Reagan opens with the attempted assassination of President Ronald Reagan in 1981 in Washington, DC. We are next treated to footage of Communism’s advance in Europe and the world in the twentieth century. The film then shifts to present-day Moscow where a fictional rising leader Andrei Novikov (Alex Sparrow) has been sent to the fictional Viktor Petrovich (Jon Voight) to better understand the downfall of the Soviet Union. In a Putin-like fashion, Andrei announces to Viktor that the fall of Soviet Communism was an epic failure. Even worse, feckless Russian leaders just let it happen without any resistance.

Petrovich was a psychological profiler for the KGB on the Soviet Union’s external threats. He was assigned to study and assess Reagan in the 1940s when he assumed leadership of the Screen Actors Guild (SAG) and directly impeded the takeover of Hollywood labor unions by Communist thuggery. That got him noticed in Moscow. Early on we see Reagan the Crusader not only stopping Communism in its Hollywood tracks but communicating how and why Communism must be confronted to the House Un-American Activities Committee. Reagan states the nature of the Communist threat but doesn’t call for legal penalties to be imposed on Communists. He appeals to the constitutional value of free speech for dealing with Communist activism “because democracy can handle it.”

Petrovich takes us back to Dixon, Illinois to understand Reagan through his family, faith, and athleticism. Reagan’s mother, Nelle (Amanda Righetti) teaches her son that he has a divine purpose for his life, a theme evident throughout the film. Amidst the drunken failures of his father, Reagan asks his mother, “Why does dad drink so much whiskey?” Her answer: “To escape the memories of his failures and of what he will never become.” Reagan asks, “But does God have a purpose for Dad’s life?” Nelle answers yes, but also imparts that man must have faith and trust God to know this purpose. His father did not. She revisits this lesson to her son after the failure of his marriage to Jane Wyman (Mena Suvari) when Reagan is struck by an apparent meaningless quality now attaching itself to his life. “I have lost everything,” he says, but Nelle tells him, “You must know the one whom you serve.” Her message: Nothing is lost, there is still everything to live for because it’s in God’s hands. This conversation may have been fictitious, but we know from Peggy Noonan’s biography of Reagan, When Character Was King (2002), that this was a very dark period in his life. He found a way through it. But the film chooses not to dwell overly on this episode and how it shaped Reagan. For that, read Noonan.

Reagan’s faith is a constant in the film, inspiring him in moments of doubt and leading him not only to run for governor of California and then for the White House but to read and study Communist ideology and what it does to the human spirit. One scene shows Reagan reading Whittaker Chambers’s Witness when Nancy (Penelope Ann Miller) enters the room and asks, “Are you going to stay out here all night with Whittaker Chambers?” (What could be better than a night spent reading Witness?) Nancy’s question prompts a conversation about how the Communists can be defeated once we understand the multiple currents that propel their project forward. Reagan relates to Nancy that he had to know the surface currents and the deeper currents that pulled people under when he was a lifeguard. America, Reagan says, is only dealing with Communism’s surface current, its weapons and armaments, but underneath this current is what drives Communism. Reagan had the answer, or at least he knew how to think more deeply about the problems Soviet Communism posed.

The film provides numerous scenes illustrating Reagan’s profound love for Nancy Davis whom he married in 1952. Miller’s portrayal almost always conveys overwhelming love and devotion to “Ronnie,” which some viewers might find cloying. But Nancy Reagan once said, “My life really began when I married my husband.” Her love for Ronnie was never something she doubted. Her protectiveness of Reagan is also noted in the film. Reagan’s fatigue and aging during his presidency are lightly broached. He is tired if not exhausted in the 1984 reelection campaign. In one scene, Nancy grows frustrated with campaign aides preparing Reagan for a debate with Walter Mondale. He stumbles in mock debates and takes time to rest. She exclaims to Michael Deaver (Stephen Guarino), “Why won’t you let Ronnie be Ronnie?”

One of the most honest and unintentionally timely film sequences depicts Governor Reagan’s visit with deans and faculty at the University of California at Berkeley in 1969 amidst widespread riots and violent protests. We see Reagan in full conservative mode—Ronnie is Ronnie—and you love every bit of it. He dresses down the administrators and the professors. One bearded faculty member states, “We tried to negotiate many times.” A visibly confused Reagan replies, “Negotiate, what is to negotiate? … All of it began when you let young people think they have the right to choose the laws they will obey as long as it’s in the name of social protest.” In short, you ceded your authority to these malcontented students, encouraging them or looking the other way while they engaged in acts of violence and destruction. We see Governor Reagan leave his meeting with the Berkeley representatives exasperated at grown men who have no confidence in their leadership, university, or civilization to face down a mob of leftist agitators and wannabe revolutionaries. He informs them, “I’m calling the National Guard.” Reagan sensed in 1969 what we know with stone-cold clarity in 2024: The guiding spirit of these deans and administrators in Reagan’s day and our own is the same death wish for our country that their ignorant students scream incessantly to the four winds.

Enter Petrovich who informs the young ruler in training that the California-Berkeley standoff led him to notice something about Reagan. He was almost crazy, in a way that other American politicians were not. The California-Berkeley episode emphasized that Reagan would take dramatic action if he believed the situation called for it. Petrovich stresses this would be true throughout his political career. We also notice that his voice describing Reagan’s actions becomes warmer as the film progresses. This isn’t one of Voight’s better performances, but he still draws you in with his typical intensity.

We sense that Reagan has slowly pulled Petrovich out of Communist ideology. In his Reagan profiling, the KGB analyst discovered the human spirit, led by the American he supposedly feared the most. At one point, Petrovich yells at Andrei for equating Russian strength with Communism. He declares that Russia’s greatness was never in Communism but in its great literature where we learn about the soul. Images of saints of the Russian Orthodox Church adorn his apartment. Towards the film’s end, Petrovich states that Reagan “gave the people back what we took from them.”

But for all of this, Reagan as a film falls short. The film’s opening scenes reveal one of its main failures: it moves way too fast between themes, events, and facts of enormous importance for understanding Reagan. This deficiency is made even more glaring by the film’s desire to tell Reagan’s story through his presidency’s defeat of the Soviet Union. It assumes you, as the viewer, know that Reagan was destined to confront and destroy Soviet Communism, and you are primed to watch it on the big screen.

The film, done correctly, would implant from the beginning the how, the why, and the what of Reagan as the Soviet Union’s worst nightmare. Joe Wright’s The Darkest Hour performs this task superbly. That film opens with the downfall in Parliament of Prime Minister Neville Chamberlain’s government, the anticipation of impending war with the Nazis looms in the Labor leader Clement Atlee’s speech, and it closes with a private question from one Conservative member to another: “Where’s Winston?” Flash to Winston at home in bed, soda scotch in hand along with breakfast, dictating a new speech on Germany’s invasion of France. Behold the man who will battle the Nazi beasts!

Instead, Reagan’s creators chose to build to such a point, assuming you know the film’s meaning, as it hops and skips through Reagan’s life on the way to the fall of the Berlin Wall. It’s as if the film wanted to proceed discursively.

We have the child Reagan, a virtuous young boy who listens to his mother, pities his drunken father, and chooses Christianity. He becomes a dedicated lifeguard, pulling dozens of people from the river for several summers. And the boy becomes a man, a college student and football player, and then a baseball announcer. Reagan is handsome, nimble, amusing, and able to thrive as an actor in Hollywood. He gradually accumulates the skills that will enable him to be a national savior, a crusader, willing to step into the storm of troubles besetting America in the 1980s and quiet them.

We sense that the film’s creators have acted with the noblest of intentions. They wanted to make a film that would give us the essential cinematic Reagan, reigniting interest, particularly in our youth, in Reagan’s love for America and his belief in our constitutional republic. The film hits every significant Reagan speech, emphasizing the quotes that conservatives know in their bones. Strangely, they omit the one speech that kept Reagan alive for presidential victory in 1980, the impromptu address at the 1976 GOP Convention where he was defeated on a floor vote at the convention by President Gerald Ford. Ford invited him to offer a few words, which Reagan did by combining nuclear weapons policy with American wisdom and confidence such that many in attendance instantly regretted the decision to pass over Reagan. People were visibly moved by his intervention. This speech carried him into the 1980 campaign as the Republican leader. But the film instead chooses to show him in his hotel suite wondering why it was “God’s will” that he lost.

Reagan attempts too much and misses the opportunity to prove the wisdom of “the Gipper.” The film largely treats Reagan as an almost Homeric figure who exists on a higher plane in wisdom and courage than his fellow mortals. Did everyone around Reagan see him in this mode? Conversations between Reagan and other characters frequently come off more like dictated outcomes rather than give and take. The characters almost seem to wait for Reagan to tell them the answer or the lesson.

What is our hero’s shadow? Surely, he had one. The great disappointments of Reagan’s life are not overlooked but are also presented as events that were acted upon him. A man possessed with his indomitable will, strength, courage, and faith, must have also felt the demons within. A more captivating picture would have shown how Reagan overcame these troubles and triumphed. The closest we come is watching a middle-aged Reagan doubt himself after performing in a low-rent advertising spot for Pabst Blue Ribbon beer in a Las Vegas show. He is embarrassed to even take Nancy with him. Standing in front of the Las Vegas club at night, seeing his name on such an unimportant stage, we know he’s consumed with pain over past choices and mistakes, wondering what’s next. His fear erupts as he smashes a beer bottle. But Reagan never explodes onto the screen, it gurgles out, a missed opportunity.

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The 2019 Business Roundtable Statement offers prevenient justification for the business corporation operating in the “sustainability” mode and in its ability to “foster diversity and inclusion, dignity and respect.” “Sustainability” is somehow a circle of life demanding that our environmental debts be cleared by actions that return the earth to its undisturbed, original green state. And this must be done even at the cost of lowering our standard of living, to say nothing of becoming China’s carbon offset as they take leadership of the industry sectors penalized by sustainability pressures. 

The Roundtable’s appeal to “fostering diversity and inclusion” dehumanizes people by classifying us according to race and gender alongside the imperative demand that all be made equal in outcome. But at an even deeper level, DEI advocates mean to cast the business corporation as the original, endless sinner whose misbegotten gains must not only be paid out to the perpetually sinned against, but ultimately be placed at their service, directed by the state.

The social justice movement has staged a revolution against profit-making ventures, hoping instead to impose a new model of “stakeholder capitalism” on our economy. They want to put for-profit corporations out of business. Our corporate titans fail to comprehend the scale of this revolution, instead falling for one bad idea after another. Struggling to believe in the essential goodness of a life spent providing useful goods and services to people, business leaders cast about for other creedal statements to adopt as an explanation for their work.

Who might speak the principles of sound business and moral realism to a dislocated American business community, adrift from its moorings in profit-making, risk-taking, building, and providing the goods and services that their customers require? That voice is now coming from an unlikely source, the Christian public interest law firm, Alliance Defending Freedom (ADF). The firm is obviously known for an impressive state and federal courts win rate on religious liberty, free speech, human life, and family issues, but ADF recently turned its focus—as many of us did—to what’s ailing American corporations. 

The intelligent result emerges in ADF’s “Greenbrier Statement of Principles on the Purpose of a Corporation,” which was recently presented to a private audience that your author participated in. The Greenbrier Principles’ spare and exact language articulates four principles: 

1. We affirm that the proper purpose of business is to advance human flourishing by creating economic value through excellence in the provision of goods and services.
2. We affirm that the boards of directors and managers of traditional, for-profit business corporations, whether publicly traded or privately held, are principally accountable to their owners (i.e., shareholders) whose goals they pursue and whose resources they steward.
3. We reject the politicization of business and the efforts by various campaigns and constituencies to compel corporations to the forefront of political controversies. This politicization, which places the advocacy of certain ideological programs above the generation of economic value and profit through excellence in the provision of goods and services, frequently reflects a failure of accountability to shareholders. Such politicization only drives division, imperils civil liberties, and detracts from the ability of businesses to fulfill their proper purpose. Neither business nor society is well served by such politicization.
4. We embrace a positive role for business to advance truth, justice, civil liberties, and public welfare by conducting its business well—i.e., by fulfilling its proper purpose—and not by politicizing its business.

The Principles express a positive moral vision of what business should do to fulfill its nature and purpose as a profit-making enterprise. Some may criticize the Principles as a form of conservative ESG, an attempt to force conservative ideas onto corporations. It is true that a few conservative thought leaders have called for such a strategy. But this imprudent course, however appealing to political donors, short-term political instincts, and electoral needs, finds no home in the Principles. Instead, it follows a classical liberal approach: business, religion, family, and government composing one nation, with their separate operations guided by the essence of each society and conducted in the spirit of pluralism.

Each principle affirms the inherent rightness of providing goods and services to customers; shareholder capitalism as a trust relationship that meets the requirements of justice; the patent injustice of forcing directors, officers, and employees of the corporation to adopt political agendas and courses of action they disagree with as a matter of conscience, alongside the economic injustice of diverting resources to such ideological pursuits rather than ensuring the shareholders receive the highest return on their investment; and concluding with the principle that a corporation pursues “truth, justice, civil liberties, and public welfare” by “conducting its business well” and avoiding the “politicization” of its work.

The Principles are further explained in brief paragraphs. The first principle calls for greatness in the work of a corporation, pursuing “excellence in the provision of goods and services,” with “Profit” being “essential for businesses to operate effectively.” The freedom to produce, work, sell, and trade is a tremendous gift and responsibility. One should engage in enterprise with maximum effort. A paragraph accompanying the first principle quotes Peter Drucker’s observation that “profitability is not the purpose of but a limiting factor on business enterprise and business activity. Profit is not the explanation, cause, or rationale of business behavior and business decisions, but the test of their validity.” Drucker’s statement pronounces that commerce is ultimately an opportunity for the person to serve and contract with others, creating new value in the process, while recognizing that those business relationships must be profitable. Within commercial activity itself is the opportunity humans possess to bring creative order to the world and to raise the pathways to human flourishing.

The Principles clearly eschew stakeholder capitalism but do so because shareholder capitalism is both just and a clear organizing test for human freedom and responsibility in private enterprise. The third principle invokes the alternative route to shareholder responsibility in “the politicization of business” which inherently dilutes the authority of shareholders “while shifting the power to make society-wide decisions on consequential political and public-policy issues away from politically accountable individuals and institutions to highly unaccountable bureaucracies.” At the same time, turning companies into politicized entities, “drives division” and “drives out talented directors and employees unwilling to surrender their conscience, faith, or speech to divisive ESG/DEI mandates.” Of course, it will not be lost on those who have worked in large organizations that these same people are frequently the last the company can afford to lose. The short-term rewards that might accrue to businesses taking political stances frequently lead to all manner of long-term losses.

A note accompanying the third principle invokes Milton Friedman’s much-discussed 1970 New York Times essay that foreshadowed what is now occurring in the current ESG-driven attempts to redirect corporations. Friedman notes that such attempts essentially change the function of the corporation turning executives into agents of social responsibility who spend shareholder capital, i.e., someone else’s money, on behalf of various social justice causes in pursuit of the company’s business. These are essentially government functions being grafted onto the work of the corporation, Friedman observes, and the result is to destroy the public-private distinction between them. Friedman concludes that “social responsibility” taken seriously would extend the scope of the political mechanism to every human activity. Accordingly, “It does not differ in philosophy from the most explicitly collectivist doctrine. It differs only by professing to believe that collectivist ends can be attained without collectivist means.” Social responsibility in this sense becomes “a fundamentally subversive doctrine.”

The fourth principle states that corporations are capable of tremendous works, of lifting people’s lives through career and economic opportunity, and that of society itself, when they act “within the sphere of the proper purpose of business and their competence.” Accompanying points include the revolutionary notion that business must protect “the foundational roles of property, contract, and voluntary exchange.” The Principles end where they began. Business is not government, and blending the two for any reason, or one using the other to exploit its own purposes, corrupts both and the wider society.

The Greenbrier Principles underscore that a life of freedom and virtue can be pursued in business and that our free enterprise system depends upon it. There is no need for those in the marketplace to justify their work with the words and deeds of hoary social justice activism. That is the road to collectivism, to perdition itself.

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The book was dismissed by many leading thinkers, of course. Isaiah Berlin remarked to a friend that he was “still reading the awful Dr. Hayek.” Others said it was a defense of industry’s direction over people’s lives, a reactionary capitalist macroaggression, as contemporary leftists might say. George Orwell said that Hayek had merely picked the poison of monopoly and industrial coercion of workers over the other set of problems brought on by socialism. Why can’t we, Orwell wonders, choose the best fruits of both industry and a large state employed to benefit the laboring classes? The verdict: Hayek was dull, stuck in the discarded ideas of the liberal nineteenth century.

A different verdict came from the market, that is, British and American citizens willing to think anew about the political and economic conditions they had endured for nearly two decades. The book outran publisher sales predictions in both Britain and America. The original print run for 2,000 copies in Britain sold out quickly. Even though the book was written for a British audience, The Road to Serfdom received both enthusiastic and critical reviews in the US, despite the fact that Chicago Press was the third American publisher sought for the book. 

Shortly after the book’s release in America in September of 1944, Henry Hazlitt’s front-page review in the Sunday Times Book Review generated popular interest, sparking calls for translation rights in German, Spanish, Dutch, and other languages. Within 10 days of publication, the book was in its third printing, and bookstores were out of stock, requesting more copies. By the spring of 1945, Reader’s Digest published a condensed version reaching over 600,000 copies. A seventh printing went unfulfilled in 1945 because of a paper shortage. The University of Chicago Press estimates that it has sold over 350,000 copies of the publication, while sales from the many translated editions are hard to track. It’s difficult even to guess how many samizdat copies were printed behind the Iron Curtain during the Cold War.

Paving the Road to Serfdom

Hayek feared that socialism’s idealism, the scientific facade of its arguments, and its apparent benevolence and humanitarian aims clouded judgment about how its use of state power extinguished liberty, undermined the rule of law, and led to dictatorial rule. “What our planners demand is a central direction of all economic activity according to a single plan, laying down how the resources of society should be ‘consciously directed’ to serve particular ends in a definite way.” Hayek frames the alternative to collectivist planning as “the holder of coercive power … confin[ing] himself in general to creating conditions under which the knowledge and initiative of individuals are given the best scope so that they can plan most successfully” (emphasis original).

In his introduction to the 2007 edition published by the University of Chicago Press, Bruce Caldwell notes that the book began as a memo by Hayek in the early 1930s to the Director of the London School of Economics, Sir William Beveridge, contesting Beveridge’s well-worn claim that fascism was the dying gasp of a failed capitalist system reacting against socialism. Fascism, Hayek argues, was just socialism in an embedded nationalist framework, embracing statist outcomes through the methods of socialist technique. The capitalists, such as they existed in fascism, were either vanquished or under the direction of the state for its purposes. Hayek’s memo grew into an article in 1938, titled “Freedom and the Economic System,” and then into this book that landed with an unsettling thud on the reading public in both Britain and America in 1944. 

While The Road to Serfdom was not an academic text, it was an attempt to state clearly, and with great certainty, that Britain’s leadership class—in its love for planning—was steering the nation in the same direction as Nazi Germany or fascist Italy. To be sure, Hayek argues, Britain in no way resembled or was close to approaching the homicidal mania of Nazi Germany. Yet an intellectual process favoring socialism and planning had been manifest in Britain since he arrived as an émigré in 1931. Once principles are accepted as norms for policy, then their logic begins to run very quickly in official state operations. He who says A must say B.

And Hayek the Austrian reports that he could make this judgment because he had witnessed a process unfolding in Germany that was not unlike that which was transpiring in Britain. Hitler’s Germany did not spontaneously emerge because of ruinous inflation or because of a Prussian spirit that favored aggression and hierarchy. The truth was that Germany, stretching back to Bismarck’s reign, had given its economy over to state control. Corporatism had been accepted by the German legal system before World War I. This organization of industries by the state meant that companies no longer had direct accountability to private interests. The logic of the system emerged over time, and corporate titans who welcomed state favor and protection from competition, domestic and foreign, found that the German state was not content with a public/private relationship. It demanded that capital and resources be placed under state authority. Legally, corporatism placed these entities in an almost extra-legal relationship to the state, affording them more benefits and legal protections than individuals received. 

More insidious than corporatism, Hayek recalls, was the long train of ideas under Hegel, Marx, List, Schmoller, Sombart, and Mannheim that promoted socialism or “organization” or “planning.” These ideas not only dominated German life but were exported to Britain and other liberal states, including America. The British became convinced that “their own former convictions had merely been rationalizations of selfish interests, that free trade was a doctrine invented to further British interests, and that the political ideals of England and America were hopelessly outmoded and a thing to be ashamed of.” Germany built itself to Hitler, Hayek argues. 

What we lack, Hayek intones, is “the intellectual courage to admit to ourselves that we may have been wrong. Few are ready to recognize that the rise of fascism and Naziism was not a reaction against the socialist trends of the preceding period but a necessary outcome of those tendencies.” Elsewhere, Hayek notes, “Scarcely anybody doubts that we must continue to move toward socialism.” Hayek aims to cast light on where such idealism will lead Britain and other liberal states. 

But that introduces the obvious critique of The Road to Serfdom, namely, that it overshot its mark. Western countries like Britain and the United States did continue with mixed economies in the postwar period. They deployed bureaucracies and planning, welfare states, and social spending. Totalitarianism did not ensue; instead, there were vast inefficiencies, as the weight of high taxes and the regulatory state pressed on markets. The trenchant French liberal thinker Raymond Aron rejects Hayek’s overall approach, considering that Western economies successfully struck a balance between economic freedom and government planning, a fact that remains true today. Was Hayek wrong? Should he have revisited his thesis?

Was Hayek Wrong?

Hayek addresses this line of criticism in a preface to the 1956 edition. He points out that the book’s thesis never turned on a simple claim that egalitarian government planning always leads immediately to tyranny. Socialism is gone, while state interventionism and welfarism remain, but Hayek contends that his all-embracing critique demonstrated why and how economic planning fails badly. Meanwhile, an ongoing contest between planning and freedom in Western states has continued to play out between parties and ideas. Aron’s response implies something of a peaceful coexistence between both ideas, with each having merit. But conservatives and classical liberals who contend for the rule of law and markets have limited the full damage that would otherwise have been inflicted by the social democratic demand for ever greater security and control. 

Milton Friedman touches on this in his introduction to the Fiftieth Anniversary edition, where he cites the immediate postwar British Labor government’s attempt to direct people in their occupations. It generated a pulsating backlash. In one respect, Hayek’s analysis proved right: Labor policies were coercing people into jobs they wouldn’t choose otherwise. Collectivist coercion was winning out. Yet the public—in their bones—knew it and pushed back hard. Stronger and weaker versions of this struggle have emerged countless times, with contestants knowingly or unknowingly appealing to Hayek’s arguments to establish their opposition to ideological and regulatory overreach.

Other aspects of the book’s critique have become repeatedly confirmed by time and experience. It has become clearer how state interventionism and a welfare state can combine to deform the mores and character of the citizenry. Hayek argues that this process overshadows the traditions of liberty in the understanding of people. This “slow affair” extends “not over a few years but perhaps over one or two generations” as “new institutions and policies … gradually undermine and destroy that spirit.”

Entitlements in American civic culture are now prized and valued so tenaciously that retrenching them is almost impossible, even as mathematical and actuarial tables demonstrate that in current form they will collapse. Hayek, though, did not completely dismiss the possibility that the state might provide a social insurance system, a limited welfare state. Such spending could be reconciled, he thought, with a liberal and free political economy. But Hayek’s social welfare state was different from the providential welfare state that we have erected, brick by brick, yard by yard, slogan by slogan. Criticisms of Hayek note that he approved of social welfare spending that now clogs state budgets, but Hayek didn’t point in the direction of an unlimited entitlement state. Instead, he endorsed provisions for individuals facing difficult episodes or periods in their lives.

Many of us thought that Hayek’s Road—in the form of an ever-expanding entitlement state—couldn’t be paved, because the spending excesses and dismal demographics would make it impossible. Instead, we are learning the opposite. Concrete facts alone are much weaker than unleashed appetites, fed by the view that citizens are due and owed payments from the state. Both political parties and their constituents embolden and participate in this fraud.

Human beings are creative and flexible, thus enabling a certain degree of economic freedom and creativity to flourish despite the vast web of regulation, spending, and security that every Western state seeks to provide. This is certainly true. The tremendous productivity and profit potential of the American economy, coupled with our global currency status, continues to underwrite the debt that funds our entitlement system. We are, as flawed humans, double-minded, desirous of a certain spontaneity and prosperity, but also too easily content to live with government propping us up in certain ways. We have never fully reconciled the tensions between these approaches, generating not only economic distortions and compromises with the rule of law, but also, more importantly, deformations of character.

Hayek and the Administrative State

Other insights in the book continue to resound, especially regarding the inherently loose and arbitrary nature of state rulemaking and enforcement outside small zones where a political consensus does exist. Political agreement “to guide the action of the state” is always fairly limited in large modern republics because of the inherently diverse interests and needs of its citizens. But where agreement does not exist, it must be forged by a minority group within government which produces fiction to convince individuals that the sacrifice of individual freedom is needed in the name of the nation, the people, the common good, or equality. To that list, we can now add, equity, diversity, and inclusion. Truth doesn’t exist. What does exist is what the regime can create in our minds as to how we should think properly about a problem. Language must be manipulated to make a common identity apparent, and disincentives must be created to prevent citizens from dissenting or challenging it. 

Hayek’s point is evident in the constant depiction of politics and policy as war: War on Terror, War on Drugs, War on Poverty, War against Women, War against the Elderly. Or in the insistence that only a maximal approach to environmental legislation can prevent the very extinction of our planet. “Follow the science,” we were told during Covid lockdowns, as if the data unobjectionably dictated the right policy solutions, to say nothing of how the data was produced and under what assumptions. Government-backed DEI training sessions in public and private entity settings tee up anyone participating as a racist or sexist or transphobe for merely asking questions, as in, “Bill, that’s easy for someone of your white male cisgender privilege to ask, but what about Steve here whose acquisition of a penis produced his true self. Bill, why are you erasing Steve?” 

Hayek poignantly illustrates the problem with legislative delegations of power to the regulatory state, a topic of endless theorizing by our conservative and libertarian legal academics. The problem, he thinks, goes beyond delegation and a bureaucratic class charged with applying and enforcing rules. Some bureaucracy is needed in almost every operation. Delegation has become central, Hayek notes, because as the UK government stated in 1932, “many of the laws affect people’s lives so closely that elasticity is essential!” The result is the “conferment of arbitrary power—power so limited by no fixed principles and which in the opinion of Parliament cannot be limited by definite and unambiguous rules.” 

Delegation became widespread in the era of twentieth-century government interventions because there was no common agreement on general rules, announced in advance, that applied impartially to everyone. The state had to rule by waiver, discretion, and ad hoc committee decisions. The axe must fall on someone, and until he knew the circumstances or identity of the relevant parties, the bureaucrat didn’t know where to swing. How else do you direct whole sections of the economy? 

Hayek finishes his book with the most essential truth: collectivism undermines our dignity as human persons. “Responsibility” must not be “to a superior, but to one’s conscience, the awareness of a duty not exacted by compulsion, … and to bear the consequences of one’s own decision, [is] the very essence of any morals which deserve the name.” Ever the advocate of the individualist society, Hayek counted its virtues as “independence, self-reliance, the willingness to bear risks, the readiness to back one’s convictions against a majority, and the willingness to voluntary cooperation with one’s neighbors.” We need these virtues today, and the tradition that undergirds them. 

The post Still Trudging Towards Serfdom appeared first on Law & Liberty.

Philby worked for MI6, the Secret Intelligence Service, for nearly two decades, joining in 1939 before resigning in 1955 under intense suspicion of spying for the Soviet Union. After formal investigations proved inconclusive, Philby was cleared of these accusations by British Foreign Secretary Harold Macmillan in 1955. A few years later, Philby decamped to Beirut to serve as a correspondent for The Economist and Observer. He was also shockingly reinstated by MI6 during this time to provide reports to the agency on Middle East politics.

The series is built on Ben MacIntyre’s eponymous book (2019) which provides an accurate historical accounting of these events. But the series takes certain liberties with facts, even creating a fictional character, Lily Thomas (Anna Maxwell Martin), who grills Elliott on behalf of MI5 (British domestic security) about the lapses in judgment that permitted Philby to lurk within MI6 for decades without detection. Having read MacIntyre’s book, I found the prerogatives with certain events taken by the series poignant illustrations of the costs and casualties inflicted by Philby’s deception on Elliott, his friends, and the nation of Britain.

Philby proved to be one of the most valuable Soviet penetration agents in the West. As a double agent, he plumbed the depths of British intelligence and conveyed it to his Soviet handlers. An exhibit in Moscow in 2017 presented the documents (over 900) that he provided to the Soviet Union while spying on its behalf. Russia has also honored Philby with a portrait in the Russian state art gallery and a feature film on state television. He began his service to the Soviet Union in 1934 while in Vienna, where he fell in love with his first wife, an activist in the Viennese communist underground.

Philby, radicalized ideologically in his student days at Cambridge, was part of the “Cambridge 5” spy ring that also included Guy Burgess (Thomas Arnold), Donald Maclean (Daniel Lapaine), Anthony Blunt (Nicholas Rowe), and John Cairncross. Philby’s service and loyalty to the Soviet Union never wavered until his death in Moscow in 1988, having fled to Russia from Beirut in 1962, after being confronted by Elliott with irrefutable evidence that the British government knew that he had betrayed his country to the Soviet Union.

A Spy Among Friends begins with this dramatic confrontation in Beirut between these two friends whose lives and families had been connected for decades. In real life, they had been close friends since 1941 when both were serving in MI6. Elliott was sent by MI5 to Beirut to obtain a confession from Philby after Soviet defector Anatoliy Golitsyn and a British woman named Flora Solomon, also an old friend of Philby’s, had made it transparent to British authorities that Philby was a Soviet double agent. Philby arrives at an apartment in the Christian Quarter of Beirut unsure of who would question him. When Elliott opens the door, Philby states, “I rather hoped it would be you.” This statement is the crux of the series.

Does Philby at some level want to come clean about a life of treachery, one that preyed even on a close friendship? Is that what his hope rests in?

Such a question must be balanced against a life of unstinting service to communism. He remained loyal to his own conscience, albeit one severely malformed. Perhaps his hope was that Elliott, rather than anyone else, would treat him better than others might under the circumstances. Philby did not think he had erred in any way; rather he had been true to Marxist form. The classical understanding of conscience is that it’s God’s window of justice into the human soul and not just strong subjective will that is convinced you are doing the right thing. Our conscience is the seat of divine wisdom, enabling us to exhibit right judgment and conduct.

Moreover, conscience demands vindication for its choices unless it arrives at repentance and seeks forgiveness for past actions. Philby fully believed in the righteousness of communism. In the series, Elliott extracts a confession of sorts from Philby in Beirut, one described by Lily as chicken feed, meaning it was tactical, replete with a truncated list of events and contacts, but no regrets or remorse. And that’s what you expect from a communist because treaties, delays, compromises, peace accords, etc., are merely way stations on the road to revolutionary dominance.

The series wrestles with Elliott’s decision to not place Philby under arrest or detention in Beirut. Why did Elliott not place a man rightly accused of espionage against Britain immediately under arrest and detention, and prevent him from inflicting greater damage? It is a difficult question. Elliott also attended a dinner party later that same night at Philby’s, reasoning that otherwise Philby’s wife would wonder why Elliott would be in Beirut but not visit them. Elliott wanted nothing to seem amiss.

MacIntyre provides different rationales for why Elliott left Philby on his own volition. Philby was caught, according to Elliott. He had confessed and was offered full immunity if he would only detail everything he had done. But years earlier in 1951, Guy Burgess and Donald Maclean, when the latter’s cover was blown as a Soviet spy by the Venona files, had fled to Moscow. Burgess had been sent by Philby to warn Maclean and inform him to run to Russia. Instead, they both fled to Russia together.

Surely it was possible that an incredibly dedicated and resourceful communist agent like Philby would attempt the same. Or did the British fear the fallout of bringing him home and dealing with the betrayal and the consequences that would surely ripple through the government and society as other treasonous behavior would come to light? Perhaps it would be better for the country and everyone else to just let Philby slip away, along with the dark record of his life. In the end, it remains an open question, even as many doubted Elliott’s conduct at the time and to this day.

Lily’s character represents much of what Elliott’s does not. She is thoroughly middle-class, confident but not arrogant, dry temperamentally, and given to stern moral judgments. The latter stands out when she states to Elliott that “he (Philby) is a communist” and Elliott reflects it by saying, “Chicken, egg?” What comes first: Communism, treason, or Philby’s need to be in the most elite of circles? Does it matter? It raises the question of how exactly ideology matters for Elliott or other members of the British governing elite that he was a part of. Lily is certainly not in doubt. The power of communism, its ability to explain the truth and meaning of justice, and how people should live, was, according to Philby’s own words, its hold on him.

In the series, he tells his Soviet escort during his exit to Moscow that he chose communism while in Vienna because “it was there where I came to know what I stood for.” During Philby’s Vienna sojourn, the Left battled Englebert Dollfuss’s corporatist regime in pitched street battles, and Philby participated in some capacity in this violent struggle. Neither the book nor the series reports exactly what he did there. MacIntyre reports that Philby’s third wife, Eleanor, would leave Britain and come to join him in Moscow after his defection. She recalls asking him: “What is more important in your life, me and the children, or the Communist Party?” Philby answered, “The party, of course.” Elsewhere he stated, “I have always operated on two levels, a personal level and a political one. When the two have come into conflict I have had to put politics first.”

The question Elliott faces from Lily exemplifies this point. Why, she wonders, “did you not place him under arrest? Did you not want to kill him?” Angered by the full scope of Philby’s treachery, and shocked at Elliott’s coolness, she inquires about the number of people who died because of Philby’s actions. Elliott responds that the lives lost were “hundreds, thousands.” He seems casual about it, but as we will come to learn, he is most certainly not. Lily is the blunt edge of conscience that exposes what was the aristocratic club world of MI6, which Elliott exemplified, with all its weaknesses and deficiencies. Is this the real explanation for why Philby could move unnoticed for decades in MI6, even rising to the level of Washington Bureau Chief from 1949–51? In the series, Philby offers this as the reason to the Soviets for why he could be so effective. As in, only a ruling class so arrogant and convinced that it will always prevail could never think that a traitor could be in its midst.

MacIntyre details the disastrous paramilitary operations by MI6 in Georgia and Albania, which attempted to land anti-communist fighters in those countries to stoke uprisings against their communist governments. In both cases, the British-trained soldiers were obliterated quickly. And that’s because Philby had tipped off the Soviets with precise details about the operations. Did anyone wonder why they monumentally failed?

As mentioned, Philby came under tremendous communist suspicion when Guy Burgess, who lived with him in Washington, and Donald Maclean (who both worked for the British Foreign Office) escaped to Russia after the infamous Venona cables revealed to British intelligence that Maclean was a Soviet mole. Elliott fully backed Philby during this period. Philby staged an elaborate press conference protesting his innocence that seemed to vindicate the authenticity of his denials. Of course, he was lying every way imaginable. To this day, MI6 uses the video of Philby’s presser as a master-class demonstration of how to deceive and manipulate opponents.

In the end, MacIntyre’s judgment about Philby seems most apt. He was sympathetic, attentive, brilliant, engaging, and apparently a tremendous friend. Depicted in the series is a friendship, at least on Elliott’s part, that approached the highest level of Aristotelian friendship, a friendship based on willing the other’s good, and not merely predicated on utilitarian or situational needs. And Philby, from Elliott’s perspective, gave every indication that he, too, held their friendship in similar esteem. But was it a friendship of equals? At one point in the series, Elliott describes their friendship as “hero worship” on his part.

Philby used personal relationships for information to provide the Soviet Union. Something he did not only with Elliott, but also with James Jesus Angleton, CIA chief of counterintelligence, and others. Both Angleton and Elliott never knew until it was too late that Philby had betrayed them, using their admiration of him for communist purposes. Angleton, among others, would later claim to have harbored doubts about Philby, but thought that he was a British problem. He was also broken by the news, which instilled in him a corrosive paranoia that undermined the internal environment of the CIA and contributed to his later dismissal from the agency.

A later scene captures this well as Angleton announces to CIA leadership that the agency is compromised just as the British have been by Philby and that new measures will be forthcoming. He does not admit to his colleagues that one source of such undermining was his own judgment and action. MacIntyre notes the truth here, “No one likes to admit they have been utterly conned. The truth was simpler, as it almost always is: Philby was spying on everyone, and no one was spying on him, because he fooled them all.” The consequences of Philby’s work, though, stretch beyond personal betrayals, and include the deaths of many people.

Philby was a Soviet communist monster. Of the many people that he killed with his espionage work, one group stands out. As MacIntyre tells it, Erich and Elisabeth Vermehren were an anti-Hitler German couple because of their devout Catholicism. Elliott, in an intelligence coup, had managed to spirit them to Britain from Istanbul where Erich had been serving in German intelligence. News of their defection went straight to Hitler, who fumed and created a new intelligence apparatus as a result.

Elliott’s career benefited from successfully getting the Vermehrens to Britain, where the clandestine information Erich had was of great use. Erich had passed a file to Elliott of similar Catholics in Germany, fiercely anti-Nazi, who could be called on to rebuild Germany once Hitler fell. Of course, Russian forces got to East Germany first where many of them lived. Philby had obtained the file of these German Catholics and transferred it to the Soviets. They murdered every single person on the list.

Towards the end of the series, Elliott tells Lily that he might visit Philby in East Berlin undercover. She upbraids him scornfully, “You’re your own worst enemy. You’re the country’s worst enemy. He has lied to you for twenty-three years and that is all he has ever done.” Elliott doesn’t meet Philby but returns to him a monogrammed umbrella that had been given in an act of friendship. They are friends no more. By this time, Lily has learned in many ways that Elliott was no slouch, but one capable of immense judgments, acting decisively and prudently when the situation called for it. He tells her that he let Philby go to Moscow in Beirut not out of carelessness or sympathy, but final justice. The Russians, Elliott explains, would never accept Philby, never give him the adoration he craved. He would be miserable and die in misery.

In the final scene, Elliott outwits Philby. We have no conclusive evidence that Philby calculated like this, but one can hope that he did.

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These popular renditions of prudence need to be informed by its classical dimensions. Such an account of this virtue can improve our politics, guiding those who hold power to exercise it in all of its strengths and limitations. Prudence, Greg Weiner notes in his wonderful study, Old Whigs: Burke, Lincoln, & the Politics of Prudence, “is the virtue associated with reason. It has, in this sense, a deeply normative case, which is to say that the point of prudence is not what Aristotle calls ‘cunning.’”

Edmund Burke warned that in poorly ordered democracies, “moderation will be stigmatized as the virtue of cowards; and compromise as the prudence of traitors.” The political tenor of certain times, perhaps including our own, separates us from prudence. But that is not because we are more daring or more scientifically certain of our course. Rather, it owes to our moral and political weaknesses. We think we know far more than we do. Believing that ideology and the knowledge it provides will perfect us, we demand less of ourselves than we should. What need is there for virtue and responsibility when you have all the answers and only need to enforce them? One result is that we demean in the first resort those who are our fellow citizens merely because we are locked in disagreement.

Prudence, Burke held, is “the god of this lower world.” On this score, Weiner says prudence is “inflected with caution but not confined to it, bound to circumstances, and finding expression in the particular yet grounded in the absolute.” Aristotle argues that it is a “habit concerned with action under the guidance of reason.” Aquinas adds that Providence is “the principal part of prudence” showing us “why things are ordained to their end….”

Prudence, then, is the habit of thinking, choosing, and acting according to the demands of reason. In civic affairs, those choices involve judgment and deliberation over what matters and what does not, or what at least merits less emphasis. Statesmen must navigate the problems that are upon them with the facts they have, and their judgments could prove to be wrong.

The opposite of prudence is the god of abstraction and rationalist certainty, leading us to project ideological rigidity and rashness, if not violence, in political debate. Burke famously confronted the French Revolutionaries who demanded absolute freedom and absolute equality in disregard of the principles and circumstances of French government, religion, culture, and history. This was precisely their point, to pull down foundations and rebuild on unreal premises and ideas. Their divorce of principle and circumstance was the source of their revolutionary extremism and violence. From a desire for the totality of freedom, liberated from the French past and its constraints, the revolutionary regime ended in absolute tyranny. Burke’s formulation was that “circumstances … give in reality to every political principle its distinguishing colour and discriminating effect.”

Can Populism Govern?

Inherently complicating the recovery of prudence for us is the populist moment we labor in. This term is frequently used as an accusation of unseriousness or illiberalism towards a group or party the author dislikes. As John O’Sullivan noted “liberalism without democracy” is an apt description of the system of government towards which the West has been moving since 1989, and populism is the resistance to it. We are increasingly governed in a post-democratic sense, with bureaucracies and courts imposing their wills or with key issues removed from actual debate by leaders of one or more parties. Populism challenges post-democratic governance and re-opens dismissed or ignored issues.

Populism is part of our democratic republic, but so also is the republican principle that combines and shapes how institutions should inform both popular sovereignty and populism. Cited in Federalist 39, the republican principle grounds our Constitution’s legitimacy in the sovereignty of the American people by selecting their governing officers. All power is derived from the people, and that ongoing consent must be secured.

Those who govern, however, are not the people themselves. Rather, elected officials take their cues from the duties and limits defined by the Constitution. The performance of their office is not a mere conduit of popular will. The justice they achieve must come through the process of law-making. And those results should emerge through deliberation, reaching an outcome that may not be the exact one mandated by voters, but one that they can endorse, approving its rough approximation to their own.

Populism erupts when enough members of the populace believe their leaders have betrayed them. They no longer wish to be governed through institutions that constitutionally exist in a degree of separation from their own will because they think the “republican principle” is no longer efficacious for the achievements of limited and just government. And this isn’t hard to understand when one considers how many limits and separations of power in the Constitution now seem to exist only on paper and not in the actual procedures and exercised powers of the federal government.

And there are multiple reasons for the people to believe that their elites have governed in disregard of the people’s will for some time. There has been a breakdown between popular sovereignty and republican institutions. Populism from this view is an attempt to secure justice when the officers of these institutions have failed. We see a rise in judicial activism, administrative state power, endless and irresponsible spending, and dubious foreign policy choices. And now comes an FBI and national security apparatus investigating and harassing domestic political opponents of progressivism. America is almost post-constitutional in practice, replete with capricious power that frequently breeds unreliable policy outcomes.

But can populism, of the left or the right, govern? Populism’s desire for more direct self-government frequently leads to a politics of outrage that is devoid of respect for institutions. Populism’s inherent, if not fatal weaknesses, are seen in its inability to join its deeply felt need for justice to institutions and to republican principles.

The country splits sharply across key issues of social welfare spending, defense policy, fiscal policy, gender, abortion, and environmental policy, to name only a few. No one leader or political party is likely to sweep its opponents from the field. Capitulation by either side, given these entrenched divisions, doesn’t appear likely. Those who would lead a democratic republic like the United States must do so within the tensions, circumstances, and limits that define it.

Populism and Constitutionalism

Such a critique does not ignore that our governing institutions and many policy areas require substantial reform. But a prudential populism must account for the elements that obstruct the restoration of constitutional self-government. Populism must join itself to and be balanced by popular sovereignty and republican institutionalism if it is going to have a salutary effect on our constitutional order.

Prudence will recognize no compromise here; to compromise on the Constitution is to lose everything, every opportunity for reform, and our continued existence as a people. But this demands pro-institutional politics that we might call prudential populism. Some voices on the right now extend the populist principle to its breaking point, calling seemingly for a new country. They refuse to serve the god of this lower world. To follow them is to accept an unpredictable set of consequences.

Moreover, such prudential populism must work with popular sovereignty to make arguments capable of securing majorities around policies that shape the constitutional republic we want. Part of prudence involves counsel and providing explanations to the populace—outraged or otherwise—when they are wrong. Prudence must modulate republicanism to prevent it from descending into a rabble. Election mandates won’t be the final word, but deliberation in Congress in consultation with constituents will be, even as results may not line up, with the most emphatic enthusiasms.

Prudence is the virtue most needed by the conservative populist statesmen who would turn back the rolling progressive campaign to hollow the republic of its essential nature—its guarantee of ordered liberty for free and equal citizens. This is countered by the altogether rigorous discipline of progressives who have made it quite clear that they stand for vast amounts of social spending, climate legislation, socially progressive policies, including transgender surgery on children, and an aggressively secular public square. Progressives articulate well the America they want, and they tirelessly work to bring it into being. But their commitment to unreal abstraction opens them to defeat.

One issue that a prudential populism must reopen is fiscal excess tied to the principle of limitless government spending. Fiscal policy is more than policy—it defines the very nature and extent of our government. Do we continue to give a wide berth to individual and associational liberty, or is everything compromised by the reach of government?

Dealing with this crisis in government, one that has not been dealt with in quite some time, requires a recognition of the circumstances and limitations of the situation. It would also demand rebuilding deliberation within Congress over the contents of the federal budget. This would bring not only the prospect of renewed fiscal probity but the repair of an institution that has been underperforming in its constitutional role for decades.

The debt ceiling mini-crisis could be an opportunity to begin a prudential process of spending retrenchment. Our annual federal deficit is seemingly beyond the reach of political decisions to curtail it. It just grows, and who is the fool to say otherwise? In the past three years, Washington has run deficits of more than $7.5 trillion. Annual multi-trillion-dollar deficits are the new order of business, a problem that will likely get worse as interest rates stay elevated in the presence of such extreme federal crowding out of capital markets.

One of many circumstantial constraints faced by any would-be fiscal hawk is that Americans prefer vast amounts of federal spending. Entitlements are popular despite their escalating costs. Most Americans believe they have earned Social Security and Medicare, despite most recipients receiving many times more than they’ve actually paid through their taxes. But our untenable situation will only get worse as net interest payments will soar past total defense spending in a few years and total debt-to-GDP will exceed 124% in a decade.

A realistic trimming approach acknowledges these stringent conditions and forgoes rhetoric for drastic cuts that are practically unachievable and only turn voters against any spending reductions. There have been numerous attempts by Republicans to attenuate federal spending since the Reagan administration. Most have failed or found limited success, being divorced from what voters will accept in cuts and from what legislators are willing to back. The current situation demands acknowledging these difficulties and planning accordingly.

What’s possible? Could annual discretionary appropriations be frozen? Could you cut hundreds of billions over the next decade? Perhaps this is too limited. But the point is to lay down serious markers for spending reform while understanding that change will come incrementally through a commitment to no longer accept our unyielding deficits.

Prudence demands that we acknowledge the situation we’re in, which spells eventual catastrophe, and devote ourselves to its reform over the long term. While there are limits on what can be achieved now with fiscal retrenchment, the failure to list, detail, and highlight the facts of our fiscal recklessness would be a failure of prudence.

This fiscal struggle will go on for years, pursuing necessary ends while taking assaults from every side. This mix of principle and prudence will need to be conducted at a high and honorable level. To achieve it will be to achieve not only fiscal probity but one of the highest ends of constitutional government.

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Hieronymus “Harry” Bosch at last season’s end turned in his badge and became a private investigator. “Who are you if you don’t have a badge?” Chief of Police Irving (Lance Reddick) inquired of Bosch. Bosch’s response: “I’m gonna find out.” Bosch Legacy gives us a man freed to be more unpredictable than he could be as a cop—and freed to break the law in order to save it.

Is it a coincidence that he shares a first name with Lt. Callahan (Clint Eastwood) of Dirty Harry fame? Eastwood’s Harry did similar things and had the same reactions to the feckless San Francisco Police Department. Both men are perplexed and infuriated at the lack of justice for victims and how weak the rule of law can prove to be when evil designs press against it.

But Bosch resents what he must do to uphold his ideals, best expressed in his motto, “Everybody counts, or nobody counts.” He also works in the knowledge that the city connects everyone, high-born and low-born, just and unjust. Those called to defend it are by turns unaware of the nature of the threats arrayed against them or engaged in their own lowdown betrayals of law and order.

Harry’s devotion to his work—he regularly held late-night sessions with “murderbooks,” with jazz music hovering and beer accompanying him—has long indicated that police work connected him to the deep-down roots of justice. And those roots are almost dead in L.A. But his devotion also guides him to take the exact amount of extra-legal action when called for. He never apologizes for it.

Across Generations

The season begins with pietas. His daughter, Maddie (Madison Lintz), is now a rookie police officer, a “boot.” She is reprimanded and scolded in the first episode for leaving her partner to sprint after a criminal. Maddie didn’t wait for backup. But this is Harry’s daughter. Long-time viewers will recall that she originally lived with her mother—an actuarial FBI whiz agent—but came to prefer her father more and more. Her mother was killed in a hit by a Chinese gang, and that has left Maddie with Harry since her teenage years. Since that time, Maddie has ascended towards work, mission, and courage.

Love has always been the uncontrollable element for Harry. The calm pursuer of accountability is weighed down under memories. He separated from his wife but retained a tremendous fondness for her. Maddie’s entrance to the LAPD leads him back to his former wife’s death, and then a call goes out that a female cop has been shot in his daughter’s patrol district. Harry reaches out frantically to her, immeasurably relieved that she is unharmed.

Maddie is also sent as a liaison to the badly wounded officer’s family to inform them of her critical injury. She tells her dad that she won’t know what to say. “She’s your fellow officer,” Harry says, “The words will come.” Dutiful Harry again surfaces.

Like father, like daughter, Maddie says to Harry, “I can’t let it go.” She is tireless in the pursuit of a serial rapist, resembling her father’s obsessed police work in every previous season. “Got a feeling that I can’t let it go” went the refrain of the theme song in the previous series, a line that nicely captured Harry’s doggedness. Now we get as an opening a song that repeatedly says, “Times are changing.” But the times also remain the same. And the changes don’t seem for the better. Harry as PI strolls LA in a timeless Cherokee jeep. He pays his tech sleuth advisor, Mo (Stephen Bassi), in cash. Mo replies, “Cash is so last century.” Harry rejoins, “So am I, brother.”

A Thin Line of Justice

There is a theme weaving through this season of creeping lawlessness. There may even be a Bosch-like nod to identity politics, but it is so wrapped in love, loss, and hope that I hesitate to name it as such. On the lawlessness bit, Honey Chandler, LA defense lawyer extraordinaire, was almost killed last season by a hit ordered by hedge funder Carl Rogers that killed a judge. He gets off this season because of insufficient evidence. Honey recovered physically, but not soulfully. She is hounded by thoughts of revenge, operating somewhere between gun range visits and late-night bourbons. She’s very clear with her therapist that she wants Rogers to live in torment.

Honey is now teamed with Harry on a range of cases and investigations. On Carl Rogers’s release, Harry tells Honey, “We do it my way this time.” He has Carl in his sights. But Harry has always spurned Honey, referring to her as “Money” Chandler. The refined defense lawyer has handsomely profited from various civil rights regulations that afford huge payouts for defendants treated shabbily by the justice system. It’s Maddie, a former employee of hers, who convinces Harry that Honey was probably right in most of those cases, but it’s also true that she milked the system for all it was worth. Like Harry, Honey knows the limits of the system but unlike Harry, she evades them for her own purposes.

But she also experiences life’s strictures this season. If Harry can’t outrun love, then Honey learns there really isn’t platonic revenge, and justice can only afford so much relief. She and Harry find a way to connect Carl to the theft of oil. He can no longer pay back his Russian bosses, so he’s a dead man walking. His lawyer had checked him into Club Fed on a bargain of giving up information about Russian mafia operations. The Fed and the police seem powerless otherwise to stop them.

Carl escapes Fed custody and decamps for a custom-designed shipping container that he had fashioned for himself to leave the country stowed on an international vessel. But he doesn’t escape the Russian hitmen who tortured and murdered his lawyer to find him. Honey also tracks Carl down and silently watches as they kill him. She stands over his body, a seeming moment of vindication, except that it’s just blank, if not meaningless for her. “It couldn’t have happened to a nicer guy,” she tells Harry. But the triumph is more like a whimper of relief.

Honey’s nightmares continue. Her nighttime horrors reveal that she is now consumed with her own apparent injustice, Honey relates to her therapist. She dreams that she killed someone, but she doesn’t know whom. Her therapist observes that she must be carrying guilt about something. “Don’t we all?” Honey notes. But where does her guilt go—can it be taken from her? Her frequent line-crossing between right and wrong now demands its own recognition. The conscience must be forgiven or justified. Honey knows that justification for some of her deeds isn’t really possible. But this season doesn’t answer such an important question. Season 2?

Forgiveness of Sins

Harry’s PI work brings him to the sad case of a lonely tycoon named Whitney Vance (William Devane). He’s a billionaire, part of a legacy, and the remnant of a fading Anglo-Protestant elite that once ran California. His legacy corporation produced war machines, and its current leadership is doubly underhanded, willing to kill Vance’s heirs to ensure that ownership and wealth stay with the corporation.

The backstory is that Vance, as a student at USC in 1952, fell in love with a young woman from Mexico. She became pregnant. His father ordered him to leave her, or else. And he followed orders.

His memory of her and of their child have haunted him ever since. He hires Harry to track down the child and his rightful heirs before he dies. Harry faithfully follows suit, tracking down the son, “Dominique” who was killed in Vietnam, a helicopter pilot. The Vance Corporation made these instruments for the Army. Vance abandoned his love and his son because his father threatened to disown him. Now we learn that the company whose profits and respect he couldn’t walk away from him was connected to his son’s death, profiting from the sale of the warship that contributed to his death.

There’s a clear desire to paint Mr. Vance as a war profiteer. But that’s a bit much. In the end, the rich white man wants to apologize and help his biological heirs. His guilt marks his conscience. His betrayals have cost everyone, and he feels the damage in his own soul.

Last will and testament hijinks lead to the murder of Vance by his long-time assistant, and Harry shoots a female assassin sent by the Vance Corporation to kill Vance’s biological granddaughter and great grandson. Harry ensures that the estate is delivered in full to them. Harry tells Vance, who comes to trust him, that he never knew his father. You might think Harry would be led to scorn Vance for his cowardice, projecting his own pain onto him. Instead, he serves him and his descendants.

I hinted that this might be Bosch Legacy’s nod to identity politics. But Vance is never treated as an original sinner who must be expunged so that racial minorities might dance on his ashes. And the facts here might justify it. There’s some measure of justice—rightful heirs learn that they are provided for—but there’s also love and forgiveness. Vance got things badly wrong, but he also wanted, to the extent possible, to make things better. What remains for Bosch Legacy is the knowledge that our debts ultimately cannot be paid by us. Those accounts are too deep to be settled.

In the last episode, Maddie tells her dad to answer her texts, especially when she’s on patrol. There, she sees the worst the world can offer. Maddie wants to know that her dad is there. The serial rapist soon resurfaces, though. This time, he’s hiding in Maddie’s apartment. Harry just happens to reach out to Maddie. She doesn’t answer. His uncontrollable love surges. Can he get there in time?

The post Justice Is Never Enough appeared first on Law & Liberty.

However much we may disagree about the content of the common good, any sane articulation of it will necessarily repudiate despotism. Bertrand de Jouvenel is strikingly clear in his observation that “radical individualism and despotism both share the same perverse premise: There can be no good held in common by human beings.”

And what is left of politics if we accept this “perverse premise”? Certainly not constitutionalism. Rather, we have the politics of will and force in the place of persuasion, consolidation in the place of dispersion of power, and retribution in the place of accountability.

The common good must contain the recognition that a political community preserves something that transcends individual self-assertion. We must be able to put words and deeds in common, to make them public, and to do so in a way that provides reasons for our countrymen to hang together, to give to the public order and to receive from it.

Of course, much of contemporary political theory dismisses or glides over this constitutional discourse, rooting sovereignty in an administrative class that doles out rights, equalities, and various autonomies centered on what this class values. In this, they fulfill a pathological liberalism that reduces political order to two densities: man and the state. In numerous sections of Democracy in America, Tocqueville stresses that this combination of autonomism and collectivism reduces liberty to an afterthought while making the soft despotism of an egalitarian state the norm to which we must conform.

A Malleable “Common Good”

Leading today’s renewed interest in the common good is what can only be described as an anti-constitutional discourse coming from the Left. The manifest illiberalisms of race, gender, zero-carbon environmentalism, and anti-growth economics have revealed that many American intellectuals, educators, corporations, and politicians have been captured by or are willing to parrot Marxist ideological forms. America in its major institutions is no longer immune from the worst tendencies of the Socialist Left. Diversity, equity, and inclusion programs permeate much of our government, corporate, and education bureaucracy, with objectives impossible to construct apart from Marxist identity groupthink. Indeed, DEI ideology is proclaimed loudly and dares anyone to say otherwise. To these ideological proclivities, this cohort joins the power of an administrative state that also operates extra-constitutionally, binding our actions outside of fundamental norms of separation of powers, even due process.

Soft despotism now includes more than federal bureaucrats armed with vaguely worded statutes to which they add their enforcement measures in manners both official and unofficial. The private sector, including “Big Tech,” increasingly attempts to polarize and isolate many conservatives who express un-Woke thoughts or contest the received wisdom about the plasticity of gender, among other potential offenses. Their quest for a common good is rooted in the notion of perpetual victimhood which can be alleviated, we are told, only by the universal repudiation of the heterosexual white male, his capitalism, his constitutional law, and overall society of ordered liberty that his version of American history established. As Ibram X. Kendi asserted, you’re either racist or an antiracist; you’re either with Kendi’s project to transform America into a racial socialist polity courtesy of a Federal Department of Antiracism or you’re with the racists.

Highlighting this despotic project can only take conservatives so far in defeating it. We must articulate what the American constitutional tradition serves. The common good of our constitutional order must be the animating principle of American conservatism, one that receives its better ordering through the actual purposes and structure of the Constitution. This is why many conservatives have expressed consternation about what has been termed “common good conservatism”: the principle, as it is often articulated, is as malleable as that of social justice and can be put to just as pernicious a use.

To take one example, Patrick Deneen penned a recent essay that helped us understand that the common good isn’t exactly nebulous or hard to define: it’s the goods that are most common to human persons residing within a political order. But then he argues that prayer is one of those goods, and that our American regime is at odds with this common good, thwarting—with its political, economic, and social life—the practice of prayer.

Deneen gives little detail about how it should be restored. If it’s a part of the political common good, then presumably state power is called for in its rehabilitation. Perhaps a reversal of the separationist Court decisions that sought to exclude prayer and religious symbols from public life would be a crucial step in making religion a full-fledged aspect of American life, no longer relegated to the privacy of a broom closet. Yet, I suspect Deneen wants more. To put it bluntly, prayer is simply not one of those things entrusted to the constitutional common good by the founding fathers, and it is not how we are constituted as one people. This does not take away the vital role of families and religious institutions to inculcate love of God and of the human soul under God, but this formative task was never something committed by We, the people to the federal government. However, that same federal government provides tremendous space for institutional religions to teach, preach, and form their members. They have all the vital freedom needed to live their religious lives and proclaim the goodness of prayer. The federal government poses no impediments in this regard.

The open-ended nature of Deneen’s claim illustrates precisely what is wrong with this conception of the common good: how it seems to collapse the distinction between state and civil society in pursuit of man as homo orans. Any discussion about the common good that fails to work it through the structure of the Constitution must be rejected. This is not rank positivism, but the recognition that freedom and virtue emerge through limitations on government power. This includes the freedom of religion that stands on its own without government persecution or favor.

A Constitutional Common Good

We need a prudent attempt to recover the better ordering of our constitutionalism and thus its common good through and with the symbols, purposes, and principles that we have agreed to as American citizens under this Constitution. Certain pieces of underbrush need to be cleared away first. Many conservatives affirm that the complete story of American constitutionalism is individual rights, liberties, and protection from state power. But an exclusive focus on equally protected individual rights tends to move our focus towards equality and autonomy as the ultimate goals of the American Republic. This is precisely the kind of liberalism that makes it impossible for us to think of ourselves as citizens, neighbors, parents, and members of religious communions, who have deeply relational dimensions in our human nature. And if equality is our pinnacle value, then why should we not be ruled by the Court or the administrative state? What real need is there for politics with its sharply competing notions about justice, right, welfare, etc.? The answers to all the big questions are already known and just need to be declared; dissenters can be increasingly marginalized.

Relatedly, many conservatives glide into the position that government, as such, is evil. They perceive “the state” as an independent phenomenon always aiming to do us in. Reasoning from this position ignores that power, as such, is not evil; when bound by a constitutional promise, it can be an instrument to effectuate the common good of human flourishing. We must sharpen our critique of the administrative state’s power and the use of judicial review to forge new “fundamental rights” precisely because these actions do depart from the constitutional promise that bounds the use of federal power.

But if every human association, including political association, has a common good, how is our republic’s common good effectuated? We need to remember who we are supposed to be as a constitutional people. We should return to the process that debated and approved the terms of the American Constitution in the Philadelphia Convention of 1787, a process upheld in the subsequent states’ ratification conventions. There, we read arguments about specific problems, powers, needs, and liberties, and those arguments moved from one place to another, driven by delegates who don’t necessarily try to dominate or cajole others into their camp, but who give reasons that might unite disparate actors from small states versus big states, for one example among others. The means then of voicing, articulating, and approximating our common good is, as Willmoore Kendall argued in his essay “How to Read Richard Weaver, Philosopher of ‘We the (Virtuous) People,’” to “share with the Founders of the American Republic the belief that the Republic’s destiny will in fact be decided by the discussion-process.”

We should, therefore, regard the Preamble’s fivefold ends of politics as where our federal government should aim within the limitations and divisions of its power. That Preamble is not limited or even defined by “equality” and “rights.” Our most basic theory is that “We the people” are the ones who “ordain and establish” this Constitution for the following objectives: to establish justice, to promote the general welfare, to secure the blessings of liberty for ourselves and our posterity. Kendall notes that the Preamble is where the Framers indicated what type of people we are and must remain for the life of the Republic:

…by speaking of “our” posterity [we] declare our intention to remain a “people,” with such and such “machinery” of government, to which “we” assign certain coercive functions, the necessity of whose performance “we” assert by assigning them to the government, to which, however, we do not assign certain other functions, not necessarily less necessary in our minds, and not necessarily less coercive, which “we” tacitly declare “our” intention to perform “ourselves,” i.e., in “our” capacity as a “people” (e.g., providing for the education of the young, building and supporting churches, growing “our” food, making arrangements for “our” transportation—all of which, and many others, we might have assigned to “our” government but did not).

Kendall reflects further that, apart from defense and civil peace—indispensable needs for any political order—the Preamble’s purposes establish the type of people we are, a people dedicated to “justice,” the “general welfare”, and “liberty.” Our dedication in the Preamble is really to both the powers delegated to government and to those withheld by the people for their development in civil society. But there is a missing premise here, Kendall observes. How are we to remain a constitutional people devoted to justice, the common good, and liberty? To achieve these ends will require a virtuous people, Kendall rightfully observes, but we are certainly not told how we do this.

Cultivating A Constitutional People

Can Publius help us? In certain limited respects, yes, Kendall notes. One crucial thing that must be achieved is the prevention of tyranny, “by which Publius means the use of government, by a majority of ‘we, the people,’ for effectuating measures ‘adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.’” Publius offers certain ways to guard against tyranny, but none is absolute: In Federalist 10, Publius instructs that we must be spread out, be diverse in our interests, and separate the machinery of government, but this still cannot prevent tyranny entirely. The only sure protection is for “we, the people” to be virtuous, devoted to justice, to the common good, to liberty, and to stopping tyranny. Kendall believes that Publius knows this, but is not forthcoming.

Kendall argues that a constitutional people like the Americans will only remain virtuous enough to maintain itself under a culture articulated and upheld by the institutions of civil society—through a “self-chosen,” “select minority.” The phrase is Ortega y Gasset’s, and it means those who assume responsibility for culture. Kendall cites Richard Weaver’s Visions of Order as a decisive contribution to what the American culture must uphold to remain a constitutional people. This cultural elite must teach the aims Publius sets forward of the constitutional morality that enables the government to work for the common good. They are educating citizens who are also more than citizens, men and women whose identity and ideology do not come from government.

This select minority does not educate for egalitarianism, but necessarily shows that a free and good society involves inevitable distinctions of rank and order according to the diversity of the faculties each person possesses. Moreover, Kendall notes that Weaver doesn’t think wealth or money should be the primary marker of this distinction. Americans must also value an education and a culture that upholds man as a being fitted to know the truth about himself. Man is not an animal that can be studied and predicted according to natural science. We are exceptions, beings of love and inquiry within an otherwise naturally ordered universe.

The cultural guardians must also foster a love for persuasion and public debate, lest we become the prey of charlatans because we will believe in any cynical ploy. Language, reason, and truth matter, so we build our youth with classical education, religious education, and education not reducible to progressive demands for ideology. There is also the cultivation of “historical memory” so that we know who we are, so that we do not become “madmen” staggering about with our wealth and power whilst traveling the road to ruin. Here, then, is the outline of a select minority and those it teaches operating within a constitutional order that is capable of debating, agreeing, and upholding a common good, along with justice and liberty, because it first knows what it’s about and believes in its purposes.

Our challenge is that we have let many things slide into misuse and misappropriation, creating a memory vacuum that the progressive clerisy is trying to fill with its vision of the common good. It will fail because it is built on an anticulture of grievance and ideological narrowness equating to ignorance. But there is little comfort in that knowledge.

If Kendall is right about a discussion-based Constitution, upheld by a culture that teaches us how to flourish in a life lived in freedom and for virtuous ends, then many things have to change. We begin to see why local communities matter and cannot be divested of their decision-making authority in education and politics. Here is where people shape their future together and hold one another accountable. One result of such a culture is that it enables us to forge a common good through elected representatives who are continuously in conversation with one another and with their represented communities. Many common good conservative types stress that this process has failed and a superior state power must perform this role. But they would only be inviting progressives to perform ideological indoctrination on an even greater scale.

Currently, however, we are on the opposite path, one that bears poisoned fruit daily. This path breeds a politics of deep resentment. And the evidence is that ideas and arguments never get from one place to another place, with settlements and compromises that endure. Our politics of ideological parties, ideological elections, overactive Presidents, and a federal judiciary that at times rules in unbounded fashion, leads to perpetual discord, to a politics of perpetual reactions.

The inclusion of “general welfare” in the Preamble surely means that the common good of the constituted people is one aim of the federal government. But this common good does not imply a Platonic good that is brought into the city by those who claim a monopoly on human flourishing. Rather, we have the opportunity through a limited government, one separated vertically and horizontally, to forge an unfolding and evolving standard through discussion and compromise of what Americans require of their government. The powers that have been assigned to government for that end are significant, but just as significant are the powers that we retain and have not committed to government. And it is here that we find the means by which we remain a virtuous people who can be self-governing. This comprehensive common good is the missing premise of our tradition and one we are always called to develop.

The post Finding the Constitution’s Common Good appeared first on Law & Liberty.

After singing White Christmas and sending off Major General Waverly (Dean Jagger) to the rear with a “slam-bang finish,” Wallace is almost killed by a surprise artillery bombardment. His life is saved by Private First Class Phil Davis (Danny Kaye), who later importunes Wallace with a business proposition while both are recovering in the infirmary. Davis wants to team with Wallace in a musical duo, and he isn’t above playing on his heroic deed, which almost cost him the use of his arm, to get Wallace’s consent. Wallace, we learn, was a major Broadway performer before the war. And he still entered the Army, serving in combat. But that was expected. (See Ted Williams, the Triple Crown-winning Boston slugger, who left baseball in 1942 to serve in the war effort and would later fly combat missions in the Korean War.)

Wallace and Davis quickly became national news, headlining theaters across the country. In spite of the characters’ fame, a certain solidarity marks the film, one that is upheld by great acts of love. After leaving the Army, General Waverly purchased the Columbia Inn in Pinetree, Vermont, plowing his savings and pension in the venture. But things have come a cropper for Waverly. Business hasn’t been robust and the winter season has been bereft of snow. Will Waverly fail miserably in this last mission of his life? 

Wallace and Davis find themselves on the path to Pinetree, led by another musical duo, the Haynes Sisters, who are blonde, gorgeous, and delighted to be accompanied by Wallace and Davis to Vermont for the holidays. The Haynes Sisters are booked to perform at Columbia Inn. Wallace and Davis have no clue that the Inn is owned by Waverly. And for that matter, Wallace had no intention of going to Vermont for the holidays. He was planning on working in New York. Davis, though, is captivated by Judy Haynes (Vera-Ellen). After watching the Haynes Sisters perform in Florida, Wallace is soon cajoled by Davis into going with “the girls” to Vermont. Staring at Betty Haynes (Rosemary Clooney) across the table, Wallace realizes Vermont “may not be so bad this time of year. All that snow.” 

Certain woke types would likely decry the vestigial sexism in the story here. As if the Haynes ladies needed the two men to protect them, travel with them, indeed, love them. And if we enter into that worldview, then we too find ourselves bemoaning yet another instance of sexist vice masquerading as noble virtue. Certain aspects of the film heighten this characterization. The Haynes Sisters perform “Lord, help the mister” a duo about their love for one another as sisters, but their welcome invitation for “a man who comes between me and my sister.” Later, a seemingly older and wiser Wallace implores a harried and confused Betty to count her blessings when she’s worried, an instruction that she gratefully receives. She remarks to Wallace that her knight sits firmly atop his horse, a reference to her growing admiration and affection for him. And we clutch our egalitarian pearls, saying to ourselves, “surely these women know that they don’t need a man to be happy.”

But the truth the film wants to convey is more compelling and lovelier than any hypersensitive gender screed. The blonde bombshells are independent and successful. As a performing act, they are ambitious and seemingly ascendant. Rather than rest over the holidays, they’ll be singing for their supper in frigid Vermont. They contact the “boffo” Wallace and Davis to review their act for professional reasons of advancement, not for romantic reasons. And that’s where the story turns, or as we non-woke types might say, boy meets girl. There is a pairing off as Betty and Judy recognize in the wit, decency, and professional success of Wallace and Davis, two men worthy of their attention. And it is reciprocated in charming and goofy ways by the men. Wallace the virtuoso pianist struggles to find the right key with Betty next to him. With Wallace, we soon learn that his prudence and wisdom will save Christmas, not only for the Haynes Sisters, but for General Waverly, the Columbia Inn, and the old Army unit. It’s Bing’s show, baby!

As mentioned, Waverly’s Columbia Inn is failing. Wallace and Davis are stunned to see their former General doing KP as they enter the Inn. Waverly responds, “It’s worse than that. I own this Inn.” The Haynes Sisters won’t even have an audience for their act. Rather than leave, Waverly insists they stay. He refuses to surrender. And so does Wallace who quickly moves to action and invites his entire cast and show up from Florida to rehearse and perform at the Inn, giving the General guests and commerce to save the Inn. But it goes deeper than that for Waverly.

He recently applied to rejoin the Army and pursue a training command, but the Army denies Waverly’s request in a letter that Wallace reads to Waverly because of his poor eyesight. Wallace takes note of the General’s searing disappointment at the news that he is permanently retired. This time Wallace renders a final act of kindness to General Waverly. He calls on the great entertainer Ed Harrison and his Ed Harrison Show to provide the platform for him to make his pitch to all former members of the unit to descend upon Columbia Inn on Christmas Eve. Harrison sits atop American entertainment but makes his show instantly available to Wallace to launch the Operation Christmas Eve effort. Harrison had also served under Waverly and fondly remembers him. 

Betty, however, is given false information by the busybody innkeeper and believes Wallace aims to bring the Harrison Show to the Inn and plug Wallace and Davis at Waverly’s expense. She harshly rebukes Wallace and flees to New York. Betty only realizes the folly of her rejection when she sees Wallace on the Harrison Show actually appealing to the old soldiers to come to the Inn on Christmas Eve. He did what he said he would do. Wallace is the knight she always wanted and when Betty returns to the Inn, she tells him so. 

The end is touching. General Waverly, appearing in full dress uniform, reviews the troops that have assembled at his Inn. He is profoundly moved and the ring of gratitude closes from Wallace and Davis to the General who is overwhelmed that his former command regards him so highly. He can rest in the knowledge that he did his part with the time given him. We are left with rich imagery of country, family, friends, and love closing the film. White Christmas emphatically shows us that apart from relationships and their obligations and commitments, we don’t amount to very much. And if we return to the beginning, with the soldiers in the field lamenting their former Christmases amidst war, we know exactly their sadness and their hope.

The post When Bing Saved Christmas appeared first on Law & Liberty.

Editor’s Note: This essay was originally published by RealClearPublicAffairs in its 1776 Series.

The moral justification for markets finds itself on the defensive in the face of aggressive challenges issuing from progressives but also from economic nationalists on the right. Many of those on the right don’t understand themselves to be challenging markets as such – only certain economic forces that, they contend, have drained the middle class of its vitality, produced excessive concentrations of power in certain sectors, and that regularly challenge and undermine America’s cultural order. What the economic nationalists and progressives share in common is the position that markets in the post-Cold War period have failed and require a substantial degree of government intervention via industrial policy, child and family subsidies, health-care programs, and a much tighter nexus among corporations, workers, and the government.

The market economy’s detractors emphasize not only its faults but also the moral reasons for why it should be replaced. Those who defend markets in the face of mounting attacks must provide a vigorous response that speaks morally, culturally, and politically to Americans. One acute problem defenders face, as the late Irving Kristol saw it, is that work, investment, and commerce in America were formerly justified by both a biblical understanding of man and by a bourgeois work ethic of integrity, thrift, diligence, and honesty. With biblical faith removed from its exalted position in American life and the dethronement of the bourgeois work ethic in the aftermath of the 1960s cultural revolution, the moral foundations of the market economy are vulnerable as never before.

Capitalism’s defenders have subsequently emphasized its obvious fruits: abundant goods and services and the vast consumer choices it makes possible. They largely defend capitalism on instrumental and utilitarian grounds. But this isn’t enough. Human beings inevitably seek meaning, purpose, and depth to understand existence. Everyone needs to answer the question: Why should I get up today and do my job, which is hard, long, and sometimes boring?  In a memorable 1972 speech at the Mont Pelerin Society, Kristol asked a roomful of free market economists, academics, and writers: “If the traditional economics of socialism has been discredited, why has not the traditional economics of capitalism been vindicated?” This “spiritual vacuum at the center of our free and capitalist society” had resulted, Kristol observed, in egalitarianism becoming the central moral force of our collective life. We need to know the truth about ourselves; if we don’t, we will create and impose a false moral order.

What does it mean, though, to justify morally free markets? This question weighed upon the twentieth century German economist Wilhelm Röpke as he and other German economists, academics, and lawyers known as the ordoliberals created a new Germany on the ashes of Nazi despotism. Their economic plan was straightforward and well executed. The result was incredible growth from the year it was implemented in 1948, the so-called German Economic Miracle. They robustly outlined the need for political constitutionalism and the rule of law to prevent cartelism, a problem that had plagued Germany since the 1870s. What Röpke can teach us in our own time is what actually constitutes and holds together a free economy and liberal constitutional order. His is a moral as well as an economic defense of the market order, not one appealing only to efficiency.

Ropke was clear that sound economic policy as a practical matter was not enough to defend free markets. Neither was the exclusive study of economics for the economist if the specialist was going to speak truthfully about economic policy, which must always address the broader requirements of human flourishing. Economics was one interdependent element of a whole that had to be properly integrated to achieve a free and virtuous society. The market economy requires, Röpke wrote, “a firm moral, political and institutional framework (a minimum standard of business ethics, a strong state, a sensible “market police,” and well weighed laws appropriate to the economic system), if it was not to fail and at the same time destroy society as a whole by permitting the unbridled rule of vested interests.” There is no unmitigated or, for that matter, purely spontaneous capitalism.

Buying and selling, laboring, investing, and the basic elements of commerce when backed by legal and moral constraints have a remarkable capacity to facilitate spontaneous individual choices. This marvel can produce tremendous products and services as well as gains in income. Moreover, the significance of a free pricing system is paramount for Röpke if the economy is going to send accurate signals regarding production, consumption, investment, and labor decisions. In this he was in full agreement with Ludwig von Mises and Friedrich Hayek. Prices must be responsive and adaptive to human choice and not fixed or unduly constrained by regulations, prohibitions, and other forms of government meddling, which slowly strangle the life from the economy by making prices the outcome of government intervention and not consumer decisions.

Still, Röpke was never satisfied with understanding a free economy as self-justifying outside of moral and civic considerations. The experiences of countless western democracies in the postwar era prove him right. Citizens in these countries have struggled to find in work and consumer life alone a reason for living and dying. Accordingly, we have found in many western countries the creation of “providential” welfare states alongside markets, in which progress, as Röpke feared, is measured by indenturing citizens, who cling to the belief that they are blessed by the fictitious state and not by tax payments from their fellow citizens. Another element of such “progress” is ensuring that as many as possible are dependent in some form on the state. This results in centralization and the slow suffocation of family, faith, civil society, and the crucial formation of character and citizenship that these institutions help foster. Röpke, almost writing in the vein of Tocqueville, knew that the welfare state’s lasting negative impact went beyond runaway spending, inflation, and economic loss. Rather, the welfare state, unless limited to basic provision, strikes at the soul of liberty by creating citizens directed and led by administrative agents. People become subjects, not citizens. They slowly concede their sovereignty to an unelected regime of increasingly tyrannical “experts.” The order generated by markets, private law, civil society, and the moral reserves of family and faith erode as a result. A state-directed order begins to take its place, with concomitant results.

At the heart of Röpke’s reflection is the anthropological question: Who is man? The failure to answer this question correctly spells doom not only for the free market but also for liberal society as a whole. As Röpke eloquently states in his book A Humane Economy (1960):

My picture of man is fashioned by the full spiritual heritage of classical and Christian tradition. I see in man the likeness of God: I am profoundly convinced that it is an appalling sin to reduce man to a means (even in the name of high-sounding phrases) and that each man’s soul is something unique, irreplaceable, priceless, in comparison with which all other things are as naught.

Diametrically opposed to this noble anthropology is any public policy that aims at equality in every respect and detail, ignoring the nature and complexity of persons. Röpke was doubtful that such pervasive equality could be achieved or maintained, as countless disruptions and problems surely awaited the near-limitless provision of state power that would attempt to bring it about. He sought to articulate why such an approach was wrong from the outset.

Consider Röpke’s 1957 Modern Age essay “Liberalism and Christianity,” where he identifies what he saw as the essence of true liberalism, in accord with these classical and Christian premises. Without this understanding of liberalism, could the character needed for markets be formed and sustained? Would the market order degenerate into an immiserating social-democratic welfare state, incapable of summoning persons to lives of freedom and virtue? Liberalism, Ropke observes, “expresses the essence of our civilization.” It is “a giant tree which blossomed in a respectable age: under its ample foliage we are at this moment assembled with the feeling in our hearts that we have something in common to defend.” The liberalism worth defending stretches across the centuries, encompassing “the Ionian Greeks, to the men of the Stoa, to Aristotle and Cicero.” These are “the thinkers of antiquity who were among the first to speak of human dignity and of the absolute nature of the individual soul in terms that could be understood by all rational men.” Those who value freedom must reflect on the thinkers “who opposed human caprice, who proclaimed the inviolability of an order beyond the State – ideals which became the guiding stars of Western thought.” This is liberalism with deep moral roots – and is at the same time a kind of conservatism, too.

The Christians build on the ancients. Their faith was “necessary to wrest man, as a child of God, from the grasp of the State and to undertake (in the words of Guglielmo Ferrero) the destruction of the ‘Pharaonic spirit’ of the State of antiquity.” Such freedom issues from an understanding of the person as possessing a transcendent destiny that no state could define or foreclose without acting unjustly. The key text separating the ancients from Christianity, Röpke maintained, is Christ’s statement “Render unto Caesar the things which are Caesar’s but to God the things which are God’s.” This phrase “expresses, after all, what is in our minds when we speak of liberalism in its widest sense.”

Of note in this rich theological and philosophical essay is a discussion of “corporatism” as a definitive attack on the liberal order built on the inviolability of the human person. Corporatism replaces the individual as the principle of the liberal state with the corporation as the structural principle of both the state and the economy. The effect is to replace democracy with corporate organs that express the general will and to replace the market with the interests of corporations. This arrangement “debases the dignity of the state” because special interests, in almost mafioso fashion, now order the public good, making it difficult to contest their corruption. Röpke personally experienced corporatism in its dominance of the German economy from the 1870s through Nazi rule. He wanted to build a free economic and political constitution that would defend true liberty and human dignity.

Today, we face problems different in degree but comparable in certain respects to those confronting Röpke in 1948 as he and the ordoliberals sought to rebuild a free and humane Germany. We are plagued with special interests carving out markets and rents for themselves courtesy of the federal government and its regulatory and tax code apparatus. And we find no shortage of voices willing to defend these crony-capitalist arrangements on allegedly moral grounds. What, after all, can better launch the takeover of health-care, energy, education, and transportation than the state ensuring receipts for companies that otherwise would struggle in voluntary market conditions? In the nexus between government and corporations we find, not surprisingly, something similar to what Röpke experienced in Weimar Germany: revenue and rents flow upward to well-connected companies that have invested in the system and seek to maintain it.

Almost 20 percent of publicly traded companies in America are so-called zombie corporations whose annual revenues fail to cover their annual borrowing costs. They perpetually borrow to stay afloat, a situation made possible in many respects by the Federal Reserve and its low-interest policies. This situation resembles what the Bank of Japan did for close to 30 years, lending to laggard companies and sapping productivity and capital formation for new businesses in the process. The losers are the entrepreneurs and companies either not created or stymied or forced to sell prematurely to more established competitors as they struggle to overcome the numerous barriers to their success. This system also signals to Americans that the economy isn’t open to everyone, and that elites are content with an economy regulated unjustly, operating on anticompetitive terms.

To surmount this condition and many others plaguing our free economy and liberal order will require more than technical fixes or narrow economic and policy solutions. As Röpke maintains, these are crises of moral depth, issuing from our devaluation of the human person. It follows that “the market economy is not everything. It must find its place in a higher order of things which is not ruled by supply and demand, free prices, and competition.” That higher order involves participation in community. This participation itself calls forth man’s devotion, love, and a willingness to make short-term needs and interests subservient to the need for charity and sacrifice for one’s community. In short, we must love the permanent things of our nature before we go to market. And this must be reflected in our law.

What if we gain the world, but there’s nothing left to love but the prison of ourselves? Röpke feared a state and market that ignore or suppress what is natural to man – not only the self-striving for gain, but the moral reserves of love and responsibility that make life worth living. This is where we are divided from opponents of markets. We do not see man as a tool to be managed by the state and its client interests. We see man as an end, possessing liberty and the reason to use it well.

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According to Article I, section 7, of the U.S. Constitution, “All Bills for raising Revenue shall originate in the House of Representatives.”  That language was part of the Connecticut Compromise between the larger and smaller states. The House of Representatives would be proportionate to population and the Senate would be based upon the equality of states.  The Compromise was a way of ensuring that the larger states did not gang up on the smaller, less powerful ones.  As taxes ought to be made in proportion to population (or wealth, but they had no good way to do that, so they used population) the House of Representatives, being the representative of population, was accorded the right to originate all tax bills.

What does that mean for this case of a global tax rate backed by a treaty? Consider a question from the 1790s.  The relationship of the treaty power to the tax power came up when Congress was debating the Jay Treaty.  According to Article II, Section 2, all treaties are made by the President with the “advice and consent” of the Senate. And a treaty only becomes binding when “two thirds of the Senators present concur.”  What if a treaty requires revenue to be spent?  Does the treaty power supersede the provision in Article I, section 7?  James Madison, then a leader in the House of Representatives, argued that a treaty could not spend money without the consent of the House of Representatives. It would only require a bare majority of the House to approve, however. 

In his speech on the matter, (I quote from Lance Banning’s fine collection Liberty and Order, available at Liberty Fund’s Online Library of Liberty) Madison said

If by treaty, therefore, as paramount to the legislative power, the President and Senate can regulate trade; they can also declare war; they can raise armies to carry on war; and they can procure money to support armies. These powers, however different in their nature or importance, are on the same footing in the Constitution and must share the same fate.

. . . The Constitution of the U. States is a Constitution of limitations and checks. The powers given up by the people for the purposes of government had been divided into two great classes. One of these formed the state governments, and the other the federal government. The powers of the government had been further divided into three great departments; and the legislative department again subdivided into two independent branches. Around each of these portions of power were seen, also, exceptions and qualifications, as additional guards against the abuses to which power is liable. With a view to this policy of the Constitution, it could not be unreasonable, if the clauses under discussion were thought doubtful, to lean towards a construction that would limit and control the treaty-making power, rather than towards one that would make it omnipotent.

Note Madison’s reasoning.  The U.S. has “a Constitution of limitations and checks” that divides power “into three great departments” and “around each of these portions of power were seen, also, exceptions and qualifications.”  In Madison’s view it would be rendering those checks and qualifications moot by reading the treaty power as an unlimited one.  Hence, any treaty that requires money to be spent must also gain the assent of a majority of the House before that spending provision becomes law.  President Washington disagreed with Madison here.   (As some Progressives nowadays claim that “originalism” is a late invention, it’s worth noting that Washington points to both the Constitutional Convention and the ratifying conventions as key sources for discerning the meaning of the text the people ratified).  In 1796, however, Washington lost the argument, and since Madison’s day his reasoning has carried the field. 

In this case, there was serious disagreement in the founding generation about how to interpret the Constitution.  How, then, ought one to read the Constitution? Does disagreement among the founders void originalism?  No. But it does teach us some humility.  Perhaps the best way to think through such questions is teleologically.  What interpretation is most consistent with the underlying logic of the Constitution? Which one makes more sense of the document as a whole?  In the case of treaties spending money, Madison’s view has generally carried the field.  When thinking through such questions one must answer such questions as ‘what is a constitution’ and ‘what is a reasonable mode of constitutional interpretation’ in a manner consistent with the founding era’s answers to such questions or one will radically distort the meaning of the text. The question of a global tax is, however, not a close call.

Can the U.S. bind itself to a global minimum tax?  With a constitutional amendment, of course, but not otherwise.  Note that Madison’s reasoning in 1796 was only about spending money, and not about tax, although the Jay Treaty did give Great Britain what we now call “Most Favored Nation” status. That status, although it does have to do with tariff rates, is also about the particular rate for a particular country, and not about tariff rates in general.  But if the treaty power is, presumptively, limited even in the case of spending, so much more ought we to conclude that the U.S. government has no right completely to delegate the right to set tax rates via a treaty.  It is hard, probably impossible, to reconcile a permanent abdication of American sovereignty via the treaty power with the very idea of constitutional government itself.

One final word is probably in order here. A treaty needs to have the support of two-thirds of the Senate to be binding.  It is very unlikely that two-thirds of the U.S. Senate will agree to such a global tax regime anytime soon.  But an administration might try to follow the precedent the Obama Administration set when it called the Iran treaty an “agreement,” not requiring the assent of two-thirds of the Senate.  One can imagine an administration trying to ram a global tax through with a bare majority, following the “living constitution” logic. But if, per settled precedent going back to 1796, a treaty cannot legally take away from the Congress the Constitutional authority to spend money authorized in a treaty, not to mention set tax rates, then, surely, something less than a treaty cannot do so.

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