To be sure, the philosophical divide between postliberals and market-oriented conservatives (and classical liberals) goes deeper than the policy divide. But Americans, and conservatives in particular, have long had experience with modus vivendi-type policy coalitions constructed out of groups with incompatible philosophical commitments.

“Externalities” are costs or benefits imposed on (or received by) people not party to a market exchange or action. The action or exchange of one set of people imposes costs (or confers benefits) on others who are “external” to a transaction. A canonical example of a negative externality is an increased probability of lung disease as a result of breathing auto emissions from other people’s cars. An example of a positive externality is those spared from contracting an infectious disease because other people got vaccinated and, as a result, did not transmit the infection.

The above are textbook examples of externalities. While rightwing postliberals (and left-wing anti-neoliberals) generally eschew conventional economic jargon, many of their criticisms of markets or market outcomes really only argue for the recognition, and remediation, of un- or underrecognized negative externalities. Postliberal arguments can be accommodated by existing market theory, albeit by that part of market theory that considers market failure.

For example, while the market’s “creative destruction” can expand the economic pie, the process can also impose real costs on people in the form of disrupting lives and communities formed in reliance on settled, if imperfect, expectations of the future. (This is Karl Polanyi’s basic argument in The Great Transformation.) Another example is that increased globalization can attenuate supply chains. This can increase the fragility of domestic markets, thus making economic disruption more likely in response to otherwise remote events across the globe.

While these may seem like novel arguments, careful market theorists have long recognized that the idea of “cost” is broader than often conceived. For example, Harold Demsetz observed in his seminal 1967 article in the American Economic Review, “Toward a Theory of Property Rights,” that externalities can be both “pecuniary as well as nonpecuniary. No harmful or beneficial effect is external to the world.”

Similarly, F. A. Hayek rejected blanket ideological “appeals to the principle of non-interference” in the market economy. He endorsed empirical rather than rationalistic (or a priori) approaches to policy, arguing that government measures to address policy issues like negative externalities “must be examined in each instance” to judge in each case whether “costs will outweigh the advantages.”

This does not mean giving a free pass to the mere assertion that the benefits of remediating a negative externality exceed the cost, but it does mean that evidence rather than ideology should be the guide on both sides of the policy argument.

This is not new. Adam Smith proleptically exemplified Hayek’s admonition when discussing a rationale that would justify national restrictions on free trade.

Adam Smith on National Defense and Free Trade

While generally favoring free trade in The Wealth of Nations, Adam Smith nonetheless famously argued that national defense can justify restricting trade with other nations in order to encourage domestic production or conservation of strategic materials needed for defense. Often styled as an argument Smith provided in favor of tariffs, Smith’s argument discussed the possibility that government subsidies (“bounties”) be provided for domestic production of goods critical to defense (rather than tariffs).

While Smith argued in application to a specific policy domain, the form of Smith’s argument is simply a specific example in which the benefit of the trade restriction is greater than the cost; he applies a simple cost/benefit calculus.

Smith provides an argument from an externality. That is, he argues that government intervention would provide a benefit beyond, or external to, the benefits to the parties immediately engaged in international trade of a particular good critically needed for national defense. The loss of the gains of trade to the nation, which occurs with certainty, would be compensated by a probabilistic increase in security.

The value of “increased security” would result from a lower probability of conflict breaking out in the first instance as a result of maintaining domestic production of the critical good, or from an increased probability of winning a conflict or minimizing the magnitude of loss should war actually break out.

The aura of mathematical calculation should not divert attention from the highly subjective elements involved in reasoning through the tradeoffs; the identification or calculation of the underlying parameters—the comparative probabilities that a conflict breaks out with and without the policy intervention, and the cost of a conflict if one does break out—is fraught with subjective judgment calls.

Yet while subjective, the necessity of making the judgment calls is inescapable. As a result, there would likely be policy debate over the magnitude of the foreign threat, the fragility of the international supply of the critical defense good, and over the actual dependence of the nation’s defense on the particular good in dispute. The accuracy of these judgment calls would be known, if ever, only in retrospect. As a result, the policy debate would be entirely appropriate and, again, inescapable.

While Smith limits his argument to national defense (although other externalities make an appearance later in The Wealth of Nations), the form of Smith’s argument is not similarly limited. The policy question is what external benefit or loss we seek to obtain or avoid with a policy intervention relative to the cost of that intervention. (And, to be sure, not all externalities require government intervention to solve. Nonetheless, externalities involving numerous actors unable to easily coordinate their behavior will typically require government intervention. That said, calibrating the appropriate type or level of government intervention in response to an externality can be fraught with practical difficulties.)

While goods like avoiding economic and social disruption of communities, or promoting national solidarity or national greatness, or increasing the availability of meaningful industrial jobs all require the making of highly subjective judgment calls on the nature of the benefit, they’re not really different animals than Smith’s argument justifying policy intervention in international trade to improve a nation’s defense capacity.

Importantly, that does not mean that the assertion of an amorphous, subjective “good” always wins the policy debate, but it does mean that the existence of an amorphous and subjective good does not rule out the need for authentic policy debate. Indeed, careful modern property rights analysis recognizes that identifying what externalities “count” for intervention changes with changing circumstances.

Externalities Change Over Time

Much of the debate today between postliberals and traditional market-oriented Reagan conservatives is, implicitly, an argument over what counts as an externality; that is, what interests we recognize as belonging to people and therefore what counts as a harm when taken away.

Postliberals and (some) populists, for example, advance interests of social solidarity and the dignity of manufacturing work as elements lost with the globalization of US trade. While these may be novel assertions in the context of the sorts of values policymakers (and academics) have typically considered in recent generations, their novelty does not really present a problem for bringing those values within the traditional theoretical structure of policy debates regarding externalities.

As noted earlier, in his 1967 AER article, Harold Demsetz pointed out that externalities can be “pecuniary as well as nonpecuniary.” While there are issues of identification and measurement, that interests such as solidarity and dignity are “nonpecuniary” does not rule out recognition of their loss as externalities.

Even more piquantly in Demsetz’s discussion is his observation that our concepts of what constitutes an “externality” naturally change over time with the advent of new economic and social circumstances. Demsetz’s argument in his 1967 AER article is dense but important:

Every cost and benefit associated with social interdependencies is a potential externality. …

Changes in knowledge result in changes in production functions, market values, and aspirations. New techniques, new ways of doing the same things, and doing new things-all invoke harmful and beneficial effects to which society has not been accustomed. … The emergence of new property rights takes place in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities.

While interests such as social solidarity and the dignity of manufacturing work aren’t property interests in a narrow sense, the argument nonetheless is that in some identifiable way, these aspects of life and work “belong” to Americans and, as a result, their loss represents a real loss to many Americans. This loss, postliberals and populists argue, deserves to be taken into consideration when weighing policy costs and benefits.

Discussion of social reliance interests related to policy change is a matter of course in other areas. For example, US courts consider the significance of “reliance interests” in current law as one factor judges take into consideration when contemplating changing or overturning legal precedent. While the terminology is borrowed from contract law, no one suggests that overturning a judicial precedent constitutes an actionable breach of promise or an actionable deprivation of a property interest. Nonetheless, as a matter of legal policy, judges consider social reliance on previous decisions, and the cost of confounding settled reliance interests, as a relevant factor when considering whether to overturn precedent.

Identifying and Measuring External Costs

That postliberal criticisms of the market can fit within a well-known category of “market failure” does not, of course, resolve the policy debate. The question, as in all policy debates, is what’s the evidence that a problem exists and what’s the evidence that a proposed policy solution would actually address the problem?

On the one hand, simply asserting that “the pervasive logic of the market system has caused a decrease in social solidarity in the US” isn’t enough to warrant policies with real economic costs. (Nor is de rigueur citation of Karl Polanyi’s 1944 book The Great Transformation.) After all, even in a planned economy in which the means of production are wholly socially owned, changes in the technology of production or in consumer preferences would require planning boards to deploy labor and capital in new and different ways. These changes are no less socially disruptive simply because a planning board instigated them rather than the market. Further, social policies in market economies can cushion the impact of these changes without jettisoning the market in toto. Recall, after all, that Polanyi does not criticize economic change in itself, and he underscores that the system he advocates would make ample use of markets. Rather, Polanyi criticizes market “systems” (let the reader understand!) in which abstract market forces dictate an unduly rapid pace of economic change.

At the same time, the difficulty of empirically accounting for phenomena like social solidarity and dignity does not mean that the phenomena do not exist. In this, as in other policy debates, we must avoid repeating the error of Sir Arthur Eddington’s ichthyologist, who uses a net with a two-inch mesh to catch the fish he studies. When then asked about the study of fish that are less than two inches long, the ichthyologist nods, dismissively waves his hand and responds, “That’s no problem, ‘cuz what my net can’t catch ain’t fish.”

But this also doesn’t mean giving postliberals a pass on evidence and proof. For example, in their book The Politics of Virtue, John Milbank and Adrian Pabst criticize the materialism of modern market economies while also repeatedly (and implausibly) claiming that many of the policies they advocate won’t have any significant negative impact on current living standards. Yet if, in fact, renewed social solidarity and dignity (and other values postliberals identify) are valued by people, then they would be willing to trade away at least some material gain to obtain these greater goods. “Man does not live by bread alone,” after all.

The point, however, is that postliberals and traditional conservatives can have a policy debate on grounds that are recognizable in market theory. Postliberals press the outer boundaries of what we normally consider to be negative externalities. But that’s to be expected, if not actually predicted, as Demsetz observes, given the dramatically changing “social interdependencies” that result from globalization and from the extent that the market penetrates modern life.

To be sure, the possibility of shared areas of policy agreement neither entails nor necessitates philosophical convergence between postliberals and market-oriented conservatives (and classical liberals). Nonetheless, recognizing the possibility of a modus vivendi in some areas of policy would allow these philosophically divergent groups to move ahead together in substantive policy areas.

The post The Externalities of Postliberalism appeared first on Law & Liberty.

Judge Moses’ decision may be a legal victory for DHS over the state of Texas on the narrow issue of the preliminary injunction, but as Pyrrhus said after a costly victory over Roman forces, “Another such victory and we are undone!”

The opinion provides a devastating indictment of the actions of DHS agents in the Eagle Pass region of Texas: Not only does Moses conclude that DHS agents are not effectively securing the border against illegal entry from Mexico into the US, she writes that the evidence shows some DHS agents in the region are acting in ways seemingly calculated to circumvent the very laws they are supposed to be enforcing.

More broadly, in its arguments seeking to justify its agents’ actions creating holes in or removing sections of the concertina wire—“c-wire”—that Texas laid to stem illegal border crossing, DHS does not argue that Texas’s actions overreach the state’s authority and impinge on national authority. That is, DHS does not argue that its constitutional or statutory authority broadly preempts Texas’s actions in laying the wire. Rather, in arguments rejected by Judge Moses, DHS claims only that Border Patrol agents had statutory authority to remove limited parts of Texas’s barrier to allow DHS agents to achieve specific and limited statutorily-granted purposes. (And, even then, DHS Border Patrol acted excessively in the Eagle Pass area according to Moses.)

The legal dispute between DHS and Texas has a number of moving parts that have been lost in the hyperbolic public discussion that has ensued. Let’s break down some of these parts.

A Narrow Win for DHS

The Supreme Court win of DHS over Texas reinstates District Court Judge Moses’ original decision denying Texas’s request for a “preliminary injunction” pending a trial on the merits of the state’s claim. (More on the exceptional nature of a preliminary injunction below.) Her decision was overturned on appeal by the Fifth Circuit Court of Appeals. The appellate decision was then in turn overturned by the US Supreme Court.

In summer, 2023, Texas began placing c-wire in different parts of the Rio Grande River to prevent illegal border crossing. US Border Patrol Agents subsequently began cutting the c-wire, in particular c-wire set up on the border between Mexico and the US around Eagle Pass, Texas. Doing so allowed illegal border crossings at points that the c-wire had prevented. In response, Texas filed suit in Federal District Court asking the court to halt the Border Patrol’s cutting of its c-wire (except for reasons limited to those necessary to allow the Border Patrol to respond to medical emergencies). Texas additionally requested a preliminary injunction to prevent DHS from continuing to cut or remove Texas c-wire before the trial on the merits could be held to determine the legality of the DHS agents’ actions.

Importantly, all of the subsequent appellate judicial action after this, from the Federal District Court, through the Fifth Circuit Court of Appeals, to the US Supreme Court, concerns only Texas’s request for the preliminary injunction. As Judge Moses notes in her decision, “A preliminary injunction is an ‘extraordinary and drastic remedy.’” In her decision denying Texas’s request, Judge Moses nonetheless agreed that Texas had met the four basic requirements to issue a preliminary injunction. That is, she held that Texas demonstrated,

i. “a substantial likelihood of success on the merits of the underlying action” (which would require DHS to compensate Texas for its destruction of Texas property and/or prevent DHS from cutting Texas c-wire except under limited conditions);

ii. “substantial injury to the moving party if the injunction is not granted”;

iii. “that the injury outweighs any harm that will result if the injunction is granted”;

iv. “that granting the injunction will not disserve the public interest.”

So why did Judge Moses rule against Texas’s request for a preliminary injunction? This is where things become a bit eye-glazing.

To understand the next step, we need to keep in mind that both state and federal governments enjoy “sovereign immunity,” meaning that governments cannot be sued except by their own consent. This consent is given by governments through statutes enacted by their legislatures. So Congress can statutorily waive sovereign immunity for the US government. It is a matter of interpreting specific statutes, however, to determine whether Congress has waived sovereign immunity for specific legal claims filed against the US.

While Judge Moses concluded that the US government had statutorily waived its sovereign immunity for suits seeking monetary compensation in cases such as the one Texas brought against DHS, she concluded that the statutory waiver of sovereign immunity did not “unequivocally” include “Congress’s consent to all non-monetary actions arising out of the [Administrative Procedures Act]” (emphasis added). And, unlike the lawsuit itself (which could result in monetary damages) the preliminary injunction as Texas had requested was, necessarily, just such a request for a “non-monetary” action. Judge Moses also noted that sovereign immunity is waived only with respect to “final agency action” (emphasis added) and it was unclear that the border agents’ actions around Eagle Pass represented a “final agency action” by DHS.

As a result, Judge Moses denied Texas’s motion for a preliminary injunction.

Reviewing only the question of the preliminary injunction, the Fifth Circuit Court of Appeals held that Judge Moses “legally erred with respect to sovereign immunity.” So the Fifth Circuit Court granted Texas’s request for a preliminary injunction to stop DHS from “damaging, destroying, or otherwise interfering with Texas’s c-wire fence in the vicinity of Eagle Pass, Texas” prior to the trial.

The US Supreme Court decision also reviewed only the question of the preliminary injunction and reversed the Fifth Circuit’s decision. This decision re-instated Judge Moses’ original decision which, again, only denied Texas its request for a preliminary injunction.

For all the judicial activity, none of the decisions deny Texas’s underlying claims. In fact, as noted above, Judge Moses concluded that Texas is likely to win on the merits of its case.

Now to turn to the broader issue in the case, whether Texas is usurping national authority over border control by laying c-wire along parts of the state border with Mexico and the behavior of Border Patrol agents in the Eagle Pass region of Texas.

What the DHS Does Not Argue

While some parties on both sides of the dispute over Border Patrol agents cutting Texas’s c-wire around Eagle Pass suggest it raises constitutional issues of state versus national power over border control, the case, in fact, raises no such question. DHS has not asserted that it has the authority to cut or remove Texas’s c-wire because Texas actions are broadly preempted by national constitutional or statutory authority. In asserting its limited authority to cut Texas’s c-wire at specific points, it implicitly concedes that Texas’s actions laying the c-wire in the Rio Grande is a result of shared state and national authority over the border.

It bears noting that it is surely the case that if the US national government wanted to preempt Texas’s action it could do so. But doing so would require additional legislation. (Legislation that the current Congress is unlikely to approve.)

Border control is not like the dormant Commerce Clause, in which national authority has been held to be exclusive, and so states are forbidden from regulating interstate commerce irrespective of whether Congress has passed any law actually regulating the same interstate activity as the state.

Rather, states and the national government share concurrent authority over their shared borders unless the national government enacts legislation that preempts state border controls. Even the Supreme Court majority in the 2012 preemption case of Arizona v. United States fully recognizes shared state and national authority over the border in the absence of congressional legislation preempting specific types of concurrent state regulations of illegal immigration.

In the case of Texas’s c-wire around Eagle Pass, DHS asserted only that it had authority to cut or remove the c-wire for two statutorily limited reasons. Judge Moses summarized these as “(1) to discharge their statutory obligation to inspect, apprehend, and detain individuals entering the United States; and (2) to prevent or address medical emergencies.”

Judge Moses is withering in her rejection of both of the proffered DHS justifications for cutting or removing Texas’s c-wire.

Moses begins with a recitation of the Border Patrol’s “principal statutory objective … to deter illegal entry into the United States.” She notes the manifest difficulty that the Border Patrol has had doing so: “Border Patrol encounters with migrants illegally entering the country” increased from a “paltry 458,000 in 2020, to 1.7 million in 2021 and 2.4 million in 2022.” The number in 2023, she notes, is expected to meet or exceed the number in 2022.

This is an increase of over 500 percent in “encounters” over a three-year period.

Judge Moses notes that Texas’s c-wire efforts have proven “effective” at decreasing illegal border crossing. The number of illegal border crossings decreased by over two-thirds in other border areas in which Texas laid its c-wire. In these other areas, she notes, “Border Patrol is grateful for the assistance of Texas law enforcement, and the evidence shows the parties work cooperatively across the state.”

She adds, however, “The Eagle Pass area … is another matter.”

Border Patrol’s Culpability

In Eagle Pass, the evidence Judge Moses rehearses suggests not only that the Border Patrol in that area is not attempting to deter illegal entry into the US, it is actually facilitating illegal entries. She seems aghast at what the evidence shows. She summarizes one piece of video evidence submitted before her court:

In the video, Border Patrol agents are cutting a hole in the wire to allow a group of migrants to climb up from the riverbank. However, another hole already exists in the wire, less than 15 feet away, through which migrants can be seen passing. After completing the second hole and installing a climbing rope for migrants, agents then proceed to further damage the wire in that area and cut a third hole further down. Meanwhile, in the background, a Border Patrol boat can be seen situated in the middle of the river, passively observing a stream of migrants as they make the hazardous journey from Mexico, across the river, and then up the bank on the American side. At no point are the migrants interviewed, questioned as to citizenship, or in any way hindered in their progress into the United States.

Border Patrol agents can be seen cutting multiple holes in the concertina wire for no apparent purpose other than to allow migrants easier entrance further inland. Any rational observer could not help but wonder why the Defendants do not just allow migrants to access the country at a port of entry. If agents are going to allow migrants to enter the country, and indeed facilitate their doing so, why make them undertake the dangerous task of crossing the river? Would it not be easier, and safer, to receive them at a port of entry? In short, the very emergencies the Defendants assert make it necessary to cut the wire are of their own creation.

Moses adds that “making matters worse are the cynical arguments of the Defendants in this case” in which Border Patrol agents claim that the illegal immigrants are “in custody” despite the fact that “no Border Patrol agent can be seen making any sort of effort to physically restrain them.”

After reviewing the evidence, Moses’ conclusion all but beggars-the-imagination:

The Defendants cannot justify their wire-cutting based on purported “apprehension” and “detention” of migrants after they cross through the fence in the face of testimony of both parties strongly suggesting neither occurs without migrants’ willing cooperation. … By ignoring the blatant criminal context of where, when, and how these “applicants for admission” enter the United States, the Defendants apparently seek to establish an unofficial and unlawful port of entry stretching from wherever they open a hole through the Plaintiff’s fence to the makeshift processing center they established on private land a mile or more away. The Defendants even appear to seek gates in the Plaintiff’s fence that the Defendants can control to facilitate this initiative.

Moses makes similar hash out of the Border Patrol’s claim that it needed to remove or make holes in Texas’s c-fence in order to respond to medical emergencies. She notes that Texas never objected to actions necessary to respond to medical emergencies, but that the changes made in the c-fence by the Border Patrol were more numerous and longer-lasting than necessary to respond to any actual emergencies.

While Judge Moses decided in favor of DHS on the technical legal ground that Congress had not waived sovereign immunity to allow for the preliminary injunction Texas requested, the bulk of her decision is a sweeping and devastating indictment of Border Patrol activity in the Eagle Pass area. It is cold comfort that Moses finds no “final agency action” in the behavior of the Border Patrol in that area. If the Border Patrol behavior in the Eagle Pass area does not represent official agency action, then it represents a stunning inability of a powerful Federal agency to control rogue behavior by its agents; behavior that manifestly flies in the face of that agency’s charter for existence.

The post A Borderline Case appeared first on Law & Liberty.

The case concerns legal challenges in North Carolina courts to the North Carolina legislature’s congressional redistricting map. Congressional redistricting is a national-level responsibility given to state legislatures in Article 1, Section 4 of the U.S. Constitution. The text provides that the “times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by Law make or alter such regulations.”

The North Carolina legislature, advancing the “independent state legislature theory,” claimed that the constitutional text confers redistricting powers exclusively on state legislatures. If read this way—which is consistent with the way other similarly-worded constitutional texts are read (such as regarding state legislative ratification of constitutional amendments)—the North Carolina legislature’s redistricting map is constitutionally the final word on the matter and cannot be challenged in North Carolina courts. (It also means that governors have no power under the U.S. Constitution to veto redistricting legislation and that states cannot remove redistricting authority from legislatures and give that authority to specialized redistricting commissions.)

In rejecting the independent state legislature approach to this provision, the problem with the majority opinion is not that it reads “legislatures” in Article 1, Section 4 as a synecdoche for full state legislative processes (including executive vetoes and judicial review). After all, the reference to “Congress” in the very same sentence of the Constitution is read naturally as a synecdochical stand-in for the full national-level legislative process.

Rather the problem with the majority’s opinion is one of inconsistent interpretation of similar language across the Constitution. The Supreme Court provided the correct reading of Article 1, Section 4 in this case—or at least the most reasonable reading of this provision. But the majority ties itself into rhetorical knots trying to justify reading the same language differently in other parts of the Constitution.

The irony is that the Court has a long line of precedent in which it has read, and still reads, state-legislative authority in these other, similarly worded parts of the Constitution fully consistent with the most radical versions of independent state legislature theory. As such, the Court’s reasoning in Moore gives lie to so much of the hyperbolic commentary prior to the decision about how novel and radical the “independent state legislature theory” is.

It’s the majority’s attempt to justify its inconsistent reading of the same words in different parts of the Constitution that’s the problem with its opinion. To be sure, as Ralph Waldo Emerson’s quip goes, a foolish consistency is the hobgoblin of little minds. Nonetheless, the majority’s reasoning falls flat. Ultimately, it identifies little more than a proverbial “distinction without a difference.” There is little reason that constitutional delegation of national decision-making power to state legislatures should not be read uniformly across the Constitution, whether as an exclusive grant to state legislatures themselves, or, more reasonably, reading “legislatures” as a synecdoche for state legislative processes more generally.

State Legislative Decision-Making in the U.S. Constitution

To understand the Court’s seesaw interpretation of the role of state legislatures in the national Constitution, it is useful to canvas the various provisions that provide decision-making specifically for state legislatures. The several national constitutional provisions providing for state legislative participation in the national government are:

• The original version of Article I, section 3 that provided for state-legislative selection of U.S. Senators. (The election of U.S. Senators was of course subsequently changed to direct elections by the Seventeenth Amendment);
• Article I, section 4, the provision at issue in Moore v. Harper, in which state legislatures prescribe the time, manner, and place for selecting House members and Senators;
• Article I, section 8, in which Congress can assert exclusive legislation “over all places purchased” from within a state, with the proviso that the purchase must occur “with the consent” of the “legislature of the state”;
• Article II, section 1, which designates that state legislatures stipulate the manner of appointing presidential electors;
• Article IV, section 3, requiring that state legislatures consent when a state is formed by the “junction of two or more states, or parts of states”;
• Article IV, section 4, which allows U.S. national intervention in a state in a case of domestic violence “on application of the legislature, or of the executive (when the legislature cannot convene”;
• Article V, which provides for state-legislative ratification of constitutional amendments (as well as calling a constitutional convention “on application of the legislatures of two-thirds” of the states).

In Moore, the majority sought to distinguish by “function” the role of state legislatures and, subsequently, when state legislatures act alone (by way of implicit application of the independent-state-legislature theory) and when the constitutional reference to “legislature” is a synecdoche for the broader state law-making process.

In doing so, the Court focused on the functions specified in four constitutional provisions in particular: national purchases of land, ratification of constitutional amendments, electing U.S. Senators (prior to the adoption of the Seventeenth Amendment), and redistricting House districts as part of the state legislative charge to “prescribe” the “time, places, and manner of elections for U.S. Senators and Representatives.”

The majority argued in Moore:

[The] Hawke and Smiley [cases] delineated the various roles that the Constitution assigns to state legislatures. Legislatures act as “Consent[ing]” bodies when the Nation purchases land, Art. I, §8, cl. 17; as “Ratif[ying]” bodies when they agree to proposed Constitutional amendments, Art. V; and—prior to the passage of the Seventeenth Amendment—as “electoral” bodies when they choose United States Senators, Smiley, 285 U.S., at 365; see also Art. I, §3, cl. 1; Amdt. 17 (providing for the direct election of Senators). By fulfilling their constitutional duty to craft the rules governing federal elections, state legislatures do not consent, ratify, or elect—they make laws.

First, we should not pass over too quickly the Court’s high-toned version of the Sesame Street Song, “three of these things belong together, one of these things does not belong with the others”: The Court argues that in crafting “the rules governing federal elections,” state legislatures act differently than when they [1] consent to purchase (and exercise exclusive jurisdiction) over land in the states, [2] ratify constitutional amendments, and [3] when they chose U.S. Senators (prior to the ratification of the Seventeenth Amendment).

Of note here is that, according to the Court, in these three areas independent-state-legislature theory properly applies. It is only with respect to “the rules governing federal elections” that the theory does not hold.

This provides a corrective to some of the overwrought commentary on the application of independent-state-legislature theory to redistricting. For example, writing in the L.A. Times, UC-Berkley Law School Dean Erwin Chemerinsky asserted that the Independent state legislature theory “is a theory of recent vintage, never having been accepted in American history.”

Contrary to Chemerinsky’s assertion, not only has the theory long applied to these other provisions in the U.S. Constitution, other American courts “accepted” the theory in application to electoral rules as well. For example, in 1931 the Minnesota Supreme Court adopted the independent state legislature theory (albeit, without the title), holding that, in referring to state legislatures in Article 1, Section 4 of the U.S. Constitution, the drafters

made use of [the word “legislature”] in the ordinary sense with reference to the official body invested with the functions of making laws, the legislative body of the state, and that they did not intend to include the state’s chief executive as a part thereof. We would not be justified in construing the term as being used in its enlarged sense as meaning the state, or as meaning the lawmaking power of the state.

While the U.S. Supreme Court rejected the Minnesota court’s reading of the provision, the 1931 state decision shows that even with respect to the elections provision in the Constitution, the theory is neither of recent vintage nor without serious legal acceptance. A vast amount of the commentary decrying the “radicalness” of the independent-state-legislature theory was little more than a smokescreen for the fact that the commentators preferred that Democratic candidates win more elections in North Carolina and that Republican candidates win fewer. Their hyperbolic criticisms were partisan, not principled.

Is Only One of These Things Not Like the Others?

The making of laws, the majority argues in Moore, is qualitatively different—more complicated—than up or down votes on ratification, consent to national land purchases, or even the (presumably more complicated) choice among Senate candidates prior to the adoption of the Seventh Amendment. So making laws administering national elections, the Court concludes, should be treated differently than legislative action in these other areas.

Yet the distinctions are not as neat and tidy as the Court suggests they are.

First, there seems to be some disagreement in practice whether state legislative votes consenting to national land purchases should be listed among actions taken exclusively by state legislatures and, therefore, outside of the course of ordinary legislation.

Contrary to the majority’s inclusion of state legislative consent in Moore along with ratification and Senate elections (prior to the Seventeenth Amendment), the several cases and sources I consulted suggest that the “consent” function of state legislatures for national government land purchases is part of the ordinary state legislative processes rather than actions taken by state legislatures alone.

Several of the most-cited Supreme Court cases litigating federal jurisdiction of nationally-acquired land within states all identify state statutes—which, with their passage, are sent to the governor for approval—as the basis for consent rather than legislative resolution (as presumably would occur if legislative consent were provided without presentation to the governor for approval).

The 1885 case of Fort Leavenworth R. Co. v. Lowe cites Kansas session laws from 1874/1875 as the basis for state consent, and lists the consenting statute at issue in the case among ordinary statutes requiring gubernatorial approval. In contrast, legislative resolutions adopted during that session, actions that do not require gubernatorial approval, are listed separately in the volume from the statutes. So, too, “consent” for state land cessions to the national government seems to have been provided by ordinarily-adopted statutes in Silas Mason Co. v. Tax Commission (1937) and James v. Dravo Contracting Co. (1937).

More recently, the archived U.S. Department of Justice’s Criminal Resource Manual suggests as well that state consent does not derive exclusively from state legislative approval, but derives from ordinary statutory processes:

State consent to the exercise of Federal jurisdiction may be evidenced by a specific enactment or by general constitutional or statutory provision. Cession of jurisdiction by the state also requires acceptance by the United States. See Adams v. United States, 319 U.S. 312 (1943); Surplus Trading Co. v. Cook, 281 U.S. at 651-52. Whether or not the United States has jurisdiction is a Federal question. See Mason Co. v. Tax Commission, 302 U.S. at 197.

In contrast, while the Court in Moore cites Hawke (1920) and Smiley (1932) on the point that “consent” for national jurisdiction proceeds by exclusive approval by state legislatures, neither of those cases cites any precedential authority, or even provides any history, for the claim of exclusive legislative approval.

The upshot of noting the contrary authority on whether “consent” is provided by state legislatures independent of the ordinary state-legislative processes is not that it imperils the Court’s decision in Moore. Rather the seemingly-contradicting precedent undermines the strength of the Court’s rationale for its other precedents, which read independent state legislature theory into other provisions of the Constitution, not least the provision relating to ratification by the states of proposed constitutional amendments. After all, if the simple up-or-down decision to consent to Federal land purchases (and the assertion of exclusive national jurisdiction) occurs via ordinary state law-making processes, then the simplicity of up-or-down ratification decisions could also be called into question as a rationale justifying their exclusive commitment to traditional state legislatures.

It’s not only here, however, that the Court introduced problems in reading similar texts in the U.S. Constitution. The expansive discussion of “legislature” in the 2015 case, Arizona State Legislature v. Arizona Independent Redistricting Commission, a decision on which Moore draws heavily, also suggests in principle a way in which states might create mechanisms for state legislative ratification of constitutional amendments outside of a process confined to traditional state legislatures.

Plural Legislatures?

The topic of the “unitary executive” in the U.S. Constitution has been a topic of continuing and animated attention in recent decades. The “unitary executive” stands in contrast to the “plural executive” found in most state constitutions. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court’s expanded definition of state legislatures extraordinarily recognizes the power of states to create “plural legislatures,” undermining the basis for claiming in Moore that the ratification of U.S. constitutional amendments must occur exclusively through the action of traditionally-understood state legislatures.

To be clear, a “plural legislature” does not mean a bicameral legislature. Legislative bicameralism exists when two legislative bodies share legislative power; one chamber cannot legislate without the affirmative consent of the other chamber to the same proposed legislation.

In contrast, the state of Arizona, according to the Court, delegated the whole of legislative power in the state to (at least) two distinct legislative bodies, both of which are empowered to legislate for the state without the affirmative consent of the other body.

The majority summarized the competing arguments in the case this way:

The Arizona Legislature’s complaint alleged that “[t]he word ‘Legislature’ in the Elections Clause means [specifically and only] the representative body which makes the laws of the people”; so read, the Legislature urges, the Clause precludes resort to an independent commission, created by initiative, to accomplish redistricting. The AIRC responded that, for Elections Clause purposes, “the Legislature” is not confined to the elected representatives; rather, the term encompasses all legislative authority conferred by the State Constitution, including initiatives adopted by the people themselves. (emphasis added, citations removed)

The Court agreed with the argument in favor of the independent commission.

In doing so, the claim the Court upheld is that “the Legislature” can refer to the people themselves as well as to the traditionally-understood legislature. Both are able to adopt legislation independent of the immediate consent of the other body.

In fact, however, I suggest that Court implicitly went a step further in the Arizona case: The people of Arizona were not themselves exercising legislative authority in adopting a redistricting plan. “The people” did not themselves legislate in this case. Rather, the people of Arizona created yet another legislature—albeit, one of limited jurisdiction—the Redistricting Commission. The Redistricting Commission holds the people’s legislative authority over Redistricting decisions alone. It is the Redistricting Commission that legislates in this area, not the people. After all, since at least the late 1600s (when John Locke discussed the topic) it has been accepted that legislatures cannot delegate legislative authority to another institution that is not the legislature. See, for example, INS v. Chada (1983).

The Court majority in the Arizona case misses the upshot of its own argument by insisting that ratification of constitutional amendments is not, properly speaking, a legislative function. The issue in the case did not concern what is a legislative decision, it instead concerned what institution the state identifies as its Legislature (or, perhaps better now, as one of its Legislatures). Given the decision in Arizona, what prevents the people of a state from creating and naming what they call a state “Legislature” with responsibility limited to considering and voting on ratification of constitutional amendments proposed to the national constitution?

To be sure, I don’t expect the Court any time soon to overturn its long-held precedents holding that independent state legislature theory applies to legislative ratification of constitutional amendments even if it does not apply to state administration of national elections (or to state “consent” to national land purchases). Nonetheless, the Court’s constitutional jurisprudence is a mess as it pertains to interpreting the nature and scope of state-legislative participation in national governance. Moore v. Harper got the outcome right in this particular case, but unnecessarily doubled down on the muddled jurisprudence of state legislative participation in national governance.

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Nonetheless, naming the doctrine provides a focal quality to a line of earlier cases developing and applying a two-tiered approach to administrative rule-making. Without any substantive change in the existing precedent, however, naming and applying the doctrine in this case signals an apparent ending point to the current Court’s willingness to extend anti-delegation doctrines even further.

Similarly, for all the smoke in the dissent, it casts very little heat. Justice Kagan expressly concedes the majority’s reading of the precedent cases’ central holdings. While Kagan’s dissent disputes the application of the Major Questions Doctrine in this particular case, she in fact expressly recognizes the two-tiered judicial approach toward administrative rule-making of existing precedent.

The Formalization of Two-Tiered Judicial Review

West Virginia v. EPA concerns the administrative interpretation of Section 111 of the Clean Air Act. The interpretation at issue would allow the EPA the possibility of forcing operators of existing power plants to reduce carbon emissions by shifting the generation of energy from coal- or natural-gas-fired plants to other generation systems such as wind or solar. This interpretation is opposed to one that would narrowly limit the EPA to requiring improvements in the existing plants themselves.

The decision names and applies a line of cases that created a two-tiered system of judicial review of administrative rule-making decisions. The basic default tier of review is articulated in the 1984 case of Chevron U.S.A., Inc. v. NRDC. In Chevron, the Supreme Court announced a highly deferential approach to judicial review of administrative rule-making decisions when Congress “has not directly addressed the precise question at issue” in its legislation. When the law that delegates authority to an administrative agency is “silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute” (emphasis added).

Needless to say, requiring that judges defer to any “permissible” interpretation of statutory authority by an agency gives broad discretion to executive agencies.

Despite the breadth of Chevron—or perhaps because of it—several years after the decision the Supreme Court began carving out exceptions to Chevron deference. Without repudiating Chevron’s default approach to interpreting statutory delegations, the Court began to identify conditions in some cases under which courts need not defer to any “permissible construction” of administrative rule-making authority. Rather it identified a narrower scope of deference to agency interpretations, and a correspondingly broader scope for courts to exercise and apply their own interpretive judgments.

What is new in West Virginia v. EPA is that, in applying this heightened form of scrutiny for administrative rules, a majority of the Court for the first time in its cases uses the label, “Major Question Doctrine,” for this set of earlier cases. But the Court only names and applies the already existing line of doctrine establishing a system of two-tiered judicial review of administrative rule-making decisions. It does not extend the doctrine itself in West Virginia v. EPA.

What Triggers the Major Questions Doctrine?

So what triggers heightened review of administrative rules under the Major Questions Doctrine? In his concurring opinion, Justice Gorsuch identified three triggers for which “clear congressional authority is required”—rather than merely “possible” congressional authorization–for an exercise of administrative rule-making:

[1] “[W]hen an agency claims the power to resolve a matter of great ‘political significance.’”

[2] “[W]hen [an agency] seeks to regulate ‘a significant portion of the American economy.’”

[3] “[W]hen an agency seeks to ‘intrud[e] into an area that is the particular domain of state law.’”

Once triggered, the next question that judges must answer is “what qualifies as a clear congressional statement authorizing an agency’s action”? Gorsuch identified four areas in which courts traditionally look to determine whether Congress has made a clear statement of delegation:

[1] “[C]ourts must look to the legislative provisions on which the agency seeks to rely ‘with a view to their place in the overall statutory scheme.’”

[2] “[C]ourts may examine the age and focus of the statute the agency invokes in relation to the problem the agency seeks to address.”

[3] “[C]ourts may examine the agency’s past interpretations of the relevant statute.”

[4] “[S]kepticism may be merited when there is a mismatch between the agency’s challenged action and its congressional assigned mission and expertise.”

Notably, the Major Questions Doctrine does not prohibit congressional delegation of rule-making authority on major questions. Rather, it merely requires that when Congress delegates rule-making authority on a major policy question, it must do so clearly.

A Focal Boundary to Delegation Doctrine Development

On non-major questions, Chevron deference remains the Court’s default approach. A merely “possible” reading of a statute by the administrative agency is sufficient for the Court to sustain the agency’s decision. On major questions, however, the Court insists that Congress clearly express its delegation.

The Court’s decision in West Virginia—applying without extending existing precedents—suggests that this Court has reached the outer limit of its willingness to press changes in its delegation doctrines. The six-justice majority could easily have pressed further if it wished to do so. It did not, however, extend existing doctrine in West Virginia.

In naming an already existing doctrine but not extending it, the Court created a focal point around existing precedent, effectively ratifying and reifying this point of doctrinal development. Not only did the Court formalize its two-tiered approach for reviewing administrative rule-making decisions, but in only reiterating existing doctrine, West Virginia imbues this two-tiered approach with a focal quality, auguring against delegation doctrine developments beyond this point.

West Virginia v. EPA is a manifestly non-revolutionary decision. First, it concerns “clear statements” of congressional purpose. To wit, if Congress clearly expresses the delegation to an agency, then the Court will still approve the delegation even under the heightened review of the Major Questions doctrine.

Secondly, even if, as an abstract matter, one or more justices remain skeptical of Chevron’s remarkably deferential treatment of agency decisions in the face of statutory ambiguity, as a practical matter the Major Questions Doctrine represents prudential workload management. The two-tiered approach reserves judicial oversight for assertions of congressional delegation on the most important policy questions yet continues Chevron deference on a bevy of more minor delegations that, if subject to challenge under a less-deferential system of judicial review, could otherwise clog the courts.

Finally, the sweeping arguments in Justice Gorsuch’s concurring opinion obscure the modesty of the decision in West Virginia v. EPA. The intended audience for Gorsuch’s concurrence might very well include not only the dissenting justices and their sympathizers, but also critics of administrative delegation who advocate more far-reaching revisions of Chevron and of delegation doctrines more generally.

Smoke but No Fire in the Dissent

While Justice Kagan (joined in dissent by Justices Breyer and Sotomayer) trusses up her objections to the Court’s decision as a doctrinal dispute, Kagan in fact expressly concedes the majority’s main doctrinal point. She objects more to the application of the doctrine in this case rather than to the doctrine itself.

While engaged in a fair bit of rhetorical legerdemain in her opinion, Kagan in fact expressly concedes the Court’s doctrinal claims, albeit she tucks the critical concession away in a parenthetical comment:

The majority . . . contend[s] that in “certain extraordinary cases” . . . courts should start off with “skepticism” that a broad delegation authorizes agency action. The majority labels that view the “major questions doctrine” . . . But the relevant decisions do normal statutory interpretation: In them, the Court simply insisted that the text of a broad delegation, like any other statute, should be read in context, and with a modicum of common sense. Using that ordinary method, the decisions struck down agency actions (even though they plausibly fit within a delegation’s terms) . . . (emphasis added)

Kagan’s parenthetical comment fully concedes the doctrinal point at issue in the case: Under Chevron, a “plausible” reading of a statute in support of an agency rule is all that is necessary to sustain that rule. Yet Kagan concedes that existing decisions “struck down” otherwise textually plausible actions.

Kagan’s dissent really is little more than a formalistic objection to the Court providing a label for the existing line of “Major Questions” cases.

To be sure, Kagan also advances the minor claim of doctrinal innovation regarding whether congressional silence or inaction should be used to guide judicial conclusions regarding legislative purpose. But this is no more than a doctrinal tempest in a teapot.

Kagan is certainly correct that congressional silence is a less probative source of determining congressional purpose than affirmative textual language. But the question is whether inaction can provide any probative evidence for courts to consider.

And here there is a welter of opinions and doctrines in diverse areas of Supreme Court jurisprudence that endorse congressional inaction as relevant evidence for the Court to consider. For example, the Court drew on previous congressional rejections of the authority the president asserted in seizing the steel mills in Youngstown Sheet & Tube Co. v. Sawyer—evidence that the president’s actions were not only unauthorized but opposed by Congress. The Court more broadly, and explicitly, formalized its consideration of congressional inaction in its approach to reviewing executive actions (see, for example, Dames & Moore v. Regan).

Similarly, in its dormant commerce clause jurisprudence, the Court has split over the evidentiary value of failed legislation. In Kassel v. Consolidated Freightways Corp., for example, two of the justices drew on a governor’s veto message to provide evidence of discriminatory intent, and so would apply the “almost per se unconstitutional” test to the legislation at issue. Four of the justices rejected the value of a veto message and so applied the more deferential “balancing” test to the legislation. While judges must treat deductions from legislative inaction with care, it is not the case that inaction never provides any probative evidence to judges for understanding legislative activity.

Where Does West Virginia v. EPA Leave Us?

The Court announced no new doctrine in West Virginia v. EPA. If anything, its labeling of the Major Questions Doctrine, and the doctrinal focal point that labeling provides, signals the Court has reached an outward limit in its willingness to reconsider and revise its delegation doctrines.

At the same time, the dissent misfires on all substantive doctrinal points. While saying otherwise, the dissent nonetheless expressly concedes that earlier cases provide conditions under which traditional Chevron deference does not hold—which is precisely what the majority claims—and the dissent overclaims the Court’s treatment of the evidentiary value of congressional inaction. While the dissent disagrees with how the Court applies the Major Questions Doctrine in this particular case, it does not in fact disagree with the existence of the doctrine itself.

The two-tiered approach to congressional delegation does limit bureaucratic overreach in the most important policy areas. Doing so, it provides incentives for Congress to write clearly—and so to take responsibility—when it wants to delegate major decisions to administrative agencies in the most important policy areas. West Virginia v. EPA only confirms the Court’s commitment to this approach.

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Just this summer, UC-Berkeley economic historian J. Bradford Delong thought enough of Polanyi’s argument that he used it, along with Hayek, to organize the broad argument of his new book, Slouching Towards Utopia: An Economic History of the Twentieth Century.

The main attraction of Polanyi to right-wing postliberals and left-wing anti-liberals is his argument that, during the nineteenth century, the market system attained an autonomous status that ran roughshod over humans and human social relationships. Modern post- and anti-liberals cite Polanyi to invoke and apply his analysis to events today. Markets again ride roughshod over humans and human flourishing, the citations to Polanyi suggest.

Yet there are problems with today’s invocation of Polanyi’s argument. First, a central feature of Polanyi’s historical argument is that the autonomous market had been destroyed by the time he wrote the book in 1944. On Polanyi’s own terms, the “market system” that he studied cannot have returned today unless the Polanyian “mixed economy” and welfare state have disappeared today as well.

Contrary to the implication of many citations to Polanyi, he was not anti-market. He thought the market was incredibly productive. His concern circled around the speed of transformation wrought by the market system, which is a term of art for Polanyi. As he notes, “the end of market society means in no way the absence of markets.”

Secondly, the sine qua non of the market system Polanyi identifies is no government intervention at all in labor markets or land markets, and a gold standard. If even one of these three conditions fails to exist, then the autonomous market cannot exist, according to Polanyi.

This does not mean that nothing remains to learn from Polanyi today. I suggest that liberals—and even “postliberals,” if carefully defined—can still learn important lessons from Polanyi. Polanyi’s broad argument stands for the proposition that the economic realm and the social realm do not exist in isolation from each other. The trick is not to discount the significance of one or the other entirely.

The Rate of Change of the Great Transformation

Polanyi recognizes the “almost miraculous improvement” in economic production during the nineteenth century. The cloud that surrounds the silver lining, however, is that this great transformation “was accompanied by a catastrophic dislocation of the lives of the common people.” It is the latter that receives Polanyi’s focused attention.

It is not the change itself, however, that caused extensive social damage, but rather the pace of economic change relative to the pace of social adaptation to that change. Polanyi all but specifies a mathematical model. Drawing on an implicit model of relative rates of change (the bane of first-semester calculus students everywhere), Polanyi identifies the condition for good versus bad economic change: “The time-rate of [economic] change compared with the time-rate of [social] adjustment will decide what is to be regarded as the net effect of the change [on society].”

Polanyi is clear that the “welfare of the community” can be “safeguarded” when the pace of economic change “which is deemed too fast” is slowed down to a human level. Polanyi himself provides examples of economic “progress” (his word) in the early modern period that occurred at non-destructive rates of change. Discussing the English Enclosure movement Polanyi writes:

The rate of that progress might have been ruinous, and have turned the process itself into a degenerative instead of a constructive event. For upon this rate, mainly, depended whether the dispossessed could adjust themselves to changed conditions without fatally damaging their substance, human and economic, physical and moral . . . (emphasis added)

In his book, Polanyi unapologetically recognizes the economic “improvement” brought about by the market. Elsewhere he refers to the impact of the market system creating an “automatic increase of material welfare,” albeit at a cost of social disruption. He does not oppose the increased material prosperity that markets can provide. He merely wants societies to recognize the interaction between the economic and the social, and for societies to provide time for the social fabric to adapt to economic transformation without tearing. This response had already occurred by the time he wrote, according to Polanyi.

The Autonomous Market Has Not Been Re-Created

Polanyi is entirely clear in his book that the problem he identified had been resolved by the time that he wrote: “The end of [the self-regulating market] has come in our time; it closes a distinct stage in the history of industrial civilization.” Polanyi repeats this again and again. Indeed, he builds a “double movement into the very fabric of his analysis: The rise of the autonomous market system prompted a “simultaneous countermovement” that resulted in the re-embedding of the economy in society.

In fact, the ultimate explanatory point of Polanyi’s book is not to argue that the autonomous market continued to be a problem. It had been dealt with. Rather, the point of his historical analysis is to account for the rise of fascism—and, hence, World War II—as a continuing consequence of the “countermovement” that ended the self-regulating market of the nineteenth century.

Further, readers often misconstrue Polanyi’s references to the “market system,” or the “autonomous market.” These are specific terms of art for Polanyi, and do not indict markets generally. In fact, he expressly observes that “the end of market society means in no way the absence of markets.” Rather

[Markets] continue, in various fashions, to ensure the freedom of the consumer, to indicate the shifting of demand, to influence producers’ income, and to serve as an instrument of accountancy, while ceasing altogether to be an organ of economic self-regulation.

Polanyi even observes that “There is a sense, of course, in which markets are always self-regulating, since they tend to produce a price which clears the market . . .”

For Polanyi, “[A] self-regulating market system implies something very different [than the ordinary self-regulation market-clearing prices], namely, markets for the elements of production – labor, land, money” (emphasis in original).

This is the very center of Polanyi’s analysis: the sine qua non for the autonomous market is that the market, and the market alone, sets equilibrium prices for labor and land, and that monetary policy is immunized from political and social influence by a gold standard. All three need to exist at the same time for the establishment of the autonomous market. (Polanyi later treats “international free trade” as an expression of the autonomous market. But this can negatively affect society via the market for labor and the gold standard.)

Polanyi held that the autonomous market system he identified had been destroyed by the time he wrote because the gold standard had been eliminated, and because government policies regulated wages, labor, and land, thereby removing them from the vagaries of singular market control.

We consider each element in turn.

The elimination of the gold standard is of course clear. The first leg of the tripod is gone. And, what’s more, it has not been resurrected today.

What about labor? Polanyi argued that even at his time, in 1944,

[T]he labor market was allowed to retain its main function only on condition that wages and conditions of work, standards and regulations should be such as would safeguard the human character of . . . labor. Social legislation, factory laws, unemployment insurance, and, above all, trade unions . . . interfer[e] with the laws of supply and demand in respect to human labor, and remov[e] it from the orbit of the market (emphasis added).

Needless to say, social welfare and anti-poverty policies that existed at the time that Polanyi wrote have only subsequently expanded. Health and safety regulations, public provision of basic education and more have also likewise increased since Polanyi wrote.

Further, Polanyi argued that feudal economic forms provided a rough and ready social welfare system. The community would support individuals and households faced with need. Polanyi argues that the creation of an autonomous labor market in the eighteenth and nineteenth centuries required the destruction of this safety net so that workers faced the choice of working or quite literally starving to death. This was the stripping of nested social commitments to serve—to create—the autonomous market.

The second leg of the autonomous-market tripod was cut away and is not remotely close to being re-established. Polanyi thought the policies adopted in the 1930s and 1940s sufficient to end the unregulated labor market. Regulations and social welfare policies adopted in the 1950s and 1960s in Europe and the U.S. dwarfed those earlier policies.

Finally, regarding the market for land. Again, Polanyi concluded that land was no longer subject wholly to the vagaries of the market. And, today, crop insurance, conservation programs, commodity programs, zoning, and nutrition programs remove land from the domain of the self-regulating market.

The third leg of the autonomous-market tripod was eliminated almost 90 years ago. And, again, there is no threat of its recreation today.

In sum, Polanyi argued in 1944 that the “autonomous market” had already been destroyed. The programs and policies that removed land and labor from control of the autonomous market, and the elimination of the gold standard, all continue today.

The Polanyian “mixed economy” of the modern era continues unabated. The policy arguments today circle around where to draw the policy lines, not over the existence of these policies that ended the self-regulating market.

What Lessons from Polanyi for Today?

So what lessons, if any, remain from Polanyi for us today? At the broadest level of his argument, the recognition that there is no bright-line division between the economy and society continues to be an important, if still underrecognized point. Recognizing it explicitly would improve policy discussions all around.

A fair bit of both right and left postliberalism reflects a concern with the manifest materialism of American society. This, of course, is not new; Tocqueville recognized this unhealthy dimension of American life as far back as the 1820s. More subtly, as Santhi Hejeebu and Deidre McCloskey argue, the academic division of labor today between economics and sociology too often separates the study of “economics” from “society” rather than studying them together.

This division is not simply a problem for economistic reductionism: Postliberals often ignore the economic costs of their social policy recommendations. Slowing down economic change to achieve social goods requires tradeoffs. That doesn’t mean the tradeoff shouldn’t be made in favor of social goods over economic goods. But there’s no reason to pretend that social goods can be sustained or increased with zero economic costs.

That said, there is a natural way of putting together economic and social life. As I pointed out above, Polanyi all but posits a formal model that puts together the rate of economic change relative to the rate of social adaptation to that change.

Polanyi’s argument can be conceived as commending the inclusion of social externalities in socioeconomic analysis. There’s no principled reason that social costs cannot be explicitly brought into economic policy analysis. Harold Demsetz, for example, observed in his famous article on property rights,

Externality is an ambiguous concept. For the purposes of this paper, the concept includes external costs, external benefits, and pecuniary as well as non-pecuniary externalities. No harmful or beneficial effect is external to the world (emphasis added).

Demsetz provides a distinctly Humean take on property rights; one that could easily accommodate Polanyian social externalities (even though Polanyi might snark at the “property rights” language):

If the main allocative function of property rights is the internalization of beneficial and harmful effects, then the emergence of property rights can be understood best by their association with the emergence of new or different beneficial and harmful effects. Changes in knowledge result in changes in production functions, market values, and aspirations. New techniques, new ways of doing the same things, and doing new things-all invoke harmful and beneficial effects to which society has not been accustomed. It is my thesis in this part of the paper that the emergence of new property rights takes place in response to the desires of the interacting persons for adjustment to new benefit-cost possibilities.

While most postliberals will no doubt resist the nomenclature of “property rights,” it would be myopic to overlook the Humean flexibility of “property rights” in Demsetz’s argument. He’s talking about things that people value in general, including social relations.

The point is not that the social must always be preferred to the economic, any more than the economic must always be preferred to the social. The point is that there are tradeoffs across the two dimensions that people and policymakers want to take into account when making policy. That social externalities may be difficult to define and measure does not mean that they do not exist and therefore can be ignored.

Contrary to the many citations to Polanyi among left and right postliberals, the specifics of Polanyi’s analysis of the “great transformation” is irrelevant to analyzing the social effects of economic changes today. The autonomous market does not exist today, and it’s not even close. Polanyi said it didn’t even exist when he wrote in 1944. His book nonetheless remains relevant today at its broadest level, as an eloquent, if often misunderstood and unheeded, plea to recognize the interdependence of the social and the economic when considering the conditions of human flourishing.

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But in roughing up Anne’s character, Netflix’s adaptation misses the weasel word in Austen’s opinion of Anne, that Anne is “almost too good for me.” And in missing that, the adaptation misses Austen’s portrayal of Anne’s devastatingly reactionary virtue; a virtue that provides a slap-in-the-face challenge to almost all of modernity. That said, it’s not just Netflix. None of the adaptations that I’ve viewed—including the superior 1995 BBC production—includes the stunning turn Austen writes for Anne’s final, mature assessment of her decision to give up her beau eight years earlier.

Years before the start of the novel’s narrative, Fredrick Wentworth, then a penniless sailor, proposed marriage to Anne, and Anne accepted. Anne was then “persuaded” to give up the match not only by her father’s (Lord Elliot) indifferent support for it, but also—pivotally—by the active opposition to it by Lady Russell, a strong mother figure for Anne in the years after the death of her natural mother. Lady Russell opposed the match on the pragmatic grounds that Wentworth had neither the current means nor the future prospects to support Anne.

The future smiled on Wentworth, however. Just two years later he met with great success on the high seas, earning promotion up the ranks and becoming rich with prize money. Wounded by Anne’s rejection, he did not return to Anne to renew his plight. Serendipitous events five or six years later, however, brought Anne and Wentworth back in proximity to one another. After several fits and starts, and the constraints of early nineteenth-century courting forms for the upper class in Britain, Wentworth learns that Anne still loves him—and has always loved him. He proposes again, and Anne accepts (with everyone’s support this time).

But eight years earlier was a different matter. And Anne’s decision to reject Wentworth resulted from Lady Russell’s disapproval. Anne’s father—a vain man and an indifferent father toward Anne—did not withhold his consent for the original proposal. But he did not support it either. He “gave it all the negative of great astonishment, great coldness, great silence, and a professed resolution of doing nothing for his daughter.” Nonetheless, the silver lining to Lord Elliot’s indifference toward Anne is that it seems he didn’t care enough actually to nix Anne’s marriage to Wentworth.

But Anne at age 19 did allow her opinion to be “guided” by Lady Russell; she was persuaded. Anne agreed at age 19 on the imprudence of the match. It was only years later, at the start of the novel, that Anne had come to a different opinion. “Anne, at seven and twenty, thought very differently from what she had been made to think at nineteen”:

She was persuaded that under every disadvantage of disapprobation at home and every anxiety attending his profession, all their probable fears, delays and disappointments, she should yet have been a happier woman in maintaining the engagement, than she had been in the sacrifice of it (emphasis added).

And here all the adaptations leave the matter (at least the adaptations that I have seen): Anne regrets her choice; she would have been happier if she married Wentworth despite Lady Russell’s objections.

But that was not Anne’s final assessment of the matter.

Unlike today’s adaptations of the novel, Austen does not have Anne leave her judgment as she expressed it at the beginning of the novel. Anne changes her mind again at the end of the novel, conceding that she would have regretted deciding to marry Wentworth at age 19 in the face of Lady Russell’s opposition. And yet Anne does not change her judgment that Lady Russell’s counsel to her at age 19 was in fact wrong.

In a remarkable passage, Anne’s fully mature judgment is that she was correct as a matter of conscience to defer to Lady Russell’s opinion at age 19 and to break off the engagement despite Lady Russell’s mistaken judgment:

I must believe that I was right, much as I suffered from it, that I was perfectly right in being guided by the friend [Lady Russell at age 19]. . . . To me, she was in the place of a parent. Do not mistake me, however. I am not saying that she did not err in her advice . . . . But I do mean, that I was right in submitting to her, and that if I had done otherwise, I should have suffered more in continuing the engagement than I did even in giving it up, because I should have suffered in my conscience. (emphasis added)

This is the turn that modern adaptations ignore. It’s critical to follow the changing assessments Anne makes at different ages regarding whether she should have married Wentworth when she was 19: [1] Anne accepts Wentworth’s proposal at age 19; [2] within a short time, persuaded by Lady Russell’s reasons for the imprudence of the match, Anne changes her mind and rejects Wentworth’s proposal; [3] by the beginning of the novel (presumably before her current age of 27) Anne has again changed her mind and believes she would have been happier had she accepted Wentworth’s proposal despite Lady Russell’s counsel to reject him. Finally, then, in her fully mature assessment at the end of the novel: [4] Anne believes she should have submitted to Lady Russell’s counsel as a matter of conscience and rejected Wentworth’s proposal at age 19, despite still disagreeing with the grounds of Lady Russell’s counsel to reject him.

The surprising turn in Anne’s final assessment here—surprising at least to the modern ear—is that Anne asserts she “was right in submitting” to Lady Russell’s counsel eight years ago despite our mature Anne continuing to believe that counsel was wrong.

At age 19, Anne was persuaded by Lady Russell to reject Wentworth’s proposal. She was persuaded to agree with Lady Russell’s assessment of the match’s imprudence. Eight years later, Anne says she still should have submitted to Lady Russell’s counsel despite now disagreeing with that advice. Rather than being persuaded by Lady Russell’s advice, the mature Anne would still have had 19-year-old Anne submit to Lady Russell’s counsel out of “conscience.”

Honor Thy Mother and Father

But why would Anne’s final and fullest assessment of her actions conclude that she should have submitted to Lady Russell’s counsel as a matter of conscience, despite disagreeing with her advice?

The answer comes in a Judeo-Christian virtue now perhaps more honored in the breach than in the observance.

Recall that Austen was the daughter of an Anglican rector. A religious judgment is at least hinted at in and after the passage quoted above—not only in Anne’s appeal to “conscience” but also in an oblique reference to the influence of fallen human nature when we assess our own behavior. She steps back from a statement that she has “nothing to reproach” herself in turning down Wentworth at age 19 with the qualification “as far as such a sentiment is allowable in human nature.” It is a nod to the natural inclination to excuse and justify our own behavior. As the Proverb puts it, that “All the ways of a man are clean in his own sight.”

Lady Russell developed a strong bond with Anne as a mother figure after the death of Anne’s natural mother (who was also Lady Russell’s best friend). That Lady Russell is repeatedly identified as a mother figure to Anne points us to the Fifth Commandment (as Anglicans and other Protestants count the Ten Commandments, the Fourth Commandment for Lutherans and Roman Catholics). It teaches to “Honor your father and your mother” (Exodus 20.12, Deuteronomy 5.16).

The important Reformation-era Anglican Archbishop of Canterbury, Thomas Cranmer—with whom Jane Austen would be familiar, and whose works her father almost certainly studied—taught that the Fourth/Fifth Commandment instructs children “not to despise your fathers and mothers; but to obey them with all your heart, and be subject unto them.”

To be sure, Lady Russell was not Anne’s natural mother, even as Anne received her fully as a stand-in. Yet deference in this type of relationship is comprehended within this commandment as well according to Cranmer: “They are not only called our parents, of whom we are begotten and born, but they are also called to the honor and title of this name who help them to bring us up in virtue and learning.”

Of particular application to Anne’s situation in Persuasion, Cranmer expressly included parental approbation for a marriage within the parameters of the Fourth/Fifth Commandment: “Especially you must avoid this most detestable kind of disobedience, which now-a-days is very common, that you entangle not yourselves with marriage without the knowledge and consent of your parents.”

Needless to say, this view of parental authority—and of authority more generally—is almost incomprehensible in this day and age. Objections come to mind immediately, particularly with respect to the ill use of authority, as Anne concedes Lady Russell’s counsel was.

And, to be sure, authority must be exercised responsibly by parental “superiors” for the good of “inferiors.”

Yet rubber-meets-the-road deference only bites when we disagree with a decision of the authority above us. If we agree with what an authority counsels us, then we would consent to the action and don’t need to submit. We’re persuaded. The challenge of Anne’s assessment of her behavior at the end of the novel is that she would have followed Lady Russell’s counsel out of conscience, even though she thought it misguided, even though she wasn’t persuaded by it any longer.

How does that work? Or is Anne (and Austen and Cranmer) proffering us only brute subjection to authority as an ostensible matter of conscience?

In answering this it would be useful to note that traditional interpretations of the Fourth/Fifth Commandment have “father and mother” referring not only to parents in the family, but to all in authority. Cranmer taught, for example, that the commandment included not only parents, but

Tutors, schoolmasters, preachers, pastors, curates, . . . and also magistrates and common officers. For the Holy Scriptures doth call all these fathers. And, therefore, when God saith, honor thy father and thy mother, he comprehends within the bounds of this commandment all those persons before rehearsed.

This understanding is not Cranmer’s idiosyncratic overreading of the commandment. Cranmer’s view is taught similarly by the Catechism of the Catholic Church, in the Lutheran  Large Catechism, and in Presbyterianism’s Larger Catechism, and in numerous commentaries.

Of significance is that all of these catechisms discuss the obligations of those in authority to use that authority to advance the well-being of those under their authority, as well as the obligations of those under authority to submit. And there are manifest limits on authority. Even limits to authority in which disobedience is permitted, if not actually required in some cases. The Apostle Peter famously tells the religious authorities in his day that “we must obey God rather than man.” Similarly, Thomas Aquinas teaches that unjust commands “do not bind the conscience.”

Authority and Conscience

But that leaves the very practical problem that Austen has Anne address in Persuasion, of behavior when these principles come in conflict with each other: How to understand these requirements when the one under authority believes that the one in authority has not made the right decision?

There are at least two answers to this that make sense of Anne’s judgment on Persuasion.

First, if there is disagreement between the superior and the inferior, but the one in authority has made a judgment that is reasonable under the circumstances, then there is a duty to submit to the superior’s judgment. In Persuasion, for example, while disagreeing with Lady Russell’s judgment, Anne concedes that Lady Russell’s judgment was a reasonable judgment at the time it was made. (“It was, perhaps, one of those cases in which advice is good or bad only as the event decides.”) If there are reasonable arguments on both sides of a question, then out of deference to divine derivation of human authority—out of “conscience”—the benefit of the doubt goes to the authority.

Secondly, however, even when a judgment is definitely wrong, conscience may still dictate submission to the judgment. Taking from a different context—although still relating to the Fourth/Fifth commandment as it is commonly construed—Aquinas noted that even an unjust law can bind the conscience in some circumstances:

[Unjust] laws do not bind in the court of conscience, except perhaps in order to avoid scandal or disturbance, for which cause a man should give up even what is rightfully his . . .

The divinely granted order of power does not extend to [a law which inflicts unjust harm upon its subjects], and so a man is not obliged to obey the law in such cases, if he can resist doing so without scandal or creating a more grievous hurt.

Anne might have thought that rejecting Lady Russell’s counsel would cause a scandal or perhaps injure the close relationship she had with Lady Russell, a relationship Anne valued dearly. So Anne would still submit to Lady Russell’s advice if she had to choose over again, despite the fact that she regarded it as wrong-headed and would not in fact have been persuaded by it as she was when she was 19 years old.

I would guess that Anne’s considered judgment that she should have submitted to Lady Russell’s wrong-headed counsel “out of conscience” is almost incomprehensible to Americans today. No wonder modern adaptations of the novel ignore this bracing moment of retrospection and have ignored it despite the pivotal role it plays in the novel’s evolving narrative on Anne’s decision.

Many modern Americans, no doubt, will wave away Anne’s reconsidered judgment, her submission to a parent figure out of conscience, as an irrelevancy of a long bygone age, and good riddance to it.

But others, including Christians today, might want to wrestle more with Jane Austen’s posthumous chastisement, even conceding that Anne “was almost too good” for Austen. Perhaps wrestling with it in other domains rather than household relationships—I confess I have a preference for what Tocqueville identified as the more democratic connection of friendship between parents and grown children relative to the old world’s understanding that parental hierarchy continues after the children are grown. (But then perhaps I’m just too modern to receive Austen’s point as well, at least as regards the family.)

But there is the broader scope of the Fourth/Fifth commandment, including ecclesial and civil authorities, that would nonetheless continue to press on us.

There is, for example, the Apostle Paul’s claim, paralleling Anne’s claim, that it is for the sake of “conscience” that the Christian need be “in subjection to the governing authorities” (Romans 13.1-5). It is a teaching I hear rarely these days. And when I do, the upshot is often why we don’t actually need to be in subjection to the governing authorities despite what Paul wrote. Often these days, it seems that, even among Christians, mere disagreement with the governing authorities is proffered to justify disobedience. And don’t even start with the suggestion that verbal dishonor, such as insulting civil authority, violates Christian teaching. In railing judgments, insults, and mocking of civil authority today, even among—or especially among—Christians, “anything goes,” as the old Cole Porter song puts it.

To be sure, Paul does not counsel what he is often taken to counsel in Romans 13, which is blind obedience to authorities no matter what they command. Paul after all identified the vocation God set for civil authority, that it “is a minister to you for good” (emphasis added). Thomas Aquinas rightly plumbed the implications of Paul’s teaching: If the authority is not pursuing our good, then obedience is not a requirement of conscience. And we should keep in mind that civil authority is not the only authority in town.

But we can also make the judgment to disobey too easy on ourselves. As Anne recognized, there is “in human nature” the inclination to excuse ourselves rather than to “reproach” ourselves. As the proverb has it, “every man’s way is right in his own eyes.” In Anne Elliot, Jane Austen gives us an example of a conscience that, after mature consideration, would defer to that wrong decision of her parent figure rather than violate her own conscience. Her changing assessments reflect not indecision but the oftentimes practical difficulty of negotiating between our desires and our duties or conscience.

Anne Elliot was “almost too good” for Jane Austen. Indeed, she is perhaps almost too good for us as well.

The post Almost Too Good for Austen appeared first on Law & Liberty.

While that century-old platform expressed a willingness to “cooperate with other nations in humanitarian efforts,” it repeatedly expressed opposition to entering into “political commitments” associated with those efforts. While it did endorse membership in an International Court of Justice, it more significantly rejected membership in the League of Nations, and expressed a preference for foreign policy by national agreement rather than membership in international organizations. “The basic principles of our foreign policy must be independence without indifference to the rights and necessities of others and cooperation without entangling alliances.” The platform also endorsed the adoption “at the earliest possible date [of] a federal anti-lynching law so that the full influence of the federal government may be wielded to exterminate this hideous crime.” And more.

The recent National Conservative Statement, therefore, is “conservative” in the sense of reasserting, mutatis mutandis, received wisdom and policy positions. I can imagine numerous circumstances in which I would vote for a politician articulating national conservative principles over a competitor.

There are nonetheless fundamental problems with the implicit political and social theory the Statement forwards in prioritizing the nation-state and other such worldly institutions. First, the Statement provides a simplistic and reductive account of current cultural problems. Secondly, the Statement looks to the nation and other worldly institutions to provide the type of solidarity only the Church can provide, and aspirations only the Church can realize.

As a result, the statement misdiagnoses the sources of the ailment of modern Western societies, and so at its most critical points it prescribes the wrong remedies.

Overstating the Importance of Nations

The Statement begins with a list of the goods and virtues offered by “the tradition of independent, self-governed nations.” The list starts out entirely fine, if tautologically, in asserting that traditional nation-states are necessary for restoring “patriotism.”

But as the list continues it asserts goods and virtues with more tenuous relationships to the nation-state. According to the Statement, the nation-state provides a foundation not only for patriotism but also for “religion and wisdom, congregation and family, man and woman, the sabbath and the sacred, and reason and justice.”

What can one say? Only an untoward enthusiasm can locate a “proper public orientation toward” realities like “man and woman,” “religion and wisdom,” and even “the sacred” and “reason” itself in the restoration of the nation-state. I always assumed that conservatives generally hold as a part of their conservatism that these phenomena have their own integral existence outside the existence of the nation-state (it is certainly true that they all existed prior to the rise of the nation-state), and that recognition is due these phenomena as a result of their reality irrespective of the status of the nation-state at the time.

While the Statement offers itself as sympathetic to religion in general, if not Christianity in particular, it is a decidedly subordinated role for religion in general, and the Church in particular. In fact, the word “Church” does not appear in the Statement, although the word “congregation”—with its local and particularistic overtones relative to “Church”—does.

Yet it is exclusively to the political, and not to the religious, that the Statement looks for social redemption. It expressly proffers the nation “as the only genuine alternative to universalist ideologies.” (emphasis added).

Even in the paragraph the Statement devotes expressly to discussing “God and Public Religion,” the Church makes no appearance, and not even congregations make it in.

While the Statement endorses Bible reading—which I heartily applaud—I am unsure what it is that the Statement thinks we derive from that reading. After all, the Statement asserts, “No nation can long endure without humility and gratitude before God and fear of his judgment that are found in authentic religious tradition.” Yet there are problems with that.

First, I am unsure that national endurance as a generic principle is really a top priority for the God of the Bible (see, for example, Job 12:23 and Acts 17:26).

Secondly, and more importantly, while I have no issues with the Statement’s invocation of God’s judgment, it seems an odd choice to invoke judgment without even mentioning the good news of God’s love for humanity and the Bible’s grand narrative documenting God’s purpose and actions to draw humanity back into his presence.

Instead, what the Statement emphasizes about Christianity is not the Gospel but rather its “moral vision.” To be sure, the Gospel and Christianity’s moral vision are not antithetical; I do not in the least suggest that antinomian love should replace grim moralism. But, critically, the Gospel does not merely offer a “moral vision,” it offers transformation—literally a transfiguration of the human in Christ (Romans 12:2 and 2 Co 3:8). It is this transfiguration that critically frees the person to live in imitation of God. It is only after Jesus forgave the woman taken in adultery in John 8 that he added, “Go and sin no more.” Without the liberation of the Gospel, moralism only kills.

Ecclesiocentric Society

This problem is confounded by National Conservatism’s emphasis on naturally embodied communities of the world, such as the nation-state and the traditional family, in contradistinction to the supernaturally embodied community of the Church.

To be sure, here I want to be careful in drawing the implications of my ecclesiocentric political and social theory. With the National Conservative, the ecclesiocentric of course has substantial sympathy with the protection and facilitation of these natural institutions that are so important for human flourishing in this age.

At the same time, the principles of National Conservatism do not acknowledge the relativization of these worldly institutions by Christ and his Church. To wit, the Church is the Christian’s first family, the Church is the Christian’s first polis, and the Church is the Christian’s first ethnos.

By contrast, as noted above, the Statement asserts that the nation is “the only genuine alternative to universalist ideologies now seeking to impose a homogenizing, locality-destroying imperium over the entire globe.”

This is why the Statement’s use of the word “congregation” rather than “Church” constrains.  While local congregations do not, by definition, have universal domains, the Church does. Contrary to the Statement, it is the practice and theology of the Church that is a, if not the, “genuine alternative to universalist ideologies” asserting themselves across the globe.

Within the Church’s catholicism, the temporal nation certainly has its fully legitimate location and purpose in this age. But the Church is the eternal nation (or ethnos 1 Peter 2.9, etc.), and the Church is the eternal polis (Hebrews 11.10, Rev 21.2, 9-10, etc.). It is within her that justice and peace find their full and natural revelation.

The point is not that the Church somehow runs the nation-state in this age. Forsooth!

Rather, the point is that the community of the nation-state is but an image of the full community—the communion—found only in the Church. This telos is of course realized only in the Age to Come with the passing of the nation-state (as well as the earthly family, Mt 22.30). This deserves reiteration: the point is not to conflate ecclesial governance with civil governance; it is not an invitation to “immanentize the eschaton.” Rather it is to identify what is the proper ultimate in the Aristotelian sense. While the Statement identifies the nation-state as the “foundation” for revivifying civil, religious, and familial life, and so asserts a political-centric reality, it does so by ignoring the appropriately ecclesiocentric claims of the Church.

Rather, the Church uniquely offers what the nation-state cannot provide: A true solidarity, a true union between peoples without tyranny. Unlike the metaphorical national body, only the Church offers a real social Body. As French philosopher Jean-Louse Chretien pointed out,

Amongst collective bodies, only the body of Christ is truly personal and one under one head. So only here does the analogy to an individual body really work. Other collective bodies turn tyrannical because their bodiliness is incomplete and to a degree a lie.

There are similar problems with the Statement’s celebration of the “traditional family” as “the foundation of all other achievements of our civilization.” The problem is not recognizing the social importance of the traditional family. The Statement’s problem is asserting it as an ultimate rather than as a subordinate institution.

While the earthly family continues to be a vital institution in this age, its ultimate aspirations, its telos (or rather, teloi), are realized and reflected only in the Church. This is a bracing lesson of Christ as he explodes the ancient worldly institution and redraws it around himself in one of the hardest of his hard sayings. When told that his mother and brothers were outside seeking to speak with him, Jesus demurs. He asks “’Who is my mother and who are my brothers?’ And sweeps his hands across his disciples saying ‘Behold my mother and my brothers.’” Jesus doubles down on this elsewhere adding, “If anyone comes to me, and does not hate his own father and mother and wife and children and brothers and sisters, yes, and even his own life, he cannot be my disciple.” So, too, Christians call each other “brother” and “sister.” In the Church, water is thicker than blood. The union of baptism is more fundamental than the union of blood.

The Christian confesses that the Church is his first family, the Church is his first nation or ethnos, and the Church is his first state or polis. Social reality and political reality are, for the Christian, fundamentally ecclesiocentric.

Because national conservatism asserts that worldly institutions like the nation-state and the traditional family are fundamental, when they in fact are not, the political and social theory it implicitly asserts will not heal what ails society today. Thus, with the proviso that we can make common cause on some issues—perhaps even many issues—the Statement’s foundational commitments are fundamentally wrongheaded.

The post Looking for a Church in the State appeared first on Law & Liberty.

While both proponents and critics often speak of “liberalism” as though it was a unity (and, yes, mea culpa!), there are numerous plausible forms of authentic liberalism. These different forms need not cohere. Well known, for example, is the distinction many make between small government “classical liberalism” and big government “modern liberalism.” There is the divide between those who argue, following John Rawls, that liberalism necessarily includes a commitment to secular foundations, and those, such as the left-liberal Christians at Sojourners (or, more classically, James Madison), who argue that liberalism can be, or even must be, founded on religious commitments.

There are many more divisions, even among liberals on the same side of the classical/modern divide.

The existence of multiple forms of liberalism is important not only to those who identify as liberals, but also to critics of one or another form of liberalism. “Postliberal” critics of liberalism, for example, often identify and respond to only a strict subset of liberalisms. In his recent book, Yoram Hazony expressly limits his consideration of liberalism to “Enlightenment liberalism.” So, too, John Milbank and Adrian Pabst contrive an idiosyncratic liberalism for their wide-ranging criticisms in The Politics of Virtue. Yet one cannot be said to reject “liberalism” simpliciter if criticisms apply only to a subset of authentic liberalisms.

Even more significantly, given the range of plausible liberalisms, rejecting the simplistic liberal/postliberal dualism may suggest that there are robust forms of liberalism—or at least sets of liberal postulates—that even postliberals can embrace, or even that many postliberals want to embrace. Critics may reject some forms of liberalism but not others. Recognizing this may help move the discussion away from a sterile and overly broad discussion of “liberalism” simpliciter and toward a discussion of what postulates in different forms of liberalism may be malignant, and what postulates in other forms of authentic liberalism may be benign.

How Many Liberalisms Are There?

So just how many liberalisms are there? Calculating the number depends on the assumptions one makes. Based on the assumptions I articulate below—and readers can replace those with their own assumptions and estimate their own numbers—I suggest a reasonable approximation of the number of plausible liberalisms ranges from 22 to 57.

The reason for the variation in the number of possible liberalisms is that liberals (and, hence, postliberals too) can, as it were, “mix and match” the set of postulates that their liberalism embraces. Calculating the number of “combinations” of these postulates depends on how many possible liberal postulates there are, and how many of those possible postulates an authentic version of liberalism must include.

The actual counting is easier to understand than the abstract statement above. We first must identify the set of liberal postulates, then identify how many postulates an authentic version of liberalism must affirm.

What are the postulates that liberalisms affirm? I start with a list I derived from liberal postulates Larry Siedentop suggests in his book, Inventing the Individual. I then fill out his list by identifying a couple of additional plausible liberal postulates. In all, I identify a total of six main possible liberal postulates. A liberal need not agree with all six of these postulates. It is the “mix or match” quality of these postulates for different forms of authentic liberalism that results in the large number of plausible liberalisms.

Also, as I noted in the introduction, one form of liberalism can embrace versions of liberal postulates that contradict other forms of liberalism. For example, if a liberal asserts that the principle “Respect for Persons” is necessarily based on the religious postulate of the imago dei as articulated in the Scriptures, then that liberal necessarily rejects the claim that “Secular Foundations” is a necessary postulate of liberalism. Both forms of liberalism may identify “Respect for Persons” as a fundamental postulate, but different forms of liberalism may identify different, even contradictory foundations and implications of the postulate. (Note the implication: a postliberal objection to liberalism based on rejecting liberalism’s “Secular Foundations” would not in fact apply to forms of liberalism based on “Religious Foundations.”)

Drawing on Siedentop, and adding a couple of additional possible liberal postulates (with a grateful nod to Professors Ben Peterson and Dave Reiter for help with this) I propose an initial list of leading liberal postulates:

1. Ontological individualism (or, the denial of the existence of any truly corporate person or body): A more narrow version of this might be titled “methodological individualism.” This is the idea that even social aggregates can be accurately described only by identifying and explaining actions taken by individual persons. Note that, contrary to the many wrong-headed criticisms of methodological individualism, methodological individualism does not​ entail the claim that individual behavior is unaffected by the group in which one finds oneself. Methodologically individualist theories can account for people being affected by phenomena like “mob psychology.” It’s just that accounting for this behavior posits that the “mob” be understood as a plural “they” and not as a unitary “it.” This postulate denies the existence of any real organic social unities of people.

2. Respect for Persons: This is a broad liberal commitment on which liberals disagree profoundly as to its basis and its implications. For most classical liberals, “respect for persons” rules out economic redistribution to achieve bare economic equality across society. Yet for left-liberals, “respect for persons” invites redistribution to achieve economic equality (even modulated by Rawls’ “difference principle”). So, too, for some liberals, legalized abortion and euthanasia violate the “respect for persons” principle. For other liberals, the principle requires legalized abortion and euthanasia. Even more broadly, Tocqueville argues that aristocratic and monarchical societies can better protect liberal values such as free thought and free speech than can democratic societies. (“Liberal Monarchism” anyone?)

3. Secular Foundations: Many liberals, most famously John Rawls, insist that “freedom of conscience” depends on political society having secular foundations. Others, such as James Madison, argue that freedom of conscience can only be defended as a God-given right. Similarly, Rawls takes a commitment to “Public Reason”—a very important concept in Rawls’ liberal society—as an implicit commitment to “Secular Foundations.” There are, however, some religious liberals who argue that a commitment to “Public Reason” is fully consistent with affirming orthodox Christian beliefs. That is, that the Faith is fully accessible to, and fully consistent with, “Public Reason.”

4. Cosmopolitanism: This can include the subordination of national interest to global claims. Or this can be a version of free borders, or the claim that a nation’s policymakers should not prefer a nation’s citizens in policymaking to citizens in other nations, etc. It can also include “globalization” in the form of a commitment to the free flow of capital and labor across national borders. And it might include a commitment to one or more international organizations.

5. The Separation of a Private Realm from a Public Realm: Only those actions that are defined as “public” are subject to political or social regulation. Those actions deemed “private” are off limits. Think, for example, of the slippage between a “privacy” right and “autonomy” in the Supreme Court’s 14th Amendment substantive due process jurisprudence. Some liberals—J.S. Mill, for example—might anchor this postulate in the postulate of “Respect for Persons.” For others, it is free-standing.

6. A commitment to a robust system of Private Property: (even if this commitment is not absolute). This can extend from strong property rights advocated by classical liberals like Hayek (called “neoliberalism” by numerous commentators today), to weaker forms of property rights, as in Rawls’ society, which includes a commitment to private property, albeit with a strong redistributivist component.

This list need not exhaust the set of possibilities. Some may add to the list, or subtract, or combine or divide postulates differently. That’s all fine. Also important to note is that a liberal need not adhere to all six of these postulates. They can mix or match. For example, Philip Pettit’s Republicanism revolves around a singular, obsessive commitment to “nondomination” (or what I would call “respect for persons”). In Pettit’s theory “non-domination” is the sedes doctrinae, or the singular “seat of doctrine,” for his liberalism. Rawls, in contrast, asserts at least two or three of these postulates, depending on how one counts: methodological individualism, respect for persons, and secular foundations.

The Combinatorics of Liberalisms

Now that we have a list, even if malleable, we can generate the number of plausible liberalisms. The point is not to generate a precise—or faux precise—enumeration. Rather, it’s to provide a sense that we’re dealing with more than a small number of plausible liberalisms.

If we assume that a system of liberalism can be sufficiently identified by a commitment to one or more of the postulates above, then the set of liberalisms equals the set of all combinations on a set of 6 elements. This gives us 63 different plausible forms of liberalism if we allow a plausible form of authentic liberalism to affirm just one of the above postulates.[1]

I am, however, open to the complaint that defining an authentic form of liberalism as holding only one of the above postulates is too promiscuous a standard. Pettit’s non-domination, for instance, may seem too thin for an authentic form of liberalism. One might think that a reasonable form of authentic liberalism would be committed to at least two or three or four of the above principles.

It is not difficult to account for that complaint, however. We can calculate the number of possible liberalisms no matter the number of postulates one thinks an authentic version of liberalism might affirm.

If commitment to two (or more) of the above postulates would be sufficient for a form of authentic liberalism, then there would be 57 different possible liberalisms. If one believed a commitment to three or more of the above principles were necessary for an authentic form of liberalism, then there would still be 42 available forms of liberalism. Finally, if we required a commitment to four or more of the above principles, then there would still be 22 different liberalisms. (And then seven, and one.)

That said, if our combinatorics of liberalism included subvariants of the different principles, our count of possible versions of liberalism would increase quickly, and the number of possible liberalisms would be even larger than estimated above.

The Upshot of Numerous Different Liberalisms

Beyond the abstract exercise in elementary combinatorics, there is, I would suggest, relevance to the enumeration and identification of different forms of liberalism. From whatever number one wishes to identify as the set of possible authentic liberalisms, one can then create, as it were, an index of the coverage of different forms of anti-liberal criticism. This, in turn, can help identify common ground between some forms of liberalism and some forms of anti- or postliberalism. Contrary to the implication of liberalism treated as a singular concept, with various forms of liberalisms, the possibility exists of otherwise neglected intersections between some forms of liberalism and liberalism’s critics.

Take, for example, the issue of religion and liberalism. “Left” liberals typically argue that “Secular Foundations” is a fundamental aspect of liberalism. (Although even there, left-liberals such as the Sojourners and some Quakers may disagree.) In contrast, many “right” liberals argue not only that robust forms of liberalism do not require “Secular Foundations,” instead, stable, authentic forms of liberalism actually require “Religious Foundations.”

Recognizing the existence of liberalisms (plural), rather than a single liberalism, reveals the possibility of an overlapping agreement between, say, right-liberals and religious postliberals.

For example, if one believed that a robust liberal system must be committed to at least three of the six candidates for liberal postulates identified above, then the total number of possible liberalisms would be 42.

Say then we want to identify the liberalisms within this set that do not affirm Secular Foundations. Given the six possible liberal postulates identified above, the number of those possible liberalisms that include the postulate of “Secular Foundations” would be 25. The number of liberalisms that do not include “Secular Foundations,” however, is 17.

An argument against liberalisms with a commitment to Secular Foundations would apply only to 59.5% of forms of liberalism (again assuming a commitment to at least three of the possible liberal principles).

While that’s a sizeable number of liberalisms, nonetheless, a still significant 40.5 percent of liberalisms that include three or more of the above postulates would not include Secular Foundations among those sets of postulates. That is, there are seventeen authentic forms of three-or-more-postulate liberalism to which an objection based on Secular Foundations does not apply.

Again, the point of the combinatorics isn’t some sort of faux precision of the decimal-pointed counts. The point is that combinatorics helps articulate the intuition that a robust number of authentic forms of liberalism exist that are not inherently committed to Secular Foundations.

To be sure, one could argue, as does Hazony, that while there may be liberalisms that are not committed to the principle of Secular Foundations, as an empirical or historical matter, modern liberalism—that is, the liberalism with which we are wrestling in this day and age—is​ in fact committed to Secular Foundations. Therefore, the argument goes, as a practical matter, to reject liberalisms committed to Secular Foundations is in fact to stake the heart of modern liberalism.

Nonetheless, as Hazony also points out, many contemporary liberal political theorists do not include Secular Foundations in their account of liberalism. (I might add that this fact is perhaps more historically true than Hazony recognizes.) It is not immaterial to a discussion of liberalism and postliberalism that even a definitive rejection of Secular-Foundations liberalism simply does not stake the heart of liberalism per se. That is, along with Hazony and many postliberals, a significant residuum of authentic liberalisms share a commitment to Religious Foundations and reject liberal systems based on the conceit of Secular Foundations.

The point of this exercise is not to set up a “whack-a-mole“ problem for postliberals in which, when one objection is asserted against one form of liberalism the liberal defender can always point to another form of liberalism that does not share that postulate. Rather, the point is that the liberal/postliberal dualism is too simplistic. The dualism requires that we see disagreement where there may in fact be agreement, or at least where they may be some agreement. Depending on the postulate(s), many forms of postliberalism may actually be consistent with some forms of authentic liberalism, and vice versa. Recognizing areas of overlapping agreement can change the nature of the dispute going forward rather than creating disagreement where none really exists.

[1] How do we identify the number of subsets with a certain number of elements Y that can be formed out of a set of 6 elements? Let X be the number in a set, and Y be the number of elements uniquely selected from that set. The designation “XcY,” or where X and Y are natural numbers and X ≥ Y is read “X choose Y.” And is calculated as (Y!)/(Y-X)!(X!), where X! is read “X factorial” and is calculated as the product of (X)(X-1)(X-2) . . . (2)(1).

The set of possible combinations of liberal principles if we allow liberalism to be reasonable defined by a commitment to just one of those principles would be: 6c6 + 6c5 + 6c4 + 6c3 + 6c2 + 6c1 = 1 + 6 + 15 + 20 +15 + 6 = 63.

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While the Fifth Circuit wrote in its stay order that the states’ petition gave it “cause to believe there are grave statutory and constitutional issues with the Mandate,” it did not cite what those issues were, nor did the states’ petition itself sketch those issues. A hint of what those issues might be, however, is provided in the petition filed by eleven states challenging the ETS in the Eighth Circuit Court of Appeals. There the states also challenge both the constitutional and statutory basis for the ETS.

Judges normally accord substantial deference to the government on constitutional challenges to laws or regulations that do not touch on suspect classifications (like race or religion). So, too, judges normally accord substantial deference to administrative rules promulgated by agencies like OSHA. Yet because “Emergency Temporary Standards” can skip important parts of the lengthier review process used when adopting ordinary, non-emergency rules, the statute authorizing adoption of emergency standards imposes a higher evidentiary threshold.

Courts have taken this statutory skepticism to heart. OSHA has tried to use the ETS process only nine times in its history. Of those nine ETS attempts, six were challenged in court. And of those six challenged, only one ETS was upheld. Overall, less than half of OSHA’s proffered ETS’s have been fully implemented. That is a surprisingly low percentage.

Here’s how I would handicap the odds for some of the more obvious challenges to OSHA’s COVID-19 ETS on constitutional and statutory/administrative grounds.

Constitutional Challenges

The main constitutional challenge to OSHA’s COVID-19 ETS is that it infringes on the traditional authority of the states—their “police powers”—to make policy concerning public health. The petition the eleven states filed in the Eighth Circuit argues:

For over a century, the U.S. Supreme Court has recognized that policies on compulsory vaccination lie within the police powers of the States, and that “[t]hey are matters that do not ordinarily concern the national government.” Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905). Until quite recently, the Biden Administration agreed. The White House stated on July 23 of this year that mandating vaccines is “not the role of the federal government.” But on September 9, 2021, that position underwent a dramatic reversal. . . .

The federal government lacks constitutional authority under its enumerated powers to issue this mandate, and its attempt to do so unconstitutionally infringes on the States’ powers expressly reserved by the Tenth Amendment.

It is true that public health policy—and vaccination policy in particular—is a traditional matter of state concern. And there is some language in court cases of recent decades that judges will provide more rigorous scrutiny to federal policies that impose on traditional matters of state concern. In United States v. Lopez, for example—the first time since the 1930s that the US Supreme Court struck down a congressional statute as beyond Congress’s power to regulate interstate commerce—Justice Kennedy, in a concurring opinion joined by Justice O’Connor, wrote that when Congress attempts to extend its power into new areas, “then at the least [the Court] must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern.” Given that education “is a traditional concern of the States . . . [the Court has] a particular duty to ensure that the federal-state balance is not destroyed.”

The majority in Lopez suggested much the same, except focusing on criminal justice as the state policy area of interest:

Under our federal system, the States possess primary authority for defining and enforcing the criminal law. When congress criminalizes conduct already denounced as criminal by the States, it effects a change in the sensitive relation between federal and state criminal jurisdiction (citations and internal quotation marks omitted).

Like education and criminal law, public health policy—and vaccination policy in particular—is an area of traditional state concern.

Yet this additional scrutiny appeared in the decision in the form of the unwillingness of the majority in Lopez to extend Congress’s interstate commerce power to non-commercial activity on school grounds. Where the question of the existence of commercial activity is not present, however, there exist well-established, century-old decisions approving congressional legislation even though the legislation overlaps with state police powers. (See, for example, The Lottery Case of 1903, prohibiting interstate movement of lottery tickets, Hipolite Egg Co. v. United States, 1911, which expressly dealt with a matter of public health, and Hoke v. United States in 1913, relating to morals legislation.)

Given that OSHA’s ETS imposes mandates on employers, and that its manifest concern is the workplace transmission of COVID-19, and given the Court’s expansive interpretation of Congress’s interstate commerce power even after Lopez—that is, Congress has the power to regulate activity that substantially affects interstate commerce—it seems most likely that courts will uphold the constitutionality of OSHA’s COVID-19 ETS.

Statutory and Administrative Challenges to OSHA’s COVID-19 ETS

As noted above, less than half of all of OSHA’s Emergency Temporary Standards survived judicial challenge actually to be implemented. Because the ETS process allows for procedural shortcuts, the evidentiary standard that OSHA needs to meet for an ETS is higher than when promulgating ordinary, non-emergency rules. Judges have proven quite willing to require OSHA demonstrate to their satisfaction that the higher evidentiary thresholds required an ETS are in fact met.

Different routes can be taken to challenge the statutory and administrative basis for OSHA’s COVID-19 ETS. In their petition to the Eighth Circuit, the states assert these challenges: First, OSHA took two months to issue an ETS after it had announced its plan. This, the states argue, suggests that OSHA itself does not think the evidence really implies an emergency actually exists. Secondly, OSHA’s rationale for the ETS does not meet the legal requirement that there be “substantial evidence in the record considered as a whole” to adopt the ETS. In particular, OSHA neglects to consider the costs of its mandate. Third, given that President Biden announced the intention to impose the mandate months earlier, the reasons OSHA adduces for the ETS are nothing more than an impermissible “post hoc rationalization” for the mandate. Courts have refused to consider “post hoc rationalizations” asserted in support of administrative rules.

What of these challenges?

First, OSHA does have to meet a higher standard of evidence in setting forth an ETS relative to going through the ordinary process of rulemaking. As the Fifth Circuit noted in Asbestos Information Association v. OSHA,

This court’s decision in Florida Peach Growers v. Department of Labor holds that an ETS is like any other OSHA regulation under pre-enforcement judicial scrutiny for purposes of imposing the statutorily prescribed substantial evidence standard. Consequently, we must take a “harder look” at OSHA’s action than we would if we were reviewing the action under the more deferential arbitrary and capricious standard applicable to agencies governed by the Administrative Procedure Act.

The question then is whether a “grave danger” to worker health exists without the ETS. In their Eighth Circuit petition, the states argue that the delay of two months between announcing the intention to implement the ETS and its actual implementation suggests that a real emergency doesn’t exist. So, too, the delayed implementation of the vaccination requirement until January 4, 2022 might suggest the same. That is, if there’s a real emergency, then why the wait?

I am dubious this part of the challenge will succeed. After all, the very need to meet the “substantial evidence” standard implies the need for OSHA to have written something like its detailed, 154-page justification for its ETS. A two-month period to accumulate the sources and evidence reported in the justification does not seem excessive. After all, a less complete justification for the ETS—one that could have been written in a shorter time—could then have been challenged by states on the basis that it did not provide enough “substantial evidence” to meet the statutory requirement for an ETS. As the court wrote in Asbestos Information Association regarding a period of OSHA’s inaction over a period of several years, “the Agency’s failure to act may be evidence that a situation is not a true emergency, but we agree with OSHA that failure to act does not conclusively establish that a situation is not an emergency.”

A similar analysis would track for the two-month wait before enforcement of the mandate begins January 4, 2022. Given the ETS requirement that employers develop plans and monitoring for the requirements, let alone the need for many employees actually to get vaccinated, two months does not seem an excessive lead period. Indeed, without the lead period, costs to employers would presumably be much higher, which would then create a reason itself to challenge the ETS.

Nonetheless, whether there is “substantial evidence” of “grave danger” from workplace transmission of COVID-19 may be a line of challenge that courts may be more willing to entertain. Judges have proven quite willing to dive into the empirical details in reviewing whether OSHA has in fact met the required “substantial-evidence” threshold. For example, the Third Circuit in Dry Color Manufacturers’ Association, Inc. v. Department of Labor, rejected evidence that a substance caused cancer in rats as sufficient to meet the evidentiary standard in application to humans. The court subsequently rejected the ETS. So, too, the absence of proof of sufficiently serious health effects had the Fifth Circuit reject OSHA’s ETS in Florida Peach Growers Association, Inc. v. United States Department of Labor.

The point is that judges have required OSHA actually to prove each connecting point in its rationale for an ETS. It is, for example, insufficient for OSHA to justify its COVID-19 ETS merely by showing that people who have COVID-19 have a higher mortality rate than people who do not contract it. Rather, OSHA needs first to provide “substantial evidence” that it is workers who are in “grave danger.” (Recall, for example, that the highest mortality rates are for people above the age of 70, the vast majority of whom no longer work). Or OSHA’s ETS might be challenged given that cases are currently declining in the U.S. Given the “substantial evidence” requirement, OSHA would need to do more than assert that COVID-19 cases will increase again in the future.

And, last but not least, OSHA needs to provide “substantial evidence” that the workplace itself is the source of the transmission of debilitating cases of COVID-19.

To be sure, OSHA’s 154-page ETS at least covers these bases. But it is particularly on this last point—workplace transmission of COVID-19—that OSHA’s ETS itself manifests over the sufficiency of its empirical case. The problem is the speed with which COVID-19 has developed has not allowed much time for scientific investigations over all aspects of the disease, including specific studies regarding how the virus is transmitted. As a result, OSHA argues in its ETS that publications like newspaper articles that report on workplace transmission of COVID-19 should be accepted as legitimate sources of evidence for the ETS. At least some judges might conclude that the evidence provided on the actual threat of workplace transmission does not rise to the required level of providing the “substantial evidence” for the ETS. (And OSHA does cite more than newspaper articles on workplace transmission. It’s just that the ETS itself draws attention to its use of non-scientific sources on this point in particular.)

The states in their Eighth Circuit petition challenge the ETS arguing that, since President Biden announced that the ETS would be forthcoming, the evidence provided for it in the 154 pages of supporting material is nothing more than “post hoc rationalization”—that the reasons an agency provides for an administrative action when challenged in court were not yet articulated by the agency at the time the action was originally taken. The Supreme Court rejected “post hoc rationalization” as an appropriate basis for administrative actions in Department of Homeland Security v. Regents of University of California and circuit courts have rejected it in specific application to an OSHA ETS in Asbestos Information Association v. OSHA.

Yet the state petition asserts the “post hoc rationalization” challenge in a novel form: The petition asserts that because of the earlier announcement by the president of the intention to provide an ETS regarding COVID-19, the ETS itself therefore provides only a post hoc rationalization for a decision that was already taken. This is a different setting than the objection that an agency provides a novel justification for a formal agency action when challenged in a court than it provided when it took the formal action in the first place.

Where does this leave us? Successful state-level legal challenges to “emergency” orders have come mainly in the form of arguments that governors and administrators have exceeded statutory authorization rather than in the form of constitutional attacks on those actions. I expect that will be the case for state challenges to OSHA’s COVID-19 mandate as well. As in past cases in which courts have prevented implementation of over half of OSHA Emergency Temporary Standards, OSHA’s COVID-19 mandate will prove most vulnerable to judicial skepticism of the empirical justification OSHA provides for the ETS. In particular, whether judges are persuaded that OSHA has in fact met the high threshold of providing “substantial evidence” for each link in the argumentative chain needed to support its COVID-19 ETS.

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 As a theory posited to explain observed phenomena, CRT can be tested—and contested—to determine just how well it accounts for the phenomena it seeks to explain. The irony is that doubling down on practices and policies aimed at making colorblind decisions, that is, decisions without respect to race—and CRT rejects the possibility, let alone the efficacy of colorblind policies—remains the best means to solve continuing racial disparities that distress not only Critical Race Theorists, but most Americans on the Right as well as the Left.

What Prompted the Rise of Critical Race Theory in the 1980s

While drawing on other disciplines, Critical Race Theory arose as a distinct intellectual movement in American law schools in the mid-1980s. Growing out of a broader scholarly movement among self-described left-wing legal scholars called Critical Legal Studies, CRT arose distinctively to challenge the mainstream liberal consensus of the time on the adequacy of the Civil Rights policies and social programs of the 1960s as means to remedy racism in the United States.

While critical of the sufficiency of these policies and programs to remedy racism in the United States, most Critical Race Theorists recognize the important advances made by these policies in mandating formal conditions for equal opportunity in employment and other economic and social domains and in providing statutory and constitutional support for the construction of racial equality.

Despite the policies and programs of the 1960s, significant disparities continued between blacks and whites, and progress reducing these disparities seems to have plateaued by the 1980s. For example, the disparity between white students and African American students declined by about a third in reading from the early 1970s to the early 2000s, and by about 40 percent in mathematics. Nonetheless, sizeable achievement gaps remain. And while income disparity between whites and African Americans has declined by around 5 percent since the late 1960s, median income for African American families remains only slightly over 60 percent of median income for white families. Similarly, median net worth of African American families remains stagnant in the face of modestly increasing median net worth for white families over the same time period.

In response to this, Critical Race Theorists posited a parsimonious theory to account for the persistence of racial disparities in the United States, that racial disparities continue in the United States because racism continues in the United States. And the policies and programs of the 1960s, while perhaps a good start, were insufficient to root out the true depth of racism in the United States.

It is a clear, simple theory. And, if true, could certainly account for continuing racial disparities in the United States.

Broadening the Definition of Racism

But is it true? There is an equally straightforward response to CRT’s central theoretical claim. And then matters start to become less straightforward with the CRT rejoinder.

Against CRT’s central theoretical claim, many Americans of all races—but particularly white Americans—respond with something like this: “Since the 1960s, racist beliefs and attitudes among Americans have been banished to the small, dark corners of American society. So continuing racism cannot account for the persistence of racial disparities in the United States.”

The move Critical Race Theorists make in response to this is to argue that the definition of racism cannot be limited to personal racial animus. In a critical, and controversial, definitional move, Critical Race Theorists argue that “institutional structure” can perpetuate racism even when those structures are populated by people who hold no personal racial animus. Necessarily joined with this claim is that even otherwise racially neutral institutions and institutional rules can reproduce racial disparities. The critical, and controversial, rhetorical move then defines “racism” to include “racially disparate outcomes” even when personally held racist attitudes did not create or sustain the racially disparate outcomes.

Anthony Downs articulated what would become one of CRT’s most important argumentative moves in testimony before the U.S. Civil Rights Commission in 1970:

Perhaps the best definition of racism is an operational one. This means that it must be based upon the way people actually behave, rather than upon logical consistency or purely scientific ideas. Therefore, racism may be viewed as any attitude, action, or institutional structure which subordinates a person or group because of his or their color.

In essence, racially disparate outcomes are defined as “racism” irrespective of the existence of any individual making decisions based on racial animus.

The CRT move comes not only with respect to “institutional structure,” but with respect to identifying cause as well. That is, just what does it mean that an otherwise racially netural institution or rule subordinates a person or group “because” of color?” While many Americans are wont to take “racism” as primarily a personal moral failing, doing so, Critical Race Theorists argue, allows purely subjective personal reform to displace reduction of palpable economic and social disparities as the measure of success in achieving racial equality. As Crenshaw, Gotanda, Peller, and Thomas write in their editors’ introduction to Critical Race Theory: The Key Writings that Formed the Movement,

Racial justice was embraced in the American mainstream in terms that excluded radical or fundamental challenges to status quo institutional practices in American society by treating the exercise of racial power as rare and aberrational rather than as systemic and ingrained. The construction of “racism” from what Alan Freeman terms the “perpetrator perspective” restrictively conceived racism as an intentional, albeit irrational, deviation by a conscious wrongdoer from otherwise neutral, rational, and just ways of distributing jobs, power, prestige, and wealth. The adoption of this perspective allowed a broad cultural mainstream both explicitly to acknowledge the fact of racism and, simultaneously, to insist on its irregular occurrence and limited significance.

It is at this point that the arguments start moving past each other. While this claim is a central feature of CRT, most Americans take CRT assertions of “racism” as a moral indictment and respond with a defensive, “But I don’t hold racist beliefs or attitudes!”

This gets us back to the central feature motivating the rise of CRT in the 1980s, that is, the plateauing of progress toward racial equality far short of expectations. Crenshaw, Gotanda, Peller, and Thomas write:

Along with the suppression of explicit white racism (the widely celebrated aim of civil rights reform), the dominant legal conception of racism as a discrete and identifiable act of “prejudice based on skin color” placed virtually the entire range of everyday social practices in America-social practices developed and maintained throughout the period of formal American apartheid-beyond the scope of critical examination or legal remediation.

Racial Disparities are a Policy Issue even when Uncaused by Racism

The argument over whether the continuation of racial economic and social disparities demonstrates “racism,” however, deflects attention away from a critical point of agreement between most Americans and Critical Race Theorists. That is, one need not be a Critical Race Theorist to worry about the lingering effects of slavery, Jim Crow, real estate redlining, or even disparate treatment of black farmers by Department of Agriculture policies decades after the 1960s. As R. Shep Melnick wrote on these pages just a few weeks ago, “Half a century after the civil rights revolution of the 1960s, we continue to grapple with the long-term consequences of centuries of slavery, Jim Crow, and racial discrimination.” He further quoted Lyndon Johnson’s 1965 address at Howard University:

You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you place. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.

It is at this point that CRT takes a different direction. Many Americans look at continuing racial disparities and believe that the country still has to make good on the aspiration of colorblindness. As policies and decisions are increasingly colorblind, the thought goes, racial progress will continue. Critical race theorists, however, argue that colorblind policies are a dead end and serve only to reproduce existing racial disparities rather than solve them. This is one reason for the move from talking about “equality” to talking about “equity.”

Colorblind Policies and Practices Can Reduce Racial Disparities

Yet here Critical Race Theorists give short shrift to the continuing promise of a colorblind society—the traditional commitment to equal opportunity as a means of reducing racial disparities to the point of statistical noise. They reject policies, for example, that aim to remedy educational disparities by ensuring equal educational opportunities across schools irrespective of the race (or class) of children attending those schools. At the same time, there is no purchase in declaiming, say, university admissions requirements—at least those that map onto academic success at the university level—as “institutional racism” when admissions reflect the educational disparities that in fact exist today, if tragically. The solution, however, is to increase equal educational opportunity, not to jettison colorblind admissions requirements.

It is not, after all, as if the existence and persistence of racial disparities fail to be recognized as a pressing point of social concern when they are recognized only “racial disparities” and not “racism” per se.

Doubling down on colorblindness holds manifest promise even for what is taken to be the more difficult case of so-called “implicit bias.” “Implicit bias” results from making decisions based on perceived group characteristics rather than on individual characteristics alone. The difference between implicit bias and plain vanilla racism is that implicit bias can result when beliefs about group characteristics are in fact true.

Take, for example, the famous study in the American Economic Review reporting that job applicants with black-sounding names received fewer callbacks than job applicants with white-sounding names despite the submission of otherwise equal resumes. There is, in fact, some question whether the study picked up class bias rather than racial bias. Nonetheless, because of the overlap between race and socioeconomic status in the United States, the effect would have a racially disparate effect in any event.

Yet this outcome need not reflect racial animus among hiring managers. Even more importantly for the discussion here, color-blind policies—that is, making decisions about individuals without consideration of their race—would in fact eliminate the disparate effect reported.

For example, it is true that, on average, the reading and math skills of blacks as a group are lower than the reading and math skills of whites as a group. Hiring managers, like the rest of us, often use informational shortcuts in making decisions. If, say, the hiring manager has a constrained time period to review hundreds of applications and identify the best qualified individuals, then these time constraints can induce the person to use race as a proxy for educational qualifications. Note that, in doing so, the hiring manager’s decisional shortcut is based on an accurate perception of group averages, and on average results in identifying a better qualified finalist cohort than simply sampling from the entire set of applicants.

But there is a cost to drawing on group averages, even when accurate. The cost of making decisions based on group averages—even accurate group averages—is that the most qualified individuals of the group with the lower average are systematically ignored. As a result, when race is used as a proxy for education, even when accurately perceived on average, the result is hiring more whites over blacks despite the existence of better qualified blacks and despite the fact that the hiring manager does not personally hold any racist attitudes. Indeed, the hiring manager implicitly selecting on this criterion could even be black.

This point merits emphasis. The hiring manager’s informational shortcut on average results in racially disparate outcomes. This despite the absence of racial animus. Yet because the hiring manager is drawing on group averages rather than focusing on the individual, and because the hiring manager is using race as a proxy for educational achievement rather than implementing a truly colorblind decision rule, the hiring manager’s informational shortcut results in overlooking some of the best qualified individual applicants in the group that averages lower educational achievement (that is, highly qualified applicants who have “black names”).

This points to the solution: policies and practices that focus on race neutral, individual attributes would have the effect of reducing racial disparities. The solution to implicit bias is to develop colorblind hiring practices that avoid the temptation to use the crutch of racial stereotypes, even when those stereotypes are accurate. (Even when a stereotype is accurate, decisions based on group averages result in overlooking the many candidates with competitive qualifications.) There are in fact simple strategies to solve “implicit bias,” from strategies to racially anonymize applications to simply being aware of the perverse implication of informational shortcuts (that they can result in missing the most qualified applicant). Because of their idiosyncratic nature, however, solutions would need to come in the form of company-level training and policy rather than from government mandate.

The point, again, is that the solution comes from greater consideration of individual applicants as individuals rather than as group members.

The implications of the colorblind solution to implicit bias do not end with the individuals hired, however. It leads to reducing racial disparities overall, and reducing the reproduction of those disparities over time.

Consider. Blacks regularly report the feeling that they need to work harder than whites to qualify for the same opportunities. This report is consistent with the existence of implicit bias as described above: When judged on the basis of group averages, even implicitly, it is harder for high-performing members of the group with lower average qualifications to come to the positive attention of decision makers. From this we understand how implicit bias can reproduce disparate racial outcomes into the future. If the marginal expected return on a given amount of effort is less for blacks than for whites for the same level of ability, then, on the assumption that blacks respond to incentives exactly the same way as whites, the implication is that, with implicit bias, blacks will of course invest less effort in human capital than whites with the same level of ability. This is a rational response to the lower expected returns that result from implicit bias. But less investment in human capital results in lower wages, lower household financial accumulation over a lifetime, and a less prosperous future. This constraint affects both the individual and other members of the individual’s household, such as children.

Colorblind practices, however, sever this negative feedback loop. In doing so, they provide greater incentives than exist today to invest in one’s own human capital (and one’s children, etc.). Contrary to Critical Race Theory’s attack on colorblindness, however, the solution to the disparity created by implicit bias is greater focus and consideration of individual merit, not less. It follows naturally on the trajectory of the 1960s Civil Rights achievements rather than dismissing or minimizing them.

It does not minimize the significance of racially disparate outcomes to identify them as “racially disparate outcomes” rather than as “racism.” Yet when racially disparate outcomes result from the application of decision rules that do not reference race or racial markers, then racially disparate outcomes result from causes other than race itself. When this occurs the racially disparate outcome—which is real—is still nonetheless not properly called “racism.” It is confusing, if not counterproductive, to do so. When racially disparate outcomes result from various socioeconomic variables that are not unique to African Americans, even when they exist disproportionately among African Americans and so result in racially disparate outcomes, then the solution derives from focusing on the socioeconomic issues themselves rather than on race. In addressing the actual causes, however, the racially disparate outcomes will nonetheless shrink, which is the mutually desired outcome.

Critical Race Theory was birthed in response to frustrations that all Americans can feel at the plateauing of progress on reducing economic and social disparities between the races in America. CRT, however, focuses on the wrong variable in hypothesizing, first, a desire among white Americans to perpetuate “a regime of white supremacy and its subordination of people of color,” and, secondly, in hypothesizing that doubling down on individually-focused policies and programs cannot continue significant progress on reducing racial economic and social disparities. It is indeed important that schools not teach false, one-sided narratives about racism in America’s history. Yet in this as in other things, actions speak louder than words. The best answer to Critical Race Theory is renewed progress in America in achieving a colorblind society and thereby reducing economic and social disparities between the races.

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