Category: Michael Novakhov – SharedNewsLinks℠

In their dissent in Dobbs v. Jackson Women’s Health Organization, Justices Breyer, Sotomayor, and Kagan observed that the Constitution “puts some issues off limits to majority rule.” Everyone agrees with that. The argument comes over which issues are part of the “some” that are off limits to majority rule and which are subject to majority rule. The Court determines, as a practical matter, where the Constitution draws the line between policies that popular and legislative majorities can constitutionally enact and policies that those majorities cannot enact.

United States v. Skrmetti, the recent case in which the Supreme Court held that a Tennessee law restricting sex transition treatments for minors did not violate the Fourteenth Amendment’s Equal Protection Clause, is the most recent entry in the necessarily iterative process of deciding just where those lines are drawn.

The central legal dispute between the justices in Skrmetti may sound dauntingly technical to the layperson. It concerns the level of scrutiny that lower courts (and the Supreme Court) should apply to review the Tennessee law. “The only question this Court must decide,” Justice Sotomayor wrote in her dissent, “is whether the Constitution required” lower courts to apply “intermediate scrutiny” when reviewing Tennessee’s law.

At stake in what may seem to be formalistic legalities, however, is the matter of whether the great contentious questions of our day will be decided by state legislatures and democratic institutions, or by lawyers and judges. Insofar as courts contrive new categories for heightened scrutiny, they take more and more substantive questions of policy debate out of the hands of the people and their representatives. While today we commonly pit individual liberty against majority rule, for much of US history, collective self-government was understood to be a crucial element of what it meant to be free.

To understand the Skrmetti arguments, we need first to take a step back to view the larger jurisprudential canvas on which the justices are painting.

The Court’s Equal Protection Framework

As a baseline matter, states have “police powers” under which they legislate to advance the health, welfare, safety, and morality of the people. The trick, of course, is that these powers actually be used to advance the general welfare rather than to allow majorities (or minorities) to advance their own interests by oppressing others. Both the national and state constitutions place limits on state government action, seeking to channel state laws to advance the common good. Among these are the Fourteenth Amendment’s requirements, including the Equal Protection Clause.

The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” While the Clause at first reads as a duty for states affirmatively to protect people equally—a reading that Justice Thomas has recently begun to float in concurring opinions, including in Skrmetti—the traditional interpretation of the Clause requires that laws have reasons for the way they classify individuals and treat them differently.

The inquiry into whether a statutory classification is consistent with the requirements of the Equal Protection Clause examines the match between the trait that the law regulates and the mischief the law seeks to remedy.

All state-level legal classifications must pass constitutional muster under the Equal Protection Clause. But judges apply different levels of scrutiny depending on whether the challenged law triggers application of a heightened standard of review.

Given how determinative the level of review can be for the outcome of a case, the main bone of contention between the majority and dissent in Skrmetti circles around whether the classification used by the Tennessee law triggers some level of heightened review.

The Court currently applies three basic levels of scrutiny in its Equal Protection jurisprudence. The lowest level of scrutiny, which is the easiest level for a law to survive, is termed “rationality review.” The highest level of review, which is the hardest level for a law to survive, is termed “strict scrutiny.” Skrmetti hinged on the less-well-defined middle level of “intermediate scrutiny.”

Laws can trigger heightened review by touching on rights the Court has identified as fundamental, by regulating ordinary democratic political processes, or by evincing prejudice against “discrete and insular minorities” such as race, religion, or nationality. Classifications based on sex, however, receive intermediate review, because some but not all classifications based on sex reflect invidious gender-based prejudice.

For both forms of heightened review—intermediate scrutiny as well as strict scrutiny—the government bears the affirmative burden of proving that the law serves a real purpose and that the means the statute employs will achieve the actual legislative purpose.

In arguing that the operative category is “medical treatment,” rather than transgender identity, Roberts avoided the more contentious questions of whether the latter category might trigger heightened scrutiny in other contexts.

Under rationality review, the law enjoys the presumption of constitutionality, and those attacking the law must demonstrate that there is no conceivably legitimate or rational basis for the law. Under heightened review, the law is presumed unconstitutional, and the government bears the burden of providing proof that the law serves an important or compelling governmental purpose and that the law will actually achieve that purpose or is necessary to achieve that purpose.

Winning the argument over which level of review judges should apply when reviewing a law often will determine which side wins the case. As Justice Brennan pointed out in a 1958 decision, “In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome.”

Indeed, the highest and lowest levels of scrutiny imply almost pro forma judicial outcomes. As the late Gerald Gunther’s snide rule-of-thumb put it, rationality review is deferential in theory and non-existent in fact, and strict scrutiny is strict in theory but fatal in fact.

Applying the Court’s Equal Protection Jurisprudence to Skrmetti

The plaintiffs in Skrmetti argued two independent reasons the Tennessee law should receive heightened scrutiny from judges. First, they argued that the Tennessee law classifies on the basis of sex and should, therefore, receive intermediate scrutiny. Secondly, they argued that the law classified on the basis of transgender status, and laws that classify using transgender status should be added to the type of laws that receive some form of heightened review.

The Court rejected both of the plaintiff’s arguments and subsequently upheld the Tennessee law after applying the deferential rationality standard.

Before rehearsing the Court’s arguments rejecting any form of heightened review and therefore applying the rationality standard to review Tennessee’s law, it bears noting that it’s not entirely obvious that the Tennessee law would have failed to be held constitutional if intermediate review had been applied. Indeed, Justice Sotomayor suggests that possibility in her dissent (a point Justice Kagan refused to join). More pointedly, Tennessee argued the physical effects of gender transitions for minors are certain; it is the benefits of the procedures to minors that are uncertain. As a result, the legislation would be justified even under intermediate scrutiny.

Nonetheless, if heightened review applied, Tennessee would have to provide what the Court has termed an “exceedingly persuasive justification” for the law’s classification. And this is more difficult for states to meet than the rationality standard. As a result, the plaintiffs argued that Tennessee’s law discriminated on the basis of sex, and therefore merited at least intermediate review. They argued that the law “creates facial sex-based classifications by defining the prohibited medical care based on the patient’s sex.”

The Court rejected the plaintiff’s argument, holding that the Tennessee law classified only on “the basis of age” and on “the basis of medical use,” as opposed to the perceived “category” of persons who would be seeking that medical treatment. Neither of these classifications triggers heightened review by courts.

The plaintiffs undoubtedly held at least a reasonable hope that the Court would agree that the Tennessee law classified on the basis of sex, given the outcome of the Bostock case in 2020. With votes including those of Chief Justice Roberts and Justice Gorsuch (who wrote the opinion in Bostock), the Court held that the prohibition of employment discrimination on the basis of sex in Title VII of the 1964 Civil Rights Act applied to discrimination based on sexual orientation and gender identity. The Court controversially concluded that employers fired the plaintiffs in those cases for engaging in behavior that the employers would have accepted had a member of the opposite sex engaged in the same behavior. In other words, if one “substituted” a person of the opposite sex in the circumstances, their treatment would have been different.

The Skrmetti Court responded in two ways to the claim that the Tennessee law discriminated on the basis of sex. First, the Court argued that the substitution test from Bostock simply did not apply to the Tennessee law. Rather, the law classified on the basis of medical usage rather than on the basis of sex:

The plaintiffs and the dissent … contort the meaning of the term “medical treatment.” … For the term “medical treatment” to make sense, … it must necessarily encompass both a given drug and the specific indication for which it is being administered. …

When, for example, a transgender boy (whose biological sex is female) takes puberty blockers to treat his gender incongruence, he receives a different medical treatment than a boy whose biological sex is male who takes puberty blockers to treat his precocious puberty. … The [Tennessee] prohibition does not turn on sex.

Roberts and Gorsuch, both of whom joined the majority opinion in Bostock, rejected the claim that an analogous argument applied to application of the Fourteenth Amendment to the Tennessee law in Skrmetti.

The plaintiffs further argued in the alternative that the Tennessee law discriminated against transgender people and that the Court should expand heightened judicial review to legal classifications relating to transgender individuals.

For the same reasons as he concluded that the Tennessee law did not classify on the basis of sex, Roberts’ opinion for the Court denied that the Tennessee law classified on the basis of transgendered identity: the law classified by age and by medical treatment, Roberts insisted. In arguing that the operative category is “medical treatment,” rather than transgender identity, Roberts avoided the more contentious questions of whether the latter category might trigger heightened scrutiny in other contexts. It also continues the Court’s decided reticence to add to the set of constitutionally protected classes that receive heightened review.

Neither Justice Alito nor Justice Barrett were entirely satisfied by Roberts’ more limited argument. As a result, both wrote concurring opinions arguing that transgender individuals did not meet the requirements of being a “discrete and insular” minority group sufficient to merit heightened review under current law. Transgender activists, after all, emphasize gender “fluidity,” and the reality of detransitioners challenges the idea that transgender status is an immutable characteristic. And it is hard to argue that transgender individuals are politically powerless, another characteristic traditionally used to identify suspect classifications.

Because the Tennessee law did not trigger heightened judicial scrutiny, the Court applied rationality review to the law with the almost inevitable implication that the majority upheld the state’s law.

Outside of the nod at the possibility that the Tennessee statute might survive intermediate scrutiny, Sotomayor’s dissent is a mirror image of the majority’s arguments. Sotomayor writes:

In addition to discriminating against transgender adolescents, who by definition “identify with” an identity “inconsistent” with their sex, that law conditions the availability of medications on a patient’s sex. Male (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls.

Sotomayor devotes much of her dissenting opinion to arguing that the Tennessee law classifies on the basis of transgender identity, and that the class of transgender individuals should be included as a discrete and insular minority group.

It is easy to get lost in the levels-of-scrutiny weeds. Beneath them, however, is the perennial and inescapable issue of where the Court draws the line between questions subject to majoritarian resolution and questions immunized from majoritarian resolution. It is clear that the current Court is refusing to extend the line further, if not moving the line back in the direction of deferring more to democratic decision-making relative to earlier Courts.

Nonetheless, it is important to emphasize that, contrary to some of the overheated criticism regarding the jurisprudential trend of the current Court, it is merely adjusting where the line is drawn that “puts some issues off limits to majority rule,” it is not remotely close to erasing the line. Skrmetti represents only an incremental adjustment in the continuing and inescapable process of judicial line drawing between collective self-government and individual rights in America.

For too long, the history of race relations in the United States has been misrepresented as a battle between “progressive” liberals, supposedly partisans of policies that benefited racial minorities, and “conservatives” trying to block their advancement. Jonathan Bean’s Race and Liberty, of which the first edition appeared in 2009, constitutes an invaluable corrective to that portrayal. A partisan of the “classical” liberal tradition—the liberalism of the American Founders, who believed in the Lockean doctrine of limited government, aimed at securing the equal rights of all individuals—Bean (history professor at Southern Illinois University) provides a collection of over 75 documents, accompanied by helpful, brief editorial commentary, which correct the record. The readings cover not only relations between “whites” and racial minorities, but also immigration policy.

Besides an introduction and conclusion, Race and Liberty contains eight chapters, chronologically arranged, from 1776 to the present. As Bean explains, the classical liberal tradition “dominated the civil rights movement” from the outset. Classical liberals “fought slavery, lynching, segregation, imperialism, and racial distinctions in the law,” while defending what Bean calls the “’natural right’ of migration to America.” Yet contemporary academics misrepresent this tradition, even denouncing the classical-liberal goal of color-blindness in government policy as “objectively racist.” In place of the individualistic outlook of classical liberals, today’s racial “progressives,” such as Ibram X. Kendi, favor “group rights” (which incidentally favor the interests of the particular individuals who espouse them).

Bean rightly begins with early, eloquent American denunciations of slavery, on behalf of the principles of the Declaration of Independence as well as Christianity, by free blacks, including James Forten (1813) and David Walker (1829), along with Northern ministers. This chapter also contains the successful courtroom statements on behalf of the liberation of the slaves on the captured Spanish ship the “Amistad” (1841) by the evangelical businessman/abolitionist Lewis Tappan, by three of the slaves themselves, and by their legal spokesman John Quincy Adams. The chapter concludes with Frederick Douglass’s celebrated 1852 Fourth of July Oration.

The next chapter, “The Republican Era (1854–1876),” includes the libertarian Lysander Spooner’s 1860 speech asserting the unconstitutionality of slavery; excerpts from the Republican Party platforms of 1856 and 1860 opposing slavery’s extension (a theme repeated in Lincoln’s First Inaugural Address), and Douglass’s 1863 statement on “The Mission of the [Civil] War.” (In the last case, however, one must correct Douglass’s charge that Lincoln’s response to Horace Greeley that his primary aim was to preserve the Union with or without slavery indicated a lack of “moral feeling.” Douglass failed to acknowledge Lincoln’s political situation, needing to preserve support for the war among the Union population, not all of whom were abolitionists, and the fact that Lincoln never reneged on his commitment to preventing the extension of slavery on account of its wrongness, a stand that had originally set off Southern secession. And Lincoln had to know that a Union victory would end slavery (witness the Emancipation Proclamation).

Bean then provides documents illustrating the controversy over emancipation immediately after the war: an excerpt from the infamous Mississippi Black Code of 1866; editorials from Harper’s Weekly that helped impel Congress to enact the Civil Rights Act that same year, aimed at overturning such codes; and the Ku Klux Klan Act of 1871, accompanied by testimony before Congress and a letter to President Grant portraying the horrors inflicted by the Klan.

As Bean reports in his third chapter, “Colorblindness in a Color-Conscious Era (1877-1920),” following the withdrawal of Federal troops from the South after the 1876 election, the former Confederate states imposed (in Douglass’s words) “slavery by another name” on nominally emancipated blacks, even as spokesmen for freedom like Douglass, Massachusetts Republican Senator George Hoar, Booker T. Washington, and NAACP president Moorfield Storey insisted on securing equal rights for all individuals. (Repeatedly, Federal legislation to effectuate that goal was blocked by Southern Democratic filibusters.)

In this chapter, Bean broadens his focus to highlight Republican-Libertarian opposition to exclusionary laws aimed at Chinese immigrants, as well as to imperialism (the Spanish-American War) and the denial of Native Americans’ property rights, along with actions designed to secure the property rights of American Indians. He stresses how classical liberals such as Douglass, Storey, and Louis Marshall (self-made Jewish businessman, founder of the American Jewish Committee, critic of Harvard’s quotas on Jewish admission, and lawyer for the NAACP), dismissed by progressives as “reactionaries,” favored the policy of self-help and therefore sided with business, in opposition to racially discriminatory labor unions, seeing in “capitalism” (as Howard University dean Kelly Miller put it) the means of Negro advancement. In a point that Milton Friedman would echo decades later in Capitalism and Freedom (quoted by Bean), businessmen as such have no interest in discrimination; they just seek to hire the best-qualified, most industrious workman at the most reasonable price. (To illustrate, Bean cites letters from a Georgia railway company to public authorities opposing Jim Crow laws as an inconvenience to its business, followed by letters from white citizens making the same complaint.)

A number of documents Bean selects further exhibit Republican support for black equality. These include addresses in the next chapter by Warren Harding (speaking in Birmingham!) denouncing lynching and the KKK and favoring equality of educational opportunity (1921); by Calvin Coolidge opposing white racism (1924), emphasizing blacks’ military service in World War I; and Herbert Hoover’s desegregation of the Commerce Department (1928). (By contrast, it was “progressive” Democrat Woodrow Wilson who had imposed segregation in Federal offices.)

Classical liberals’ fight for genuine equality did not end with the Civil Rights Act. In subsequent decades, they battled new race-based policies to secure equal rights for all.

Further, in the following chapter on “The Roosevelt Years,” Bean goes on to note the ostensibly “liberal” (in a new, “pragmatic” sense) Franklin Roosevelt’s failure to support anti-lynching laws; his refusal to authorize any increase in the immigration of Jewish refugees from Europe, consigning millions to death at the hands of the Nazis; and his discriminatory internment of Japanese-Americans once World War II began, despite lacking evidence of any disloyalty on their part. (Back in 1925, Roosevelt had published a newspaper column warning that having Japanese immigrants in California was a “nightmare” and expressing “repugnance” at the resultant danger of interracial marriage.)

Meanwhile, it was the anti-New-Deal Republican representative Hamilton Fish, mocked by Roosevelt, who repeatedly championed anti-lynching bills in the House, the African-American and Republican journalists (respectively) George Schuyler and R. C. Hoiles who opposed the internments, and the cantankerous libertarian H. L. Mencken who denounced both lynching and the internment and even advocated opening America to all Jewish refugees. (As the noted black writer Zora Neale Hurston observed, Roosevelt won black support, despite his unconcern about lynching, largely by increasing federal welfare programs.)

Republicans did not abandon their pro-civil rights stand after the New Deal era. Bean includes speeches by the conservative Republican leader Robert Taft, plus a minority report by Republican senators Styles Bridges and Bourke Hickenlooper, calling (successfully) for the Senate to refuse to seat the outrageously racist, demagogic Mississippi Democrat Theodore Bilbo. Those selections are followed by a magazine article by New Deal opponent Hurston, praising Taft’s record of legislative action promoting the rights of African-Americans, and (through the Taft-Hartley Act) “protect[ing] Negroes’ right to work regardless of … discriminatory union rules.” Applauding Taft as a liberal in the original sense, Hurston denounced FDR’s policies for promoting dependency, while “leaving Government in the hands of a few.”

While referencing pioneering judicial decisions from this period, including Brown v. Board of Education and Loving vs. Virginia, striking down state laws banning interracial marriage, Bean also includes a 1956 speech by anti-New Deal baseball executive Branch Rickey, who had integrated the major leagues by signing Jackie Robinson, calling the practice of colorblindness “a call from God.” He also includes an excerpt from Martin Luther King’s 1963 “I Have a Dream” speech, frequently quoted by “classical liberal opponents of race preferences,” expressing the hope that his children would live “in a nation where they will not be judged by the color of their skin but by the content of their character.”

Although so-called progressives often accuse their libertarian opponents of racism, Bean’s documents prove otherwise. For example, he includes Barry Goldwater’s speech explaining why he voted against the 1964 Civil Rights Act on constitutional—not racial—grounds, since the senator foresaw that the law would (as Bean summarizes) “enable bureaucrats and judges” to use it to justify “treating members of certain government-designated groups more equally than others.” Though that was a consequence denied by the Act’s leading senatorial sponsor, Hubert Humphrey, it didn’t take long for Goldwater’s prophecy to be fulfilled (as described in an excerpt from Harvard sociologist Nathan Glazer’s 1975 book Affirmative Discrimination). Goldwater, Bean emphasizes, was no racist: a longtime member of the NAACP and the Urban League, as Arizona governor, he had integrated the state’s national guard and supported integration of Phoenix’s public schools.

For a different example of how purportedly benign progressive policies injured blacks, Bean prefaces Goldwater’s statement with an excerpt from (future Reagan adviser) Martin Anderson’s prescient 1964 book The Federal Bulldozer, which describes how “urban renewal” policies—championed by reformist Democrats—destroyed respectable working-class neighborhoods, whose residents were channeled into monstrous “housing projects” that became cesspools of crime and disorder (and often later had to be torn down).

Of course, classical liberals’ fight for genuine equality did not end with the Civil Rights Act. In subsequent decades, they battled new race-based policies, starting with the Equal Employment Opportunity Commission’s 1965 demand that employers report the race of their employees. Although this requirement was ostensibly designed to facilitate “affirmative action” against racial discrimination, it was initially opposed, Bean notes, by the NAACP and other civil-rights groups because of its echoes of Jim Crow. But ironically, Republican President Richard Nixon’s Labor Department, seeking to overcome the effects of longtime labor-union discrimination against blacks in the construction industry, institutionalized a new definition of affirmative action, requiring Federal contractors to report “deficienc[ies]” in their “utilization of minority groups and women,” underutilization being defined as “having fewer minorities or women than would reasonably be expected by their availability,” and to institute “goals and timetables” for remedying such deficiencies.

Nixon’s policies were a foretaste of what later was called “disparate impact theory,” the notion that if the proportion of minorities or women in a given occupation were lower than those in the “available” population, such disproportion must be assumed to be the consequence of discrimination, and hence subject to executive or judicial correction. And Bean then quotes Justice John Paul Stevens’s opinion in the 1978 Bakke case, a “tortured” decision that purportedly banned “benign” racial discrimination in medical school admissions but “encouraged institutions to wrap their discriminatory practices in the new mantle of ‘diversity.’”

One of the best responses to the Bakke ruling, included by Bean, is black, libertarian scholar Anne Wortham’s dismissal of it as “a decision against meritorious achievement.” Her case for rewarding individual accomplishments rather than group accomplishments has been seconded by other prominent contemporary African-American writers that Bean cites (most notably Thomas Sowell). The recent “triumph of the color-blind Constitution,” as Bean terms it, at the judicial level, was the Supreme Court’s 2023’s Students for Fair Admissions v President & Fellows of Harvard College ruling, from which he quotes the opinion of Chief Justice John Roberts (“the way to stop discrimination on the basis of race is to stop discriminating on the basis of race”) which followed Justice Clarence Thomas’s ruling in the 2007 Seattle School District case.

Bean’s last chapter also includes solid arguments against “black reparations” by African-American writers Coleman Hughes and Wilfred Reilly. And it provides defenses of liberal (legal) immigration as beneficial to the United States, so long as that is combined with policies aimed at assimilation rather than ethnic separatism. In this connection, however, Bean makes one error, claiming that classical liberalism authorizes “a natural right to immigrate.” While all individuals have a right to emigrate, nobody has a natural right to immigrate. Though humane, liberal nations should aim to accommodate refugees fleeing serious persecution, every nation has the authority to decide whom to admit.

Last week, the Senate Judiciary Committee held a hearing on the Biden administration’s last-minute pardons, many of which appear to have been signed by autopen. Although autopens are used regularly by politicians for all sorts of reasons, the pardons raise profound constitutional questions because of lingering concerns about Biden’s competency. The issue most commonly discussed is whether he understood what was being done in his name. But there is an even more fundamental question about delegation: When the Constitution says that the president “shall have Power to grant … Pardons for Offenses against the United States,” does it require the president himself to make the decision? Or can he leave it to others?

The pardon power developed for centuries among the English, prompting Chief Justice John Marshall to observe in 1833 that we must “adopt their principles respecting the operation and effect of a pardon.” Most central of those principles was that the pardon power was an absolute prerogative, meaning it was a power so personal to the monarch that it couldn’t be delegated.

This personal character of the prerogative was recognized by the English judges in a 1604 resolution on dispensations. A dispensation and a pardon were so closely related that they were often considered variations of the same power. Whereas the one was a retrospective exercise of mercy, the other was a prospective exercise of mercy—the key point being that they both were non obstante grants, meaning grants made notwithstanding the law.

Although the prerogative to pardon offenses or dispense with the law was personal in the monarch, Queen Elizabeth, in her desperation to raise money, she sold part of it—to be precise, she sold the power to dispense with a penal statute. The purchasers could determine who would get a dispensation, and the Lord Chancellor, or Keeper of the Great Seal, would then issue a dispensation as directed. This privatization, however, impinged on the personal authority of the monarch, so, in 1604, the judges were asked to consider the grant’s validity.

The judges unanimously resolved that the grant was “utterly against law.” The dispensing power involved a “confidence and trust” that was “inseparably joined and annexed to the royal person of the king in so high a point of sovereignty.” So “the king cannot commit the sword of his justice, or the oil of his mercy, concerning any penal statute to any subject,” and that these powers “cannot by law be transferred.”

The president must make the decisions, and the courts can hold pardons void if the decisions are made by others.

Chief Justice Edward Coke similarly explained that “the royal power to pardon treasons, murders, rapes, &c. is a prerogative incident solely and inseparably to the person of the King.” At the end of the century, Chief Justice Holt said: “The power of pardoning all offences is an inseparable incident to the crown and its royal power.”

Of course, the king, like a president today, did not personally draft pardons; consequently, there was ample room for deception. In response, medieval statutes and common law doctrine sought to ensure that the king himself made the decision and did so without being misled. As summarized by the leading eighteenth-century law dictionary, a statute of Edward III required that “the king should be fully inform’d before he pardon’d any felony” so that “he himself might be apprised of the matter.” Although the statute already was defunct, it was a reminder that the decision belonged to the king alone.

Can a pardon made by the wrong person be held void in the United States? A powerful hint comes from the 1782 Virginia case of Commonwealth v. Caton et al. Although the three defendants had briefly joined the British and had therefore been convicted of treason, the House of Delegates pardoned them.

The Virginia Constitution permitted a statute to locate the pardon power in the House of Delegates—this already being a hint that when a constitution permitted a transfer of the power, it said as much. The problem for the defendants was that the Treason Act, under which they were convicted, provided for a pardon only by both legislative houses. Although the House pardoned the three traitors, the Senate concluded that, under the Constitution, it shouldn’t add its approval. The high sheriff in Richmond therefore, found himself in a quandary. He had a court rule ordering him to execute the prisoner and a pardon resolution from only the House.

When the case eventually reached the Court of Appeals, Attorney General Edmund Randolph dramatically abandoned his prosecutorial posture to support the claim of the prisoners that the treason statute was unconstitutional for transferring the pardon power to both legislative houses. Believing that “my office does not extinguish that respect, which I shall owe to the constitution,” Randolph declared “that every law against the constitution may be declared void.”

The court ultimately upheld the statute, apparently on the theory that the Constitution merely set a minimum level of legislative approval, without barring a statute from setting a high level. The Court’s President, Edmund Pendleton, emphasized, however, that if the statute locating the pardon power in both houses had been “repugnant to the Constitution,” he would have held it void. It was a question “from which … I will not shrink, if ever it shall become my duty to decide it.” Any transfer of the pardon power was entirely justiciable.

The history confirms that the Constitution’s location of the pardon power is significant. The president must make the decisions, and the courts can hold pardons void if the decisions are made by others. 

Are you enjoying the heated congressional battle over this year’s all-important budget?

Republicans are getting closer to coming up with a plan the Council of Economic Advisors promises will increase real economic growth to 5.2 percent over the next four years, with up to 7.4 million new full-time American jobs saved or created during the next four years, an increase in investment up to 14.5 percent in the next four years, up to $11,600 in higher wages per worker and up to $13,300 more in take-home pay for a family with two children.

Democrats are protesting that the Republicans’ “One Big Beautiful Bill Act” moving through Congress “actually doesn’t reduce this deficit, it blows it up,” as Texas Representative Greg Casar put it. “Ultimately, it is about tax cuts for billionaires and then cutting health care and other essential services for the American people,” he went on to say.

Actually, there are some beautiful points in the proposals, but both supporters and opponents agree on the long-term effect. After four years, the deficit could increase by trillions since, of course, Congress will not kick the ball further down the road for four more years—right?

Regardless of the outcome of this particular battle, we should all recognize this debate as a symptom of a much more dangerous disease. Although acknowledging that is too rare in Washington, some truth-tellers, such as the American Enterprise Institute’s Yuval Levin, explain that the whole budget of domestic discretionary spending being debated is not even the real problem. As he wrote recently:

All domestic discretionary spending is now about 14 percent of the federal budget, while entitlement spending amounts to more than 50 percent, according to CBO figures. More importantly, the growth in federal spending is heavily concentrated in entitlement spending, while discretionary spending is declining as a share of the budget and the economy. It simply isn’t possible to offset the coming growth of Social Security and Medicare spending by curbing domestic discretionary spending. This means that any effort to seriously improve the fiscal trajectory of the federal government has to be focused on entitlement reform. There is no alternative. 

Of course, dissatisfying and dangerous as it may be, there is in fact an alternative, and just about all elected officials have taken it. Knowing their constituents oppose cuts in Social Security and Medicare entitlements, congressmen simply ignore the incredible sums we spend on the programs. Even minor cuts in the less popular entitlements like Medicaid almost sank the whole present bill. As far as serious solutions, Levin encourages congressional Republicans to recall that they were once more open to discussing the real problems as recently as 2017 and need to face up to the debt facts today. “Ignoring the fiscal challenges our government faces is bad enough. But today’s GOP is pretending to address them while actually making them worse.”

Clearly, the electoral risks of touching “third rail” entitlements are enormous and might even have cost the GOP the 2018 Congressional election for even discussing entitlements. So, what can be done? The bare fact is that nothing short of a massive economic crisis could make significant entitlement debt cuts possible. A massive recession was required in 1932 to create entitlement underfunding right from the beginning, and only a like event could seriously reform it. Only serious stagflation in 1980 made it possible for the Ronald Reagan-Paul Volcker market readjustments and Social Security age cuts. Even then, those limited changes caused significant political losses in the following midterm election. But the market did recover, followed by Bill Clinton’s claim that the “era of big government is over.”

The job of serious observers worried about a fiat money debt crisis must be to intellectually prepare the way to reform.

That recovery lasted until the Great Recession of 2008, which saw the adoption of George W. Bush’s and Ben Bernanke’s Troubled Asset Relief Program (TARP) policies to support banks and firms directly to stabilize the financial system rather than allowing the market to find its own level and recover. Suppressed further by the American Recovery and Reinvestment Act of 2009 by Barack Obama, the Federal Reserve did not finally lift its suppression of near-zero fund rates until 2022. Even if the market has recovered somewhat since then, the current budget debate cannot be understood apart from these shortsighted and destructive government interventions.

Under all current plans, the long-term debt crisis remains. In responding to the recent Moody’s reduction of the US credit rating, the Wall Street Journal headlined that “Washington Deserved a Downgrade” for not reducing long-term debt. But the Journal was still confident that the dollar’s reserve-currency world advantage would still allow the debt to be handled. As long as the Federal Reserve allows Congress to escape its deficits by printing dollars and suppressing debt within its own money accounts, the flawed system will survive on artificial life support. But as securities expert Ruchir Sharma and the Journal’s Gerard Baker emphasize, the dollar is under world pressure too.

The only real solution is cutting the debt, and the only way is with cuts in entitlements. Yet, it is also true that any serious action to reduce them would be political suicide—unless things get so dire that elected officials are forced to cut. Even then, any sufficient reductions would soon be joined by a crisis over the dollar reserve status, which has been the main instrument supporting the whole US fiat money system.

Going back to a gold-backed dollar would be the safest solution (and Reagan tried). But the former US director of the European Bank for Reconstruction and Development, Judy Shelton, has an interesting alternative, endorsed by George Gilder. Her new book, Good as Gold, proposes a fifty-year US Treasury bond refundable in gold to create some anchor with a real money base, although she prefers a true gold standard as a more permanent solution. In his first term, President Trump nominated her to the Fed board, and a Senate vote for advancement only failed by three votes. That was a shame; desperate times need serious people who will implement imaginative policies rooted in economic realities. Sadly, it seems like there is little appetite for boldness like Shelton’s on Capitol Hill.

As Levin emphasizes, however, congressional support is as essential to solving the debt crisis as the president’s. One explanation for the lack of legislative leadership is the weakening and de facto abandonment of the seniority system since the 1970s. That old approach was a proven means to provide legislative leadership because it secured genuine institutional knowledge and promoted real deliberation. Any president serious about reforming this broken process should demand a return to a seniority system with competent and powerful committee chairmen to deal with his cabinet.

Ideally, a serious economic crisis would come soon, in the next year, still with a risk-taking president and a supportive Congress. Meantime, the job of serious observers worried about a fiat money debt crisis must be to prepare the way intellectually—remembering that the last time there was such an opportunity, rather than taking advantage, a Republican president added a whole new entitlement called Medicare Part D, and the time before that a Republican president created today’s fiat money system. The lesson to be learned is that the intellectual advisors and decision-makers supposedly most likely to make the reforms were the ones creating the current crisis.

J. G. A. Pocock passed away in December 2023, just months away from his centenary. Between the early 1950s and his death, Pocock produced a wealth of books and essays on intellectual history between 1500 and 1800, on topics such as ancient constitutionalism, republicanism, the Scottish Enlightenment, and the history of the writing of history. He is probably best known for The Machiavellian Moment (1975). A proud New Zealander, Pocock spent some of his formative years at the University of Cambridge, and much of his career at Johns Hopkins University. All things considered, he has a good claim to being the greatest historian in the English-speaking world in the last 100 years.

Pocock was not only a great historian but also a deep thinker and an inimitable writer, in whose pages the Owl of Minerva shares the stage with references to Humpty Dumpty and J. R. R. Tolkien. It was as a writer on methodology that Pocock became a historical thinker of the first order. Several of his essays on such topics are autobiographical, and more than anyone else among the other main participants (Quentin Skinner and John Dunn), Pocock narrated the emergence of the so-called Cambridge School, or the contextualist approach to the study of political ideas.

In this essay, I am not concerned with Pocock’s methodology in relation to the Cambridge School but some different and less noticed aspects of his historical thought: his understanding of tradition as central to civil society, connecting past, present, and future, and the connection which Pocock identified between history and sovereignty. To borrow the words from one of his heroes, Edmund Burke, when describing the social contract, history for Pocock played a key role in turning society into “a partnership between those who are living, those who are dead, and those who are to be born.”

Michael Oakeshott

As a historical thinker, Pocock was inspired by and engaged with the thought of the philosopher Michael Oakeshott. Pocock was particularly struck by Oakeshott’s treatment of the concept of tradition. According to Oakeshott’s inaugural address as professor of government at the London School of Economics in 1951, later published in the essay collection Rationalism in Politics (1962), politics in terms of discourse is restricted by “the pursuit of intimations” integral to a society’s tradition. Apart from in revolutionary contexts, and perhaps to an extent even then, this means that political thinkers are limited by the discourses and languages they inherit from the past. Since political societies are “hereditary co-operative groups,” it implies that political activity “is never offered the blank sheet of infinite possibility.” In Oakeshott’s terms, politics is the activity of “attending to arrangements” rather than “making arrangements.” For him, political education

begins in the enjoyment of a tradition, in the observation and imitation of the behavior of our elders, and there is little or nothing in the world which comes before us as we open our eyes which does not contribute to it. We are aware of a past and a future as soon as we are aware of the present. Long before we are of an age to take an interest in a book about our politics we are acquiring that complex and intricate knowledge of our political tradition without which we could not make sense of a book when we come to open it.

Nothing appears on the surface of a tradition without deep roots in the past, and we can only understand its significance by studying how it has come into being. And what people thought and said about what happened, the manner of their political thinking, is equally important. According to Oakeshott, it follows that academic study of politics must be a historical study, concerned with the concrete.

These Oakeshottian ideas had a deep impact on Pocock. But Pocock took issue with Oakeshott’s profound yet rather limiting notion of the activity of the historian. For Oakeshott, history in the academic sense is concerned with what he termed a “historical past.” A “historical past” is different from a “practical past,” which is what the politician, the moralist, or the advocate might be interested in. The “practical past” is a useful past, whereas the historical past is a “dead past.” Knowledge about a historical past advances historical knowledge, and if and when we are looking for any utility or relevance beyond this, we stray into a practical activity, and we are no longer following the logic of historical research.

Oakeshott’s distinction between a historical past and a practical past is arguably more relevant than ever, as academic history has in recent years been challenged by various political and moral forces, for example, efforts to change the curriculum to suit specific tastes in the present while excluding others. But it was ultimately insufficient for Pocock.

The Political Role of the Historian

In Pocock’s narration, while deeply involved with the thought of Oakeshott, he “used [it] for [his] purposes in ways of which neither he nor his committed followers would have approved.” Crucially, Pocock came to disagree with Oakeshott’s idea that to engage in historical study for practical purposes was a form of “necromancy.”

Pocock’s conservative liberalism made him a critic of the twenty-first-century trend of global history.

Tongue-in-cheek, Oakeshott had described the relationship between the historian and the past as that between a lover and his mistress who mesmerizes him without talking sense. In a contribution to Oakeshott’s Festschrift from 1968, Pocock instead compared the past for the historian to a wife: “an other self, perpetually explored.”

For much of his career, Pocock was interested in the political role of the historian and the politics of historiography. He was convinced that the writing of history does not escape politics but simply diversifies it. The reinterpretation offered by the historian will have political consequences, which can be intended as well as unintended (as a pioneering scholar of the Scottish Enlightenment, Pocock was always attentive to the latter). Even to say that “this statement has no practical consequences” is self-falsifying, according to Pocock, as such a statement would itself have practical consequences. Political histories can be written to authenticate, legitimize, or subvert, and Pocock himself was certainly capable of all three.

Antipodean and Anti-European

In the 1970s, he launched “British history” as a new subject (as opposed to, say, English or Irish history), as the United Kingdom was pursuing membership of what later became the European Union. Pocock was clear that the sovereign state was the proper object for the political historian, though this could of course be a multi-national state as in the case of the United Kingdom of Great Britain and Northern Ireland.

Britain’s pursuit of a European future alarmed Pocock because it meant a future without New Zealand, a settler colony in the British Empire. Indeed, he worried that his native land might be written out of British history. Pocock was skeptical about the European project, which he described as “an association of recently defeated states compensating for their loss of extra-European empire by constructing a shared and highly globalized economy, in which sovereignty became problematic.” In a letter to Quentin Skinner, he described his collected essays on British history as “anti-European, antipodean and autobiographical.”

“As an Antipodean and a neo-Briton I have no cause to love the concept of European union,” wrote Pocock in The Discovery of Islands (2005), “it does not offer me inclusion, and tends to exclude me from an association and a history to which I thought I belonged.” Privately, he would later be skeptical about the Brexit project, as well. In his published writings, he distinguished between the proper “Euroskeptic,” who was skeptical about the idea of “Europe,” and the vulgar usage of the term that often referred to “those caught up in an atavistic and undiscriminating opposition to the project in its entirety.” But his own criticism went as far as arguing that the democratic deficit of the EU was a feature, not a bug: as populations were unwilling to give up sovereignty, they “must be lured into doing this by stages.”

For Pocock, the European onslaught on the sovereign state and democracy represented a double blow against history and politics: “Since the European project has from the start been based on the surrender of their sovereignty by states, nations and peoples, and its transference to agencies … the possibility exists that it aims at terminating the phenomenon of politically autonomous communities, and that of history, lived as well as written, as the continuous life of an always-precarious autonomy.”

In a society in which there is no shared past to re-narrate and disagree about, members might cease being citizens in a meaningful sense.

Pocock saw an apparent connection between sovereignty and historiography: a community writes its history when it has an autonomous political structure. This history will often be about this structure, but it does not have to be uncritical. Pocock’s historian committed to describing the character of their society could thus be conservative or radical, but never a revolutionary, as problematization does not equal deconstruction.

Conservative Liberalism

Pocock’s thoughtful opposition to the European project gave him the reputation of being a conservative. This reputation was enhanced by the fact that he defiantly refused to transition to the digital age, and wrote all his books, essays, and extensive correspondence by hand. But he often chose to emphasize that his conception of history made him a liberal and even a pluralist. This pluralism did not make Pocock a post-modernist; indeed, he denied that narratives are fictions. But the key in a civic society, he argued, is that “there is conflict as to what has happened, ought to have happened and should be happening; there is conflict as to the history because there is, and may for a longer or shorter period have been, conflict in the politics.”

He continued: “The politics of historiography have a strong bent towards conservative liberalism; they tell us that there are many stories to be told of ourselves and many ways of judging them, but that there exists a normative structure within which we can continue to judge ourselves and give effect to our decision.”

In the spirit of pluralism, he welcomed the historical profession’s social and cultural turns in the second half of the twentieth century: “Given that the business of the historian is re-narration and the discovery of new contexts, the enlargement of the field towards the ‘social’ and the ‘cultural’ is greatly to be welcomed.” However, he was highly critical of what we may call the “imperial” ambition of cultural history, which sought to marginalize more traditional approaches to the subject, including political and intellectual ones. He pointed out that his hero Edward Gibbon had wanted to replace the dominance of any particular methodology with a “governo misto [mixed government] of all the faculties engaged in the literary study of the culture inherited.”

But Pocock’s conservative liberalism made him a critic of the twenty-first-century trend of global history, which he thought made it impossible to construct narratives of a self-governing political community with which we could identify. In a 2019 essay, published when Pocock was 95 years old, he made the case for the “unglobality” of historical contexts as understood in the Cambridge School tradition. This helped to cement his reputation as a conservative intellectual.

Anti-Revolutionary

Pocock’s politics were anti-revolutionary without being reactionary. Against the backdrop of the protests of 1968, in the final essay in Politics, Language and Time (1971), he targeted “romantic revolutionaries” directly. He wrote: “We have now to ask the question whether a totally revolutionary politics would not be anti-linguistic, in the sense that action would have replaced words as a transmitting medium, and whether the abolition of language would not prove depoliticizing and dehumanizing.”

Using language means communicating, and Pocock implied that revolution entailed an end to communication and the triumph of violence (the influence of Hannah Arendt is readily detected). Yet, Pocock stressed that his unfriendliness toward the romantic revolutionary was moderate. The ambition must be to make the revolutionary enter into dialogue with the non-revolutionary: “If [the revolutionary] is obliged to receive communications from his adversaries which modify the communications he is able to make in return, his mode of politics has indeed shifted some distance from the revolutionary towards the consensual.” For the communications game to be open to all players, conservatives and radicals needed to understand that they could not unilaterally determine the game’s structure.

One reason why Pocock’s writings on the politics of historiography have been neglected might be the perhaps inevitable but regrettable way in which “small-l liberalism” and “small-c conservatism” are understood as opposites and perhaps even incompatible when they in fact need each other. A society that does not allow for dispute and disagreement about its past is totalitarian. But in a society in which there is no shared past to re-narrate and disagree about, members might cease being citizens in a meaningful sense and instead become strangers.

The challenges to political discourse in our time are colossal. More than twenty years ago, Pocock warned of the difficulty of societies having a sense of continuity in the digital age, as the speed of communication and the erosion of the barrier between information and entertainment conspire against both politics and the discipline of history. These issues have, of course, only become greater recently, and one shudders to think of the potential harm of large-scale “artificial intelligence.” But if Pocock was right, the task of improving politics must be intimately connected with the study and writing of history.

Though P. J. O’Rourke passed away three years ago, his sharp wit and defense of freedom continue to resonate in a world still tempted by interventionist solutions. Reclaiming his work is more vital now than ever. What he told us through laughs and jabs in recent decades has proven to be one of the sharpest diagnoses of the dangers of postmodern left-wing ideology—and one of the most inspired reflections on why we must root our societies in individual liberty, private property, the free market, and the Judeo-Christian values that shaped the West for centuries.

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

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

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

The problem of freedom—the central theme of O’Rourke’s work and thought—has been humanity’s problem since its very first day on Earth.

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

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

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

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

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

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

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

O’Rourke’s satirical style led some to dismiss him as an economic expert, but it made him one of the most effective champions of libertarian-conservative thought.

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

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

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

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

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

One recent morning, I was sitting by the window, reading a book with my first cup of coffee of the day, when something flickered on the edge of my eyesight and swiftly disappeared. “A mouse!” my panicked brain registered, but doubt immediately set in. In broad daylight? In my city house? But then, early the following morning, upon coming downstairs, my husband met the mouse in flagrante delicto—nonchalantly running along on our kitchen counter. Horror of horrors. 

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

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

Plagues and Pizzerias

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

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

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

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

New York City rats are unabashedly American patriots down to their pizza-loving core.

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

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

Patriotic Rodents

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

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

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

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

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

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

The End of the Line

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

William F. Buckley defined the conservative movement in America. For decades now, friends and critics alike have been anxiously awaiting Sam Tanenhaus’s massive, authorized biography, which has sharply divided readers. Buckley was a complicated man, and this is a complicated book. Senior Writer Richard Reinsch and Contributing Editor John O. McGinnis offer their takes on this major new publication.

Conservatives have been waiting for Sam Tanenhaus’s official biography of William F. Buckley Jr. for too long. Twenty-seven years, to be precise. The last line of text in the acknowledgments on page 868 quotes Buckley shortly before his death, “I know I won’t see my biography.” So much procrastination and delay on the part of the author indicate a divided mind and an inability to focus on the project. Things change over 27 years, including authors, potential audiences, and even the public memory of a figure like Buckley. This disappointed reader must ask: Does the biography give us Buckley, or rather, a disconnected series of reflections about who the American liberal mind needs Buckley to be?

Buckley: The Life and the Revolution That Changed America is a work of immense research and thorough study, replete with archival work, oral interviews, and an exhaustive examination of the subject’s life and career at every turn. Tanenhaus had untrammeled access to Buckley’s personal papers and calendar, and other materials. He presents a picture of the man enmeshed in a complex web of cultural, familial, educational, social, political, and interpersonal contexts. In certain respects, the reader now possesses more of Buckley than perhaps was wanted, or that even most closely informs what Buckley believed was his life’s mission. Almost no stone is left unturned in Buckley’s parents’ and siblings’ lives either.

One of the problems is that the book is not proportional to Buckley’s life. In a tome of almost 1,000 pages, fewer than 100 are devoted to the momentous period in Buckley’s life and the conservative movement, ranging from Reagan’s election to the presidency in 1980 to Buckley’s death in 2008. The one thing most needful is lacking, that is, an appreciation and evaluation of the precise contours of the Revolution that the author identifies in the subtitle as Buckley’s chief contribution to American life. What was this revolution? On that crucial topic, Tanenhaus seems reluctant to offer an opinion.

Since Tanenhaus took decades to write the book, one must take note of the significant shift in the American Left over the last few decades. Did this change in left-liberalism influence the biography that Tanenhaus ended up writing? The Left in America has moved from existing as a relatively benign force routed by conservative victories in the 1980s and 1990s and therefore content to manage the welfare state, keep tax rates reasonable, and ensure stable economic growth, to becoming a revolutionary force incapable of affirming American citizenship, race-neutral policies, or even articulating the biological differences between men and women. Race and plasticized gender became its calling cards, weapons wielded to fashion an America in the image of egalitarian humanism. Crucial political, educational, and cultural institutions, most crucial to constitutional democracy, have been locked into racial stories, struggle sessions, or patriarchal oppression plays. Because the book is rooted in race, family, culture, and historical sweep as opposed to the distinct presentation of Buckley’s ideas, it is not an easy question to dismiss. Did a similar movement permeate the mind of Sam Tanenhaus?

Historically, conservative readers loved Tanenhaus’s magnificent 1997 biography of Whittaker Chambers, which became a finalist for the National Book Award and the Pulitzer Prize. A former editor of The New York Times Book Review and a liberal in good standing with the ideology’s professional accreditation unit, Tanenhaus, while researching the book, had reevaluated many of his convictions about anti-communism and the somewhat dismissive or complacent attitudes that liberals had long held regarding communist infiltration into the federal government during the New Deal and World War II. In the biography’s thorough examination of Chambers’s sources and files, he came to know the truth and realized that Chambers had told the truth about the espionage accusations against Alger Hiss, and much more besides. The strength of this biography, plus the favorable opinion of his son, Christopher, convinced Buckley that Tanenhaus should write his biography.

Tanenhaus avoids the evidence and the seriousness of thought and purpose that a man like Buckley put into a lifetime of forging the American conservative movement.

In 2009, Tanenhaus authored The Death of Conservatism, a post-George W. Bush-inflected account of how movement conservatism was spent. The book’s thesis was that conservatives had held power and brought the country to the brink of domestic and international ruin. (He also hubristically argued that conservatism should only serve as a modest corrective to ascendant liberalism and not a real alternative.) It now fell to the Obama presidency to rearticulate America’s meaning and purpose in a second New Deal policy matrix. Ironically, six months into Obama’s term, the Tea Party emerged, and the Obama presidency, following a pyrrhic victory on healthcare, was reduced to administrative state machinations. Tanenhaus had fallen in love indiscriminately with a moment in time and was badly exposed, having opened himself to being attacked by reality checks.

A few years later, Tanenhaus penned an essay asserting that American conservatism was one long footnote to the concurrent majority thesis of former vice president and political theorist John Calhoun. In his works of political theory, Calhoun conceived of additional limits on the Constitution’s requirements for passing legislation in order to further protect certain minority interests, including those of slaveowners. In arguing that conservatism should only be understood in a Calhounite context, Tanenhaus was saying that the effectual truth of conservatism in America is that it is a heretical, ahistorical, and cloaked attempt to grab rights and liberties for various subgroups like greedy corporations, racists, and religious fanatics by exploiting supermajority requirements in the federal government’s constitutional architecture. Tanenhaus’ message: The country would be better off without it. And Tanenhaus was already not so subtly playing the race card.

These points are worth mentioning, not merely to criticize Tanenhaus, but because they provide the background for understanding a book about a man of ideas, politics, and high culture who is reduced in many respects to the mere product of family and historical circumstances. In short, Tanenhaus seems fundamentally incapable of grasping that conservatives believe that ideas have consequences, that they take shape through the interaction of men’s minds with reality, nature, and God, and that we can articulate a philosophical foundation for American constitutionalism and the morality that underpins it. Tanenhaus, as a good American liberal, bows, however “moderately,” before the altars of class, race, and gender. These become the deft arrows he repeatedly shoots into Buckley’s oeuvre, rendering it a corpse instead of a foundational work capable of intelligently guiding future efforts.

In this biography, Buckley’s revolution remains undefined, not because of Buckley’s inability to limn its definition but because of Tanenhaus’s intellectual limits. The book opens oddly with an epigraph from Marcel Proust’s Swann’s Way:

Facts do not penetrate the sphere in which our beliefs are cherished. They did not engender those beliefs and are powerless to destroy them. They can inflict on them continual blows of contradiction and disproof without weakening them. And an avalanche of miseries and maladies succeeding one another without interruption in the life of a family will not make it doubt either the benevolence of God or the competence of its physician.

From that opening encounter, the discerning reader knows that this biography is not just about Buckley but also about Tanenhaus and his intellectual prejudices. And what of the line about family never doubting or seeking a physician, refusing to seek any other source of wisdom? Did Buckley not let facts intrude upon his thinking and action? Should we only understand Buckley within the context of his family? Tanenhaus’s words diminish Buckley—the man who lived a life arguing, writing, speaking, interviewing, and attempting to rebuild the principles of faith, freedom, patriotism, and a commitment to the highest ideals of western civilization—to a figure ultimately lost in impenetrable prejudices and belief structures that remained impervious to the finer points of emergent reason and logic.

Praised and read by Ronald Reagan, Margaret Thatcher, Barry Goldwater, Henry Kissinger, among other leading statesmen of his day, a man who founded National Review in 1955, whose thousands of syndicated columns and essays, numerous books and novels, and years of his famous PBS Firing Line program elevated the status of American discourse and made conservative thought a non-negotiable force in American life is ultimately sealed within his time, incapable of being a living presence to future thinkers and political actors. Nonetheless, Tanenhaus does praise Buckley at the end, adding: In his death, many gathered “in affectionate remembrance of one it seemed natural to speak of as a great man.” He had been “the country’s greatest conservative,” and “left a vacuum no one since has been able to fill.” But this is all too little and too late.

The book is organized mostly along chronological lines. It begins with William F. Buckley Sr. and his ill-fated attempt to build an oil empire in late nineteenth and early twentieth-century Mexico. He succeeded, only to have the socialist revolution confiscate his business, leaving him with almost nothing. Determined to strike again, he successfully did—this time in Venezuela. The family was Southern and devotedly Catholic, with Buckley Sr. from the border region of Texas and his wife, Aloise Sterner, from a New Orleans family. They would have eleven children, with Bill Buckley as the fourth child. They split time between an imposing estate, “Great Elm,” in Sharon, Connecticut, and “Kamschatka,” a restored plantation in Camden, South Carolina.

Tanenhaus repeatedly reminds the reader of the father’s antisemitism, and his less-than-enlightened attitude about race and equality for blacks. He does note that the Buckley family’s attitude was also characterized by Christian charity, although this charity did not fully extend to advocating for civil rights and full legal equality. To his credit, Tanenhaus quotes Edward Allen, a former black servant in the Buckleys’ South Carolina home, who observed the decency and warmth of the family, including Buckley Sr., towards its mostly black servants. Allen noted that a white man once attempted, right in front of his father, to take his father’s job as a groundskeeper at Kamschatka. Buckley Sr. responded forcefully, “I wouldn’t hire ten of you.” Telling the man, “Get off my place.” Years later, after the Buckleys had sold Kamschatka, Allen, by then in his eighties, said that he remembered the Buckleys well. Sometimes he said he strolled past their home, and “every time, I look up to the heavens and thank God for the Buckleys.”

Seemingly, Tanenhaus’s overall purpose in writing this part is to link Buckley, National Review, and conservatism within a web of Southern racism. He spends entire chapters detailing race and the Buckleys. He reveals, for instance, that Buckley Sr. encountered and approved of the earliest manifestation of the infamous “Southern Strategy,” (at the time, a Republican electoral strategy meant to increase votes among the white electorate by stirring up racial anxiety about social change) and one that the family knew from its connection to South Carolina Senator Strom Thurmond who ran on the “Dixiecrat” ticket in 1948. Quoting Buckley’s father as saying in 1949, “I can’t exaggerate the interest in the East in a combination between dissident Southern Democrats and the Republicans,” Tanenhaus proposes that much of the opposition in the South to the New Deal and its economic program was rooted in racism, and the fear that the regulatory power of the government would lead to integrated workplaces and greater economic equality for blacks. In short, the through line for Tanenhaus, as it is for most liberal observers, is that the Southern Strategy and its incipient racism drove conservative politics to the present day, and helped create Goldwater, Wallace, Nixon, and Reagan, with Buckley riding the wave.

Tanenhaus notes that Buckley made racialist comments about blacks and intelligence at his prep school, Millbrook Academy, in the 1930s. He apparently opposed an interracial dance as an undergraduate in the 1950s at Yale, but supported the social event. Tanenhaus reminds us that National Review originally did not support civil rights legislation, although its stance would change as later thinkers, such as Harry Jaffa and Charles Kesler, among others, influenced the publication. Willmoore Kendall, Buckley’s academic mentor at Yale and a legendary early editor of National Review, also reversed his position. Tanenhaus does mention that Buckley later regretted and admitted fault for opposing the Civil Rights Act, but is unable to resist the temptation to add (his own personal view) that some of Buckley’s famous editorials on race and the South, most prominently “Why the South Must Prevail,” continue to make it difficult for many to take conservatism as a set of ideas not informed by racial animus. Really?

Tanenhaus goes too far here and fails to recognize how Buckley and the larger conservative movement he led became a salutary force on this issue, right up to the Supreme Court’s 2023 decision in Harvard v. Students for Fair Admissions, where the Court ruled that affirmative action violated the Constitution and the Civil Rights Act. Liberals on the Court, in the academy, and from their various cultural perches denounced the decision. Dividing people up by race has become their core ideological position. Conservatives repaired to the Declaration to recover truthful thinking on race, while liberals further uncovered their progressive ideology rooted in group rights, collectivism, and the rejection of the American Founding’s constitutional principles. The results speak for themselves. Tanenhaus can’t even bring himself to admit this. He approaches race and racism in a hopelessly Manichean way.

Buckley apologized and changed his mind about the issue. Conservatism itself would become the only significant force in American politics advocating for a color-blind constitution. But it’s not enough for Tanenhaus. The undertone of the book is that Buckleyite conservatism and racial discrimination are as thick as the morning dew on the South Carolina grass.

Another driving impetus of Buckley’s conservatism, Tanenhaus opines, was the “America First” antiwar movement led by Charles Lindbergh. The Buckley family rapturously followed Lindbergh, until Pearl Harbor. They were opposed to America entering the war and assisting the British. They believed that involvement in Europe’s war would lead to grave ills at home. Buckley followed his father’s lead, of course, and he was in prep school for most of this period. He later served as an officer in the Army, but never saw combat or left the United States. Tanenhaus’s rooting of Buckley’s conservatism in the America First movement seems a strange choice, completely belied by a deeper consideration of the ideas and the actions Buckley took after World War II.

While Buckley and his entire family were a part of the Lindbergh movement, so were many others in America. It was not an exotic position. That tune changed dramatically for everyone when Japan attacked Pearl Harbor. Moreover, far from isolationist politics, what Buckley expressed after the war, when the Soviet Union rose in opposition to the US, was a belief that America must defeat its communist foe. He believed in the rollback of communism globally. Tanenhaus documents at length Buckley’s defense of the principles behind Senator Joseph McCarthy’s anticommunist pressure campaign, which he expressed in a 1954 book, McCarthy and His Enemies, jointly authored with his close lifelong friend, Brent Bozell Jr. (who was also his brother-in-law, married to his sister, Patricia Buckley). Both Buckley and Bozell were more supportive of the galvanizing anticommunist thrust of McCarthy’s program rather than his tactics and bruising personality.

Does the biography give us Buckley, or rather, a disconnected series of reflections about who the American liberal mind needs Buckley to be?

There seems to be little here linking pre-World War II America First-ism with the postwar conservative movement that Buckley brought into being. Buckley closely hewed to the counsel of former New York University professor and famous public intellectual James Burnham, who was National Review’s chief foreign policy theorist. Both favored “psyop” campaigns against communists and domestic sympathizers to create the right images in people’s minds of what they were fighting against during the Cold War. Opposition to communism was one piece of glue uniting figures as diverse as Milton Friedman, Russell Kirk, and Frank Meyer, with Buckley the winsome leader of it all.

What we hear even less of in the book is Buckley’s opposition to the real revolution within the nation, that of Franklin D. Roosevelt’s election in 1932 and his dramatic expansion of government, dismissal of separation of powers, blurring of the lines between government and business, and the creation of a welfare state in America. The opposition to the principles undergirding this progressive constitutional and economic project was the other main source of unity for the disparate band of libertarians, anticommunists, classical liberals, and religious and cultural conservatives that Buckley assembled in the pages of National Review. This practical fusion of thinkers, forged in anticommunist fervor and the need to roll back domestic power in the federal government, is crucial to understanding Buckley’s legacy. Its reason for existing was not in racism or America First-ism, but in a collection of ideas, principles, and actions that loosely cohered intellectually and were forged together in the fires of national political combat.

Tanenhaus faults Buckley repeatedly for failing to write a theoretical conservative treatment that could stand the test of time, and seems to use this to relieve himself of any serious appraisal of the principles at stake in the conservative revolution. While Buckley attempted to do so, writing a few chapters in a book that would have been titled The Revolt Against the Masses, it wasn’t Buckley’s comparative advantage. As most readers know, the conservative movement has never really been at a loss for theorists. Their names and books are well known and remain worthy of study and reflection. If we are in doubt about Buckley’s principles, perhaps this statement from Up from Liberalism (1959) offers guidance: “freedom, individuality, the sense of community, the sanctity of the family, the supremacy of conscience,” and “the spiritual view of life.” These pillars come into full view when “political power is decentralized.”

The liberal mind can easily relativize and dismiss the quote above, but for Buckley, each term is thick with theological, philosophical, anthropological, and constitutional content. In various ways and with different emphases, Buckley would draw on these pillars throughout his career. Conservatism is not an ideology or a rigid interlocking program of action with coin-in-the-slot answers, but is rather the attempt to preserve the Good, that which is bigger than man’s will or the momentary interests of a group or generation. “Each age must find its own language to represent an eternal meaning,” Whittaker Chambers poignantly stated. This definition, offered by one of Buckley’s closest friends and confidantes, one that Buckley admired, represents conservatism at its best. To pretend as Tanenhaus does that “in his time, as in our own, no one really could say what American conservatism was or ought to be. Buckley himself repeatedly tried to and at last gave up” is to avoid the evidence and the seriousness of thought and purpose that a man like Buckley put into a lifetime of forging the American conservative movement. It is both wrong and ungenerous.

The supremacy of conscience and the spiritual view of life were the most important principles of Buckley’s life, emanating as they do from his profound Roman Catholicism. Tanenhaus never really considers Buckley’s faith, a faith that directed his life in full. What kind of biography misses the essence of its subject? Perhaps Buckley’s attempt to fully integrate his life with the teachings of Christianity is a bridge too far for a secular liberal to grasp, much less analyze. Buckley even wrote a book about his Catholic faith, Nearer, My God, the contents of which are barely mentioned, though it traces back to his familial origins. Strange, then, that Tanenhaus wouldn’t evaluate it.

Sharper bones must be picked here at the end. Included in a book meant to be about William Buckley’s conservative revolution, inexplicably, Tanenhaus repeats the rumor that William Rusher, an early publisher of National Review, was gay, and avers that Buckley was considered by peers and enemies to exhibit gay attitudes and tendencies despite his opposition to homosexuality. All without a scintilla of hard evidence produced to support these insinuations. This calumny seems out of place and indicates a lack of sophistication when writing about a man and his family who were equally at ease in New York’s high society or the smoke-filled rooms of political discussion.

This book will come to be seen by many as the final word on the life of William F. Buckley Jr. It should not. In the end, it is dishonest, ungenerous, and unworthy of its subject.

The art of biography from Plutarch onwards shows how character is destiny. And superb books in the genre show how that character was shaped by upbringing and environment. In this respect, Sam Tanenhaus’s Buckley: The Life and the Revolution That Changed America is magnificent. Tanenhaus shows in detail “how everything Buckley learned and everything he became began at home.”

A middle child in a pack of ten, he had to become a performer from the start simply to be heard over his siblings. In such an articulate and rambunctious family, the young Buckley cultivated his innate talents for listening and then responding with witty repartee. From a father who was a wildcatter, as often on the cusp of bankruptcy as of great wealth, he inherited a risk-taking, almost swashbuckling, persona. Even his famous transatlantic accent was not a later life affectation but a holdover from his formative years at a British boarding school, one of the many stops in a meandering journey of early learning.

And most of all, he grew up a cradle conservative. While his family’s principal residence was in Connecticut, his parents were emphatically not Yankees. His father was the son of a Texas sheriff, and his mother the daughter of a Louisianian cotton broker. His father hated the New Deal, and the Buckley children competed to improve on their father’s denunciations. Thus, when Buckley arrived at Yale, he had the preparation and confidence to astonish his classmates by making powerful arguments against his liberal professors on politically and economically contentious topics. But despite his verbal facility, Buckley did not become a scholar. He absorbed ideas quickly in conversation but rarely pursued their depths through sustained study. What made him the biggest man on campus was the brio of his chairmanship of the Yale Daily News, not the originality of his academic contributions.

This background prepared him for what he became—the greatest controversialist in the nation and the broker of the most important political movement of his time, transforming conservatism from a moribund and reactionary philosophy to an effective ideology of governance. Tanenhaus is at his best in describing the sheer improbability of the achievement. Republicans had enjoyed substantial success in electing Eisenhower, a Republican, but not a man of the right, because he had made his peace with the New Deal. But Buckley recognized this kind of Republicanism would merely prove an interregnum between eras of increasing liberalism. The right needed to argue for a fundamentally distinct set of principles, not merely slow the implementation of the consensus liberalism of the time.

Just as his father had the confidence to drill where there was no assurance of striking oil, Buckley was willing to set up National Review as a conservative magazine of opinion where there was a likelihood of failure. He assembled a group of writers that encompassed the entire spectrum of conservative opinion from traditionalist Russell Kirk to fusionist Frank Meyer to the ex-Marxist, anticommunist dialectician James Burnham. These were a cacophony of voices, but Buckley here, too, was a good listener, allowing each to make his case in the magazine and making a politically astute synthesis of his own. Buckley’s empathetic nature enabled the kind of open tent that modern conservatism required if it was to corral different factions to create an effective movement.

But Buckley also recognized that he needed to police the boundaries of conservatism, keeping out the crazies and extremists. Tanenhaus shows how he outmaneuvered Joseph Welch and the John Birch Society, exiling them from the respectable right. Much later, he would do the same to its strand that threatened to be antisemitic, represented by the mercurial Joseph Sobran.

He was also willing to put his money where his mouth was. Journals of opinions are notorious financial sinkholes. And thus, Buckley needed to first support National Review with family resources and then with speaking engagement fees. But no political magazine has ever earned such a good return on investment.

As Buckley made conservatism a vibrant intellectual force, it attracted a new generation who had tired of consensus liberalism. While much of the literature on the 1960s has focused on the SDS and other left rebels, Buckley midwifed the Young Americans for Freedom, who set forth their charter at his estate. His brother-in-law and fellow NR contributor, Brent Brozell, ghostwrote Barry Goldwater’s Conscience of a Conservative, the book which propelled him to the 1964 Republican presidential nomination. Goldwater lost the election in a landslide but made Republicans, for the first time in a generation, an indisputably conservative party. Tanenhaus rightly credits Buckley as the single most important architect of conservatism’s twentieth-century revival.

Even a great biography has its flaws. Tanenhaus is a liberal, and sometimes out of his depth or out of sorts in addressing conservatism.

In the face of disagreement with other conservatives, including many at NR, Buckley backed Nixon in 1968. This move was a matter of calculation: he did not believe the newly elected Governor Ronald Reagan was ready to be a successful national candidate. Buckley’s pragmatic dictum to support the most electable conservative candidate (surprisingly not quoted by Tanenhaus) was decisive here. When Nixon was elected, Buckley enjoyed substantial influence: Nixon needed him to protect his right flank. Tanenhaus shrewdly contrasts his ready access with the more standoffish treatment he received in the Reagan administration. Reagan did not need the magazine’s protection and may have been annoyed by National Review’s announcement on his election that “we now have a country to run.” Reagan was a far shrewder and more calculating politician than most observers ever realized.

For all his successes, Buckley had his limitations. Tanenhaus is correct that he was not an original “thinker, still less a theorist.” But a complex society enjoys a division of intellectual as well as physical labor. Men like Friedrich Hayek were deep thinkers, but they were not great controversialists. Milton Friedman was both, but he did not have the encompassing vision and charisma to renew and hold together a political movement.

Buckley was also late in embracing equal rights for African Americans. This flaw, too, stemmed from his upbringing. His parents were Southern paternalists when it came to race. They treated their black servants so well that descendants of those servants had tears in their eyes when they described the family’s kindnesses. But they also secretly funded a newspaper in their second residence of Camden, South Carolina, that championed white resistance to desegregation. Though one of the great debaters of his time, Buckley’s blind spot on race caused him to lose his most famous encounter, his debate with James Baldwin at the Cambridge Union. He came across as wholly without compassion to the degradations that African Americans had suffered as a group. But in time, he changed his views on the color line, welcoming and jousting with black radicals like Eldridge Cleaver and Jesse Jackson on his talk show, Firing Line, just as he did with other leftists.

More troubling is the evidence that Buckley’s risk-taking sometimes morphed into recklessness. He loved sailing but took unnecessary risks, resulting in two major insurance losses and a costly lawsuit after a man was lost overboard. He was sanctioned by the SEC for his manipulation of the radio company of which he was the dominant shareholder.

The book is full of revelations. While the popular image is that Buckley was rich because of his family’s money, that fortune rapidly dwindled. His wealth had in fact two sources. His wife inherited about $30 million, measured in today’s dollars. (Tanenhaus should have translated such past sums into present value. Because of inflation, the numbers he quotes are misleadingly small.) Every year, Buckley himself earned enormous sums—over $5 million a year from Firing Line and ample royalties from his books. He was the only author of his time whose fiction and non-fiction were regular bestsellers.

Tanenhaus also shows that Buckley knew about the origins of the Watergate break-in even earlier than Woodward and Bernstein. His friend from CIA days, Howard Hunt, had organized the burglary and, distraught after the death of his wife in a plane crash, confessed much of it to him. Tanenhaus is extremely critical of Buckley for his silence, thinking it a violation of professional ethics, perhaps even the law, to withhold this information. But Buckley was concerned about Hunt’s troubled children. His Catholic faith made his role as a godfather paramount.

Even a great biography, like a great man, has its flaws. Tanenhaus is a liberal, sometimes out of his depth or out of sorts in addressing conservatism. For instance, he argues that Buckley and National Review argued against civil rights by invoking John C. Calhoun, whom he characterizes as simply trying to protect the rights of minority slaveowners. But this analysis flattens the theories of Calhoun. To be sure, he was a defender of slavery, but his defense of minorities more generally, as John Stuart Mill recognized, made him one of America’s most distinguished political theorists. Tanenhaus faults Buckley for failing to have assimilated great works of political theory, but he himself shows no evidence of having read Calhoun’s Disquisition on Government. He also trots out the tired cliché of conservatism creating a New Gilded Age without analysis of the prosperity it helped bring to middle America and, through free trade, to many of the world’s wretchedly poor.

The book also feels rushed at the end. After the Reagan administration, we hear little of Buckley’s political analysis or ideas, despite his continuing to write a widely read column until his death in 2008 and appearing on Firing Line until 1999. Tanenhaus skates especially lightly over the succession crises at National Review—the magazine that Buckley recognized was his great legacy to the nation and conservatives. Like many company founders, he anointed heirs and then found them wanting. While Buckley got along famously with conservative titans like Burnham and Meyer in the early days, he could not find a replica for himself.

And Tanenhaus almost completely ignores his personal life. Chris Buckley’s Losing Mum and Pup provides evidence of complex, contentious, yet loving and loyal relations between husband and wife and father and son. Perhaps Tanenhaus sees Buckley the husband and father as irrelevant to Buckley the conservative revolutionary, but public and private selves are rarely so neatly severed.

Yet this biography unfurls a remarkable canvas. It is, at once, a vivid portrait of a singular man, skilled in all ways of contending, and of the broad sail by which he caught the prevailing winds to steer his nation on a new course.