The children were thrilled by the hubbub. I proposed that we burn down the house and move. But my husband wanted to try a less drastic solution first, and a visit to the hardware store combined with some peanut butter remedied the situation forthwith. It was all over in one sense. And yet, none of us are isolated beings—neither we ourselves nor the mice we meet along the way. 

I was affronted by an encounter with wildlife in my city house, but in fact, this episode is but a blip in the longer story of the coexistence of mice and men (and women, to be sure). We’ve all been city-dwellers for millennia now, regularly living in close quarters even if most people over 10 would prefer not to think about that fact. The city has been good to us, and yet it exacts its price. My furry friend and I are fellow travelers in more ways than one.  

Plagues and Pizzerias

A city mouse once came to visit a country mouse. So opens one of the most famous of Aesop’s Fables. Disappointed by the decidedly unimpressive dinner that the country mouse serves, the city mouse invites his friend to come to a fancy banquet at his place instead. The food there proves amazing, utterly unlike anything the country mouse has ever experienced before. But then the cats show up, and the mice barely make it out alive.  

The moral of the story is to be content with little, as the country mouse concludes at the end. Sure, the city mouse has much better food than the country mouse. But the city mouse also has to live with constant danger, with harrowing threats to life and limb. There are, it seems, tradeoffs to moving to the big city; the benefits come at a potentially high cost. And yet, whenever we casually reference this story, which has entered English idiom, we forget a crucial historical fact: There was a time when the city mouse didn’t exist. 

Rodents like mice and rats have become a commensal species relatively recently, historian Kyle Harper remarks in his book Plagues Upon the Earth: Disease and the Course of Human History. Historians, of course, pay attention to people. But perhaps now that we’ve experienced a pandemic in recent memory, we shouldn’t too easily forget the non-human agents of historical change, the ones who wreak havoc on man-made empires through the dissemination of deadly pathogens. There are four categories of parasites that can get us sick: helminths (fancy word for worms, who are definitely not fancy), protozoa, bacteria, and viruses. SARS-CoV-2 (aka Covid-19) is a virus. Malaria, one of the top killers in all human history, is caused by protozoa, whereas the Bubonic plague is caused by a bacterium. This brings us to another important point: collaboration is key to success, and not only for people.

Many of these parasites, invisible to the naked eye, hitch a ride on other, larger carriers—protozoa on mosquitoes, ticks on deer and moose, and of course, fleas on rats. Which brings us right back to those country rats and mice, who historically did not reach the same conclusion as Aesop’s protagonist, who was so content to go back home and never return to the city. Instead, once historical rodents discovered cities, they could never go back. The real-life country mouse that visits a city, in other words, tends to stay in the city. Its country-dwelling cousins can stay where they are, and plenty of them do, if they’ve never experienced the alternative. But the city mouse is here to stay. 

Perhaps mice are not very different in this regard from humans, whose migration patterns also tend to go only one way. And that is precisely the point in the original fable. While using animals as protagonists, after all, Aesop’s fables reflected on human socio-cultural developments. It’s just that in this particular case, perhaps even more than in some others, humans and animals are remarkably alike. Once we discover cities, with their rich culture, restaurants, coffeeshops, and all the other trappings of civilization, we too become converts to the city life, expressly naming those bakeries and pizzerias as one of our motivating reasons—and turning a blind eye to the cat-sized rats that patrol the alleyways behind our favorite eateries. 

In fact, Harper offers a heartening tale about one of the ways the mouse’s larger cousin, the country rat, first discovered cities. He places responsibility with the Romans, whose mobility across vast swaths of land and sea in ancient Eurasia brought along certain species of rats from their native Asia to Rome and other cities as an unintended memento of their travels and works of conquest. (A worthy updated answer to the question: “What have the Romans ever done for us?”) The results have been, of course, nothing short of devastating. Harper reminds: “Although many a textbook still claims that the Black Death carried off a third of the continent, in reality, the best estimates are closer to half.”

Patriotic Rodents

It appears that our commensality with rats and mice is not benefiting us, humans. And yet, here we are, still city dwellers, right along with the rats and mice we ignore or, sometimes, accidentally ingest unawares. Because, as it turns out, we have the same tastes—culinarily speaking. In the film Ratatouille, a highly refined Parisian city rat turns his love of complex tastes into a career as a chef. Makes sense—and data shows, furthermore, that rats, like people, love their local cuisine best. But city rats are not just exquisite gourmands with a remarkably sophisticated palate—they, like people, adapt to their city and become a part of it. 

A report on New York City rats’ eating preferences used citation reports of NYC eateries to make some conclusions on “exactly where man and rodent break bread.” Leading the pack was American food. Out of the cited restaurants, “232 served American cuisine, 153 of them were Chinese-based, 71 served Japanese and 65 were Latin. Pizza spots were also near the top of the list, with 60 different restaurants showing evidence of rats. In the middle of the pack were Spanish and Thai restaurants, bakeries, coffee shops and delicatessens. Bringing up the rear were Kosher and Tex-Mex, which only had 8 eateries cited for rats.” 

New York City rats, in other words, are unabashedly American patriots down to their pizza-loving core. And while NYC is now really trying to crack down on its murine populace, the official Rat Czar, Kathleen Corradi, has her work cut out for her, with “several million furry problems to eliminate and no direct staff.” At least, it appears that the new requirement for the human city-dwellers to put their trash in containers, instead of setting it out in bags directly on the curb, has been fairly successful so far in reducing rat sightings. But will the rats ever fully move out? I expect that the success of the war on rats will, at some point, plateau. Perhaps the city rats will have to adjust their tastes in the meantime, settling for what’s available rather than living the high life of selecting their preferred takeout each night. 

And yet, there’s another option: City mice (and rats) could become country mice yet again. And the same goes for city people, who bear the burden of skyrocketing rent costs in New York City and some other large cities, instead of moving somewhere where the cost of living would be significantly more affordable. Wendell Berry has spent his entire writing career, now extending over six decades, bemoaning this pull of the city from the countryside time and again in his nonfiction and fiction. It doesn’t have to be this way, he repeatedly reminds. City life is the one we choose for ourselves, and all for what? For that stressful rat race of a life that Aesop’s original country mouse sensibly saw for what it was—not worth the constant danger and stress. 

But here’s the paradox: Somehow, without even realizing that it happened, we’re all city mice now, as far as the availability of luxuries and amenities in our lives goes. Yes, there are very traditional Old Order Amish who farm on the outskirts of my small Ohio town—these are the very people whom Berry repeatedly brings up in his nonfiction and fiction as examples of choosing the right priorities, treasuring the simpler life, and avoiding the worst of modernity. And yet, they drive their horse and buggy to the local Aldi, where I show up in my typical mom minivan. As we both stock up on produce and more, the contents of their shopping carts at times appear indistinguishable from mine, minus the frozen pizza. Uncanny. 

Sure, cities have enthralled humans and pests alike with their glamorous promises and offerings for millennia, and yet they also encourage our covetousness and often don’t deliver on the promise of happiness anyway. But then, idealizing the “trad” life is likewise pointless in this age of ubiquitous small luxuries, readily available to all, including my rural Amish neighbors. At least, I can say, after living much of our early lives in larger cities, both my husband and I have found it a comfort and delight to spend over a decade in a small town in Georgia, and now to call a small town in Ohio our home. Turns out that finding happiness by reverse migration—from city mice back to country-adjacent mice—is not just the stuff of Hallmark channel romances.

The End of the Line

At the zoo, the same week as Mousegate, we took a leisurely stroll through the Australia section, where my children were delighted to see a caged kookaburra. In his beak was a mouse, whole and readily recognizable, its long tail hanging limp to one side. For a few minutes, the bird primly sat on its perch, ignoring the onlookers. And then, shaking his head back in one abrupt swoop … reader, he ate it. 

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Progressives want bigger government, and often conservatives don’t want it as small as we ought to like. O’Rourke knew all too well that the larger the state grows, the smaller individuals become. He devoted much of his work to explaining this in a way anyone could understand—even those not particularly interested in politics. His words resonate today in a new light, and fortunately, they remain easy to access: the Internet is full of O’Rourke’s articles, and all his books are still in print. The ideas, the jokes—the profound, the outdated, and even the ones that haven’t aged all that well—are still out there, waiting to be discovered by any digital wanderer with a sense of humor and a thirst for sharp thinking. It’s almost frightening to realize that some of O’Rourke’s tech-related jokes would go completely over a millennial or zoomer’s head today. And it’s even more pitiful to think that some of his old comments would be cancelled in today’s dull, hypersensitive postmodern world. Perhaps it’s because, as he once said, “One of the problems with being a writer is that all of your idiocies are still in print somewhere.” Incidentally, that’s where O’Rourke found his only point of agreement with environmentalists: “I strongly support paper recycling.”

The hippie student he was in the ‘60s lost his enthusiasm for leftist ideas the following decade, as soon as he got his first paycheck from National Lampoon: a $300 check that filled him with joy—until he was told $140 would be deducted for taxes, health insurance, and Social Security. That day, he got mad at the government, and the grudge never faded. Before that, while still sporting what he called “a bad haircut”—think John Lennon’s worst style—he’d decided to tell his Republican grandmother he’d become a communist. Her response threw him off: “Well, at least you’re not a Democrat.”

O’Rourke was never one to romanticize his drug-fueled college days. “Oh God, the ‘60s are back,” he wrote. “Good thing I’ve got a double-barreled 12-gauge with a chamber for three-inch magnum shells. And speaking strictly as a retired hippie and former beatnik, if the ‘60s come my way, they won’t make it past the porch steps. They’ll be history. Which, for God’s sake, is what they’re supposed to be.”

From his time as editor-in-chief of National Lampoon in the ‘70s, we got his account in The Hollywood Reporter, “How I Killed National Lampoon.” The job was a blast, but the environment was hell: “Having a bunch of humorists in one place is like having a bunch of cats in a sack.” As a satirical war correspondent covering every late-century conflict, O’Rourke filled countless pages describing the struggle to find a damn glass of whiskey in the burning countries at the “end of history.” His last dangerous assignment was in Iraq. “I’d been writing about overseas troubles of one kind or another for twenty-one years, in forty-some countries, none of them the nice ones. I had a happy marriage and cute kids. There wasn’t much happy or cute about Iraq,” he wrote in Holidays in Heck.

The turning point for O’Rourke came during 2003 with the death of his friend and colleague Michael Kelly in Baghdad. They’d traveled together to the Iraq War. Kelly, former editor-in-chief of The Atlantic when O’Rourke wrote there, was “embedded” with the Third Infantry Division, while O’Rourke covered the war “unilaterally.” The last time they spoke, Mike joked that he’d get stuck on the way to Baghdad, while P. J. would be “driving a rental car through liberated Iraq, drinking Rumsfeld Beer and judging wet abaya contests.” Instead, O’Rourke wrote, “I wound up trapped in Kuwait, bored and useless, and Mike went with the front line to Baghdad, where he was killed.” That’s when he decided the war party was over.

In 2015, when the Daily Beast offered me the chance to cover Spain and its surroundings, what thrilled me most was that I would occasionally share a corner of the front page with P. J. O’Rourke. He had just joined as a columnist a couple of weeks earlier. The Toledo-born writer had a knack for navigating both left and right-leaning outlets because he’d mastered the art of humor’s universality—he was too funny to spark grudges and too free to stay confined to one column. That’s a rare gift.

O’Rourke was a pioneer in spotting the clash between contemporary progressivism and humor. Today, that clash has worsened with “cancel culture.” “I couldn’t stay a Maoist forever,” he wrote in Republican Party Reptile. “I got too fat to wear bell-bottoms. And I realized that communism meant giving my golf clubs to a family in Zaire. Plus, I couldn’t stand the left’s oppressive, dreadful seriousness.” He knew liberals seemed obsessed with stuffing their jokes full of political messages—making the message bigger than the laugh. Add to that their bad habit of taking themselves way too seriously, and you’ve got comedy that’s more likely to put people to sleep than make them laugh. Much of left-wing humor feels more about changing the world than cracking a smile. Real laughter, by contrast, is light, spontaneous, and wonderfully absurd.

O’Rourke was a free man in the most heroic sense. His defense of liberty wasn’t just an ideological stance; it was a way of life. He loved America but didn’t shy away from mocking its worst characteristics: “Wherever there’s injustice, oppression, and suffering, America will show up six months late and bomb the country next to where it’s happening,” he wrote.

As a disciple of H. L. Mencken, O’Rourke’s great calling was spotting idiots—left, right, past, present, and even future ones. With Parliament of Whores, he tore apart the world of professional politics, not lingering too long on whether the targets of his skewering were “his people” or not. Though his stance was that of an underground—or punk—Republican, for O’Rourke, there was no single enemy. He had no problem taking shots at all politicians and parties alike when defending his ideas: “Distracting a politician from governing is like distracting a bear from eating your baby.” “Every government is a parliament of whores,” he declared. “The trouble is, in a democracy, the whores are us.”

He ridiculed the left’s environmentalism long before it began shaping our lives. After writing his essay “Ship of Fools,” he never missed a chance to mock those who use environmentalism as a position of moral superiority from which to take potshots at capitalism. There’s no difference between the anti-war, Beatles-and-Vietnam-era environmentalism and today’s climate fanaticism—O’Rourke understood full well that they’re just different faces of an ideology far more interested in dismantling capitalism than cleaning oceans.

His satirical style led some to dismiss him as an economic expert, but it made him one of the most effective champions of capitalism, Adam Smith—he even humorously reimagined The Wealth of Nations—and libertarian conservative thought. Until the rise of rockstar Javier Milei, no one had quite matched his ability to reach such a broad audience with that mission. “When buying and selling are controlled by legislation, the first things to be bought and sold are legislators,” he wrote. And in Eat the Rich, he observed that: “Microeconomics is about money you don’t have, and macroeconomics is about money the government is out of.” Through humor, he found ways to express serious truths.

In his later years, he remained the living satirist with the most quotes in the Oxford Dictionary of Humorous Quotations, but no publication championed his presence as they once did. Today, no newspaper would fund a comedic correspondent to Kyiv in the middle of a war; we live in strange times: now the comedian, Zelensky, leads one side of the conflict, while on the other, the leader seems to be losing his sense of humor. And in these thin-skinned times, no one would dare publish a poverty analysis with lines like, “Of course, the humans in Haiti have hope. They hope to leave.”

Poverty, freedom, good manners, stupidity, technological invasion, or the automobile—nothing escaped O’Rourke’s sharp eye. Everything remains relevant. Although, thanks to capitalism, poverty has decreased, the left still clings to the belief—almost like a ritual act—that it’s not capitalism but socialism that’s worked miracles. Freedom is always under threat, and our privacy is invaded. Good manners are definitely out of fashion among Twitter/X addicts. Stupidity is enjoying a global boom. The technological invasion is making our brains short-circuit. And now, they’re forcing us to trade in our cars for four-wheeled electric scooters.

The problem of freedom—the central theme of O’Rourke’s work and thought—has been humanity’s problem since its very first day on Earth. And so has the problem of the economy. Adam and Eve had to make a choice. They got it wrong, sure—but at least they taught us a key idea of capitalism: economics is the science of choices; if the choices are bad, the economy goes straight to hell.

Now that much of the West is experiencing a revival of libertarian and conservative ideas—with increasingly younger supporters—O’Rourke could serve as the perfect gateway drug. His sarcastic, provocative tone is always cheerful, and it’s also the best weapon against a left that seems more and more detached from reality, furious even with biology and science, while growing steadily more humorless and unbearably self-important. Let’s not forget that Judith Butler—the mother of progressive postmodern theories from the waist down—somehow managed to turn grotesque ideas, the kind that would’ve made us burst out laughing just a decade ago, into painfully boring books. You can’t respond to Butler with Blaise Pascal or Thomas Aquinas. Unless you want to lose your mind like her followers, there’s only one answer: with P. J. Take a look at the West and who’s currently in charge, and tell me if there’s a more relevant and timely warning than the classic from the author of Parliament of Whores: “Giving money and power to government is like giving whiskey and car keys to teenage boys.”

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In the best sense of the word, they are an individualistic team. That doesn’t mean that every player is thinking about himself, but rather that everyone on the roster is a unique threat, and it is common for a different player to shine in each game. The players themselves bring distinctive sets of abilities to the court, and the Pacers thrive not by making each player fit into a mold but by allowing each to remain true to his identity. The team is one of the most hyperkinetic in the league, which means that each player on the floor needs to work hard the whole time. And the coaching staff, led by Rick Carlisle, encourages each player to do what he judges best in the moment, while owning his choices.

The Pacers embody many of the principles of one of the greatest coaches in any sport, fellow Hoosier John Wooden, the first person to be inducted into the basketball Hall of Fame as both a player and a coach. Wooden’s classic championship teams varied dramatically from one another, as did their winning strategies. His first championship team was also his shortest, with no players taller than 6 feet 5 inches. Yet they went 30-0 because each player knew how to “play tall,” intimidating opponents with a full-court press. Yet Wooden could also win with teams built around big men such as Lew Alcindor.

To watch the Pacers play is to behold freedom and autonomy in action. The players are unpredictable, creative, and always improvising. Instead of implementing a top-down plan, they focus on adapting moment to moment to opposing players. This often renders the game exhilarating, the ball moving up and down and around the court at breakneck speed. Offense and defense meld into one another with nearly unprecedented fluidity. Whether the players get the ball on a rebound, turnover, or score, it often reaches the opposite end of the court in just seconds.

Wooden trusted his players to exercise their judgment in the moment. Never was he seen diagramming a play on the sidelines. The winner of twice as many men’s national collegiate championships as his closest competitor—10—he delighted in challenging his much younger, fitter players to beat him in a race down the court. When they took off sprinting, Wooden would throw the ball to the opposite end, a lesson the Pacers have learned well. Likewise, when it comes to improvisation, Wooden often said that he hoped to be as surprised by what his players did on the court as the opposing coach.

The Pacers also embody equality of opportunity. It is not uncommon for more than five players to finish the game having scored in double digits, and their approach is balanced in an unusual way. They are not afraid to let a player or two shine, but the player in the limelight typically changes from game to game. There is no star that the rest of the team consistently relies on to pull them through. Each player is free to work his magic on the court on both offense and defense, and stymying opponents’ attempts to drive, stealing the ball, and blocking shots on defense is as highly prized as a hot hand.

During the regular season, seven Pacers averaged at least 10 points per game, and in the playoffs, the difficulty they present to opposing teams has been likened to a game of Whac-a-Mole. If the defense tries to key on one player, they seamlessly shift the ball to others, and when things are going well, their play resembles poetry in motion. They can drive the lane for a layup and then suddenly rocket the ball to a player on the perimeter, turning two points into three. A player who has an off night one game can come back and score 30 or more points the next.

Again, there are echoes of Wooden. During after-game press conferences, Wooden typically devoted considerably more attention to the squad’s unsung heroes than superstars such as Bill Walton. Most spectators saw what was happening only during game time, but Wooden took into account the many hours of conditioning, drills, and scrimmages that went into preparing each player to perform at his best. Wooden knew that his players had been prepared to excel, and only someone actually on the court could adapt quickly enough to the continuously evolving flow of the game.

In essence, the Pacers feel like more of a team than most NBA teams, precisely because they function more collaboratively. They embody one of Wooden’s favorite sayings, that the player who makes the team great is better than a great player. The Pacers often play 10 or 12 players per game, and their bench usually contributes far more points than their opponents’ bench. Players come and go, but the rapid flow of the Pacers’ game continues unabated, literally taking the breath away from many opposing players, who often begin to look winded well before the final buzzer sounds.

The Pacers also persevere, embodying the Churchillian directive, “Never give in. Never. Never. Never. Never.” Their tenacious defense forces opponents out of their comfort zone, and their rapid ball and player movement make it difficult for opponents to keep track of who they are supposed to be guarding. Their strong, Wooden-esque work ethic shines through as they apply full-court pressure throughout a game, ensuring that nothing comes easy for the opposing team. They stay with it right up to the end, and like Wooden’s teams, they often win in the last minutes or even seconds, after trailing most of the game.

In an Eastern Conference quarterfinals game, they rallied from a 7-point deficit in overtime to defeat the Bucks, when their odds of winning were approximately 2 percent. In game 2 of the semifinals, they staged a comeback and took the lead with only seconds to go. In an Eastern Conference finals game, they overcame a 14-point deficit to win in overtime, nearly triumphing in regulation except for the fact that a player’s foot was slightly over the three-point line. And in game 1 versus the Thunder, they rallied from a 15-point deficit to win with just 0.3 seconds on the clock. They don’t give in.

Wooden loved to say that failure is not fatal, but the failure to change might be. The Pacers are continuously changing, like a successful entrepreneur adapting to changing market conditions, except at a much faster rate. They are like the Greek mythological figure of Proteus, shifting their shape in ways that make it impossible for opponents to get a grip. The main ingredient of stardom, Wooden said, is the rest of the team, a truth that the Pacers embody to as great an extent as any team in history. They are—as any lover of freedom and responsibility cannot fail to see—liberty in motion.

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There are corresponding changes in what old age is, and what living older is like. As our lives extend and the quality of our lives continues to improve, there are shifts in our understanding of a normal life cycle: how long we should work, when we should start families, how long individuals can live independently, and what the age thresholds should be for Social Security and Medicare.

As birth rates decline globally, the cost of having children continues to increase, and families wait longer to have children, we will be forced to rethink aging. Our workforce will be grayer, retirements will need to be pushed back, and we will have to accept leaders in all walks of life who are much older than previous generations would have accepted. Since the elderly have more economic power and vote with greater frequency, we can expect our political classes to gray. But this is not a simple transition, because aging still means the prospect of diminished capacity, energy, and ability.

In fact, we just recently had a stark contrast between two widely known, older public figures who served in very prominent leadership roles but with now very different legacies that illustrate some difficult decisions we will be forced to make about the place of the elderly in America. At the ripe old age of 94, Warren Buffett, the greatest investor of all time, recently announced to a stunned audience at the annual shareholder meeting for Berkshire Hathaway that he would be stepping down as CEO. The group sat silently after he told them the news and then erupted in appreciative applause for the billions in wealth he had created for his shareholders and society at large.

Buffett’s long-time partner, Charlie Munger, passed away at 99 just a year before the announcement, and the two of them had overseen an increase in Berkshire’s stock to the tune of 5,502,284 percent from 1960 (when Buffett took control of the company) to today. If you’d invested 100 dollars in the company in 1960, it would now be worth about 5.5 million. Their performance as investors is unmatched in the modern world. While everyone in the audience knew that eventually Buffett would have to step down, no one was clamoring for it. The surprise among the attendees reflected that.

Contrast this with the end of the Biden presidency as seen through the first of several upcoming books about the Weekend at Bernie’s nature of his term in office. Biden entered office as the oldest president ever (until 2024), and while there were vague concerns about his energy level and engagement, those were set aside in the wake of the mishandling of the COVID pandemic by the first Trump administration, and the fact that Biden was able to “campaign” in relative seclusion because of the pandemic policies of lockdowns and isolation. In short, America didn’t get a full picture of Biden physically or mentally, and voted retrospectively to reject Trump.

As more and more information becomes public, it’s increasingly clear that Biden had lost the physical and mental abilities to be president well before the 2024 election. A small group of advisors shielded him from the media and other political leaders. The media itself was complicit in the cover-up. Rather than questioning if the president was up for the job, coverage served to push a narrative of capacity and leadership that simply didn’t reflect reality.

In theory, the Constitution has been amended to deal with instances in which the president is incapacitated or unable to serve. After the assassination of President Kennedy, Congress began work on drafting an amendment to handle such an event. The Twenty-Fifth Amendment was passed in 1967, and there are two key elements to it. The first is known as Section 3. This part of the amendment allows the president to delegate his power to the vice president for a temporary period because he believes he will be unable to serve due to a medical procedure. Presidents Reagan, W. Bush, and Biden were among the presidents who have temporarily granted their VPs presidential powers for surgeries. There is also Section 4, which has never been used. Section 4 states that if the VP and Cabinet deem the president unable to serve, they must inform Congress, which must vote within 21 days to potentially strip the sitting president of the office if all agree he cannot adequately serve.

But neither Section 3 nor Section 4 is relevant for the Biden case. He clearly was beyond temporarily incapacitated, but the actions of his staff throughout the second part of his term completely precluded applying Section 4 as well. Would Vice President Harris and the Cabinet have agreed in 2023, after all of them were arguing vociferously that Biden was fit to serve, that in fact they’d been lying all along and he wasn’t? Would two-thirds of Congress, which would have necessitated a number of Democratic votes, have agreed? Absolutely not. Instead, Biden drifted into a gray zone, not unlike an older grandparent one sees at Thanksgiving or Christmas. He was someone who could still occasionally tell a good story, complain about refereeing during the holiday football game, and pleasantly share a meal; however, he certainly wasn’t someone you’d want with the nuclear codes or managing complex policy. 

In short, the Twenty-Fifth Amendment is a black and white, yes-or-no way to deal with a president in a coma or with an obvious medical condition. Since even Biden’s doctors were claiming he was “fit to serve,” the cause for invoking the Twenty-Fifth Amendment would have led to a national crisis and partisan war.

Buffett was a fully engaged leader of a company worth more than $355 billion. He was constantly being tested by the challenges that emerged from being in the market. If his acumen and abilities were slipping, his colleagues and investors would have been pressured by market forces to make changes. And certainly, politics is not something that can be phoned in. Presidents have myriad responsibilities, and the job famously grays the hair of the young men who have assumed the office in recent years. And yet if a president loses it mentally while in office, we have no reason to believe we have the institutional means to address it, because we just saw that the available safeguards failed. Those around Biden who were shielding him held onto power and ignored their responsibilities to the American republic, focusing instead on their own self-interest.

The architects of our political and social institutions have focused almost exclusively on preventing individuals who are too young from having a significant influence on policy and politics. The American Founders set a minimum age for being president, for example. Conservative thinkers have long valued experience and wisdom.

Perhaps the best-known example of this was Hayek’s suggestion that there should be an upper chamber of a legislature stocked with older leaders, for an extended term which would insulate it from political pressures. Hayek believed, we can now naively see, that older individuals would be more statesman-like, above the fray of petty political fights with the longer wisdom of age.

How much have our views changed about who is “old” and who isn’t? In Hayek’s three-volume work Law, Legislation and Liberty, he proposes a legislature in which all the entering members would be 45 years old and serve 15 years until they are sixty. The citizens who would elect them would also be 45 years old. The practical effect would be to allow each age cohort to have representation in the congress for 15 years. Hayek believed that after 60, we couldn’t count on legislators to govern effectively. While he didn’t have a maximum age per se, his thinking was that the older generation would pass the torch and stroll gracefully into the sunset.

Consider the number of individuals currently serving in our legislatures who would be disqualified under such a system. The average age of the US Senate today is now 64, and that’s actually down from the past few years, as older Senators have died and left office. Politicians are living longer and holding onto office longer. Chuck Grassley is 91. Would Mitch McConnell really be stepping aside were it not for obvious health issues? How long would Dianne Feinstein have served had the same circumstances forced her to announce her retirement before she died in office? We certainly don’t face a crisis of youth and inexperience in our political leadership. After Biden, the American electorate chose Donald Trump again, who began his term older than Biden was when he entered the Oval Office. Americans are choosing to stick with our geriatric rulers.

Since we don’t see any end to this trend, what are the alternatives? What should liberty-oriented individuals think about this? Many people reflexively point to term limits as a solution, and proposals for them were very popular in the late twentieth century. But as the public increasingly selects older office holders, are such ideas feasible or likely? It seems to me they are not.

I can envision several ideas that might help. The first would be a mandatory neurological assessment for any president, regardless of age. Alzheimer’s symptoms can begin to appear in individuals as young as 50. It seems highly prudent to demand that individuals who command the world’s largest military submit to a regular exam administered by a cross-section of leading physicians to prevent having an obviously compromised leader in the White House again. We also should require that the entirety of the president’s annual physical examination be made public, and presidents should be required to disclose any long-term conditions that might undermine their ability to lead. Finally, we could apply criminal penalties to those hiding those conditions in the White House staff or to the presidents themselves. At first glance, this may seem drastic, but it could also be necessary to prevent another repeat of the debacle of Biden’s family and staff carting him out in public for embarrassing episodes and then vociferously claiming he was vigorous and capable.

At some point, we are very likely to face another administration like the one we just endured, in which a clearly incapable, elderly, mentally compromised individual will be entrusted with the presidency. The Twenty-Fifth Amendment seems designed to deal with a crisis, not a slow decline in the cognitive ability of the president. Short of the above-mentioned institutional changes, we are facing the same questions about our presidents as we do about our aging parents and grandparents. Some of them voluntarily give up their car keys and move into senior living. Others do not. Some can make these choices with reasonable judgment, and some families have to convince their parents to change their lives.

Politicians are not angels, and the Founders knew this. They are ambitious, self-interested people, just like Warren Buffett. We can’t count on them wisely handing over power. We need both a more robust way to assess how our leaders are doing and a way to address when they are not up to the job. Otherwise, we may get another “Weekend at Biden’s” presidency, and the results may be even worse than the ones we are experiencing now.

Any opinions expressed are the author’s and do not necessarily reflect those of Liberty Fund.

The post The Geriatric Executive appeared first on Law & Liberty.

The high court’s decision not only revived a major energy project but also corrected a troubling trend: the misuse of the National Environmental Policy Act (NEPA) to obstruct economic development through ever-expanding regulatory demands.

The legal battle was years in the making. In 2021, the US Surface Transportation Board (STB) approved the railway, which would serve an area accounting for 85 percent of Utah’s oil and gas production. But in 2023, the US Court of Appeals for the District of Columbia blocked the project, ruling that its environmental impact statement (EIS) was insufficient. “It is clear that the Board failed to adequately consider the Rail Policies and ‘articulate a satisfactory explanation for its action,’” the court wrote.

The Seven County Infrastructure Coalition—a group of eastern Utah counties backing the railway—vowed to appeal. Meanwhile, environmental activists hailed the ruling, calling the project “a financial boondoggle and a climate bomb.”

Their celebration, however, was short-lived.

Last month, in Seven County Infrastructure Coalition et al v. Eagle County, Colorado, the Supreme Court unanimously overturned the DC appeals court in a ruling that will rein in judicial overreach under NEPA—a law that environmental groups and judicial activists have used not as a constitutional tool for environmental safeguards, but as a means to delay or derail infrastructure and energy projects altogether.

Who Gets to Decide?

Though environmental groups labeled the Uinta Basin Railway project a “climate bomb,” it’s important to note that the project was simply a proposed railway. The proposed project doesn’t involve new drilling permits or additional oil wells, just an 88-mile stretch of railroad through an expanse of desert. But as the Salt Lake Tribune noted, the project stood to triple oil exports from the basin—from 90,000 barrels a day to as much as 350,000.

In other words, the primary sin of the project was that it would result in increased output and transportation of oil and natural gas, which environmental groups argued could harm the environment.

At the center of the legal dispute is NEPA, the 1970 law signed by President Richard Nixon that requires federal agencies to examine the environmental impacts of infrastructure projects.

In the Seven County case, the STB concluded that the economic benefits of the railway project outweighed its environmental costs. The DC court said the STB couldn’t know if this was actually the case, since it did not sufficiently analyze the “upstream” and “downstream” environmental impacts of increased oil and natural gas transportation and production.

The STB, however, said these matters were out of its jurisdiction, stating it had “no authority … over development of oil and gas in the Basin nor any authority to control or mitigate the impacts of any such development.”

“Severe Difficulties” Satisfying Courts

Like many constitutional issues, the Seven County case comes down to a simple question: who gets to decide?

This is not always an easy question to answer. The US constitutional system was designed to be one of checks and balances, and recent history shows every branch of government has been prone to stepping outside of its constitutional authority.

Law professor Mario Loyola last year noted that the Seven County case is in some ways the mirror of the Supreme Court’s 2024 decision to abandon the “Chevron deference” doctrine, which had given agencies leeway in interpreting statutes. “If deciding questions of law is the province of courts under the Administrative Procedure Act (APA),” wrote Loyola, “technical and policy judgments are the competence of administrative agencies—so long as they are acting within their jurisdiction and expertise.”

Loyola makes a good point. Courts should retain primary authority when it comes to interpreting the law, while agencies should be granted leeway in making technical or policy decisions—provided they operate within the bounds of the law. Historically, however, this has not been the way NEPA has been enforced.

Writing at The Atlantic, Nicholas Bagley points out that almost immediately following the passage of NEPA, the US Court of Appeals for the DC Circuit took executive branch officials to task for approving a nuclear plant in Maryland without taking sufficient consideration of potential environmental harms. A flood of court orders followed.

“Within a couple of years, judges blocked construction of a huge oil pipeline in Alaska; delayed highway construction in Arlington, Virginia; and stopped a new dam in Arkansas,” Bagley writes. “Orders halting projects such as nuclear-power plants and forest-timber sales soon became routine.”

In response, federal agencies beefed up bureaucracy. Thousands of experts were hired, environmental reviews became longer, and public review times were extended. Bagley argues these changes were healthy to a certain extent, but came with costs. “Within just a few years,” he writes, “close observers were warning that agencies faced ‘severe difficulties’ in their efforts to satisfy the courts.”

The Uinta Basin Railway is an example of the “severe difficulties” federal agencies face in approving even minor infrastructure projects.

Consider that the STB initiated its environmental impact statement in June of 2019. An initial draft was released in October 2020, which was followed by a four-month public comment period that included half a dozen public meetings. By the time the EIS was completed in August 2021, it was 3,600 pages long and included 1,900 public comments.

The STB spent 26 months on its EIS only to have a federal court say it was “insufficient”—all over an 88-mile railroad through the desert.

A Supreme Reversal

When litigation is included, the environmental and legal process for building Utah’s small rail line will have taken longer than it took the federal government to construct the Hoover Dam.

For decades, scholars have criticized the EPA for overreach—and often with good reason. But activist courts have also played a major role. Indeed, NEPA had become one of the most powerful weapons environmental activists (and judges) possessed for killing infrastructure projects. Bagley notes that for judges “taken with the promise of the nascent environmental movement,” NEPA was “a perfect tool.”

Fortunately, in an 8-0 decision (Justice Neil Gorsuch did not participate), the Supreme Court reminded lower courts of their proper role in a monumental ruling on May 29, emphasizing that it is federal agencies—not judges—that are responsible for evaluating the environmental impacts of projects:

Under NEPA, agencies must consider the environmental impacts for which their decisions would be responsible. Here, the Board correctly determined it would not be responsible for the consequences of oil production upstream or downstream from the Railway, because it could not lawfully consider those consequences as part of the approval process.

Those words came not from Justice Brett Kavanaugh, who authored the majority opinion, but from Justice Sonia Sotomayor—arguably the most liberal member of the Court—writing in a concurring opinion joined by Justices Kagan and Jackson.

Environmental groups that wrongly view fossil fuels as inherently harmful may bristle at Sotomayor’s decision. But the Court rightly held that NEPA was never intended to serve as “a substantive roadblock” to economic development. Yet that’s exactly what NEPA became, as environmental groups turned to the courts to halt projects they opposed under the guise of judicial review.

For years, some federal courts played along, taking “an aggressive role in policing agency compliance” and effectively paralyzing executive agencies. The Court’s majority offered a reset, laying out a more “straightforward” framework for NEPA cases going forward.

“Courts should review an agency’s EIS to check that it addresses the environmental effects of the project at hand. The EIS need not address the effects of separate projects,” Kavanaugh wrote. “In conducting that review, courts should afford substantial deference to the agency as to the scope and contents of the EIS.” 

The Court’s ruling couldn’t come at a more critical time. The US faces an uncertain energy future. To avoid a surge in energy costs, the country must access its resources and rapidly expand its power capacity.

The Supreme Court’s ruling is a step in this direction. At the same time, it restores a measure of constitutional clarity. By overturning the DC Circuit, the high court affirmed that judges cannot impose open-ended environmental mandates beyond their statutory authority.

NEPA may indeed have been “the perfect tool” for environmental groups seeking to thwart infrastructure projects they opposed—but after the court’s ruling, they’ll have to dig deeper into their toolbox.

The post Environmentalists Lose Their “Perfect Tool” appeared first on Law & Liberty.

Last week, in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, the Supreme Court of the United States reversed a ruling of the Supreme Court of Wisconsin. A unanimous US Supreme Court ruled that Wisconsin’s high court had rationalized religious discrimination by Wisconsin officials in violation of the First Amendment. Writing for the Court, Justice Sotomayor observed that this was not a hard case.

A charitable explanation for the Wisconsin ruling is that a majority of Wisconsin’s justices suffer deep jurisprudential confusion. The court committed three major errors. All three errors are conceptual as well as legal and constitutional. And all three errors matter because they are incompatible with constitutional rule and ordered liberty.

The case arose under a Wisconsin law that requires employers to pay taxes into a scheme of unemployment insurance and exempts religious, nonprofit employers. The Catholic Charities Bureau claimed this tax exemption. But the Supreme Court of Wisconsin decided that Catholic Charities’ charitable ventures are not “operated primarily for religious purposes,” as state law requires. The court acknowledged that Catholic Charities and its subsidiaries are motivated by an explicit Christian mission and are governed by the bishop of a Roman Catholic diocese. But the court asserted that these religious institutions “offer services that would be the same regardless of the motivation of the provider.” The court concluded that Catholic Charities’ “activities are primarily charitable and secular.”

The Wisconsin court held that it did not violate the First Amendment to withhold the exemption from Catholic Charities. A dissenting justice charged that the court’s reasoning “excessively entangles the government in spiritual affairs, requiring courts to determine what religious practices are sufficiently religious under the majority’s unconstitutional test.” But the majority disagreed. “The review we endorse in this case is a neutral and secular inquiry based on objective criteria, examining the activities and motivations of a religious organization.”

The Wisconsin court also insisted that its holding would not infringe Catholic Charities’ free exercise rights. Catholic Charities can afford the tax. To require Catholic Charities to participate in the state’s unemployment compensation scheme, therefore, did not place a “constitutionally significant burden” upon its religious exercise, the court concluded.

In reversing, the justices of the Supreme Court of the United States unanimously held that the Wisconsin ruling was not neutral between different religions, as long-established First Amendment doctrine requires. The Establishment Clause, as the US Supreme Court has interpreted it over several decades, prohibits governments from favoring any religion over any other. This rule of “denominational neutrality,” as the Court calls it, requires strict scrutiny of any law or application of a law that distinguishes between religions, treating one more favorably than another.

Wisconsin violated the neutrality rule. To affirm that violation was the Wisconsin court’s first error. “There may be hard calls to make in policing that rule,” Justice Sotomayor acknowledged, “but this is not one.” Wisconsin officials engaged in a “paradigmatic form of denomina­tional discrimination.”

Wisconsin drew a line between religious charities based on “theo­logical differences in their provision of services.” Wisconsin deemed Catholic Charities and its affiliates ineligible for the tax exemption “be­cause they do not ‘attempt to imbue program participants with the Catholic faith,’ ‘supply any religious materials to program participants or employees,’ or limit their charita­ble services to members of the Catholic Church.” On that reasoning, Catholic Charities “could qual­ify for the exemption while providing their current charita­ble services if they engaged in proselytization or limited their services to fellow Catholics.” But Catholic Charities and its affiliates argued that Catholic doctrine forbids them to use “works of charity for purposes of prose­lytism” and requires them to serve everyone. The burden on religious exercise is obvious.

The implications of this first error for ordered liberty are profound. The problem is not mere favoritism. A state supreme court that arrogates the power to draw the boundary between religious and non-religious activities by religious associations has seized the power in principle to nullify the religious freedom of those associations by defining their free exercise of religion out of legal and constitutional existence.

Writing a separate concurrence, Justice Thomas identified a second error of the Wisconsin court. Catholic Charities Bureau operates through a separate corporation from the Diocese that oversees it. For the Wisconsin majority, this meant that Catholic Charities is a separate “organization” from the Church, and the Church’s religious motivations, therefore, were irrelevant in ascertaining Catholic Charities’ primary purpose.

As Justice Thomas observed, that “hold­ing contravened the church autonomy doctrine,” another well-established constitutional rule. It requires Wisconsin’s courts “to defer to the Bishop of Superior’s religious view that Catholic Charities and its subentities are an arm of the Diocese.” Religious institutions have a First Amendment right to structure their legal affairs in the manner best suited to their own ecclesial governments, theological doctrines, and practical, legal needs. The Supreme Court of Wisconsin has no power to decide which corporate structure is sufficiently religious for a church’s ministries.

The Wisconsin court’s legal error, Thomas explained, was to identify the association of charitable Roman Catholic believers with the legal structures that the association uses to carry on its business. The Roman Catholic Church “is a single worldwide religious insti­tution,” not a legal sub-entity incorporated in the state of Wisconsin. Though the Wisconsin justices acknowledged that the Bishop of the local Diocese directs Catholic Charities and controls its affairs, they nevertheless “viewed Catholic Charities and its subentities as distinct, nonreligious or­ganizations merely because they are separately incorpo­rated.”

The Wisconsin court’s conceptual error was, in Justice Thomas’s words, to think of “religious institutions as nothing more than the cor­porate entities they have formed.” Churches and other religious communities have an existence of their own, which is not reducible to their formal, legal structures and not contingent upon the laws of a state or judgments of secular officials. Whether its rights and obligations are secured by a corporation, a trust, or some other legal fiction, a religious group exists in reality, independent of its recognition in positive laws and legal and equitable judgments.

Justice Thomas pointed out the implications of this conceptual error for civil liberties and the rule of law. Quoting an 1835 decision of the Vermont Supreme Court, Justice Thomas explained, “To conclude that a religious institution has no existence outside its corporate form ‘would be in effect to decide that our religious liberties [are] dependent on the will of the legislature, and not guar­anteed by the constitution.’” Religious liberties are not contingent on sovereign will, Justice Thomas insisted, because “religious institu­tions are a parallel authority to the State, not a creature of state law.”

The majority of justices of the Supreme Court of Wisconsin are not equal to the powers that they arrogated. Secular courts have no legal or constitutional competence to adjudicate questions of canon law, religious or theological doctrine, or ecclesiology. And as the Wisconsin majority opinion illustrates, elite lawyers often lack professional competence to address such questions, as well. Most of the top law schools no longer require law students to learn jurisprudence and legal history, much less canon law. And increasing numbers of lawyers have no meaningful experience of religion.

Thus, it is not surprising that most of the Wisconsin justices misunderstood religion. Not all religious people proselytize. Though the Christian religion involves evangelization, winning converts is neither the totality of the Christian religion nor its essence. The Christian life consists of acts of obedience. “If you love me, keep my commandments,” Jesus of Nazareth instructed his followers. Among those commandments are several injunctions to perform acts of charity. God will reward those who give food to the hungry, drink to the thirsty, and clothes to the naked. If anyone demands your shirt, give him your coat as well. Above all, love your neighbor as you love yourself.

The Wisconsin justices committed a third conceptual error, which the justices of the US Supreme Court did not correct—indeed, Justice Jackson compounded this error in a separate concurrence. They misunderstood charity. In the minds of the Wisconsin justices, the “religious motivation” for Catholic Charities’ charitable work was “not enough to receive the exemption” because non-religious organizations can provide the same services. The charitable services, therefore, “are secular in nature.”

In this line of reasoning, the justices identified charity according to its outward action and effect, without regard to its motivation. They identified the relevant “activities” as “job training, placement, and coaching, as well as services related to activities of daily living.” Whether these valuable ends are pursued for “religious or secular motivations,” the justices speculated, “the services provided would not differ in any sense.” Therefore, they concluded, the services are activities of a “wholly secular endeavor.”

That conception of charitable action, identifying charity with its effects and consequences, mistakes the character of charity. A charitable intention is what makes an act charitable. To be charitable is to intend to give what one has a right to retain, and to yield up one’s rights with no claim or expectation of reciprocity, for the sole reason that the recipient will benefit. Paying taxes and making payrolls of social services agencies are not acts of charity. Donating time and money that one has no duty to give, so that another may learn or eat, is charity.

Because it is the intention that makes an act charitable, the primary values of charity are moral and spiritual, not pragmatic. As Thomas Aquinas taught centuries ago, acts of charity, such as almsgiving, have an internal effect on the soul of the almsgiver, bearing the “spiritual fruit” of loving another person more than riches. And such acts can also generate gratitude and benevolence in the recipient.

Charity’s moral value is its central aspect. Charitable acts certainly can produce what Aquinas called “a corporal effect, inasmuch as they supply our neighbor’s corporal needs.” But what makes charitable action so valuable, and a chief reason why we extend to charitable actors so many special, legal privileges and immunities, is that charitable actions make charitable persons. And a society comprised of charitable persons is immeasurably better off than a society whose members only do what they are obligated to do.

Is charity religious? In theory, charity can be secular. Every human being has the capacity for charity. But in practice, charity is a religious phenomenon. Viewing the full sweep of human history reveals that charity is a distinctly religious virtue and almost exclusively a religious activity. While many societies throughout history have practiced hospitality and altruism, the Jewish and Christian religions invented charity. And it was Christian societies that placed charity in the mainstream of civic life and gave it a unique place in our fundamental law.

By redefining charitable action according to its material effects, rather than its intention and spiritual value, the Wisconsin majority attempted to make charity commensurable to non-charitable forms of poor relief. This false equivalence opens the door to threats to ordered liberty. If government welfare programs, social engineering projects, or other secular, non-charitable endeavors can produce equal or better results, and if it is the results that matter, then those in power may decide that we can do without charity. If we don’t need to preserve rights to perform charity, then officials may decide they don’t need to respect the autonomy of charitable associations. And we may end up with more rulings like that of the Supreme Court of Wisconsin.

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

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.

Good librarians can change lives. As Leah Gregory of the Illinois Heartland Library System puts it in a 2023 article, “A school librarian can turn a resolute non-reader into a voracious reader by suggesting a magical book that converts them. It’s a miracle that happens regularly in school libraries, but it requires a staff member who has the time to build a connection, a collection to pull from, and the skill to do reader advisory.”

Sometimes, all it takes to get students looking at books in the school library is someone taking them there and pointing out interesting examples of what is available. For example, a decade ago, I was teaching geography at a community college, and I had assigned a project to research and design a trip to another part of the world. The instructions required at least ten sources, including three books. “Three?” students said, as if this was way over the top. A few weeks later, one piped up that they had been to the college library and found it contained no books about Mozambique, their destination, nor about Africa in general. Skeptical, after class, I strolled down to the library and found a long bookcase filled with books about Africa, with many sections on Mozambique. It was then that I realized how little experience some students have with finding books in a library, rather than just using it to chat and work on their laptops. So I collaborated with the librarians to set up mini-field trips to the library in which we showed the students where they could find books on every inhabited region of the world. Over the rest of the semester, I found myself bumping into my students in the library, looking for books for their project.

There are also schools that never had a library to dismantle. “I have never worked in a school with a functional school library,” wrote Philadelphia public school English teacher Lydia Kulina-Washburn in her 2022 Education Week article Book Bans? My School Doesn’t Even Have a Library. “In the absence of school libraries, it is not uncommon for teachers to create private classroom libraries from donations. Like mine in Room 250, these usually take the form of clusters of orange Wawa shelving crates.” If book apps on phones were enough, as an increasing number of school districts seem to believe, why would teachers be scrambling to build physical libraries in their classrooms?

A US Department of Education study found that 61 percent of low-income families with kids had zero books for children in the home. This often leaves it to school libraries to introduce students to the world of books. But the current trend of closing, shrinking, and repurposing school libraries robs many students of the opportunity to discover and love books. Moreover, it stands in stark contrast to America’s long history of finding innovative ways to connect people with books and spaces to explore them.

For example, the concept of a bookmobile—a library on wheels—was invented by an American librarian with the mind of a social entrepreneur. In 1902, Mary Lemist Titcomb became head librarian at the Washington County Free Library in Hagerstown, Maryland, which had just opened the year before as only the second county library in the US. It was there that Titcomb started a book outreach service which sent boxes of 30 books each to some 66 “book stations” located in stores, post offices, and other public places. But she realized that the books still were not reaching many rural dwellers. So she enlisted Joshua Thomas, a janitor at her library who lived in a rural area, to drive a horse and buggy full of books out to the countryside. Her instructions were to make sure families have enough time to browse and enjoy the books. “The book goes to the man,” said Titcomb, “not waiting for the man to come to the book.”

During my own early childhood in the DC suburbs, our area’s bookmobile was a library in a truck. It would roll in each week during summer and park for an hour at the entrance to our townhouse development. The driver-librarian would open the doors, and I would step up and scour the shelves from microscopes to baseball fundamentals to the Sioux Indians to Frog and Toad and Encyclopedia Brown. At the end of the hour, I would step back down onto the sidewalk and walk home with a big stack of books in my arms, and the bookmobile would roll on to the next stop.

Long before Mary Lemist Titcomb invented the bookmobile, many of America’s Founders also worked extensively to build and support libraries. For example, in 1731, a 25-year-old Ben Franklin and his philosophy club, the Junto, founded the Library Company of Philadelphia, the first public library in what is now the United States.

Thomas Jefferson allowed friends and the public to use his library at Monticello in Virginia, where he amassed between 9,000 and 10,000 volumes. It was the largest personal book collection in the early United States. Jefferson inherited some of his books, while others he obtained through book dealers in Georgetown, Washington, DC, New York, and Philadelphia. And he procured many books during his five years in Europe as America’s Minister to France. He sailed home to Virginia with trunks full of books from across Europe. In 1814, after the 3,000 volumes in the Library of Congress were lost when the British burned the US Capitol building, Jefferson more than doubled the size of the library by selling the government 6,487 of his own books. They were left in their original bookcases, which were put into ten horse-drawn wagons and hauled 300 miles from Monticello to DC. Jefferson described the collection he sent in a letter to his friend Samuel Harrison Smith, DC’s most prominent journalist and newspaper owner:

I have been 50. years making it, & have spared no pains, opportunity or expence to make it what it is. [W]hile residing in Paris I devoted every afternoon I was disengaged, for a summer or two, in examining all the principal bookstores, turning over every book with my own hands … [and] during the whole time I was in Europe, in it’s principal book-marts, particularly Amsterdam, Frankfort, Madrid and London, [I searched] for such works relating to America as could not be found in Paris. … and after my return to America, I was led to procure also whatever related to the duties of those in the high concerns of the nation.

When the final shipment left Monticello for DC, Jefferson wrote to Smith, “Our 10th and last waggon load of books goes off to-day. … [And] an interesting treasure is added to your city, now become the depository of unquestionably the choicest collection of books in the US. and I hope it will not be without some general effect on the literature of our country.”

What Jefferson, Franklin, Titcomb, and Carnegie all understood was the value of putting books in people’s hands. Too often today, centuries of work are being reversed by misguided initiatives that shrink the distribution of printed books. A 2024 article in Publisher’s Weekly reported that “In 2022 there were 162 million fewer books on US library shelves than in 2010, a roughly 20% decline.”

On the other hand, in 2021, six Congressmen from both houses introduced the Build America’s Libraries Act, which would provide $5 billion to build and upgrade libraries in underserved communities across the country. And the exploding classical school movement centers on daily reading and discussion of great books. These developments are in step with Americans’ long history of finding innovative ways to connect people with books.

Backward cultures find reasons to dismantle libraries. Wise, flourishing cultures find ways to build and expand them. Rather than using new technology as an excuse to downsize and repurpose libraries, we can better use it to orchestrate funding and logistics to expand school library collections and design and improve library spaces. Anyone donating to schools should recognize that school libraries are often an endangered species and consider stipulating that their donations are for the maintenance and expansion of libraries—especially ones on the brink of extinction. The real progress lies in creatively improving school libraries and educating students about what they have to offer, turning deserts into springs once again.

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The European Union has both boosters and critics, but, given the threats of China, Iran, and Russia, and the failed or failing countries in Africa, it is in everyone’s best interest if the EU succeeds, though that may well take significant “forging,” to quote Monnet. What it will be in ten years’ time is difficult to predict, but the EU is not going anywhere. 

Though the Federalist Papers were ignored during the genesis of the European Union in the 1950s, and in its evolution since then, they are nonetheless useful as a means of analysis of the EU. Hamilton’s introduction to the Essays, in which he ponders the unique American undertaking, speaks to the EU project as well. Hamilton notes, 

It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

Hamilton may have overstated the case, given that the colonies already had well over a century of semi-autonomous self-governance as well as the advantage of the English government model. The EU, however, is arguably sui generis, something new, in a category of only one. Perhaps even more than America, it was created in “reflection and choice,” although some might argue that the “reflection” was insufficient. 

Treaties, Black Pots, and Black Kettles

Even though the US was an early proponent of the EU, hoping for a bulwark against the Soviet Union, the EU is the entity that conservatives love to hate; at times, there are even hints of schadenfreude when the EU finds itself facing challenges or crises. The few progressives who pay attention to the EU are in a sour mood as well, but in their case, it is because they think the project is failing. Both George Soros and the New York Times’ Paul Krugman speak of “the tragedy of the EU” insofar as it is falling short of a United States of Europe, largely governed by a supranational government.

To be sure, there is plenty to criticize, although some critics are apocalyptic. Others maintain that the EU was irreparably flawed from the start. At the least, the EU is finding just how difficult it is to acquire a common culture. At times, though, criticisms of the EU remind one of the proverbial “pot calling the kettle black,” an observation that some admit, even if implicitly. American conservatives criticize the EU for its “democratic deficit,” although the phrase is never well defined. To be sure, every democratic country suffers from a democratic deficit, which we might say is the gap between its political ideals and its governance. On our side of the Atlantic, citizen confidence in US institutions is at a disturbingly low level. A widely circulated poll a few years back found that Congress is less popular than a colonoscopy, a root canal, lice, or telemarketers. In the last several elections, American presidents have been elected, not because of who they are, but of who they are not, namely, their predecessor. Our electoral process is suppressing talent and integrity.

Criticized as well is the EU’s expectation that the concept of the nation-state will give way over time to a new system of governance. That expectation, though, seems to be dead in the water, to the disappointment of Europhiles: the nation-state is alive and well. In the US, a destructive ideology of “globalism,” perhaps even more radical than the quest for “ever closer union,” has as its effect the non-enforcement of the country’s southwest border, a devastating act of malfeasance that has only recently been addressed. At best, it will take years to manage. Critics charge that the EU has precipitated cultural decline, evident in religious apostasy, declining birthrates, and the social instability brought about by massive immigration. The US, however, has startled even Europe with its freefall into moral anarchy. Who would have thought it would take a British fantasy author to tell Americans that they are embracing gender madness?

The Lisbon Treaty and Sleeping Beauty

The legal basis of the EU is a series of member country treaties; the European Union was born in 1957 with the Treaty of Rome and now numbers 27 countries. Although the idea of a united Europe has been around for centuries, most admit that the impetus for the modern undertaking was to ensure that Germany did not wreak havoc on the continent a third time. In 1992, the Maastricht Treaty formally recognized the “European Union.” The treaty preamble contains the informal motto of the EU: “ever closer union.” In 2004, the EU produced a “constitution,” or a “constitutional treaty.” It failed, however, to secure the required unanimous approval of all 27 countries. Some of its features were copied into the Lisbon Treaty (2007), which expressed more, though still modest, concern for a common defense.

For years, the EU has enjoyed the luxury of talking about a common defense with nothing to show for it, except an annoyed NATO, which found such EU aspirations redundant, and thus competitive. The Lisbon Treaty, moreover, created the position of High Representative for the Union for Foreign Affairs and Security Policy. Although not the first to occupy the position, Italian Frederica Mogherini assumed the office from 2014–19, though the Eastern European EU countries expressed concern, suspicious that she was too sympathetic with Russia after its invasion of the Ukraine. At an EU summit, Mogherini tried to explain, “European defense has sometimes been seen as synonymous for the creation of a European army. This, however, is not the path chosen by the EU and its member states.” She added dubiously, “What we have built is even more ambitious than a European army.” 

On a more hopeful note, Kaja Kallas, former prime minister of Estonia, has just assumed the position that Mogherini occupied; she seems an apt choice for the role as her family suffered grievously from Soviet-occupied Estonia, in which several immediate family members were deported to Siberia. Kallas has expressed strong public support for Ukraine. 

In December of 2017, the EU established PESCO (Permanent Structured Cooperation). Though it fell far short of a common military, its ambitions did include ancillary services: a Medical Command, a Cyber Rapid Response Team, Military Disaster Relief, and improved Maritime Surveillance. In a rather odd tweet about PESCO in 2017, and hopeful it would create an EU military force, then EU Commissioner Jean-Claude Juncker fancifully announced, “She is awake, the Sleeping Beauty of the Lisbon Treaty.” 

Yet, “the mountains heaved, but brought forth a mouse.” The EU’s common military, the European Corps (Eurocorps), is an army corps whose headquarters number all of 1,000 soldiers, stationed in Strasbourg, France. At least the location is symbolic: the Maginot Line runs less than five miles from the city center. Sleeping Beauty still sleeps, and there is no prince in the offing, though there is a new seriousness, both in Brussels and in member countries, of military spending—even if it means deficit spending. Some of the countries that are derelict in meeting their obligations to NATO, and encouraged by the current president of the EU Commission, have pledged to meet NATO’s 3 percent of GDP, or even more. 

The effort, however, will be uneven; for example, the leftist Spanish government, comfortable behind the Pyrenees, explains that responding to climate change will be a major part of its defensive contribution. In addition, the EU is accelerating the process of adding new members; those candidate countries are in the Western Balkans: Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia, and Serbia (Bulgaria and Croatia are already EU members). In addition, the EU is looking seriously at Georgia, Moldova, and even Ukraine. A notable success of the EU thus far, has been to offer a safe haven to former Soviet Block countries, and several of them provide a buffer between Russia and Western Europe. 

A Political or Spiritual Crisis?

Unlike Americans, who can point to philosophical antecedents from which the country drew inspiration—even if those sometimes self-contradictory antecedents stimulate debate—the EU has studiously avoided political philosophy, perhaps because of overconfidence in rational design, perhaps because of the devastation wrought by Marxism and Nazism, probably a combination of both. Kant’s hyper-rational “Perpetual Peace: A Philosophical Sketch” (1795) is somewhere in the background, even if it is not recognized. In trying to explain the EU, a prominent Member of the European Parliament (MEP) once told me that it had something to do with Rousseau’s “General Will,” taken from The Social Contract (1792). He did not seem able to elaborate, although he may have been correct. More apropos might be the thought of José Ortega y Gasset, especially his Revolt of the Masses (1930), although his warning of “hyper-democracy” and his promotion of a ruling elite would have been a hard sell. 

If anything is to unite Europe, and satisfy the quest for a “European identity,” it may be a recovery of its Judeo-Christian heritage. This was debated in a peculiar way in the attempt to write the EU constitutional treaty in Brussels in 2003. The question arose, and was debated for weeks, whether the preamble should include a recognition of Europe’s Judeo-Christian roots. The issue bedeviled the assembly, and when all was said and done, no mention was included in the document; some even worried that it would alienate Muslim immigrants. In 2011, the European Commission recommended to the member countries that citizens find a more “inclusive” holiday greeting than “Happy Christmas.” 

Joseph Ratzinger (Benedict XVI), however, asserts that Europe’s religious heritage is not an irrelevant relic. He addresses the question in The True Europe: Its Identity and Mission, (2024), which was sympathetically reviewed on this site by Paul Seaton. Benedict is, as Seaton titles his review, “A European in Full,” yet his warnings about the future are dire: “European rational law is in a crisis, now that it has completely relinquished its religious foundations and de facto runs the risk of turning into a rule of anarchy.” Ratzinger asserts, “There can be no future Europe that would jettison … the heritage of the Christian West.” “History,” he explains, “cannot be turned back.” In saying this, however, Benedict is not advocating a nostalgic return to a bygone era; he fully embraces the continent as it is today, and it is one, he maintains, in which “Christian faith can coexist and make room for different political positions.” Such an environment will offer “binding force,” which “safeguards a maximum of freedom.” If not, he warns, we will witness a “post-European” society.

Conclusion: Federalist #85

As a bookend to essay #1, in Federalist #85, Hamilton draws on Scottish philosopher David Hume to say that a successful constitution needs time. In the last paragraph of #85, Hamilton quotes from Hume’s “The Rise of Arts and Sciences,” in which the Scottish philosopher argues that, at a certain point, nothing can improve a government other than experience, time, and trial and error. 

The zeal for attempts to amend, prior to the establishment of the Constitution, must abate in every man who is ready to accede to the truth of the following observations of a writer equally solid and ingenious: “to balance a large state or society (says he) whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they INEVITABLY fall into in their first trials and experiments.”

What might a “successful EU” look like? The answer is not an easy one. If we look upon the EU as a nation-state, then a Comparative Government perspective is apt, and one could do no worse than consider the Preamble to the US Constitution and judge the EU by those criteria. If the EU, however, is analyzed from an International Relations perspective, that is, as a kind of international organization, then different criteria might apply: We would hope for an entity with a substantial global presence, in a meaningful alliance with the US and other like-minded countries, and a sturdy member of NATO. Since the EU is its own category, it may be that if it at least satisfies the best of both categories, we might then deem the EU successful.

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