman class. The class’ scores will resemble the distribution of scores across the United States.

This mission will extend beyond admissions: “Harvard is now dedicated to fighting ‘thinkism” in all its guises. No longer will Professors grade students based upon how ‘well’ they think or write, or solve math problems or speak French.” Instead, fairness dictates that grades will be assigned by lot–like elections in ancient Athens, the only way to ensure that students who are “better prepared” for college or “better able” to read, write, and think, will not use their time at Harvard to perpetuate their educational and intellectual privilege.

A press release declares that “Harvard is now dedicated to serving the ‘differently intellectual’ and ‘differently learned’ or DIDL students.” The idea that some are “smarter” than others is a prejudice that we need to overcome. The twenty-first century, the era of Hope and Change, is an age of equality. Gone are the days when knowing the difference between “their” and “there,” or references to dead White European males like Goethe or Marlowe were used to perpetuate privilege. There is no reason to favor an applicant who has been reading Shakespeare since he was ten over one who has watched every episode of “Sponge Bob” fifty times.

This summer, the entire Harvard faculty will be trained in sensitivity to needs of DIDL students. There is talk of an, as yet undetermined, plan for affirmative action for “Low IQ Americans.” The Puritans who founded Harvard held that “there is no sin but ignorance.” But they also burned witches, Harvard noted.

Unconfirmed rumors suggest that the move was prompted by the threat of a lawsuit on behalf of the DIDL community by the Department of Education. Facing a court battle that the University was likely to lose, Dr. Faust made a bargain with Arne Duncan, Secretary of Education . . .

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What do rebellions tell us? A rebellion is, to quote Jefferson again, “like a storm in the Atmosphere.” They are a sign of disorder. Perhaps a better metaphor is that they are like a fever. They are a signal that there is something like a sickness in the body politic. People will always complain, and they often will have reason. But when they reach critical mass, it seldom happens that there is not somewhere behind it a legitimate claim. Mankind are more disposed to suffer, while evils are sufferable. That does not mean that the proximate complaint is, in fact, the true problem. Especially in a country with a long history of relative domestic calm, to see regular, recurring violence against persons and/ or property, as the US has seen since last May, is probably a sign that something is not right. The question is what to do about it.

Solutions must be tailored to particular problems. There are, however, general rules one might consider. We could do worse, and probably will, than to consider some lessons from the first serious uprising under the Constitution, the Whiskey Rebellion. In that case, as in so many others, President Washington offered something like a clinic in republican self-government. Herewith a few rules of action in such case.

Rule 1: Prevention

As noted, the purpose of having regular elections is to ensure that as much as possible, the government has the pulse of the people. Similarly, the reason why the Congress is Article I is that ensuring that the laws and rules under which citizens live are negotiated in the political process, and not in other, less democratic parts of government. The focus on the legislature as the heart of the system was, to a great degree, the line separating Whig and Tory in the American Revolution. Interestingly one of the few places in the official record of the Constitutional Convention where Washington contributed to the debate, rather than merely presiding over it was on the last day, when he supported reducing the size of Congressional districts from 40,000 to 30,000 people per representative, for “The smallness of the proportion of Representatives had been considered by many members of the Convention, an insufficient security for the rights & interests of the people.” He also noted that such a change would probably reduce popular criticism of the Constitution.

All governments rest on public opinion. As Madison noted, “public opinion sets bounds to every government, and is the real sovereign in every free one.” And Madison realized that it was important to ensure that the people supported the new government. That is one reason why Madison changed his mind about a Bill of Rights for the U.S. Constitution. At the Constitutional Convention, he agreed with James Wilson that because rights come from God and not from the King, the U.S. didn’t need a Bill of Rights. Yet Madison would soon become the Father of the Bill of Rights, probably even more than he was the Father of the Constitution. Why? The principal objection to the Constitution was the lack of a Bill of Rights. At Virginia’s ratifying convention, Madison pledged on his word as a man of honor, that he would work to ensure that a Bill of Rights was added to the Constitution. And he was as good as his word. He also ensured that the actual Bill of Rights that was passed minimized the real potential dangers in a badly written one, or one that included items that would have crippled the new federal government. The result? It was one reason why the U.S. Constitution went rapidly from approval from probably a bit over 50% at ratification to overwhelming approval.

President Washington himself tried to keep abreast of public opinion. One reason why he made sure to tour all the states in the first couple years after he was elected was both to generate support by the mere fact of his trip through the states, and to get in touch with the people throughout the Union to ensure he understood public opinion. (He had to make a separate trip to Rhode Island because they took so long to ratify the Constitution. One happy result was the famous letter to the Hebrew Congregation in Newport). Despite these efforts, Washington was, in the end, misinformed. Washington traveled up and down the coast. But the U.S. had vast inland territories, which were rapidly being settled, often by relatively new arrivals from Europe. Washington inquired about conditions on the other side of the Appalachian Mountains, but he did not get accurate information. The settlers were much angrier about the Whiskey Tax than he was told. And the rebellion swelled.

Step 2: Preemption

Try to defuse the situation before things get out of hand. If there are rumblings, try to cut them off as soon as possible. That’s what Washington did in the case of the Newburgh Conspiracy, as Natalie Taylor and Tillman Nechtman recently noted here. But in what order ought one to work?

First, one has to note that the protesters are crossing a very clear line as soon as they move from shouting, demonstrating and the like, with minimal pushing and shoving, to direct attacks on persons and/or property. Discontent is inevitable in every country, and public discontent is inevitable in every free country. As Madison put it in Federalist 10 “liberty is to faction as air is to fire.” The question is the nature of the discontent and the action taken by those who are not happy with public policy. The 18th century was a more violent time than our own. Fisticuffs, tarring and feathering, and worse were not all that unusual. The republic was designed to transform those violent rituals into more peaceful ones, and, to a remarkable degree, it did so. The republic would, in Hamilton’s words in the first Federalist, produce government by “reflection and choice” rather than “accident and force.” The key to that transformation was the rise of government by public discussion and public reason. Political violence is an attack on that system.

Hence the next step is public reason. On September 15, 1792, as the rebellion was gaining steam, Washington issued a “Proclamation” addressing the gestating rebellion. This Proclamation was an attempt to put forth the reasons why a violent response to the Whiskey Tax was unacceptable. He began, “Whereas certain violent and unwarrantable proceedings have lately taken place, tending to obstruct the operation of the laws of the United States for raising a revenue upon Spirits distilled within the same, enacted pursuant to express authority delegated in the Constitution of the United States.” Note the way Washington presented the issue. The tax is legitimate—“pursuant to the express authority delegated in the Constitution.” The “violent and unwarrantable proceedings” tend “to obstruct the operation of the laws.” The republic cannot be a government of laws, and not of men if such violent attacks on those who enforce the law are accepted. The resort to violence is, in other words, an attack on the foundation of the republic. These “proceedings,” he continued, “are subversive of good order, contrary to the duty that every Citizen owes to his Country and to the laws, and of a nature dangerous to the very being of Government.” In other words, Washington is trying to draw the rebels up, reminding them of their duties as men and citizens, as he had appealed to the enlightened self-interest of the would be Newburgh Conspirators. And, he added, the President doth “most earnestly admonish and exhort all persons whom it may concern, to refrain and desist from all unlawful combinations and proceedings whatsoever, having for object or tending to obstruct the operation of the laws aforesaid.”

That proclamation didn’t work, and things escalated in the West. The rebels started attacking would-be revenue collectors more actively. Not only that, they also attacked anyone who had the temerity to comply with the law. Washington tried a second warning that was more explicit that he would have to send in troops to end the insurrection. In August, 1794, he issued another Proclamation. This time he called up militia to prepare to subdue the Rebellion. The language of this proclamation largely tracks that of the first. In 1792 Washington pointed what he characterized as a good faith effort of the government to ensure that the law was reasonable. In 1794, he pointed to “the endeavors of the legislature to obviate objections to the said laws, by lowering the duties and by other alterations conducive to the convenience of those whom they immediately affect.” That point was, however, much disputed in the back country. If there was a mistake in Washington’s response this was it. If a large groups of citizens feels that their point of view is being ignored, and they have reached the point of active rebellion, then telling them that they’re wrong is more likely to generate anger than it is to generate submission to law. It is like telling someone who is having a hissy fit to “calm down.” And the rebels did not disperse.

Step 3: Resolution

If words and the threat of bringing in troops is insufficient to stop the violence, then it is time to bring troops in. And in late September 1794, Washington officially Proclaimed that the Counties of Western Pennsylvania were in open rebellion and he determined to use troops to end the uprising. At the start, Washington explains his thinking. “I thought it sufficient, in the first instance, rather to take measures for calling forth the Militia, than immediately to embody them.” Yet that proved to be insufficient. Hence, he notes, that “the moment is now come, when the overtures of forgiveness with no other condition, than a submission to law, have been only partially accepted—when every form of conciliation, not inconsistent with the being of Government, has been adopted without effect.” Note again the public reason. Washington is explaining that these attacks cannot be reconciled with the very “being of Government.” That is why a military response is necessary. It was necessary to defend the republican experiment, “as the people of the United States have been permitted under the divine favor, in perfect freedom, after solemn deliberation, and in an enlightened age, to elect their own Government; so will their gratitude for this inestimable blessing be best distinguished by firm exertions to maintain the Constitution and the Laws.”

When one does use force against one’s own citizens, one has to be smart about it. That entails selecting the target well, and using the right amount of force.

To state the obvious, no one likes to be attacked, and no one likes to see their neighbors attacked. In our day, images of police or National Guard attacking citizens are often used by clever organizers as recruitment tools. And it is often a tactic of radicals to undertake attacks that seem, to the uninitiated, to be minimally provocative, but which, in fact, need a strong response (think of using fireworks, which can spark larger fires, and laser pointers, which can cause permanent blindness, in Portland. Ditto “doxing” police officers who work to stop riots.  To prevent that, governments send in officers in unmarked cars, and officers with no name tags). What’s the goal? To make recruits by convincing people who might be somewhat sympathetic but disinclined to radicalism that the government is run by thugs who cannot be trusted. Hence sending in a small force, which is likely to result in pitched battles, is not usually a good idea. It is as likely to increase alienation from government as it is to restore lawful order. Curfews keeping everyone off the streets after dark seem to have worked much better this past summer.

Washington knew what he was doing. He gathered an overwhelming force of nearly 13,000 militia from New Jersey, Virginia, Pennsylvania, and Maryland. Moreover, Washington selected his target well. Anger at the Whiskey Tax, and resistance against it, was pervasive in the backcountry. Yet Washington focused on the part of the rebellion that took place in Pennsylvania. That was, perhaps, the best place for the strategy to work.  One has to be careful with such a strategy. It can backfire. The British had tried to focus on the rebellion in Boston after the Tea Party with the Coercive Acts of 1774. Rather than subduing Boston, the acts united the backcountry of Massachusetts with Boston, and the other colonies with Massachusetts.

Washington himself rode to Carlisle, Pennsylvania, demonstrating that he was in charge. Given Washington’s fame, and the love so many Americans had for him, reviewing the troops was also a way to provide an additional shot of confidence that these measures were necessary. Washington’s presence in Carlisle also allowed him to manage the troops himself, minimizing the chance that they would be zealous and abusive in their efforts to stop the rebels.  The troops went into the countryside, and the rebellion dispersed. It was ended more than it was actively put down. And that was a very important part of the success of Washington’s strategy. No martyrs were made, and minimal actual attacks by the militia on civilians. Hamilton wanted to make an example of some of the men who were caught in the end, to try them and execute them. Washington, almost certainly correctly, realized that that was a bad idea. He pardoned those who had been sentenced to death for their part in the insurrection. They would not become fallen heroes for the next wave of rebels to honor. By singling out the part of the Rebellion in Western Pennsylvania, Washington had, in fact, made an example of one group of rebels, even if he had also minimized actual violence. This was an important step. The U.S. was a new country. The nations of Europe were waiting for the republic to fail and/ or for the Union to break up. By ending the rebellion, Washington demonstrated that the government was capable of being a functioning government.

Step 4: Restoration

The problem was not yet solved. If people are disinclined to rebel in large numbers unless there are genuine injustices going on, one must address the underlying problems, even if one cannot be perceived to be doing so under duress. Aspirin alleviates fever, but does not end it until the disease has passed. Similarly, if a critical mass of people is angry enough to take up arms, they can, temporarily, be convinced to go back home.  But if the deeper problems that spurred the uprising remain, then it’s just a matter of time till clever, ambitious, and designing men gin up another rebellion. It is, in other words, a bad idea not to remove the factors that made the region a tinderbox in the first place.

In some ways this is the most difficult step. Why? Partly due to our emotions. After a battle we are angry at the other side. Magnanimity after victory is difficult. And there are always men, like Hamilton, who are eager to punish those they blame for the rebellion. They cannot see past their anger at the attacks on the laws, and perhaps on members of their political tribe to see what is truly best for the republic. It’s easy to dismiss their desires as wicked or misguided. Yet all governments rest on public opinion, a democratic republic more than any other. Public opinion is a political fact; it must be accommodated if there is to be no spiraling cycle of violence.

But the proximate cause of the rebellion and the deeper causes of the discontent are not always the same. To be sure, taxing whiskey was hard on people in the West because whiskey sometimes served as a medium of exchange in a region where coin was scarce. But there were deeper problems, and they could be addressed, and Washington ensured that they were addressed.

The Whiskey Rebels felt that they were not being represented. They sometimes pointed back to the resistance to the Stamp Tax. There was, of course, one significant difference: they were, in fact, represented. The colonists had zero representatives in Parliament. The West did have representatives. The trouble was that they were outvoted. All laws, however, will be unpopular in some places, and all taxes will bear harder on some than on others. In the West they sensed that they were poorer than those elsewhere, and yet this tax seemed to single them out. The requirement that they pay in hard currency, and other provisions seemed to be particularly unfair. That was just the luck of the draw, even if it was galling. There were also deeper problems.

They had to pay taxes that were hard for them to pay, and yet they were not, they felt, enjoying the benefits the U.S. Constitution was supposed to bring. They were in danger of attacks by Native Americans; the British were still in Fort Detroit, from which location they could provide guns and ammunition to Natives, and stir them up against the Americans, and, finally, Spain had closed the Mississippi to U.S. commerce, so they could not get their whiskey or other goods to market. In other words, they were paying for a government, but not enjoying the protections of life and limb that government exists to provide.  The result was they felt that they were being told to shut up and follow their “betters” the would be “gentlemen” who ran the government, and yet these “great men” were not, in fact, ensuring their safety and, hence, their ability to pursue happiness. It was as if the government was saying, “shut up, peasant; pay your taxes and be grateful we even allow you to vote. This country is not for you.” Many of these settlers were relatively recent arrivals in North America, and many, perhaps most of the others had been under the jurisdiction of King George, before July, 1776. Their loyalty was up for grabs. In this context, it’s worth remembering that in 1789 Andrew Jackson pledged his allegiance to the King of Spain. Perhaps that was just a means of allowing his goods to get to market, but even so it does demonstrate how fluid allegiance was in the West at the time.

In the early 1790s, John Adams had noted that the basic political passion was the desire to be loved, or, at least, to be recognized and acknowledged.

When a wretch could no longer attract the notice of a man, woman, or child, he must be respectable in the eyes of his dog. “Who will love me then?” was the pathetic reply of one, who starved himself to feed his mastiff, to a charitable passenger, who advised him to kill or sell the animal. In this “who will love me then?” there is a key to the human heart; to the history of human life and manners; and to the rise and fall of empires. To feel ourselves unheeded, chills the most pleasing hope, damps the most fond desire, checks the most agreeable wish, disappoints the most ardent expectations of human nature.

A significant portion of Americans in the West felt unrecognized, and unconsidered. That feeling is often at the heart of rebellion. Rebellions are often, in some ways, efforts of people who feel disrespected to put themselves on display, or to do so vicariously by associating themselves in their own minds with an heroic seeming Tribune who is himself conspicuous. To cite another version of this phenomenon, consider the story of Babel. (I’ll cite the King James translation, as it was a commonly used one in the Founding era). “And they said, Go to, let us build us a city and a tower, whose top may reach unto heaven; and let us make us a name, lest we be scattered abroad upon the face of the whole earth.” The people want a “name,” so they build a tower to put themselves on display. God does not approve, so he disperses men across the earth, and multiplies languages so that there is no universal communication. What is the result? There are now many communities around the globe, and there are now many more places in which men might seek recognition from their fellow men. A consolidation works the other way, and provokes a more intense competition for status and recognition. One purpose of our federal system is to allow for just such a multiplication of communities, and dispersing political competition.

Back to the back country. These were still, in a sense, frontier regions. They were in the process of setting up their local institutions which could provide a field for the settlers’ ambitions on any significant scale. The area still had not achieved a regular republican order.

Between 1794 and 1796, Washington addressed many of the underlying problems. He sent troops and they effectively secured the region for U.S. settlers. (One of the tragedies of U.S. history is that the creation of our republic of free and equal citizens, something which we are still working on, seemed to require the end of Native sovereignty over territory in most of North America. The 1795 Grenville treaty made that official in most of the old Northwest.) Also in 1795, the U.S ratified the deeply unpopular Jay Treaty. It was unpopular because it represented, in some ways, a knuckling under to Britain. Yet it also made Britain’s exit from Fort Detroit official (after the 1794 Battle of Fallen Timbers, it no longer had much strategic use for the British). And, precisely because the Jay Treaty seemed to make the U.S. the junior partner of the British, giving the British most favored nation status, even as the U.S. did not get the same respect in Britain’s possessions, it scared the Spanish into making a good settlement of the questions in the Southwest—the Mississippi River would now be open for U.S. trade, and the border settlement was quite favorable to the U.S. History is often full of ironies. And political life is often unfair. Few Americans made a direct connection among these actions and the treaty with Spain, and, beyond that, the larger prosperity those treaties fostered.  Those goods would seldom, in the public mind, be connected with the hated Jay Treaty. In other words, having taken necessary actions for the good of the republic, Washington’s reputation nonetheless suffered.

The key point is that, thanks to these actions, Washington addressed many of the underlying grievances that had made the West fertile soil for rebellion. Moreover, it was clear that the government was, in fact, listening, for they now had many fewer worries about being attacked by Natives, and they could ship their goods down to New Orleans, and from there out to the rest of the world.

Lessons

Washington’s response was measured and thoughtful. The goal of democratic-republicanism, a new thing in his day, was to ensure that the people’s voice is heard regularly and respected in the centers of power. It is also designed to show respect to citizens across the country, and make them feel that they are, in fact, being heard. A rebellion is often a sign that that system is breaking down, or that, in the case of the Whiskey Rebellion, has not yet truly been set up.

The purpose of the system being to replace bullets with ballots, any sustained political violence has to be crushed. But a republican statesman cannot allow anger at the disorder to obscure the likelihood that there are real grievances at work. Hence, after subduing the rebellion, and, if possible, making no martyrs for the cause, he needs to find a way to address whatever legitimate grievances are at work, or the effort to put down the insurrection will only be a temporary reprieve from political violence, and the danger to republican practice will only increase.

As we know from the Civil War not all grievances can be addressed. Some disagreements grow from incommensurable views and desires.  As Jefferson noted at the time of the Missouri Crisis, when there is “A geographical line, coinciding with a marked principle, moral and political” that divides the nation, then the problem is not that there is a temporary sickness in the system, but, instead, that there are, essentially, two incompatible republics. But such cases, thankfully, are relatively rare, provided our leaders recognize and respect public opinion, and try to meet it where it is, and treat public opinion with the respect it deserves if citizens are to be respected as equals, rather than trying to censor it and to shut it down.

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The rash of Covid rule-breaking among our leadership class makes me wonder if Americans, at least those in our leadership class, still believe in that standard. (It was, to be sure, never entirely true, but it was, historically, more true in the US than in most countries). Consider a few instances.  Deborah Birx, one of our national health leaders in defeating the Corona virus, was guilty “of breaking her own travel guidance.”  In that, she was not doing anything that California Governor Gavin Newsom,New York Governor Andrew Cuomo, and many others haven’t done.  Perhaps the image of New York City Mayor Bill De Blasio and his wife dancing in Times Square on New Year’s Eve, while just about everyone else in the city was stuck inside is hard to top as an example of this phenomenon.

Dr. Birx’s excuse for breaking the rules that she promoted is illuminating.  As the New York Post notes, “her parents were so down in the dumps, they ‘stopped eating and drinking.’”  “’My daughter hasn’t left that house in 10 months, my parents have been isolated for 10 months. They’ve become deeply depressed,’ Birx said of the need to “recover from the trauma of the last 10 months.’”  As the story points out, that “justification [was] ripped by people who said it was her coronavirus restrictions that prevented them from seeing their own dying loved ones.” 

What gives? Dr. Brix is an expert. It’s not a big leap to conclude that she thinks she knows better than others how to navigate around the rules in a way that would still mean that there’s little chance of exposure.  Even so, a more thoughtful bureaucrat would understand that in a democratic nation there cannot be one standard for leaders and another for other citizens. To uphold the standard it must apply to oneself.

And the others?  Hypocrisy, like sin, is as old as Adam.  Even so, one wonders why politicians are so cavalier about following their own standards. Gavin Newsom is no scientist. He doesn’t even play one on TV.  But he and, presumably the others who attended the infamous dinner at The French Laundry, think highly of themselves.  They’re educated, and therefore are capable of making prudent judgments about when it might be reasonable to bend or even ignore the regular rules of conduct.  After all, no one, it seems, actually got sick at the French Laundry dinner.  At least I have not read of any cases. Perhaps there was one or two. One hopes the other cases of rule breaking had the same result. It is, however, true that several politicians have gotten Covid. But it is not clear what percent of those cases are due to hypocritical rule breaking.

The question is why aren’t we common citizens equally entitled to make such judgment calls.  There is a technical term for a regime in which the ruling class has one set of rules applying to it, and the common residents (“citizens” is the wrong word in this context) have to live by another set of rules because they, per the ruling class, cannot be trusted to abide those same rules with success. That term is “aristocracy.” It is what we Americans rejected in the founding era. The great struggles for racial equality were struggles to make US practice more in line with the US ideal.

That’s what is so concerning and revealing about Dr. Fauci’s “noble” lies.  Early in the pandemic, he lied about the efficacy of masks, downplaying their importance. Why? “”[W]e were concerned the public health community, and many people were saying this, were concerned that it was at a time when personal protective equipment, including the N95 masks and the surgical masks, were in very short supply.”  And more recently he lied about herd immunity: “When polls said only about half of all Americans would take a vaccine, I was saying herd immunity would take 70 to 75 percent … Then, when newer surveys said 60 percent or more would take it, I thought, ‘I can nudge this up a bit.’ so I went to 80, 85.”  In other words, he was managing the “truth” because he thinks his fellow Americans can’t handle the truth.  He was trying to shape American behavior, a task that, one would think, would not be the job of a civil servant.  Moreover, his chosen tactic was not rational persuasion. Instead, he chose to lie. And that’s a problem.

An equal America, and a democratic America is one in which the people can be trusted with the truth, and can be expected to be responsible about it.  It would be more honorable, and it would do more honor to democracy for Fauci to have said in February and March something like “masks probably are helpful, [it was early, and the data were not yet conclusive] but they are in short supply, so please hold off and let our hospitals and health workers buy them for now until production increases.”  Similarly, a more honest and straightforward leading by example would be to take the vaccine in public to show it’s safe, followed up with exhortations to take the vaccine because it’s necessary for normal life to resume.  Lying to the public is the easy, and anti-democratic way out. 

Fauci is a senior civil servant. He has been at or near the top of America’s public health bureaucracy since the AIDS epidemic of the 1980s.  If he and others at that level think not simply that they are more expert than non-scientists, but if they also think that less educated Americans cannot be trusted to govern themselves in their day to day affairs, it suggests that our bureaucracy is turning into a post-modern form of robe nobility, with its own prerogatives and aristocratic elan.  That Johns Hopkins University pulled a study showing that, thus far, Covid has not produced a net increase in mortality in the US, not because the data or conclusions were faulty, but rather because they worried that their fellow citizens might draw the wrong inferences from the data, suggests that as well.

This is not to say that democratic governments never have secrets, and never have to hide the truth in extreme circumstances. All governments have to do that sometimes, as Gabriel Shoenfeld’s fine Necessary Secrets points out. General Washington had so little powder at the Battle of Boston that he hid that truth from just about everyone. It was not a “noble lie” produced for the better management of the common soldiers.  It was, on the contrary, a necessary lie to bluff the British, and keep them from attacking when they had the advantage.

I am reminded of a passage in Henry Adams’ novel, Democracy.   The historian Nathan Gore (in some ways a proxy for the author), gives his political creed:

I believe in democracy. I accept it. I will faithfully serve and defend it. I believe in it because it appears to me the inevitable consequence of what has gone before it. Democracy asserts the fact that the masses are now raised to a higher intelligence than formerly. All our civilisation aims at this mark. We want to do what we can to help it. I myself want to see the result. I grant it is an experiment, but it is the only direction society can take that is worth its taking; the only conception of its duty large enough to satisfy its instincts; the only result that is worth an effort or a risk. Every other possible step is backward, and I do not care to repeat the past. I am glad to see society grapple with issues in which no one can afford to be neutral.

Note the line “democracy asserts the fact that the masses are now raised to a higher intelligence than formerly.”  Formerly, in the Old World, the governing class assumed that the mass of men were too stupid to be trusted with serious power, or real decision-making authority.  Similarly, they assumed that only the fear of the lash and of starvation could get most men to work.  The American democracy, per Adams, was built upon a belief that the common man (we would say the common citizen, male and female), is capable of thinking. He needn’t be talked down to by governing officials. 

American Progressivism, although it claims to be democratic, has always had a strong Tory streak.  To be sure, in the place of the old aristocracy it places the modern expert with an academic credential, but the result is the same.  At the end of the day, it presumes that we the people can never know enough to manage our affairs.  Our freedom, in this Progressive dispensation is the freedom not of men who make their way in the world, taking on the responsibilities of providing food, shelter, health care, and the like for themselves and their families as much as they possibly can, but, instead, it is freedom of lifestyle liberalism—the post-modern version of bread and circuses. Don’t worry your pretty head with political judgments and public policy. Run along and enjoy your pleasures as they come.

It might be that today’s politics are so tense, and intense, because, thanks to Covid and the lockdowns, there’s no circus to be had, and the citizens are getting restless, as they begin to realize what is being taken away from us by our would-be betters. 

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