As the world soured on Big Tech platforms in the “techlash” of the late 2010s, the conversation centered on how technology was harming its users. An avalanche of best-selling books, magazine think pieces, and documentaries sounded alarms about the annihilation of privacy and attention spans, crises of loneliness and teen depression, and echo chambers and political polarization. This era of commentary connected broad societal problems back to the intimate relationship between tech platforms and the individual.

The Age of Extraction, by the Columbia Law professor Tim Wu, takes a different route to the conclusion that Big Tech is destabilizing society: one focused on the economic relationship between platforms and other businesses. Wu, a founding father of the “neo-Brandeisian” anti-monopoly movement that influenced antitrust policy under the Biden administration, contends that platforms such as Google and Amazon have become essential commercial infrastructure and use this power to extract ever-more value from smaller businesses in the form of exploitative fees and pricing. He calls artificially intelligent platform extraction “the emergent form of economic power in our time,” and suggests that it is a driver of inequality and ultimately the rise of authoritarianism.

This argument won’t be revelatory to those steeped in anti-monopoly debates. Nor does the book serve as an especially persuasive introduction to the topic for those encountering it for the first time. Still, Wu’s writing is lively and lucid and he provides some fresh insights, especially on where the power of platforms is headed in the age of AI, and the dangers this poses to the republic.

The Age of Extraction is divided into two parts. The first delivers a rendition of the familiar Big Tech hero-to-villain story, framed around the platforms’ evolution from “enablement” of economic activity to the “extraction” of value. The second, shorter section looks at the global trend toward political instability and democratic backsliding.

In the optimistic late 1990s and 2000s, Wu reminds us, there was never supposed to be a “big” tech. Pundits predicted that the internet, by lowering barriers to business entry and favoring nimbleness, would usher in a decentralized, egalitarian economy. The business writer Seth Godin declared that Small Is the New Big; the blogger Glenn Reynolds envisioned An Army of Davids replacing old corporate Goliaths. The tech thought leader Jeff Jarvis, in his 2009 book, What Would Google Do?, declared that “the Lilliputians have triumphed. The economies of scale must now compete with the economies of small.”

According to Wu, such predictions were based in part on the perception that new tech platforms like Google and Amazon were “public-spirited town squares that existed to help others, almost like corporate charities.” The platforms played into this perception—especially Google, with its famous “Don’t Be Evil” slogan. A letter the company’s founders Larry Page and Sergey Brin wrote to investors in 2004 explained that Google would do “good things for the world even if we forgo some short-term gains.” But in the early days, they also lived up to it. Amazon created Amazon Marketplace, which empowered countless Americans to start small businesses using its built-in customer base and logistics capabilities. In return, the company asked only for a reasonable fee: about 19 percent of a seller’s revenue as of 2014.

But as Amazon cemented itself as the dominant e-commerce platform—in large part by subsidizing shoppers and hoovering up potential rivals—it began to put the squeeze on sellers. It ratcheted up monthly fees and introduced a major implicit fee by placing rows of sponsored results at the top of search results pages. (By 2024, sellers were paying Amazon more than $56 billion per year to make their products visible.) By 2023, fees averaged more than 50 percent of sellers’ revenue. And yet, with Amazon commanding such a large market, sellers couldn’t walk away. Wu shares anecdotes of entrepreneurs who built thriving e-commerce businesses largely through Amazon, only to be put out of business as the fees mounted up.

If Wu wanted to persuade readers that we are truly living in an age of extraction, some additional case studies might have been helpful. Journalists such as the Washington Monthly’s Phillip Longman have compared Big Tech platforms to the railroad monopolies of the Gilded Age for the better part of a decade. There are plenty of other examples to choose from. Google’s dominance in “ad tech,” the stack of platforms connecting advertisers and web publishers, allows it to extract 30 percent of publisher ad revenue through various fees. Apple’s commission on iOS in-app purchases reached 30 percent before a recent court ruling forced the company to allow app developers to route purchases through their own websites. Uber’s “take rate” on ride fares is dynamic and opaque, but it increased dramatically in recent years and has been shown to range from 40 to 70 percent.

Puzzlingly, The Age of Extraction leaves these examples on the table, not even giving them a brief mention. Readers might be left wondering if platform extraction is a problem that extends beyond Amazon as Wu moves ahead to explore tangentially related topics. One chapter observes that the internet failed to translate into “the rise of a new creative class holding significant wealth,” and that even the influencers who have found financial success are “a laboring class” with stressful lives—although it does not tie this reality to any specific extractive practices by platforms. (Wu doesn’t mention, for example, content creators’ paltry share of YouTube and X ad revenue.) Another chapter describes how private equity roll-ups of specialist medical practices raise patient costs while degrading quality of care, and how the mega-landlord Invitation Homes has exploited renters by consolidating local housing markets and then systematically raising rents and piling on absurd “junk fees.” Wu argues that these phenomena represent “platform power beyond tech,” because private equity-backed medical groups bill themselves to doctors they hope to buy as convenient administrative intermediaries, and Invitation Homes uses technology to buy and manage thousands of homes.

The freshest material in The Age of Extraction comes in Wu’s analysis of how Big Tech is diversifying and augmenting its platform ecosystems to maintain their power. Wu describes Google, Apple, and Amazon’s splashy ventures into entertainment and sports broadcasting as an effort to become “fully spun cocoons of life and living.” And, of course, the platforms are now “investing heavily in owning or controlling the relevant talent, data, and technologies” of the AI race. OpenAI and Anthropic are backed by Microsoft and Amazon, respectively; Google, Meta, and Elon Musk’s X are developing popular models in-house and control key distribution channels. Thus while AI technology may disrupt certain Big Tech products, Wu points out that AI market structures appear “headed in the direction of reinforcing [Big Tech’s] advantage.”

Just a few decades ago, Francis Fukuyama was predicting The End of History, “the old dictators, cranky old men, were on their way out,” and “a kinder, gentler future was meant to be on its way in,” Wu writes. “What went wrong?” His answer is a bit slippery, particularly with respect to how much weight it assigns to the tech platforms that are the main subject of his book. At first he blames “the destabilizing effects of laissez-faire capitalism,” and concedes that “the tech platforms are not nearly the entirety of this story.” At another point, he blames “the emergence of platform capitalism and broader trends in the economy.” The theory he actually fleshes out centers on corporate consolidation generally, although the tech platforms certainly fit in.

Wu sketches the progression from consolidation to authoritarianism as a “sequence in five steps, each based on known and well-studied tendencies.” Monopolization is followed by extraction, which, “by its nature … creates a narrow class of winners” and a “broader class” of losers: “consumers who pay more, workers who are paid less, and local, regional, smaller, and medium-sized businesses that are acquired or driven out of business.” This inequality leads to the emergence of mass resentment, then democratic failure—“compounded if the state is understood or credibly portrayed as supporting and perpetuating the ongoing extraction”—and ultimately the rise of the strongman. In a play on the title of the libertarian economist Friedrich Hayek’s iconic book, Wu calls this progression “the real road to serfdom.”

He presents this as a sort of natural law, and doesn’t make much of an effort to support it empirically. That’s not much of an issue with respect to the latter part of the causal chain, as the link between inequality and resentment and political instability is fairly self-evident. But readers might need some evidence to be satisfied that monopolization is a significant driver of inequality to begin with. Wu could have mentioned the work of the economists Marshall Steinbaum, José Azar, and Ioana Marinescu, who have connected employer concentration in labor markets to lower wages. From the consumer perspective, he could have surveyed anti-monopoly research into how consolidation is making household cost centers like health care and groceries more expensive. Or he could have deployed a historical example, such as that of the Gilded Age, to illustrate his point. But as with his argument about platform extraction, Wu declines to elaborate.

Nevertheless, The Age of Extraction concludes—after a few short chapters taking down the ideas that markets are self-correcting and that crypto technology will solve inequality—by presenting policy solutions to the expansion and abuse of monopoly power as a broad “architecture of equality.” The solutions begin with antitrust. Wu mentions that antitrust enforcement “staged a comeback” under the Biden administration and lists major cases, although he doesn’t explain how specifically they could mitigate extraction. Other solutions could include utility-style regulation and price caps, which Wu points out have proved successful beyond the utility sector. For instance, “swipe fees” are capped in the European credit and debit payment processing markets. New “common carrier” rules, such as those historically used to govern railroads and telecommunications networks, could prevent dominant tech platforms from discriminating in favor of their own products or services. And quarantines and “line of business” restrictions could prevent platforms from leveraging their preexisting monopolies to dominate new markets, such as artificial intelligence.

At around 200 pages, The Age of Extraction is a fun and breezy read, and it will hold the attention of casual readers even if they do not end up convinced of its grandest claims. But for neo-Brandeisian true believers, the book is likely to frustrate. At a pivotal moment for the movement, with its Biden-era champions out of power and the Trump administration reversing much of their agenda, Wu is content to retread familiar intellectual territory rather than illuminating what comes next. And amid a contentious factional battle to shape the future of the Democratic Party, the thinness of the book’s argumentation makes it unlikely to win hearts and minds. For an advocate of Wu’s talents, The Age of Extraction represents a missed opportunity on multiple fronts.

The post Monopoly Men appeared first on Washington Monthly.

A paradox haunts books by contemporary Supreme Court justices. Publishers give the justices huge sums—$2 million, in the case of Justice Amy Coney Barrett—to write monographs insisting that Supreme Court judging is apolitical. Publishers provide these guarantees because Supreme Court judging in the United States is hyperpolitical: Partisans can be trusted to buy and praise the books written by justices on their side of the political fence. 

This paradox has a predictable literary consequence: The books are almost always bad. Recent books by Justice Neil Gorsuch and former Justice Stephen Breyer were widely and rightly panned by reviewers, though purchased in large numbers by partisan readers. Neither book explained why publishers, bookstores, producers, and influencers roll out red carpets for people whose primary job is supposedly to follow, to the letter, instructions given in past centuries.

Justice Barrett’s new book, Listening to the Law, meets the low bar set by her colleagues. She promises an accessible (not scholarly) insider’s guide to Supreme Court practice. The justices, Barrett tells us, like one another, attend parties together, and manage to disagree without rancor. Judging, she insists, is a matter of humility, of listening carefully to the law made by others. Apart from an informative discussion of textualism, the method with which Barrett is most associated, the book offers no account of why serious scholars—including, one suspects, Professor Barrett—think actual judicial practice is far more complicated than simply discovering (or “listening to”) the law made by others. The effect is less analysis than campaign biography, a self-presentation in the style of politicians explaining why they can be trusted with power.

The resemblance to political memoir is not accidental. Barrett, like her colleagues, aims to humanize herself. She assures readers that her pre-Court “life was good, but like anyone’s, it was not perfect”; that “these last years of being in the public eye have toughened me up”; that “all human relationships depend on kindness and humility.” Such bromides could have been lifted from a stump speech. Justices, like candidates, must persuade their audiences that they are relatable, trustworthy, and possessed of the moral fiber to do their jobs. The difference is that candidates eventually face voters. Justices, armed with life tenure, face only history.

Indeed, one of Barrett’s most insistent themes is precisely that life tenure guarantees independence. “The Constitution’s guarantees of life tenure and salary protection for federal judges,” she writes, “are designed to fortify a judge’s resolve to stand firm against the tide of public opinion.” The only evidence she provides for this claim is Alexander Hamilton’s assertion, made more than 200 years ago in Federalist no. 78, that “nothing will contribute so much as [life tenure] to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” Throughout, Listening to the Law celebrates the “genius” of the Framers. What was good enough for 18th-century minds ought to be good enough for 21st-century citizens.

An accessible guide to constitutional practice might note that very few constitutional democracies grant judges life tenure, and those that do (Canada and the United Kingdom) still require retirement no later than 75. Those judiciaries seem at least as independent as federal courts in the United States. A Brennan Center for Justice study by Lisa Hilbink of the University of Minnesota found that other democracies achieve judicial independence through shorter terms, mandatory retirement, or both, with no decline in performance. Indeed, the supreme court of Israel, which imposes mandatory retirement no later than 70, has far more aggressively challenged Prime Minister Benjamin Netanyahu’s policies than the U.S. Supreme Court has challenged Donald Trump’s policies. Similarly, the lack of life tenure has not inhibited the supreme courts of India and Germany from declaring constitutional amendments unconstitutional. 

Equally central to Barrett’s civics is the notion that judicial review exists to protect minorities from majority tyranny. Aware of our fallibility, the wise Framers of the Constitution created an institution that would ultimately declare segregated schools unconstitutional, protect free speech from local censors, and prevent police officers from physically abusing persons suspected of crime. The trouble, which Barrett conveniently neglects, is that the most difficult and consequential cases pit one minority against another. Consider Fulton v. Philadelphia (2021), which concerned whether the city could exclude a Catholic foster care agency that refused to work with same-sex couples. Both parties plausibly claimed to be protecting vulnerable minorities. Philadelphia argued that it was protecting LGBTQ families from discrimination; the Catholic agency argued that it was being discriminated against for its religious beliefs. 

History also undermines the slogan. Before Brown v. Board of Education (1954), it is difficult to identify a Supreme Court decision striking down a federal law most Americans would now say protected deserving minorities. More often it went the other way: Dred Scott (1856) denied Congress the power to ban slavery in the territories; the Civil Rights Cases (1883) voided Reconstruction-era protections; Pollock (1895) struck down the federal income tax; Carter Coal (1936) invalidated New Deal reforms. Slaveholders, too, claimed the mantle of an oppressed minority. As today, one person’s “worthy minority” was another’s entrenched interest, and few historians would tally the Court’s record as consistently protective of the vulnerable.

The deeper problem is not just that the Court often failed in practice, but that it has never had a clear method for identifying which minorities deserve protection. That choice is inherently political, so Barrett just ignores it. Listening to the Law never even hints at the difficulty of identifying the minorities that merit judicial protection, or whether the history of judicial review evinces any tendency for courts to make the right choices in this regard. Once one looks at the actual record of judicial review, what emerges is less a steady defense of the downtrodden minorities than a scattershot series of interventions, many of them on behalf of entrenched elites. 

As Mark Tushnet has noted, judicial review amounts to “noise around zero,” producing essentially random deviations—sometimes good, often bad—from what the political system would otherwise generate. When a pattern can be discerned, it is a tendency to side with the executive over Congress and with legal elites when they differ from the less educated or less wealthy. Professor Barrett is almost certainly aware of this scholarship, but Justice Barrett leaves readers with the comforting civics textbook version, assuring them that courts stand reliably with the powerless when in fact the historical record points to something closer to the opposite.

Listening to the Law likewise assures readers that justices decide cases on law, not politics. A few anecdotes about particular justices, Barrett’s willingness to sustain death sentences despite her moral opposition to capital punishment, and statistics demonstrating that approximately half the decisions the justices make are unanimous constitute the entire evidence for this assertion. No scholar paints with so broad a brush. A high percentage of the Supreme Court’s unanimous decisions concern matters such as the proper interpretation of the Employment Retirement Income Security Act (ERISA), a matter on which most people who are not retired have weak if any policy preferences. 

As politically conscious citizens observe, when the justices decide major cases on which the political parties divide, the justices appointed by Republican presidents almost always take positions favored by the Republican Party and the justices appointed by Democratic presidents almost always take positions favored by the Democratic Party. Consider abortion, campaign finance, and the recent Supreme Court practice of using the emergency, or shadow, docket to block lower federal court rulings temporarily enjoining Trump administration executive orders. A citizen who bet at even odds that the justices would vote consistently with the president that appointed them would gain a fortune. When exceptions exist, the tendency is for the justice to side with more moderate members of the party against more extreme members. That some Roberts Court justices may side with the Wall Street Journal editorial page over Donald Trump when the justices rule on tariffs hardly demonstrates a court above politics.

The free exercise clause offers perhaps the starkest example of politics shaping judicial decision making. During the second half of the 20th century, conservative originalists were committed to the proposition that the free exercise clause as originally understood provided religious believers with no exemptions from generally applicable laws. This point was emphasized in the Reagan administration’s Guidelines on Constitutional Litigation in 1988, a core statement of conservation constitutional principles at the time. Justice Antonin Scalia made it explicit in Employment Division v. Smith (1990), holding that worshippers had no right to use peyote in religious ceremonies when Oregon law banned the drug entirely. 

By the early 21st century, however, evangelical Protestants—core members of the Republican coalition—became the typical free exercise claimants. A miracle promptly occurred. Republican-appointed justices discovered that the 1791 clause had always guaranteed exemptions, or that laws burdening evangelicals were exceptions to the no-exemptions principles. Who knew? Religious organizations may now engage in what would otherwise be considered employment discrimination by designating employees or teachers as ministers, as decided in Our Lady of Guadalupe School v. Morrissey-Berru (2020). 

The near-perfect correlation between partisan affiliation and votes goes unacknowledged in Listening to the Law. The message is simple: Trust us.

This, finally, is the problem with the genre itself. By presenting judging as a realm of pure law, insulated from politics, the justices offer a picture so implausible that it makes the opposite claim—that judging is nothing but politics—more credible. In their effort to inspire confidence, they deepen cynicism. If the only choices are civics class pieties or unvarnished partisanship, many readers will conclude, not unreasonably, that the latter is closer to the truth. Publishers, of course, will not mind. Judicial celebrity sells, and the market for reassurance is deep. Barrett closes with optimism that the constitutional project will endure, with no hint of constitutional crisis or recognition that many Americans believe one already exists. That is for serious studies of law and politics. Barrett’s purpose, like that of her colleagues’ books, is to persuade readers that all will be well so long as the justices remain in charge.

The post Justice Barrett’s Campaign Biography appeared first on Washington Monthly.

Taxes make civilization possible. When the ancient Greeks introduced democracy roughly 2,500 years ago, they implemented a progressive taxation prototype so that those who benefited most bore the heaviest burden of maintaining the civilized society that enabled and protected their wealth. Athenians also honored the rich for paying their taxes. The U.S. Constitution itself was born of a tax crisis—a story hardly anyone knows. In 1787 we scrapped the Articles of Confederation, which had reduced the United States to begging for alms from 13 parsimonious states, and created a new republic that could tax its citizens. As I have long told my law students, a government is its taxes.

Every American schoolchild is taught, in the official version of the reasons we declared independence from the mad tyrant in London, that taxes can oppress and even destroy. But they can also enrich the politically connected and their enterprises. In a democracy, the design of tax systems is central, and America today suffers a monstrosity that burdens most workers more than billionaires.

Enter Ray D. Madoff’s Second Estate, a book about the role of federal taxes in worsening inequality. Madoff, a professor at Boston College Law School, argues that income and wealth have become dangerously disconnected, that the rich can live tax-free by borrowing against assets, and that charitable vehicles like private foundations and so-called donor-advised funds worsen inequality rather than serve the public. Her title evokes the French nobility whom the crown exempted from taxes, a favor that helped sustain their lavish lifestyles while impoverishing everyone else. 

To understand Madoff’s book, imagine that you are an economist from another solar system, sent to stealthily observe earthly conditions. Your report would note that in wealthy countries taxes are more than a third of economic activity, poor ones half that much, and that contentment is highest in high-tax countries. 

Since high taxes align with prosperity, you might expect taxes to be something people love and embrace. Instead, you find that tax is a vile three-letter word, especially in the largest wealthy nation in the world. A society that cannot function without taxation has taught itself to see taxes as illegitimate.

It is this paradox that gives Second Estate its energy. Madoff contends that taxes in the United States do not simply raise revenue—they allocate privilege, as well. Workers face immediate withholding, wage reporting, and payroll levies, while owners of capital enjoy loopholes and leniency. A telling detail: Amazon founder Jeff Bezos used the child tax credit that Bill Clinton signed into law in 1997. Bezos got this benefit because the way Congress wrote the tax law, he is a pauper. 

How do gazillionaires pose as paupers? Congress lets them borrow against their assets, spending freely while showing no earnings. For years, Elon Musk paid himself a one-dollar salary while borrowing against Tesla stock to finance a lifestyle of palaces and private jets. On their tax forms, these men look poor.

Anyone can borrow, of course, but unless your wealth grows faster than your debts and interest, you will be crushed. For billionaires, whose fortunes compound faster than they can spend, borrowing is a tax-free fountain of cash. This “buy, borrow, die” strategy—buy appreciating assets, borrow against them during life, and die with the gains untaxed thanks to the step-up in basis—has become the template for dynastic wealth in America.

Allowing the super-rich to borrow and spend their untaxed wealth without bearing any of the burden of supporting the government that protects their lives and fortunes is just the start of a cornucopia of tax favors for the richest of the rich.

Consider income taxes. Workers pay higher tax rates than owners of capital. Earn a million dollars in wages, and your marginal tax rate is 37 percent. Realize a million in capital gains, and you pay 23.8 percent. That means a well-paid worker forks over more than half as much to Uncle Sam than the investor who cashes in. On top of that, workers pay payroll taxes. Social Security applies only up to a wage cap, but Medicare applies to every dollar earned, with a surtax on high earners. The few hundred Americans whose salaries exceed $50 million pay Medicare tax on every dollar. No investor pays anything comparable on their gains.

On this point, which was central to my 2003 tax book Perfectly Legal, Madoff is persuasive. America really does operate two tax systems: one for wage earners, whose income is independently verified and taxed at the source; and another for private business and real estate owners, who decide how and when to report, or whether to report at all. This asymmetry explains why workers cannot cheat and investors often can.

But the strength of Second Estate is also where its weaknesses appear. Nowhere does Madoff write that inequality would be reduced if the Social Security tax applied to all wages. Removing the cap would generate a torrent of revenue, shoring up its coming shortfalls and enabling increased benefits, particularly for the poorest among the elderly and disabled, thereby reducing inequality. Madoff calls payroll taxes “hidden,” even though they appear on every pay stub. She repeatedly cites the capital gains tax as 20 percent, omitting the 3.8 percent surtax imposed to fund the Affordable Care Act. She writes that income, capital gains, gift, and estate tax rates stack to produce levies as high as 74 percent, a mathematical fiction. These mistakes are not trivial. From a tax law professor, readers expect precision.

Equally troubling is what Madoff leaves out. In addition to Social Security tax reform, the word audit never appears in her book. Yet enforcement is the fulcrum of taxation. Congress requires employers to report wages and withhold taxes, but trusts business owners to self-report income, deductions, and estate transfers. 

Unsurprisingly, cheating is rampant. Donald Trump, for example, claimed fictitious companies and phony tax losses for at least seven years. Unless audited, such returns stand. And audits have collapsed. IRS auditors of large corporations cost taxpayers about $200,000 annually in salary and benefits, yet uncover nearly $20 million each in unpaid taxes. Any rational business would expand that workforce. Congressional Republicans instead decimated it. The IRS reported that in 2022 it completed just five audits of individual international tax returns, down from almost 8,300 in 2014.  The IRS completed only 38 audits of America’s 26,500 ultra-high-income individuals in 2018. In some years, low-income Americans have been more likely to be audited than those making more than $100,000. The collapse of enforcement is not a footnote: It is one of the chief reasons inequality has widened. By ignoring it, Madoff misses the engine that makes her strongest anecdotes possible.

Where she does train her fire, at length, is on philanthropy. Madoff devotes much of her book to what she characterizes as abuses by private foundations and by an equivalent used by many merely prosperous Americans (including my wife and me) called donor-advised funds.

She is right that some donor-advised accounts sit idle, and that wealthy families sometimes use foundations to maintain influence under the cover of charity. But her treatment makes them seem like the beating heart of inequality when in fact they are a small piece of the picture. The combined $1.7 trillion in endowments and donor-advised funds may sound vast, but it represents about 1 percent of national wealth. By comparison, capital gains preferences, gutted audits, and payroll tax caps shield sums that dwarf the charitable sector.

What is most frustrating is how little credit she gives to the practical safeguards that exist. Private foundations are required by law to pay out 5 percent of assets annually. In practice they exceed that. In 2022, the total figure was $103 billion—6.4 percent of assets. Donor-advised funds also pay out generously, though individual accounts can stagnate. To deal with this, many community foundations already enforce a rule that after three years of inactivity, the donor loses advisory privileges and the sponsoring foundation makes the grants. It is a sensible fix Congress could easily adopt. Madoff prefers to tar the entire vehicle with insinuations of a “wink-and-nod” culture.

That insinuation is not only unfair, it is demonstrably false. My wife, who ran a community foundation for three decades, oversaw thousands of grants each year. To test Madoff’s charge, I tried to recommend a grant from our family’s donor-advised fund to an organization that was authorized by Congress but not a 501(c)(3) charity. The software instantly blocked it. No wink, no nod. Her blanket suspicion of impropriety is less an argument than a smear, and it distracts from the real issues: how to make permanent charitable capital more accountable without destroying its usefulness.

Surprisingly, Madoff never questions why giving away appreciated stock subject to a 23.8 percent tax can produce a 37 percent tax savings instead of being limited to the value of the tax avoided.

Madoff also misses the history of reform proposals that could have helped her case. More than half a century ago, the charity reformers Pablo Eisenberg and Norton Kiritz urged Congress to require private foundations to evolve so that boards would eventually be controlled by outsiders rather than heirs. The Filer Commission, a national study of philanthropy in the 1970s, endorsed the idea on the grounds that “citizen empowerment” groups needed a chance to compete with the older, larger institutions that then enjoyed a near monopoly. By ignoring this history, Madoff forfeits the chance to show how her critique fits into a longer tradition of efforts to democratize philanthropy. 

Still, the book has value. She reminds readers that taxation is not an afterthought but the core act of democratic life.

The post How America’s Tax Code Built an Aristocracy appeared first on Washington Monthly.

Since Donald Trump regained the White House, news consumers have been inundated with stories about “pronatalism”—the ideology and movement gaining ground on the right that views falling birth rates as an existential crisis and encourages families to have more children. Trump has called himself the “fertilization president”; his ex-henchman Elon Musk has 14 children (give or take); and Vice President J. D. Vance has called for more children to be born and derided childless women. Because some of the movement’s loudest and most-covered champions are staunch conservatives with clear, if only sometimes overtly stated, ambitions to restore traditional gender roles, or even advance eugenics, many progressives’ initial reaction has been to consider the movement creepy and distasteful. Others have expressed concern that it will lead to the walking back of women’s rights. Yet a current of curiosity has crept into left-of-center media as people wrestle with what dramatic depopulation would really mean for standards of living across the globe. Vox published a story on pronatalism in May with the subtitle “Don’t let polarization distract you from one of the most important issues the world faces.” A month later, The New York Times ran a feature on the subject, “The Feminist Case for Spending Billions to Boost the Birthrate.” 

A new entry into this conversation is Dean Spears and Michael Geruso’s After the Spike. Spears and Geruso, both economists at the University of Texas at Austin, make the case that we should all be concerned about population decline as an existential threat. They contrast “two futures”: one in which global population peaks at 10 billion about 60 years from now and then stabilizes; and another in which it begins to fall, shrinking to 2 billion—the same as in 1927—within the next three centuries. Unless something changes, the authors contend, the second scenario is more likely. In such a world, they warn, standards of living will stagnate; fewer people means fewer innovations to improve our quality of life, from music to coffee to vaccines. More gravely, they claim, less innovation and fewer resources would cripple humanity’s ability to tackle major challenges, whether developing climate solutions or deflecting an asteroid hurtling toward Earth.

Spears and Geruso’s second scenario can sound alarmist. The first two chapters of their book lay out widely acknowledged facts. The birth rate is already below replacement rate in more countries than not. Further, as countries get richer, their birth rates go down; population decline will not be contained to currently wealthy, whiter countries. Nonetheless, not everyone sees this leading to catastrophe. The UN, for example, agrees that there is an 80 percent chance that the world population will peak in this century, but predicts that the peak will be followed by a “gradual decline,” not a crash.

Still, quibbling about the speed of population decline risks missing Spears and Geruso’s central point: Concern about shrinking numbers need not imply conservative views on gender roles, reproductive freedom, or indifference to climate change. (Geruso, after all, served on Joe Biden’s Council of Economic Advisers.) They know that persuading progressives is an uphill climb, which is why, after establishing the demographic facts, they immediately turn to dismantling the case against population growth. This early section, “The Case Against People,” tackles fears that more humans would worsen climate change, undermine women’s equality, or simply condemn children to suffering. The following section, “The Case for People,” flips the script: More people, the authors argue, means more creativity and innovation, and thus a greater capacity to solve problems large and small. They also advance an ethical claim: Future people “have a stake that counts,” and we should believe that they want to exist and that their lives will “have value.” The book ends by dismissing the usual policy levers—cash incentives and coercion—as either ineffective or immoral, and calls for new thinking on how to avert a demographic collapse. 

Spears and Geruso’s choice to rebut their critics before making their own case is unusual but effective. Their climate chapter, in particular, forces readers to confront a basic reality: The timelines for climate change and population decline don’t match. Barring something drastic, the global population will keep rising for the next 50-some years—well past the deadline for cutting emissions to avoid the worst climate scenarios. Depopulation half a century from now will not save us.

A chapter titled “Population Starts in Other People’s Bodies”—true enough, though a little glib coming from two men—argues that fertility need not decline further for gender equality to advance. A fertility rate around two, they contend, is compatible with women’s equity. They note that among countries with rates between one and two, the gender pay gap shows no correlation with birth rates. And in the U.S., from 1975 to 2010, when fertility stagnated, the pay gap narrowed significantly. Their conclusion is that stabilization and feminism can coexist—if men simply help more at home. “The clearest reason why stabilization need not be bad for women,” they write, “is that men could and should do more parenting and housework, across the many years it takes to raise a child.” But optimism alone won’t get men to change their behavior. What’s missing is policy to push them toward it.

Leaning on optimism is the through line of the book. “Progress happens wherever people are solving problems,” Spears and Geruso write, and they take this faith to its limit. The existence of more people, in their view, means more ideas, more discoveries, more resources. Depopulation, then, would be disastrous, choking off the innovations needed to tackle “fixed-cost” threats like climate change (or a killer asteroid). Their belief that sheer numbers will generate solutions to humanity’s gravest challenges is far more convincing than their suggestion that numbers alone  will mean that future men will cook dinner for their family. Men have begun to do more unpaid care work over the past few decades, but significant disparities remain stubbornly sticky. Women with children under six, for example, spend a third more time on child care each day than their male counterparts. While innovation has made it easier to recycle and drive an electric car, it has not made it easier to leave work in the middle of the day and pick up your sick kid from school. We need policy solutions that help turn optimism into reality.

Spears and Geruso have little to suggest. They can tell us with certainty that governments’ efforts at addressing population decline (or population growth) have never significantly moved the needle. Plans for government control aren’t just immoral, they’re also failures. The authors write, “Attempting to force fertility has influenced birth rates, especially over the short term, but has never actually had enough power and leverage to shove the world on or off the path of depopulation.” Likewise, the solution often promoted by progressives dabbling in natalism—public spending to make parenting easier—hasn’t seemed able to reverse the general trend. Denmark and Sweden, for example, both spend double what the U.S. does relative to GDP on family benefits and still have lower birth rates. Notably, the Trump administration’s proposals so far include small gestures at money and larger moves to limit reproductive choice, including reserving scholarships for people who are married or have children, “baby bonus” grants to new mothers, and restrictions on abortion paired with government education programs focused on fertility. Spears and Geruso would say none of these are likely to work. 

While the authors are clear that they are short on solutions, they do advance an interesting theory about the decline in global population: opportunity cost. People often claim they aren’t having as many children as they want to because they can’t afford them. This is a tempting explanation, especially in the U.S., where the cost of child care is too expensive for many families. Spears and Geruso, however, show that the decline in birth rates holds across states even as the cost of children—child care, housing, and so on—varies significantly. Why, then, are people telling us that kids are too expensive? The authors argue that they are saying that they have to give up too much to have children—not just money, but opportunities. As our choices about how to spend our time and make money and meaning in our lives have expanded, the opportunity cost of having a child has gone up. “A better world with better options makes parenting worse by comparison,” Spears and Geruso write.

If we are going to answer the authors’ call to find policy solutions, looking for ways to make parenting a better option seems like a good place to start. Money can help, but it’s insufficient; time is necessary, too. How do we make it easier for parents to leave work when their kid is sick without fearing the loss of either their next paycheck or essential opportunities? How do we support parents so they don’t have to choose between delaying having children and having a career? How do we get men to do more work at home? 

That final question is not just about feminist principles. Recent research from the Nobel Prize–winning economist Claudia Goldin suggests that more equitable distributions of caregiving within families might be essential to increasing fertility rates. Goldin found that the countries with the lowest fertility rates are ones that experienced the most rapid GNP growth. Opportunities opened up for women, but men’s attitudes had not shifted, and they remained unwilling to increase their share of housework and care duties. The ensuing conflicts—extreme versions of the stubborn gender disparities in the U.S.—led to a sharp decline in birth rates. The division of work at home appears to be significant to people’s fertility choices. 

These insights point toward a progressive agenda the book itself only gestures at: lowering the opportunity cost of children by giving parents more time. This means policies that let people leave and reenter the workforce more easily, that redesign careers so advancement doesn’t hinge on never stepping away, and that actively push for more equal divisions of care. Research needs to be done on what this kind of agenda could look like in the U.S. 

There are international models, among them Tokyo’s four-day workweek for municipal employees, and Iceland’s near-universal 36-hour week and its parental leave policy that assigns equal time (six months) to each parent. It is too early to know if Japan’s plan, rolled out this spring, will raise birth rates, as it is intended to do. Early studies from Iceland show not just happier families but also men spending significantly more time on child care and housework. And Iceland’s birth rate, while still below two, has remained higher than the rate in other Nordic countries.

Just as we should be using international comparisons of workweek and leave policies to learn about reducing opportunity costs by redistributing time, we can also compare the experience of different career paths to lead us to policy solutions. More than a century of gendered job segregation has also meant that careers traditionally dominated by women have developed career paths where the opportunity cost of children is lower. Take, for example, teaching and nursing, the two most common occupations for women today. Both typically require post-secondary degrees, but the training and the job itself are significantly different from advanced-degree career paths historically dominated by men. These jobs include more flexibility about when to enter training, how schedules align with caregiving, and how to step in and out of the workforce. There is surprisingly little research comparing fertility rates across specific professions in the U.S. (although there is quite a bit on how fertility correlates to education levels), but one preliminary analysis suggests that rates may be higher in certain woman-dominated professions. More rigorous research on this subject could help us understand if adaptations that originally grew out of gendered inequality now offer models for reducing opportunity costs of having children across professions.

Spears and Geruso compare themselves to the “climate pioneers of the 1950s.” While they believe we are near the peak of the population spike, they know we are at the beginning of building the body of research to support stabilization. Whether or not you accept their unique blend of alarmism and optimism, it’s clear that the opportunity cost of children is currently too high. Research to support stabilization is a worthy cause, because we should all want a world where children are seen as an opportunity, not a cost.

The post Running Out of People appeared first on Washington Monthly.

“On a chilly Saturday, December 13, 1952,” the historian Jill Lepore recounts in her new book, We the People, “the nine justices gathered in the first-floor conference room of the Supreme Court Building to begin their deliberations in Brown v. Board.” 

That judicial conference would eventually produce a blockbuster decision—one that set the tone of constitutional law for generations—but many Americans might have thought the justices were missing the real action that day, which was nearby at the National Archives: “twelve police motorcycles and four soldiers carrying submachine guns, followed by a bayonet-wielding honor guard, two military bands, two armored tanks (one of which broke down en route), and thirteen hundred servicemen and women.” At the center of this display, riding in their very own tank, were the parchment copies of the Declaration of Independence and the U.S. Constitution. The documents remain on display in the National Archives today, reverently viewed by visitors, much as Mao Zedong sleeps in his tomb in Tiananmen Square.

Lepore’s lively book makes clear what should be obvious: Whatever the U.S. Constitution is, it is not that heavily guarded parchment, and not even what is written on it. Nor is it, really, the amended text after 27 post-ratification changes, the most recent in 1992. The Constitution is a protean and elusive text, not simply because it has been formally changed but perhaps even more powerfully because it has been imagined and reimagined by generations of Americans; it is a collection of sacred wisdom understood—if at all—as much by reference to truths it does not speak as by the 7,500 words it actually contains, an object of reverence, fear, and superstition, not susceptible of final and authoritative interpretation by any citizen or judge. Some generations see it as on the point of death; others see it as bursting forth renewed by flame. 

No one, however, quite agrees on what it is. 

Lepore—one of the most graceful, talented, and original American historians writing today—retells a story told before in books like Akhil Reed Amar’s America’s Constitution. But she tells it differently. Lepore suggests that the nature of the Constitution is to be sought not in what it says, or even what it doesn’t say, but rather in what it could say if it were changed. Change, she argues, is its enduring nature and the essence of its revolutionary spirit: “By far the most radical innovation of the U.S. Constitution, and of state constitutions, was the provision they made for their own repair and improvement by the people themselves.” Lepore thus tells the story of the Constitution not simply through the changes that have been made in it, but through the failed attempts that have been made to amend it and the complex aftereffects of those failures.

The result is generous, highly original, and consistently fascinating—de-emphasizing the stories of the so-called Founding Fathers, and the amenders, and forwarding those of ordinary people, some of whom made constitutions of their own, from the multiplicity of state constitutions to the constitutions of Native nations like the Cherokee to the people of American colonial possessions like Puerto Rico and Hawaii. We the People is also, as a matter of constitutional discourse, profoundly, indeed joyously, subversive. 

Lepore fires a devastating volley at the foundation of most legal scholarship and the subtopic within it called “Constitutional History”—the successful restriction of “valid” source material to an easily managed set of sources, mostly bound in matching sets of court reporters. That narrowing makes the construction of arguments within the field tidy and quick, centering the writings of long-dead judges. (Think of Justice Samuel Alito, in his savage attack on abortion rights cheerfully citing Henry de Bracton’s 13th-century De Legibus et Consuetudinibus Angliae while tiptoeing, with daintily pursed lips, past the voluminous record of American women’s actual experience over two and a half centuries.) Lepore savages the ongoing constitutional mummery that its adherents call “originalism”—the philosophy that reigns, at least when convenient, over the Supreme Court and an increasing share of the legal academy. Lepore defines “originalism” as “insistence that the only way to interpret the Constitution is to read it the way a probate judge reads a dead man’s last will and testament.”

“Originalism follows rules of evidence that no historian could accept,” she writes, quoting Robert Bork’s edict that private writings by the powerful and the powerless “count for nothing.”

“For the historian, unpublished documents written by less powerful people do not ‘count for nothing’; in fact, they count for rather a lot.” 

With that, Lepore opens the door to a cornucopia of sources, characters, and stories that even the best constitutional histories often omit—documents like the 18th- and 19th-century constitutions written by Native nations; the forward-looking constitutions written by the biracial Reconstruction governments after the Civil War; Ke Kumukānāwai a me nā Kānāwai o ko Hawai’i Pae ‘Āina, the written constitution decreed by Hawaii’s King Kamehameha III in 1840, altered by his successor Kamehameha V, and forcibly replaced in 1887 by the white colonialist “Bayonet Constitution”; and La Constitución del Estado Libre Asociado de Puerto Rico, which was written for the American colony by a convention legally barred from even discussing independence and which cannot be amended without Congress’s approval. 

The complex history of amendment begins even before the Constitution was ratified, because state conventions that approved the new constitution did so while loudly demanding the immediate adoption of a bill of rights. When James Madison produced a proposal for one in the First Congress, the members held a consequential debate that Lepore characterizes as “incorporationists” versus “supplementalists”; the two sides differed on how amendments should be treated. Madison wanted amendments to appear as changes to the document itself; opponents insisted that they should appear at the end of the document, leaving the original text inviolate. “The supplementalists prevailed,” she writes, “apparently because they threatened to reject the amendments if the incorporationists didn’t stand down.” Two centuries later, this mistake (and mistake it was) looms large in our history—because, among other things, the Second Amendment would seem like a different animal if it were written into Article I, Section 8, Clauses 11–16—setting out in detail the extent, and limitation, of Congress’s powers over the militia. That context would suggest to any reader that “the right of the people to keep and bear arms” also concerns the militia, not Antonin Scalia’s imaginary free-floating individual right. 

A lot of dead people might be alive today if Madison had won that fight. Constitutional debates are almost always matters of life and death. (Brown v. Board, for example, did lead directly to blood on southern pavements and armed soldiers desegregating schools.)

After that beginning, We the People tells the story of the fight for amendments from 1789 to 1992. Poignantly enough, the most recent successful amendment—concerning congressional pay—was one proposed by Madison himself, which took two centuries to glean the necessary three-quarters approval of states. But the book does the signal service of making this old story new, and peopling it with characters who have been recognized only dimly, if at all, from the Founding: Sconetoyah (Cherokee), Tobocah (Choctaw), and Muckleshamingo (Chickasaw) represented Indigenous populations who knew something was up in Philadelphia (they arrived during the Constitutional Convention to ask politely for inclusion, and got none). From the Civil War era: Francis Lieber, the farsighted German immigrant who foresaw that slavery would tear the Union apart and that constitutional amendments would be needed to restore it; and Maria Henrietta Pinckney, described by her contemporaries as “a woman of masculine intellect” and a stalwart defender of slavery and constitutional nullification. From the Progressive Era: Charles Beard, whose 1913 book, An Economic Interpretation of the Constitution of the United States, pointed out that the men who drafted the Constitution had adroitly protected their own interests before anyone else’s—and became “the most influential and most controversial book ever written about the Constitution.” And from the 1950s, Ethel Payne, “five foot three, and indomitable,” who as a reporter for The Chicago Defender witnessed the oral argument in Brown and the birth of the movement to amend the Constitution to repeal the decision—and then, like a kind of journalistic Zelig, jetted off to Bandung, Indonesia, to cover the historic conference that she called “a summoning of the darker people of the world.” Payne’s story is paired with that of David Mays, the quiet lawyer from Richmond, Virginia, “a child of the Lost Cause” who devoted much of his life to advocating for the reversal of Brown, and laid the foundation for the dawn of originalism.

Most haunting to me is Lepore’s poetic invocation of Lydia Kamakaeha Lili’uokalani, the last monarch of independent Hawaii, who for the crime of seeking to restore the kingdom’s true constitution spent the last years of her reign “locked in an upstairs bedroom in the royal palace as if she were Rapunzel” and was denied any reading material, except what could be smuggled in disguised as wrapping for flowers. 

We the People in outline follows the main channel of American history—the battle over federal power, then over slavery and Reconstruction, then over regulation of the economy and finally over civil rights and human equality. The book also recounts the story of successful amendments—1913, for example, brought us the elected Senate and the income tax, both adopted by overwhelming popular mobilization. She also narrates some lost ones that fit the master narrative—the proposed Thirteenth Amendment of 1861, passed by a desperate Congress and endorsed by a desperate Abraham Lincoln, which bargained the South’s remaining in the Union for a guarantee that slavery could never be outlawed. The failure of the Equal Rights Amendment, despite overwhelming support, supplies a mournful chapter. I regret the omission of some that represent digressions from the master narrative—most notably yet another lost Thirteenth Amendment, proposed by the two houses of Congress in 1810, which would have stripped citizenship from any American who accepted a noble title or pension “from any emperor, king, prince or foreign power.” (Though never ratified, this amendment was mistakenly included in a number of printed copies of the Constitution; to this day, I sometimes meet folk from the Pacific Northwest mountains who assure me that this amendment renders lawyers unconstitutional.) I wish, too, that We the People gave a fuller account of the popular mobilization that pushed the Seventeenth Amendment (popular election of senators) through a reluctant Congress, and mentioned my favorite “Founding Father,” Joseph Bristow of Kansas, who sponsored the popular-election amendment in 1911.

The book ends with the melancholy story of the end of amendment and the rise of originalism—the replacement, in the American mind, of a “living document” with Scalia’s Constitution that is “Dead, dead, dead!” Originalism emerged in 1971, around the time that entrenched partisanship made formal amendment impossible. As the nation lost the will and creativity to remake the Constitution (for example, by abolishing the Electoral College), it began to shake itself to pieces, and has reached a crisis that looks as if it may be its death agony.

Lepore is an American, though, and optimism is the fundamental American creed. She ends the book, not in despair—“a philosophy of doom is an undemanding doctrine, and doomsday books are easy to write”—but with a call for a fundamental remaking of the Constitution not simply to democratize our policy but to include among its constituents the natural world itself:

Americans might learn again to amend, or else they could invent a new instrument to guarantee liberty, promote equality, nurture families, knit communities, thwart tyranny, and avert the destruction of a habitable earth. Constitutions began with stones and seashells, with old books and oak trees, with sheepskin and goose feathers. From the burning, scorched earth, new ideas might arise once more, seedlings, sprouting, tendrils winding to the sun.

The post Constitution in Progress appeared first on Washington Monthly.

In 1949, the historian Arthur Schlesinger Jr. wrote a book defending liberal democracy. It was called The Vital Center. In it, he asked, “Why has American conservatism been so rarely marked by stability or political responsibility?”

Two years later, Regnery Publishing released a slender book by a self-proclaimed “radical conservative” that almost seemed designed to confirm Schlesinger’s misgivings. It was called God and Man at Yale. The book appeared as Yale celebrated its 250th anniversary, and its depiction of the campus as a hotbed of “atheism” and “collectivism” created a furor. Writing in The Atlantic Monthly, for example, the Yale alumnus and Harvard professor McGeorge Bundy dismissed its author as a “twisted and ignorant young man.” 

The young man was delighted. In New Haven, William F. Buckley Jr.’s rhetorical prowess had made him what his classmate Gaddis Smith, later a Yale historian, deemed “almost a God-like figure.” Now his best-selling book not only catapulted him to national fame—Time called him a “rebel in reverse”—but also spawned a new and lucrative anti–Ivy League genre, from Allan Bloom’s The Closing of the American Mind (1987), Roger Kimball’s Tenured Radicals (1990), and Dinesh D’Souza’s Illiberal Education (1991), all the way up to Christopher Rufo’s America’s Cultural Revolution (2023). Buckley’s influence on generations of conservatives can hardly be overstated. He was the St. Paul of the movement, a tireless proselytizer for the true faith. His activities—he wrote thousands of newspaper columns, published dozens of books and novels, worked as a CIA agent, founded the National Review, debated James Baldwin and Gore Vidal, championed the political fortunes of Joseph McCarthy, Barry Goldwater, and Ronald Reagan, befriended leading liberals such as John Kenneth Galbraith and Murray Kempton, and presided genially, if often lethally, over the popular television show Firing Line—were legion. What to make of it all?

Enter Sam Tanenhaus. In a grand biography, Buckley: The Life and the Revolution That Changed America, Tanenhaus closely traces Buckley’s remarkable odyssey from a cossetted Catholic childhood to titular leader of the conservative movement. Tanenhaus is a former editor of The New York Times Book Review and the author of a widely hailed biography of Whittaker Chambers that appeared in 1997. Tanenhaus explains that even before completing his study of Chambers, a former Soviet agent turned anti-communist who testified against the State Department official Alger Hiss in a famous spy case in 1948, it occurred to him that the obvious bookend to his life was a work about Buckley’s. Though this is not an authorized biography, Tanenhaus, who spent several decades researching Buckley’s life, received his full cooperation, conducting numerous interviews with him and his associates as well as performing prodigies of research in Buckley’s private papers. 

Like not a few conservatives, Buckley idolized Chambers. But Buckley never heeded Chambers’s warning that his hero Senator Joseph McCarthy—“a raven of disaster”—would bring discredit on the fledgling conservative movement. Tanenhaus skillfully excavates much revealing material about Buckley’s political stances—toward McCarthy, the civil rights movement, gay rights, and South Africa—to highlight that he often spectacularly misfired in his judgments. Above all, he shows that Buckley, who repeatedly attempted to make a coherent intellectual case for conservatism, could never articulate what it was supposed to consist of apart from owning the libs. Though Tanenhaus does not himself explicitly seek to draw a line from the conservative past to the present, his chronicle suggests that radicalism has been the political right’s natural habitat.

Buckley, who was born in 1925, inherited much of his buccaneering temperament from his father, William F. Buckley Sr. A larger-than-life figure—a staunch Catholic, lawyer, real estate investor, and Wall Street speculator—W.F. was expelled from Mexico in 1921 for his support for counterrevolutionaries. He experienced bankruptcy at age forty and recouped his fortunes with an oil concession in Venezuela. In 1924, he purchased an estate in Sharon, Connecticut, that he renamed Great Elm. An anti-Semite and a foe of the New Deal (which he saw as tantamount to Bolshevism), W.F.’s reactionary beliefs were echoed by his third son, Billy, who strove to show that he was loyal “to any of Father’s opinions.” 

Chief among them was the conviction that aiding Great Britain in its battle against Nazi Germany would be a colossal mistake. The household hero was, of course, Charles Lindbergh, the famed aviator and head of the America First movement (which was founded in 1940). Lindbergh had accepted the Service Cross of the German Eagle from Hermann Goering in 1938. Three years later, in a notorious speech in Des Moines called “Who Are the War Agitators?,” Lindbergh blamed Jewish influence for trying to push America into World War II. He and his followers asserted that a Fortress America was the way to go. According to Tanenhaus, “W.F. Buckley’s view, and thus his children’s, was that America’s business with foreign nations should be restricted to business in the most literal sense: trade and investment of the kind Buckley Sr. himself had pursued throughout his career.” At Millbrook, a prep school in New York, a 15-year-old Buckley delivered his first public speech, “In Defense of Charles Lindbergh,” a denunciation of the critics of the Lone Eagle for blackening the name of a true patriot whose final mission—warning Americans that a Nazi triumph in Europe was inevitable—should be heeded rather than scorned.

Buckley not only absorbed isolationist thinking but also imbibed Social Darwinist precepts. He was thus spellbound by Albert Jay Nock, a close friend of Buckley Sr.’s and frequent visitor to Great Elm who wore a cape, carried a walking stick, and wrote an influential book in 1935 whose lapidary title said it all—Our Enemy, the State. In Nock’s view, only something he called “the Remnant”—a conservative aristocracy—could safely steward America’s future fortunes. In 1943, Buckley Jr. wrote an essay that was very much in the Nockian spirit at Millbrook, lamenting that the “great defect in our democracy” was the “ultra-democratic” system of suffrage that allowed all citizens to vote. It was a conviction that he never entirely shed.

At Yale, which he entered in 1946 after serving in the U.S. Army, Buckley discovered a new mentor, Willmoore Kendall. Kendall was a riveting figure on campus, at least for a select few—a brilliantly talented professor of political theory with a choleric temperament, he relished debating (and molding) his young charges. In his short story “Mosby’s Memoirs,” Saul Bellow observed that Willis Mosby, who is based on Kendall, had “made some of the most interesting mistakes a man could make in the Twentieth Century.” A former Trotskyist turned anti-communist, Kendall—“an out-and-out conservative,” as Bellow put it—saw liberals as an internal enemy that needed to be suppressed.

Buckley, too, was an out-and-out conservative. Like Kendall, he admired McCarthy as someone who could administer vigilante justice and, incidentally, bring the nascent conservative movement to power. Once upon a time, Buckley had defended the free speech rights of Lindbergh and pooh-poohed the Nazi threat. Now that communism menaced America, the rules of the game had changed. The moment had arrived to exile the infidels who had effectively revoked their right to American citizenship. “The true American tradition,” Kendall wrote, “is less that of Fourth of July orations and our constitutional law textbooks, with their cluck-clucking over the so-called preferred freedoms, than, quite simply, that of riding somebody out of town on a rail.” Buckley and L. Brent Bozell Jr.—his closest friend at Yale and future brother-in-law—would eagerly spread that message for years to come. 

Tanenhaus puts his finger on the Buckley phenomenon: He “might or might not be the best new conservative writer and talker, but he was fast becoming its most entertaining—and possibly represented a new kind of public figure: not precisely a journalist or commentator or analyst but a performing ideologue.” Buckley, you could even say, pioneered a kind of shock therapy against liberals. After God and Man At Yale, his next great opportunity to needle them arrived with a book co-written with Bozell. It was conceived under the direction of Kendall, whom Tanenhaus vividly describes as “pacing the living room with a tumbler of whiskey and dropping cigarette ashes onto the carpet” as he “expounded on the ‘theoretic aspects of McCarthyism.’ ” When it appeared in 1954, the best-selling McCarthy and His Enemies insisted that McCarthyism formed “a movement around which men of good will and stern morality can close ranks.” 

McCarthy was baffled. He said that the book was “too intellectual” for him to comprehend. But its thrust was clear enough. While Buckley and Bozell were careful to play up the domestic communist peril, they noted that another group of Americans would eventually come into their gun sights—“Some day the patience of America may at last be exhausted, and we will strike out against Liberals.” Such were the “theoretic aspects of McCarthyism” as defined by its youthful adepts.

Buckley was a key part of McCarthy’s circle, as was Bozell, who worked as a speechwriter for him. In 1954, at a banquet at the Waldorf Astoria, Buckley praised McCarthy’s former aide Roy Cohn (a future mentor to Donald Trump) as someone who “chose not to observe the Racquet and Lawn Club rules for dealing with the Communists in our midst.” 

All along Buckley had recognized that McCarthy offered an essential glue for the fledgling conservative movement. Buckley never deviated from his fealty to McCarthy, writing a novel, The Redhunter, in 1999 that lauded his unstinting efforts to expose communist subversives working in the highest levels of government. According to Tanenhaus, “The carnal hunt for enemies within, the unmasking of their apologists and allies, real and more often fanciful, brought together diverse factions of a weak and fragmented movement in the growing war against the New Deal and its aftermath.” Bashing Ivy League professors was one thing. But targeting the larger universe of functionaries in the State Department, the CIA, and even the U.S. Army was another. If executed with sufficient rigor, it offered the chance to carry out a cultural and political revolution to subvert the subversives—what the right now refers to as the “deep state.” 

In 1955, Buckley, together with a crew of ex-communists that included Willi Schlamm and James Burnham, founded the National Review. It was an exercise in right-wing revanchism, flaying the Eisenhower administration for appeasing the Soviet Union, decrying liberal journalists and academics and complaining about an unelected ruling class that controlled government, schools, and entertainment. One contributor, Karl Hess, recalled, “At the time, I’m not too sure that any of us thought there was a lunatic fringe.” The essayist Dwight Macdonald astutely noted that the magazine was “not a conservative magazine precisely because it doesn’t stick to tradition, to conservative principles, but simply expresses the viewpoint of the Buckley type of anti-liberals, which are much too close to McCarthy for my taste.”

There was another issue on which Buckley and his chums separated themselves from the Eisenhower administration. That issue was race. In one of his most absorbing chapters, Tanenhaus scrutinizes Buckley’s experiences in Camden, South Carolina, where his family owned an estate called Kamschatka that had been the residence of the famous Civil War diarist Mary Boykin Chesnut. Tanenhaus reveals that in October 1949, Buckley’s father attended a secret meeting at the New York University Club that had been convened by the reactionary businessman Merwin Hart, an admirer of the Spanish dictator Francisco Franco and a virulent anti-Semite. The men Hart had assembled, Tanenhaus writes, “were looking ahead to a new domestic insurgency built on the campaign to preserve legal segregation in the South.” After the 1955 Brown v. Board Supreme Court decision, the Buckley family singlehandedly financed a weekly called the Camden News that opposed the desegregation of the South, disseminating the same themes as a local “Citizens’ Council” that was opposed to “race mixing.” Tanenhaus devotes much attention to the slippery arguments that the National Review engaged in to justify southern recalcitrance. It went from embracing majority rule to expel communists from America to endorsing John C. Calhoun’s abstruse constitutional defenses of the rights of the minority, which were centered on his nullification, or states’ rights, doctrine. Buckley viewed the issue of states’ rights as providing an “immensely rejuvenating theoretic substance” for the conservative movement. In 1957, he wrote an editorial headlined “Why the South Must Prevail.” In 1960, Kendall argued that Black Americans were actually a privileged class because they lived better than “most of the population of the world,” while Buckley argued that giving African Americans the right to vote would in essence disenfranchise whites. “In 1959,” Tanenhaus writes, “Buckley’s solution was the same one he had made as a teenager writing about the great ‘defect’ in democracy.” 

Buckley’s cavalier approach to democracy manifested itself once more during Watergate. George F. Will, who had become the National Review’s Washington correspondent and a fierce critic of Richard Nixon, mordantly observed that his colleagues “didn’t really like Nixon until it became clear he was a criminal.” Buckley, who was a close friend of the CIA operative Howard Hunt, knew more about Watergate than almost anyone outside the White House. He knew that the crimes had started with Attorney General John Mitchell. He knew that they reached the White House. Like a loyal clubman, Tanenhaus writes, Buckley adhered to a code of silence, disclosing nothing to Congress or the Justice Department.

With the rise of Ronald Reagan, Buckley’s movement conservatism was at its zenith. But Buckley himself had long since peaked. He never received a cabinet position, and Reagan dissed him by failing to show up for the National Review’s annual dinner at the Plaza Hotel in 1980. “He had become the Upper East Side poster version of Reagan’s America,” Tanenhaus notes, “and seemed to be living not so much in a bubble as in a luxuriously appointed helium balloon.” His former protégé Garry Wills concluded that Buckley had become “unwillingly a dandy, a Nock, after all.” 

He remained capable of stirring up indignation, writing an op-ed in 1986 in The New York Times that anyone detected with AIDS should be tattooed in the upper forearm to “prevent the victimization of other homosexuals.” Buckley also supported Patrick J. Buchanan’s call for a culture war at the 1992 Republican convention in Houston. When it came to the National Review itself, Buckley blundered in 1997, appointing Rich Lowry (rather than David Brooks or David Frum) as editor solely because he “thought it would be wrong for the next editor to be other than a believing Christian.” 

Tanenhaus does not speculate on what Buckley would have made of Donald Trump, who has revivified many of the populist themes that Buckley and his pals had enunciated during the 1950s, when McCarthy served as their battering ram against the deep state. Instead, he concludes on an elegiac note. “Like F. Scott Fitzgerald, a writer he admired and identified with,” he writes, “Buckley was loath to give up his unwariness—an aspect of faith and also, as he found repeatedly, of faith’s dark twin, delusion. He was not always able to distinguish one from the other, but in that he was far from alone.” In so gracefully charting Buckley’s career and foibles, Tanenhaus’s magnificent work about Buckley goes a long way toward answering the query that Arthur M. Schlesinger Jr. originally posed in 1949. Anyone searching for a stable or politically responsible American conservatism should look elsewhere.

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In March 1944, the Third Reich occupied Hungary, a country that until then had been one of Berlin’s closest allies. One of those who arrived with the invading forces was a lieutenant colonel in the SS named Kurt Becher. The SS leader Heinrich Himmler, one of Adolf Hitler’s closest confidants, had tasked Becher with stealing the wealth and resources of the country’s Jews. Himmler, in ferocious rivalry with other high-ranking Nazis, was keen to expand his economic empire. Becher, a rakish equestrian and collector of paramours, was happy to assist—making sure to line his pockets in the process.

Becher’s masterstroke was expropriating the family-owned Weiss steelworks and arms factory, one of Hungary’s most critical industrial assets. By this point, the Nazis had already exterminated millions of European Jews, so it wasn’t hard for Becher to bully the Weiss clan into handing their property to the SS. (Judicious application of torture and threats likely helped move things along.) Once the paperwork was finished, Becher arranged for the Weiss family to be ferried to safety in Switzerland—just as he had promised. Becher “was well educated, courteous, a gentleman who kept his word,” recalled one member of the Weiss clan after the war. “He was polite and businesslike.” 

One might ask why this “gentleman” didn’t simply kill the owners and take what he wanted. The answer provided by the Budapest-based British journalist Adam LeBor is at the heart of his fascinating book, which charts the fate of a country that became one of Nazi Germany’s closest wartime allies—and then tried, unsuccessfully, to extricate itself when it realized it was on the losing side. Becher sealed his deal with the Weiss family when both Berlin and Budapest were striving to maintain the illusion that Hungary was independent despite its occupation. By preserving the facade of a conventional business transaction, he could preempt complaints from the Hungarian leadership about the theft of one of their leading industrial enterprises. “Germany,” LeBor writes, “still needed Hungary as an ally.” Hitler required the cooperation of Hungary’s bureaucracy to wipe out the country’s Jews—the last large Jewish population left in Europe. 

As LeBor shows, the story of Hungary’s relationship with Hitler’s Germany was a complicated one. Right up until the occupation, Budapest had spent years as a close ally of the Third Reich. Like Germany, Hungary emerged from World War I bitter about its treatment by the victorious powers. (Hungary had fought as part of the Austro-Hungarian Empire, but ended up as an independent nation after the empire’s collapse in 1918.) In the 1920 Treaty of Trianon, the Allies imposed a harsh peace that stripped Hungary of two-thirds of its territory and 3.3 million people. A brief communist revolution in 1919 and the far-right backlash that ensued reinforced a sense that Hungarian society faced an existential threat. The man who offered the only viable solution, in the eyes of many Hungarians, was Miklós Horthy, a rare figure to emerge from the war as a genuine hero. (Horthy had finished it as commander in chief of the Austro-Hungarian navy—hence his peculiar status as an ex-admiral who ruled a landlocked country.) Having assumed wide-ranging powers as the national leader in 1920, in the immediate aftermath of the war, he embodied the feudal and reactionary mind-set of the Hungarian elite, which included a virulent strain of anti-Semitism.

And yet, as LeBor notes, “Horthy was neither a Nazi nor a Fascist.” His ideology “was a synthesis of authoritarian national conservatism, while Hungary was a managed quasi-democracy.” There was a measure of press freedom, and opposition parties were seated in parliament. But elections were fixed. 

The admiral looked with suspicion on all revolutionary impulses, on the right as well as the left. He included a few Jews (rendered acceptable by their social status and conservative views) among his friends. Even so, Horthy’s desperation to restore his national greatness throughout the interwar period brought him into sync with Germany. Hitler, another ex-subject of the Hapsburg Empire, knew how to exploit Hungarian weaknesses. On several occasions, the Führer made a point of handing Horthy snippets from his territorial gains. Hungary was the fourth country to join the Axis powers (in November 1940). In 1941, Budapest allowed German troops to pass through its (ostensibly neutral) country to invade Yugoslavia. Hitler lost no time in rewarding the Hungarians: “Northern Yugoslavia was added to the lands returned to Hungary under the two Vienna awards and the occupation of Carpatho-Ruthenia,” writes Lebor. “By the end of April, Hungary had recovered 53 percent of the territories lost at Trianon.”

Budapest would not get much time to enjoy the new turf. Within months, its soldiers joined Hitler’s disastrous invasion of the Soviet Union. It was soon clear that Hungary’s partnership with the Third Reich would drag the country into the abyss. In November 1944, as Soviet forces pushed into central Europe, Hitler declared Budapest a “fortress city,” meaning its defenders would fight to the last man. Three months later, the former jewel of central Europe looked like Stalingrad. Around 40,000 German and Hungarian troops had been killed; 80,000 Soviet soldiers lost their lives. The savagery of the fighting helps to explain the viciousness of the Soviet invaders, who raped thousands of Hungarian women. Overall, some 300,000 Hungarian soldiers would lose their lives fighting for the Axis. 

But the number of civilians who died was even greater—most of them Jews murdered in the Holocaust. (The total also includes 23,000 Roma and Sinti killed in Auschwitz.) One million Jews lived in Hungary by the end of the 1930s (out of a population of around 15 million). By the war’s end, 550,000 were dead, gassed at Auschwitz, or worked to death in brutal “labor battalions.” The slaughter was engineered mainly by the “emigration expert” Adolf Eichmann, who had sent hundreds of thousands of other Jews to the killing centers.

The Jews of Budapest knew what this blue-eyed SS bureaucrat in the Hotel Majestic stood for. “When one of Eichmann’s officials asked for a piano, he was offered eight,” LeBor writes. “He replied that he simply wished to play the instrument, not open a shop.” One can easily imagine the terror Jewish leaders felt in his presence. They were even more astounded when Eichmann proposed a deal—an exchange of 1 million Jews for goods and materials. By this time, well into 1944, Eichmann’s boss, Himmler, was positioning himself for German defeat. Perhaps it was time to build “good will” with the Jews.

That deal came to nothing. However, another would prove more successful, mediated by the “gentleman” Kurt Becher (Eichmann’s nemesis within the SS). Two Jewish leaders, Joel Brand and Rezső Kasztner, collected enough gold, jewels, and money to persuade Becher to authorize a VIP train out of Hungary for well-connected individuals; 1,700 Jews were ultimately saved. But Kasztner, who found a new home in Israel, would remain haunted by his dealings with the SS for the rest of his life. After the war, he vouched for Becher, helping him avoid Allied prosecution. Becher became a wealthy West German industrialist and, like so many other high-ranking Nazis, faced no accountability for his role in mass murder. Kasztner, in a sick twist of fate, was accused by fellow Jews of collaboration and was shot and killed by an assassin—an Israeli—in 1957.

Yet LeBor’s dark tale does offer moments of consolation. He has opened rich veins of reporting on the heroic efforts of neutral diplomats—the Spaniard Giorgio Perlasca, the Swiss Carl Lutz, and the Swede Raoul Wallenberg—who saved countless Jewish lives by offering havens in protected buildings or providing them with spurious citizenship. In many cases, LeBor notes, “the whole operation had no real basis in international law. It was all a giant bluff, a deadly game of wartime poker.” Wallenberg and Becher, who shared a love of horses, became friends. (The heroic Swede did not, however, manage to find common cause with the Soviets, who abducted him in January 1945; his fate is unknown to this day.)

Particularly compelling is LeBor’s account of Zionist fighters who passed as members of the fascist Arrow Cross militia during the occupation:

On one such mission, one of the young Jewish men in Arrow Cross uniform was recognized by someone from his hometown, who started yelling he was a Jew. A hostile crowd soon gathered, demanding that he be taken to the police station. At that moment, two more Arrow Cross militiamen appeared, drew their guns and jabbed the two fake Arrow Cross men in the back, and marched them off down a side street. Once out of sight of the mob, they embraced. The new Arrow Cross gunmen were actually members of Dror, one of the Zionist youth movements, who came to rescue their comrades. 

Many Hungarians protected their Jewish neighbors—a reminder that far from all collaborated with the Nazis. “In 1945, the Budapest Jewish community was the largest single group of survivors in Nazi-occupied Europe, although a large number emigrated to the West or Palestine,” LeBor writes. However, he notes, survivors faced a cold welcome from those who had appropriated their homes and possessions in their absence. As LeBor writes, Hungarians can’t claim the same inspiring record of behavior as the Danes or even the Bulgarians, who showed that it was possible to defy the Germans with determined policies.

It should come as little surprise that Holocaust commemorations in today’s Hungary are correspondingly mixed. Budapest boasts a Holocaust Memorial Center and a number of smaller memorials around the city, including a “row of metal shoes along the Danube embankment” where Hungarian Nazis shot their victims into the river. But LeBor notes a widespread nostalgia for the Horthy era and detects a “reluctance” to acknowledge Hungarian deportations of Jewish citizens to the death camps. (Hungarian Prime Minister Viktor Orbán, who has condemned anti-Semitism but has also been accused of flirting with it, has spent much of his term in office rehabilitating Horthy as a great Hungarian patriot.) When LeBor sets out to find the Majestic Hotel, where Adolf Eichmann once decided the fate of thousands, he discovers that it has been turned into an apartment building, with no indication of what occurred there. We should be thankful that Adam LeBor’s book fills the gaps.

The post What Hungary Lost When It Obeyed in Advance appeared first on Washington Monthly.

As President Donald Trump sweeps the law aside, indiscriminately firing government employees, closing agencies and departments, pressuring law firms and universities, and seizing people residing lawfully in the country without due process, the nation’s eyes have turned to John Roberts. Surely, the chief justice of the Supreme Court, guardian of institutional legitimacy, will draw a constitutional red line. 

Yet Trump has thus far governed on the opposite assumption—that the Roberts Court won’t stop him—and he has good reason to believe as much. Nowhere is this clearer than in Trump v. United States, the presidential immunity case decided last year. Roberts overlooked what was in front of his nose, the January 6 assault on the Capitol, and instead penned an opinion that on its face immunized presidents against legal responsibility if they were engaged in “official acts.” Roberts insisted that this was necessary, lest presidents be afraid to make the tough decisions that often fall to them. For a Court that so frequently turns to history, one had to wonder just what history the Court was looking at. Presidents in the second half of the 20th century, even after Watergate, have not exactly been shy about claiming sweeping official power. 

Trump seems to have taken the ruling’s central lessons to heart: By way of executive order, clothing his action with the veneer of an “official act,” he has asked the Justice Department to open an investigation into Christopher Krebs, his former director of cybersecurity, for telling the truth to the American people. As Trump was lying about the 2020 election results, and falsely claiming election fraud and interference, Krebs, doing his job, insisted that, according to the evidence, the 2020 election was free and fair. For this, Trump is attempting to use the power of his presidency to punish Krebs. 

Should the chief justice be surprised? Is he surprised that Trump might ignore the Supreme Court and disregard the niceties of the Constitution? What will the Court decide with regard to the president’s blunderbuss tariffs, his shipping of people out of the country without due process, and his firing the heads of independent regulatory agencies without cause? 

Leah Litman gives us good reason to doubt that the Roberts Court will hem Trump in. Indeed, her new book, Lawless, seeks to demonstrate that this Court was constructed to advance a Republican agenda. When Justice Antonin Scalia passed away at the beginning of an election year, then Senate Majority Leader Mitch McConnell refused to hold a confirmation vote for Barack Obama’s Supreme Court appointee. Yet when Justice Ruth Bader Ginsburg died with early voting already underway in the 2020 election, McConnell muscled Justice Amy Coney Barrett’s confirmation through the Senate. Politics over rules. If Litman is right, there is little hope that the Court will tame a lawless administration; because it is driven by “conservative grievance,” not law. 

A professor of law at the University of Michigan, former clerk to Justice Anthony Kennedy, and cohost of the hit podcast Strict Scrutiny, Litman is writing for fans, not to persuade perplexed Court observers. Each chapter is contrived around pop culture references, like “The Ken-Surrection of the Courts” and “The American Psychos on the Supreme Court”—the former referring to the Barbie movie and the Court’s rollback of women’s reproductive rights, and the latter referring to Christian Bale’s character in American Psycho and the Court’s “murder” of the administrative state. Lawless is filled with casual snark: “Okay, but that’s just like your opinion, bro(s)”; “Come on!”; “Maybe that is true … On Mars”; “Duh!”; and “O RLY?” Litman fans—and there are many—will love it. As an occasional listener to Strict Scrutiny, which is both insightful and entertaining, I found the snark somewhat distracting and juvenile. 

It’s too bad. Litman has a serious argument here: We should understand the Supreme Court as part of the Republican coalition, undoing wide swaths of law to advance the party’s political agenda. She is at her most compelling when illuminating how the Court’s opinions are part of this larger political and constitutional project, not isolated instances of constitutional interpretation. Consider the Court’s Dobbs decision, which overturned Roe v. Wade. There are long-standing jurisprudential criticisms of Roe, some of which can even trace their lineage back to Justice Ginsburg. Yet what Litman illustrates is that overturning Roe was part of a conservative vision that goes beyond reproductive rights. Abortion rights, as Litman argues, symbolized “feminism and feminists,” and Republicans sought to roll back advances in gender equality, which many saw as an attack on the family. William Rehnquist, as a young lawyer in the Nixon administration, insisted that outlawing sex discrimination would lead to the “dissolution of the family.” Samuel Alito similarly opposed changes that would bring women to Princeton, criticized the availability of birth control, and, as a young lawyer in the Reagan administration, argued for overturning Roe. Alito got his wish three decades later when he authored Dobbs. 

Dobbs is not disembodied jurisprudence that exists outside of politics. For Litman, it is part of a larger political effort to reject gender equality. This attitude—grievance, as Litman has it—is manifest in J. D. Vance’s quip about “childless cat women” or that women who do not have children are “sociopathic” and “shouldn’t get nearly the same voice” in politics as people with children. Dobbs is the opening salvo: Birth control, giving women the ability to make fundamental choices about family and careers, has come under attack in Republican-controlled states. Litman observes similar moves regarding LGBTQ rights, and highlights the Republican Party’s 2016 platform, which called for justices who would overrule not just Roe but Obergefell—the 2015 decision finding state laws that prohibited same-sex marriage unconstitutional—as well. 

Even the Supreme Court’s jurisprudential approach, relying on history and tradition, neglects gender. As Litman writes, 

Originalism supports a political project of taking away rights from groups that were not always included in American politics and society. It effectively maintains that a group possesses rights today only if the group possessed those rights in laws that were enacted in the 1700s or 1800s.

When the Fourteenth Amendment was ratified in 1868, women had few legal rights even within marriage, did not have the vote, and were prohibited from professions like law simply because they were women. As the Court put it in 1873, 

The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.

Conservatives, some of whom have called for a “manly originalism,” as Litman helpfully reminds us, would undo gender equality as we know it. We are already witnessing tragic instances of women dying because abortion restrictions prohibit them from getting the medical care they need. 

Litman has a similarly powerful argument when it comes to the Court’s voting rights decisions. As a young lawyer in the Reagan administration, Roberts “produced memo after memo outlining objections to expanding the VRA,” drawing on opinions written by Rehnquist, for whom he had clerked, to narrow the reach of the act. When Roberts was situated in the center chair himself, his Shelby County opinion began a rollback of federal voting rights enforcement. Under Section 4 of the Voting Rights Amendment, states that had engaged in racially discriminatory practices in the past had to get federal approval before changing their voting rights laws. Roberts found this unconstitutional because it rested on outdated information. But the result was telling: States that were once part of the confederacy began altering their election laws in ways that disproportionately made it more difficult for racial minorities, particularly Black people, to vote. We do not have to think that this is Jim Crow II to find the pattern deeply disturbing. 

Yet past Supreme Courts—the New Deal and Warren Courts—also have roots as part of political coalitions. And these courts also instituted profound changes to constitutional law, setting aside precedents and offering novel constitutional understandings. Is the Roberts Court different on this front? 

At times, yes. Most notably, given Litman’s argument, the New Deal Court was in line with a large governing majority, and even the Warren Court, which is viewed too often as an anomaly, was embedded within the coalition of Kennedy-Johnson liberalism as it brought the white South into line with the rest of the country. Partly in contrast, the Roberts Court is supported at best by a slim plurality in a deeply divided country, and its decisions—overturning Roe, for instance—are often out of line with democratic sentiment. Plus, the current Court relies heavily on text and history but does so in a highly selective manner. On gun control and abortion rights, for instance, the Court has embraced a view of history that confines our understanding of the Fourteenth Amendment to the middle years of the 19th century. Yet confronted with whether Donald Trump had disqualified himself for office under Section 3 of the Fourteenth Amendment by instigating January 6 and the events around it that tried to keep him in power, the Court had little interest in history or original meaning. It would have been momentous to remove a presidential candidate from the ballot, and there was at least some reason to doubt that Trump had engaged in an insurrection under Section 3’s terms, but the Court simply neglected these foundational questions.

Supreme Court opinions always raise contingencies and qualifications, but Litman demonstrates how the current Court too often leans into Republican causes. And they do so even if it requires dismantling the jurisprudential legacy of their judicial icon—Justice Scalia—on issues like the free exercise of religion. Here the Court has begun to insist not only that the establishment clause allows the states to directly fund religious institutions, but also that the free exercise clause commands it. Such an understanding finds little grounding in history or original meaning, and would have baffled James Madison, but it has become part of a conservative insistence that Christianity is prone to persecution in contemporary politics. 

Litman also chronicles how the Court has acted on long-standing Republican goals to limit the power of administrative agencies: overturning precedent which held that courts should defer to an agency’s reasonable interpretation of a statute when it was ambiguous; demanding that agencies show clear intent on the part of Congress if their regulations engage “major questions”; and questioning whether Congress is even allowed to delegate its power to agencies in the first place. These developments have limited the reach and power of executive branch agencies, placing that power instead in the hands of courts. Litman goes so far as to say the Supreme Court has “murdered” the administrative state. More compellingly, she insists that the Court is sweeping away well-established law based on a theory of the separation of powers that finds little grounding in constitutional text, history, or precedent. This is particularly true of the idea of non-delegation—that Congress cannot delegate its power to administrative agencies housed in the executive branch. The Court seems determined to revisit this issue, which could dismantle the administrative state and, notably, lead to widespread deregulation, which accords with the desires of leading Republican donors. 

If the Court has hemmed in administrative power, it is set to unleash the power of the president by way of “unitary” executive theory. The idea of the unitary executive is that the president gets complete control over the executive branch, including the power to remove government officers for any reason he sees fit. Does this mean that the president has control over all administrative agencies, including independent regulatory agencies like the Federal Reserve? Founding-era history does not even begin to support such claims. The first great discussion about removal, the Removal Debate of 1789, found arguments on all sides. Indeed, Alexander Hamilton, deemed the father of the unitary executive, insisted in Federalist 77 that the president needed Senate approval to remove officers as well as to appoint them. If we have settled on the precedent that presidents can remove political officers, we have also settled on the fact that Congress can insulate some officers that head independent agencies from presidential control. 

Trump wants to overturn this settlement. The White House has fired an extraordinary number of government employees, including lawyers who resisted Trump’s edicts in the name of the law. In Trump v. Wilcox, the president has asked the Court to endorse his constitutional authority to remove the heads of independent agencies at will. If the Roberts Court agrees, it would sweep away nearly a century of constitutional law and vest the president with kingly power to go along with the kingly immunity it has already bequeathed him. It remains to be seen whether the putative institutionalist John Roberts can assemble his Court to preserve institutions against this constitutional assault. Litman gives us reasons to be skeptical, and she is right to remind us that preserving constitutional institutions depends on political movements that work over the course of years. That is the struggle we find ourselves in today.

The post The Supreme Court’s Immunity-to-Impunity Pipeline appeared first on Washington Monthly.

One evening in October 1962, Nikita Khrushchev attended a performance of Boris Godunov starring the American opera star Jerome Hines. Khrushchev led a standing ovation and congratulated Hines backstage. This might not sound like much, but it was in the middle of the Cuban Missile Crisis. 

The idea of normal, even friendly contact between Americans and the Russian premier during the single most perilous moment of the Cold War is just one of the many up-close surprises in Marvin Kalb’s new book, A Different Russia. 

In this closely observed memoir—the third in a series of Moscow recollections—94-year-old Kalb, clear as a bell in his 17th book, shows why he was in the top rank of 20th-century diplomatic correspondents, first for CBS News and later for NBC News, where he hosted Meet the Press before becoming the founding director of Harvard’s Shorenstein Center on Press and Politics. 

Kalb began with The Year I Was Peter the Great—1956: Khrushchev, Stalin’s Ghost and a Young American in Russia, a delightful depiction of meeting not just Khrushchev (who, noticing Kalb’s six-foot-three frame, gave him that nickname; the tsar was six eight) but also Marshall Zhukov, who led the Soviet Union to victory over the Nazis in World War II. (My late father, a decorated combat aviator in the war, told me Zhukov, who met few Westerners, was much more central to the victory of the Allies than Dwight Eisenhower). Kalb followed up with Assignment Russia: Becoming a Foreign Correspondent in the Crucible of the Cold War, about his early years as CBS’s very young man in Moscow. A Different Russia is the product of Kalb’s astonishing memory and the foresight of his impressive wife, Mady, in saving his old TV and radio scripts and freelance Sunday New York Times pieces. It chronicles a good chunk of what are called “the crisis years” of the Cold War. 

This is the period—1961–62—when the Soviet Union sent the first man (the cosmonaut Yuri Gagarin) into orbit; Khrushchev and John F. Kennedy quarreled in Vienna; and Khrushchev built the Berlin Wall, then dispatched nuclear missiles to Cuba before “caving” (that was the word Kalb used on CBS, which Kennedy tried to squelch) by withdrawing them. In between, Kalb covered Moscow visits from Benny Goodman and a boring Elizabeth Taylor, found himself detained (sort of) in Mongolia, and arranged for the publication of Aleksandr Solzhenitsyn’s first book, One Day in the Life of Ivan Denisovitch. By this time, Edward R. Murrow, who had first hired Kalb, was working for JFK and tried to hire his protégé to come work for the government, as Kalb’s distinguished brother, Bernard, would later do under Ronald Reagan. Marvin declined. Instead, he prospered in the company, on air and off, of Walter Cronkite, Charles Collingwood, Daniel Schorr, John Chancellor, James Reston, A. M. Rosenthal, and other giants of journalism now remembered only by the long-in-the-tooth.

The view from Moscow was quite different than the one from Washington. Khrushchev comes across as a flawed but surprisingly sympathetic figure—a Russian leader who anticipated Mikhail Gorbachev’s reforms and who weeps upon learning of JFK’s assassination. But first, at the Vienna summit in June 1961, he took the measure of the new young president—less than six months in office—and found him wanting. 

Kalb’s sources told him that Khrushchev in Vienna said Kennedy was “pleasant”—an insult—“very immature, not well-prepared and not that smart.” One of Khrushchev’s interpreters revealed to Kalb shortly afterward that when Kennedy got up from his chair as the premier reentered the room, in what he viewed as a sign of respect, Khrushchev saw it differently: “Imagine a millionaire, a friend of Wall Street, leaps to his feet when Nikita Sergeyevich walks into a room … He’s weak.”

JFK, for good reason, wanted to discuss the risks of accidental nuclear war. Many years later, scholars learned that Khrushchev, losing his temper, yelled, “Miscalculation! Miscalculation! Miscalculation! All I ever hear … is that damned word, miscalculation! You ought to take that word and bury it in cold storage and never use it again. I’m sick of it.” He continued, “If the U.S. wants war, so be it.” This from a leader best known for his belief in “peaceful coexistence.” Kennedy let a minute pass and replied, “Then it’s going to be a cold winter.”

Kalb presents Khrushchev as a warm and often accessible presence for the foreign press—even as the premier raged about the massive migration flow from East Germany to West Berlin. Kennedy had never warned Khrushchev against doing something about it, so when the Berlin Wall went up in 1962, the Americans could only issue a loud protest. This led to what Dan Schorr memorably called a “stable crisis.” Kalb argues that after Khrushchev’s gambit paid off, he was “infused with a new cockiness, acting as if he owned the world.” By that time, Kalb (at only 31) had already written a book about the Sino-Soviet split, a conflict the Soviet leader now exacerbated as he took steps to replicate Mao’s cult of personality within his own sphere of influence. 

Kalb’s descriptions of his schedule and the internal politics of CBS News are excessively detailed, but I liked learning about the logistical difficulty of going live and how—thanks to Soviet restrictions—he often had to operate his own camera.

Starting in the late 1940s, the assumption within the governments and on the streets of both countries was that a new world war would center on Berlin. In the Soviet press—which Kalb, fluent in Russian, always read carefully—there was more talk in the fall of 1962 of Yemen than Cuba, which was seen in Moscow as too far away to care much about. Misjudging Kennedy as weak, Khrushchev placed missiles there; when JFK responded strongly, the Russian leader was taken by surprise. He tried to turn down the temperature by greeting American visitors effusively in the early days of the crisis and by responding positively to the philosopher Bertrand Russell’s proposal for a summit, which Kennedy ignored.

Kalb was a CBS News colleague and close friend of Blair Clark, who had roomed with JFK at Harvard. Wary of surveillance, the CBS code words on the phone for fleeing Moscow for Finland were “shopping spree.” When Clark told him during a radio hookup in the middle of the missile crisis that this would be “a perfect time for a shopping spree,” it chilled Kalb, who interpreted the line as Kennedy saying that war was a real possibility. But he and Mady chose to stay put. Days later, Khrushchev turned his ships around when faced with a naval blockade, and the crisis ended. 

If JFK had instead followed the advice of the Joint Chiefs and senior senators and attacked Cuba with air strikes, Khrushchev might have made a dangerous countermove in Berlin. Only later did we learn that Fidel Castro, whom Khrushchev viewed as a hothead, wanted the Soviets to launch a tactical nuke at the United States. In the late 1990s, former Defense Secretary Robert McNamara put his thumb and forefinger a fraction of an inch apart and told me: “We came thisclose to nuclear war.”

Kalb believes that Khrushchev and Kennedy both wanted peace when they signed the Nuclear Test Ban Treaty in 1963 and looked forward to nearly six more years of working together if Kennedy won a second term. Instead, JFK was assassinated that fall, and within a year, the Politburo and Khrushchev’s “friend” and deputy, Leonid Brezhnev, forced him out, largely over the poor Soviet economy. 

At the end of this intimate book, I felt as if I was on a first-name basis with these figures of history. I even felt a tad sorry for Nikita, which is just what Marvin intended.

The post How Khrushchev Underestimated Kennedy appeared first on Washington Monthly.

America is in a funk. People are unhappy with every major institution of government, from Congress to the Supreme Court to newspapers to the Democratic Party, and they lack confidence in the future. The rent is too damn high and wages too low, the health care system is broken, fires and floods are wrecking our communities, and we can’t even build a decent high-speed rail to rival 1990s Europe. 

To be a vital economy, we know we should be building new and better things—more housing, better transit systems, and solar everywhere the sun shines and wind farms everywhere the wind blows. We should be innovating to build technologies never dreamed of. We should be tearing down bloated power structures, tapping into the profound innovative capacities of Americans to build, create, and flourish.

In certain corners of the Twitterati, Substack, and elite magazines, the notion of “abundance” has started to circulate as a possible response to this modern malaise. The “abundance movement,” with roots in “Yes in My Backyard” (YIMBY) advocates and environmental permitting reform advocates, positions itself as an answer to the funk—and as the core future agenda of the Democratic Party. 

In Abundance, the New York Times columnist Ezra Klein and the Atlantic writer Derek Thompson seek to stake out what this movement should be. They argue that America’s inability to build is the result of deliberate policy decisions, bureaucratic inertia, and progressive ideological commitments that have prioritized redistribution over production. They advocate for a version of supply-side progressivism, in which the government plays a proactive role in expanding the supply of essential goods and services, rather than simply subsidizing demand or withdrawing from economic support. 

The book opens with a utopian vision of the year 2050, in which clean energy, vertical farming, and AI-assisted productivity have transformed daily life. This future is not a work of science fiction, the authors argue, but rather a political and economic possibility—one that will only be realized if policymakers reorient themselves around abundance. Klein and Thompson contrast this optimistic vision with the failures of the early 21st century, where the U.S. struggled with a housing crisis, a broken health care system, and political gridlock that prevented meaningful action on climate change and infrastructure. They argue that while America once prided itself on ambitious, large-scale projects—such as the postwar housing boom and the construction of the interstate highway system—it has now become a country that knows what it needs to build, but fails to build it.

The foundational premise of Abundance is the assertion that there is a widespread ideology of scarcity, a quasi-theological belief that America lacks the resources, technology, or capacity to solve its most pressing crises—whether in housing, energy, or health care. Both Republicans and Democrats are allegedly in the grip of this ideology, which has led them to abandon the future, although in different ways. The authors argue that while conservatives have long championed deregulation and tax cuts under the banner of supply-side economics, they have largely abandoned the idea of government playing a role in actually building the things society needs. Meanwhile, liberals have focused too much on subsidizing demand—providing assistance for housing, health care, and education—without ensuring that the supply of these essential goods grows to meet the rising need. This has led to high costs, limited access, and worsening economic inequality, despite enormous government spending.

Their key example of the left’s version of this failure is the housing crisis in America’s wealthiest, predominantly Democratic, cities. The authors argue that restrictive zoning laws, environmental regulations, and local opposition have made it nearly impossible to build affordable housing in places like San Francisco and New York. The result? Burdensome rent, unaffordable homes, and urban life that is grim, costly, and lacking in economic opportunity. As they put it, cities “are meant to be escalators into the middle class, not penthouses for the upper class.” They argue that this pattern is repeated in health care, infrastructure, and energy—areas where well-intended regulations have inadvertently stifled the very innovations needed to make essential goods and services more abundant.

One of the most damning real-world examples they use is the California high-speed rail debacle, a project that was meant to revolutionize transportation but has instead become a symbol of bureaucratic dysfunction. The project has been stalled for decades due to legal challenges, environmental reviews, and political infighting, resulting in billions of dollars spent with little progress. This failure exemplifies for them how excessive regulation and a political tendency to search for “no” can cripple ambitious public projects.

Instead, they argue, we should look to supply-side success stories and work to replicate them. Over the past decade, the cost of solar energy has dropped by nearly 90 percent; they claim that this is due to public investment, technological advances, and economies of scale. Significant and fast change is possible if policymakers commit to scaling up solutions rather than merely tinkering around the edges.

It can be jarring to read about zoning while Elon Musk chainsaws through the government, plundering public money for his own benefit, but Klein and Thompson argue that there is a direct connection: a failure to build represents a political stagnation that has led to political crises. Without cheap housing and energy, affordable health care, and basic infrastructure, public trust erodes and populist movements thrive. A government incapable of solving material problems creates a vacuum that demagogues fill. The authors imagine an abundance movement that will “marginalize the most dangerous political movements” by “prov[ing] the success of your own.” (A minor question I had throughout is whether their theory means that abundance cannot be a popular public movement until it succeeds, or whether they also believe that abundance could be an organizing principle for a grassroots bottom-up movement before any reforms have been implemented.)

The authors have special disdain for progressive governance in California, which they claim should be a model of liberal success but instead struggles with housing shortages, homelessness, and infrastructure failures. They argue that while liberal politicians have embraced redistribution, they have been reluctant to embrace the production-oriented policies needed to make essentials like housing and transportation more affordable. As they bluntly state, “Democrats learned to look for opportunities to subsidize. They lost the knack for making it easier to build.”

In the final chapters, Abundance lays out a vision for a new political economy—one focused on building, investing, and expanding the supply of essential goods and services. The authors argue that policy-makers must embrace a proactive role in technological and industrial policy, ensuring that breakthroughs in clean energy, biotechnology, and infrastructure are not just invented but also widely deployed. As they might put it, a society that innovates but does not deploy, that invents but does not build, is a society that chooses stagnation.

I frequently disagree with Ezra Klein, but I almost always find him compelling, thoughtful, and worth engaging. Derek Thompson has a knack for elegantly identifying some of the great spiritual challenges of our time. So I opened Abundance with a fair amount of excitement. Like or hate it, I’d finally understand what this abundance thing is all about, and get to wrestle with a big political vision. As I closed it, however, I was still left wrestling, but not with big ideas—with far more mundane questions about scope and meaning. 

The book toggles between very specific examples and a very broad spiritual stance, with a lot less meat in the mid-zone. That means the vision they lay out could either fit a broad deregulatory agenda, like that of the “shock doctors” of the 1990s, or an FDR vision of rural electrification: both were driven by a hunt for vitality. While the authors insist that the book’s examples of high-speed rail, expensive cities, and blocked wind projects are intended to stand for something other than significant reform in those areas, the signified “something else” never quite comes into view. 

For instance, in a chapter on green energy, they explain how more than 60 federal laws, including the National Environmental Protection Act, the Endangered Species Act, and many others, are regularly used to slow or halt green energy wind projects. They support NEPA reform, and a proposal that would fast-track green energy projects so as not to pit green against green, but are very clear that law is not enough, we need “a change in the political culture.” What do they think that “change” would be? Liberalism “needs to see the problems in what it has been taught to see as the solution … it is not always clear how to strike the right balance. But a balance that doesn’t allow us to meet our climate goals has to be the wrong one.” A version of this vague conclusory exhortation is far too common throughout the book.

As a result, it would be very easy to take their critique as a muffled call for deregulation writ large; if they are not careful, the ambiguity could be used by big financial interests to make abundance a bible for a Ronald Reagan–style deregulatory juggernaut. 

The zoning reform example ends up revealing that the authors are burdened by the very scarcity mind-set they diagnose. They seek to dismantle the zoning rules and some of the procedural hurdles that require local input in residential building. Let’s assume that reforming rules on setbacks, parking, single-family zoning, and local input would achieve what they desire (the evidence is not straightforward; cities that have these reforms have lower costs, but they are rising at the same rate as in other cities). It would still seem relatively small-bore as a novel solution: Half of the 10 biggest cities in America—many in Texas—already have a zoning and procedural regime fairly close to what Klein and Thompson want. Are they simply arguing that Dems embracing Texas zoning approaches would transform national politics? That can’t be it. 

Or is it? It emerges that the examples they give from New York and San Francisco are not examples at all. Instead, they and a few other coastal cities are the whole object of reform. These cities seem to bear almost magical capacities for the authors, who cite research that purportedly shows that they are more productive than other places. But rather than ask what policies have drained wealth away from such once-vibrant centers of innovation as St. Louis or Cincinnati, they presume that if only more people moved to New York or San Francisco the nation’s productivity would soar, and that the only big obstacle to this happening is exclusionary zoning and burdensome building permit requirements. 

Doctor, heal thyself! They seem to be blinded by their own scarcity mind-set. When it comes to the resources of humans and places, they imagine that only a few places can be the engines of the country. I live in New York City now, and I love New York City, but the “fiery creation of the new” does not only happen here or in one of a few supercities. Frozen food, the radio, the airplane, were all created far from any major urban hub. As for for productivity and contributions to GDP, places like Rockford, Illinois; Milwaukee, Wisconsin; Ann Arbor, Michigan; Des Moines, Iowa; and Cleveland, Ohio, were all among the 25 richest metro areas as recently as the mid-1960s. 

It cannot be that people need to move to a handful of elite coastal cities to produce abundance. The growth of regional inequality of opportunity that the authors’ own scarcity mind-set represents is a real problem, and has little to do with land use regulation and everything to do with the deregulatory push from the 1970s to the 2020s and the resulting concentration of power and shift of resources from the real economy to the financial sector. 

The 40-year stagnation of wages, and the drop in small and medium-sized businesses, is a supply-side story that they simply don’t engage—one that, as the former chair of the FTC Lina Khan and many others have recognized, is a direct result of monopolization and financialization. 

If they took their own “stop the scarcity mind-set” medicine, they’d realize that the industrial policy of the 1980s to 2020, not zoning, was what caused the scarcity of opportunity throughout the country—and we can change that policy. During the most productive and innovative era in American history, places like Corning, New York, known as a glassware technology powerhouse, and St. Louis, which once had 22 Fortune 500 companies and a thriving “creative class,” were the centers of the dynamism. If we just got out of the modern coastal-scarcity mind-set and took on the real bureaucratic behemoths of today—the private equity cartels and the monstrous platform monopolies like Google and Meta—we would unlock far more innovation and creativity and vitality. 

There’s some language that casually evokes economies of scale hinting at a Chicago School efficiency and consumer welfare framework of economic productivity, but also some praise of Bidenomics, which directly confronted and rejected the efficiency paradigm. For instance, they trace America’s decline in semiconductor manufacturing and argue that ceding ground to Taiwan and South Korea was not due to inevitable economic forces but rather a failure to have a long-term industrial policy. They highlight Joe Biden’s CHIPS and Science Act as a belated attempt to reverse this trend, and argue persuasively that interventions must be sustained and expanded if the U.S. is to reclaim its leadership in critical industries.

Which is to say, I still can’t tell after reading Abundance whether Klein and Thompson are seeking something fairly small-bore and correct (we need zoning reform) or nontrivial and deeply regressive (we need deregulation) or whether there is room within abundance for anti-monopoly politics and a more full-throated unleashing of American potential. 

It happens that I have a personal affinity for the language of abundance. My very first speech in my very first campaign for public office was about abundance and scarcity, and how we needed to reject Andrew Cuomo’s scarcity mind-set, which was holding back New York’s economy. 

My view then, and now, is that to transform a bloated corporate feudal system into a dynamic one, we need to break up feudal power, unlock the brilliance that accompanies human freedom, and allow small and medium-sized businesses to prosper. We have to stop thinking of economic development as giving out big grants to big donors. Instead, we need to start thinking about it as building platforms for entrepreneurs and new ideas to flourish. 

This position has a long lineage and is currently at the center of major public debates on industrial policy. After finishing Abundance, however, I’m unclear about where the authors stand on those debates. I know what they think about permitting reform, NEPA, and the NIH, and I know they think we need to be more solution oriented. But I don’t know what their agenda requires outside of that.

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