ProfessorBainbridge.com

I concur with Bishop Barron the need for a national examination of conscience

Embracing the Entire Gospel of Life

Jonathan Merritt writes:

The “pro-life” term was once a moral call to arms, but it’s now a mere political checkbox. Opposition to abortion is a non-negotiable for many conservatives, and a number of evangelical friends proudly admit to being “single-issue voters” who support only pro-life candidates. Other moral and political positions don’t factor into their decisions.

This faulty political ideology ignores, trivializes and even disregards dozens of issues of profound human consequence, such as police brutality, environmental degradation, state-sanctioned torture, unjust wars, alleviation of poverty and the mistreatment of minority groups.

Obviously, the Gospel of Life applies from natural conception to natural death. It means--as Democrats often ignore--protecting the unborn from abortion and the aged from euthanasia. But it also means--as Republicans often ignore--opposing the death penalty. As the American Solidarity Party platform stated, capital punishment should end because of its "disproportionate use against those with fewer legal resources, the impossibility of reversal, and the existence of alternative ways to ensure protection for the rest of society."

It also means looking for ways to protect the most vulnerable. Increasing the availability of affordable quality healthcare. Reducing homelessness. Criminal justice reform. Providing a social safety net. Adopting sensible immigration policies.

I disagree with Fr. James Martin on a lot of issues, but he was right when he said that "the problem with the term ‘pro-life’ is that it’s often used just to talk about the unborn, but pro-life means being pro-all lives, not just pro-some lives, because all lives are sacred.”

It is right and proper that those of us who are conservative pro-lifers have disagreements with our liberal friends about how to operationalize what the Church calls the preferential option for the poor. It is especially right and proper that we stand in opposition to those of our liberal friends who support abortion rights. It is not right and proper, however, that we limit our concern to the unborn. We need to be actively engaged in both the private and public squares in seeking solutions.

Rod Dreher on Voting for Brian Carroll, the American Solidarity Candidate for President

As regular readers will recall, this year I switched my political party affiliation from the GOP to the American Solidarity Party. I recently cast my vote by mail for Brian Carroll, the ASP candidate for President. I'm a big fan of political commentator Rod Dreher, so I was interested in his essay explaining why he also voted for Carroll.

I haven’t voted in a presidential race since 2004, because I am so alienated from both parties. I am deeply on the right on social and cultural issues, but more to the left on economic policy, in the sense of wanting the government to do more for workers and ordinary people, and wishing that the GOP were not so much in thrall to its donor class. I’m a Tucker Carlson/J.D. Vance conservative. It’s easy for me to withhold my vote, living as I do in Louisiana, a red state that is going to go for Trump. But I am tired of not voting for president, and want to push myself to make a decision, and live with it.

Fortunately, when I looked recently at the Louisiana ballot, I discovered that the American Solidarity Party was on the presidential line—that is, its nominee Brian Carroll and his running mate Amar Patel. When I read the platform of the ASP, I found that I didn’t agree with everything, but the overwhelming majority of its pro-family, Christian Democratic (in the European sense) policies I could endorse. I realized that 2020 will be the first time in my life that I can cast a presidential vote for a candidate and his party, as opposed to against the greater of two Republicrat evils. So that’s what I plan to do, while voting Republican for Senator Bill Cassidy, and for U.S. Representative Garrett Graves.

Brian Carroll won’t win, but I cannot pass up the chance to show my support for a party that actually represents the full spectrum of my views as a conservative Christian. To be honest, if I were in a swing state, I don’t know that I would do this. I probably would, though, because it’s unusual to experience voting as an act of civic affirmation, instead of civic despair, and I would like to do that at least once in my life.

That's pretty much why I voted for Carroll.

SEC Commissioner Hester Peirce on Shibusawa Eiichi, “the father of Japanese capitalism”

Fascinating stuff. Japan just put his image on the 10,000 yes note. 

Shibusawa concluded that Japan’s economic development would require a transformation of values: disdain for commerce would need to give way to a respect for commercial enterprise.  This transformation would be impossible without convincing his fellow countrymen that commerce was itself a moral endeavor. ...

Shibusawa’s insight is one that is often overlooked, but it is important.  Voluntary commercial activity both requires and cultivates a heightened moral sensitivity in those who engage in commerce, and according value to those who engage in this activity helps build healthy societies.  Others have made the same point.  The most famous, of course, is Adam Smith, but consider economist Deirdre McCloskey, who argues that “[t]he growth of the market . . . promotes virtue, not vice.”  She repeatedly directs our attention to the ways that commercial activity forces us to attend to each other, to understand what each other wants or needs, and to find ways to satisfy those wants and needs.

The Biden Candidacy and Catholic Moral Demands in American Politics: Recommended Reading

Joe Biden's status as the de facto--and soon to be de jure--Democratic Presidential candidate has inevitably raised serious questions about the role of Catholics in public life.

I just read a very interesting article by Professor Jo Renee Formicola entitled Catholic Moral Demands in American Politics: A New Paradigm. I highly recommend it.

Written in 2009, just after Obama's first win, she traces the development of the Catholic Church's involvement in US politics and the ways in which Catholic politicians have tried to adapt to the Church's teachings. She concludes that the Church today has definite expectations of politicians who claim to be Catholics:

The type of Catholic political engagement that the bishops envisioned was one based on a well-formed conscience, focused on human dignity, motivated by the pursuit of the common good, and committed to the protection of the weak and the vulnerable. (22)

Opposing evil and doing good, then, are twin obligations for every Catholic citizen and legislator, regardless of political exigencies. And because all life issues are connected, attempts to create moral equivalencies, according to the hierarchy, are simply a way to misuse and dismiss serious threats to human life and dignity. Thus, Catholic politicians and voters, according to the hierarchy, must embrace moral coherence and Eucharistic consistency in order to be in line with the doctrinal requirements for life as taught by their religion. (23)

She concludes (I think correctly) that:

A Catholic who is a Democrat [and compliant with the Church's expectations] would most likely have the most difficult time getting elected to national office, as he or she would have to challenge the party on its most critical social issue, reproductive rights, to be considered morally coherent.

But, she also concludes (I think correctly) that a Republican would face equally important issues. Much of the GOP platform is inconsistent with the Church's teachings social justice.

Fortunately, there is an alternative.

 

The Presumably Unintended Consequences of the "Defund the Police" Rhetoric

The Communitarian Conundrum

University of Chicago law professor Geoffrey Stone once offered 10 tenets of modern liberalism, which included the following nugget:

It is liberals who maintain that a national community is like a family and that government exists in part to "promote the general welfare."

It is this communitarian aspect of modern liberalism, of course, which marks a principal difference between the modern version and classical liberalism. I suspect it is this over-broad understanding of what it means to be a community that is one of the things conservatives and libertarians steeped in the classical liberal tradition find most off-putting about modern liberalism.

The great moral difficulty with communitarianism is that, if taken to extremes, it treats individuals as though they were little more than cells of a larger organism. Just as when doctors kill cells to prevent cancer from spreading, communitarianism readily justifies state intrusion into the private sphere in the name of some communal good.

Worse yet, communitarian societies require a standard of behavior more demanding than most members of an unredeemed society are unable or unwilling to meet most of the time, and that all are unable to meet all of the time. Hence, it is hardly surprising that world history is littered with the failures of communitarian utopia. The communitarian agenda simply cannot be attained without invoking the state's monopoly on coercive force. Hence, as has been observed of the British (New) Labour Party's version of communitarianism, it amounts to "the nationalization of people instead of companies, as individuals are subsumed by their designated communities."

This is precisely why conservatives have always balanced the communitarian elements of our philosophy with a strong commitment to ordered liberty. Our goal is not some national "community" whose rules are enforced by the state, but rather the promotion of intermediating institutions that build what George Weigel calls "a citizenry regulating itself from within according to a shared public 'language of good and evil.'"

Conservatives believe that the state cannot build such a citizenry, because the state cannot make people virtuous. Virtue is an adaptive response to the instinctive human recognition of (and need for) a transcendent moral order codified in a body of natural law. People are most likely to act virtuously when they believe in an external power, higher and more permanent than the state, who is aware of their shortcomings and will punish them in the next life even if they escape retribution in this life.

Civic virtue also can be created by secular communities. As James Q. Wilson observes, "something in us makes it all but impossible to justify our acts as mere self-interest whenever those acts are seen by others as violating a moral principle." Rather, "[w]e want our actions to be seen by others—and by ourselves—as arising out of appropriate motives." Voluntary communities strengthen this instinct in two ways. First, they provide a network of reputational and other social sanctions that shape incentives. Virtuous communities will use those sanctions to encourage virtue among their members. Second, because people care more about how they are perceived by those close to them, communal life provides a cloud of witnesses about whom we care and whose good opinion we value. We hesitate to disappoint those people and thus strive to comport ourselves in accordance with communal norms.

The nanny state is a poor substitute, at best, for the virtue inculcating power of faith and voluntary community. We may fear the faceless bureaucrat, but he does not inspire us to virtue. Conduct that rises above the lowest common moral denominator thus cannot be created by state action. But while the state cannot make its citizens virtuous, it can destroy the intermediary institutions that do inculcate virtue. As Richard Epstein observes, "Communities can be destroyed from without; but they cannot be created from without; they must be built from within."

To be clear, I am not arguing for some libertarian utopia in which the state has no role beyond that of a night watchman. As Edmund Burke once observed, there is "a limit at which forbearance ceases to be a virtue." At that limit, the state properly steps in.

The Calvinist principle of sphere sovereignty offers one way of thinking about the line between legitimate and illegitimate uses of government power. Social institutions—including both the state and the corporation—are organized horizontally, none subordinated to the others, each having a sphere of authority governed by its own ordering principles. Expansion of any social institution beyond its proper sphere necessarily results in social disorder and opens the door to tyranny. The trouble with the state thus is not its existence, but its expansion beyond those functions prescribed by custom and convention, which were legitimized by ancient usage, into the pervasive nanny state perpetually grasping at aspects of social life to drag into its slavering maw.

From a perspective founded on sphere sovereignty, the progressive communitarian's basic flaw is his willingness to invoke the coercive power of the state in ways that deny the right of mankind acting individually or collectively through voluntary associations to order society. In contrast, conservatives are unwilling to sacrifice ordered liberty at the altar of community. A conservative properly insists that individuals be left free to define for themselves what conduct shall be deemed trustworthy or honorable, rather than being forced to comply with, say, Geoffrey Stone's definition of what makes for a good community.

Announcement: I've joined a new (to me) political party

I have been a party-line Republican voter/donor since the late 1980s. The Democrat's positions on abortion, euthanasia, embryonic stem cell research, taxes, spending, religious liberties, economic regulation, and a host of other issues--especially those rejecting traditional moral values--constituted a host of dealbreakers.

For many years, I found the GOP's positions on those issues more congenial. Over the last couple of decades, however, I've been increasingly dissatisfied with the Republicans. Lots of talk but very little action about abortion. As I've come to oppose the death penalty, consistent with my Church's Gospel of Life, the GOP remains resolutely pro-death. I've consistently opposed the neoconservatives' Permanent War for Permanent Choice going as far back as Bush 43's war of choice in Iraq, possibly the worst foreign policy/national security blunder since Vietnam.

Both parties now depend on leveraging identity politics to polarize the electorate along racial and religious lines in hopes that angry voters are more likely to vote. 

Both parties are also increasingly captives of Davos Man. This is particularly true of the mainstream of the Democratic Party establishment (the Clinton-Obama-Biden crowd).

I draw here on a book to which I came belatedly, Joel Kotkin's The New Class Conflict. In it he notes that 95% of income gains during Obama's first term went to the top 1%. He quotes a Huffington Post author as opining that "the rising tide has lifted fewer boars during the Obama years--and the ones it's lifted have been mostly yachts." (4)

This should not surprise us. Peter Temin sought to explore the now well-documented extreme polarization of income and wealth over the last generation in the US. In seeking to explain it, he split the working population into two sectors.  He calls one the “primary” or “core” sector, and estimates it embraces about “thirty percent of the population” It is dominated by finance and technology and consists mainly of college educated workers and managers. In other words, the core or primary sector is what Noonan calls the protected class.

Kotkin breaks the protected class into two groups. At the very top, in terms of wealth and income, are the oligarchs of finance and tech. (6-7) Just below them are the Clerisy, which consist of those working at the top of the academic, media, government, and nonprofit sectors. (8)  They created and propagate the political worldview Klotkin aptly calls “gentry liberalism,” which has become the prevailing political alignment among both the Clerisy and the Oligarchs. 

Gentry liberalism is not concerned with the interests of working and middle class Americans. Instead, it is focused on advancing and protecting the interests of the much smaller—but much more affluent—managerial and knowledge classes and the public sector. Put simply, gentry liberalism is about perpetuating the distinction between the protected and unprotected classes.

Gentry liberalism, identity politics, and abortion make up the tripod on which the modern Democratic Party rests and all of them are deal breakers for me. By the way, for those of you who doubt the relationship of wealth and gentry liberalism, here's some interesting statistics from Joel Kotkin's book:

• Out of the 10 political groups to which the top 1% of the top 1% (the 0.01%?) contributed, 8 were liberal.
• Obama won 8 of the country's 10 wealthiest counties. Most by double digits

I had had hopes that Trump's rise might signal a GOP realignment in which the party would recognize that the future of the GOP must be one of detaching itself from the 1%, especially the tech and finance oligarchs who openly embrace progressive values. (See my post on Trump Being the Beta Test for the Cure for the Revolt of the Elites). Sadly, that hasn't happened. To the contrary, led by Trump, the GOP consistently doubles down on its most extreme positions. On top of which, the GOP consistently embraces stupidity. Witness the Party's embrace of heavily armed lockdown protestors.

Those who predicted Trump would prove to be a false prophet were right. Sadly, those who predicted he would lead the party down the wrong road were right about that too.

I've put up with my growing dissatisfaction with the GOP largely because the Democrats' positions-especially on Gospel of Life issues-were morally unacceptable.  For much of the last 20 years, I've mainly been voting and donating AGAINST the Democrats rather than FOR the GOP.

At age 61, I'm sick and tired of it all. Unlike the NeverTrumpers, however, I can't bring myself to support the Democrats.

About a year ago, I started looking into the American Solidarity Party. It's an American version of what would be known in Europe as a Christian Democrat Party. I don't agree with everything the Party embraces (I'm skeptical of distributism, for example), but on issue after issue their positions map far more closely to mine than either of the duopoly parties. See the Party Platform.

• Consistently pro-life
  • Against abortion
  • Against euthanasia
  • Against fetal stem cell research
  • Against the death penalty
• Strong on religious liberty
• Sensible on immigration
  • Create a path to citizenship for working undocumented aliens with no criminal record
  • Enhanced border security
• Require strict background checks, psychological testing, and training for gun ownership
• Non-partisan political boundary drawing
• Supports voting reform, such as ranked voting or IRV
• Supports nuclear energy
• Supports limits on Presidential war power
• Supports charter schools
• Opposes free college tuition

As I said, I'm not on board all of their proposals, but in general I'm amenable to their core principles.

To be sure, American Solidarity is a small third party. I've long dismissed third parties as havens for cranks and the excessively earnest. But as Matthew Walther wrote The American Solidarity Party is a third party that actually makes sense.

The most striking thing about the platform of the ASP (formerly the "Christian Democratic Party USA") is how un-radical most of it sounds. Why should there not be a socially conservative party that is for a living wage, workplace protections, strong welfare programs, and opposed to the imprudent use of American force abroad? On paper this sounds like a recipe for winning 60 or so percent of the national popular vote. ...

I also strongly recommend reading David McPherson's Case for the American Solidarity Party.

While the ASP is shaped by a Christian worldview, it welcomes all people who find its vision for society compelling, even if they do not share in the same faith. ...

Another question for the ASP is this: Why should someone vote for a party that won’t win, especially in this election, when so much is at stake in terms of foreign relations, the economy, Supreme Court appointments, democratic rule of law, and so on? Isn’t it better to vote for the major-party candidate who seems the least bad?

Many people of goodwill are going to make this decision. But for those who cannot in good conscience vote for either Clinton or Trump—say, because of the candidates’ stances against the sanctity of human life—voting for the ASP may be seen as a protest vote against a system that presents us with such poor choices. But it is not merely a protest vote, because if we are to work fully toward the kind of politics we need, we must first break from the political status quo. The ASP should thus be understood as seeking primarily to build up a cultural movement, which ideally will come to have political influence.

So I've become a voting member of the ASP and am in the process of transferring my California voter registration to the ASP.

Apropos of which, I've been asked to pass along the following message:

The number of California Voting Members has grown so large that The Golden State will get 3 delegates at the National Convention in late June. This is very exciting for both California and the ASP as well. Ideally every state would be able to vote for its own delegates which would inspire and encourage local activity in the California State Chapter.

... California is only a few Voting Members short of getting 4 delegates at the Convention.

I wish to invite those who were on the fence about joining or renewing their membership with the party to go to solidarity-party.org/support to do this.

Woke Business: Putting the Nike-Kaepernick Ad Controversy into Context: The Problem of Social Justice Warrior CEOs

Nike has decided to make out of work quarterback Colin Kaepernick a central piece of its 30th anniversary advertising campaign:

Believe in something, even if it means sacrificing everything. #JustDoItpic.twitter.com/SRWkMIDdaO

— Colin Kaepernick (@Kaepernick7) September 3, 2018

Predictably, this has caused anger and consternation in some right of center quarters.

Colin Kaepernick will be featured in Nike's 30th anniversary "Just Do It" campaign, announced just days before the NFL season is set to begin

People are destroying their @Nike products in response pic.twitter.com/wcpnibBbUv

— Breaking911 (@Breaking911) September 4, 2018

As a lapsed football fan who has never owned a Nike product (not on purpose, it just worked out that way), I probably would not have paid much attention to this kerfuffle but for the fact that it implicates my two most recent scholarly projects.

In Book Review Essay: Conservatives Against Capitalism: From the Industrial Revolution to Globalization by Peter Kolozi, available at SSRN: https://ssrn.com/abstract=3206963, I point out that:

Although American conservatism in recent decades has been characterized by its rhetorical embrace of free market capitalism, Kolozi reminds us that it was not always so. To the contrary, there is a long tradition of skepticism about—and sometimes outright hostility to—capitalism among important strains of American conservative thought. ...

Kolozi’s concise and eminently readable text raises the intriguing possibility that the seemingly immutable conflation of conservatism and capitalism may have been a temporary aberration. Post-war conservatism in the United States was a somewhat rocky marriage of traditionalists, libertarians, and, somewhat later, neoconservatives. These conservative tribes were united mainly by a shared opposition to Communism. Given a seemingly binary and existential choice between what passed for capitalism in the post-war West and Soviet communism, American conservatives opted for the former. Yet, despite Frank S. Meyer’s famous fusionism project, which sought to create a new syncretic conservatism merging the various tribal traditions, the pre-existing fault lines persisted. With communism having been taken off the table as an existential threat, it may have been inevitable that those fault lines would rupture.

If it is possible that conservatives are going to abandon their long love affair with big business, it seems almost certain that big business is going to abandon conservatives (especially the brand of conservatives Hillary Clinton famously dismissed as deplorables).

I explore the reasons for that development in my article Corporate Purpose in a Populist Era, available at SSRN: https://ssrn.com/abstract=3237107.  In it, I observe that both left- and right-wing populists historically have viewed corporate directors and managers as elites opposed to the best interests of the people. Today, however, right of center populists find themselves increasingly at odds with an emergent class of social justice warrior CEOs, whose views on a variety of critical issues are increasingly closer to those of blue state elites than those of red state populists.

To be sure, as Josh Barro perceptively argues, brands like Nike have profit maximizing reasons for aligning themselves with woke coastal millennials, who are at the core of the supposedly most desirable marketing demographic. But there is also something else going on here, which I explore at length in my article:

The values of the elites (the Oligarchs and Clerisy, as Kotkin calls them), on the one hand, and those of non-elites, on the other, have been diverging for several decades. In his 1995 classic The Revolt of the Elites, Christopher Lasch identified the emergent split between what he called the New Elites and the rest of society.[1]Lasch identified several trends that have accelerated in subsequent years. First, he argued, American elites had become increasingly global, rejecting nationalism and patriotism, and refusing to be tied to places or people.[2]Today we refer to those elites, as well as their global counterparts and those who aspire to join them,[3]as Davos Man:

January is when the World Economic Forum (WEF) holds its annual conference at a Swiss mountain resort to “improve the state of the world.” More than a business meeting for 2,500-plus globetrotting academics, executives, politicians, and lobbyists, it is a tribal celebration for leaders who worship a holy trinity of ideas: capitalism, globalization, and innovation. In a 2004 essay, Samuel Huntington, who popularized the term “Davos Man,” described this breed of humans as “view[ing] national boundaries as obstacles that thankfully are vanishing.” (And, yes, more than 80 percent of attendees at the WEF conference are male.)[4]

As The Economist’s Schumpeter columnist observed in 2013, “[o]rdinary folk trust Davos Man no more than they would a lobbyist for the Worldwide Federation of Weasels.”[5] This distrust took on considerable political weight in the 2016 Presidential campaign, as the populists who voted for Trump recognized that a minority comprised of “people from ‘anywhere’” ruled the majority of people who came from “somewhere.”[6]

The first group … holds “achieved” identities based on educational and professional success. Anywheres value social and geographical mobility. The second group is characterised [sic] by identities rooted in a place, and its members value family, authority and nationality.

Whereas Anywheres, whose portable identities are well-suited to the global economy, have largely benefited from cultural and economic openness in the West, he argues, the Somewheres have been left behind—economically, but mainly in terms of respect for the things they hold dear. The Anywheres look down on them, provoking a backlash.[7]

The disdain in which elites now hold non-elites was another critical emergent trend Lasch identified. As Christopher Lasch explained, “the new elites, the professional classes in particular, regard the masses with mingled scorn and apprehension.”[8]Many of Lasch’s new elites dismissed the masses’ values as “mindless patriotism, religious fundamentalism, racism, homophobia, and retrograde views of women.”[9]

Middle Americans, as they appear to the makers of educated opinion, are hopelessly shabby, unfashionable, and provincial, ill informed about changes in taste or intellectual trends, addicted to trashy novels of romance and adventure, and stupefied by prolonged exposure to television. They are at once absurd and vaguely menacing—not because they wish to overthrow the old order but precisely because their defense of it seems so deeply irrational [to the new elites] ….[10]

This tension was perhaps nowhere more pronounced than with respect to religion. When Lasch write over two decades ago, “[a] skeptical, iconoclastic state of mind is one of the distinguishing characteristics of the knowledge classes. ... The elites’ attitude to religion ranges from indifference to active hostility.”[11]

If anything, today’s elites have become even more hostile to religious values. As Samuel Gregg observes, the Davos Man’s moral creed is “a mélange of social liberalism, environmentalism, and a new order of a borderless world. Religion is … considered the refuge of fanatics and anyone stupid enough to be skeptical of gender ideology and techno-utopianism.”[12]

In contrast, modern right-wing populists are highly religious. According to a 2011 Pew Research Center analysis, for example, Tea Party members were “much more likely than registered voters as a whole to say that their religion is the most important factor in determining their opinions on … social issues.”[13]Likewise, a subsequent Pew analysis found that “white born-again or evangelical Christians and white Catholics … strongly supported Donald Trump ….”[14]

Today’s elites thus hold non-elites in at least as much disdain as did the elites of Lasch’s period. The Clerisy, in particular, scarcely bothers to conceal its disdain for the traditional middle and working classes.[15]This disdain manifests itself in a variety of ways, perhaps most notably through the increasing separation between the working class and the elites.

The increasing geographical separation between the elites, on the one hand, and the working class, on the other, with the former migrating to the coasts and large cities and the latter remaining in rural areas, has been widely remarked.[16]Even when they live in relative geographical proximity, however, the elites are increasingly walling themselves off from non-elites. As Joel Kotkin observed, for example, “large sections of the [San Francisco] Bay Area … resemble a ‘gated’ community, where those without the proper academic credentials, and without access to venture funding are forced into a kind of marginal nether-existence.”[17]

Ditto Portland (or, more precisely, Beaverton). The bottom line is that the values, beliefs, and tastes of social justice warrior CEOs like Phil Knight have radically diverged from those of red state populists. In many cases, it simply would not occur to SJWs like Knight that there are folks who would take offense from the Kaepernick ad. And, if it did, Knight and his ilk simply won't care. 

Welcome to the new world.

Nike has decided to make out of work quarterback Colin Kaepernick a central piece of its 30th anniversary advertising campaign:

Believe in something, even if it means sacrificing everything. #JustDoItpic.twitter.com/SRWkMIDdaO

— Colin Kaepernick (@Kaepernick7) September 3, 2018

Predictably, this has caused anger and consternation in some right of center quarters.

Colin Kaepernick will be featured in Nike's 30th anniversary "Just Do It" campaign, announced just days before the NFL season is set to begin

People are destroying their @Nike products in response pic.twitter.com/wcpnibBbUv

— Breaking911 (@Breaking911) September 4, 2018

As a lapsed football fan who has never owned a Nike product (not on purpose, it just worked out that way), I probably would not have paid much attention to this kerfuffle but for the fact that it implicates my two most recent scholarly projects.

In Book Review Essay: Conservatives Against Capitalism: From the Industrial Revolution to Globalization by Peter Kolozi, available at SSRN: https://ssrn.com/abstract=3206963, I point out that:

Although American conservatism in recent decades has been characterized by its rhetorical embrace of free market capitalism, Kolozi reminds us that it was not always so. To the contrary, there is a long tradition of skepticism about—and sometimes outright hostility to—capitalism among important strains of American conservative thought. ...

Kolozi’s concise and eminently readable text raises the intriguing possibility that the seemingly immutable conflation of conservatism and capitalism may have been a temporary aberration. Post-war conservatism in the United States was a somewhat rocky marriage of traditionalists, libertarians, and, somewhat later, neoconservatives. These conservative tribes were united mainly by a shared opposition to Communism. Given a seemingly binary and existential choice between what passed for capitalism in the post-war West and Soviet communism, American conservatives opted for the former. Yet, despite Frank S. Meyer’s famous fusionism project, which sought to create a new syncretic conservatism merging the various tribal traditions, the pre-existing fault lines persisted. With communism having been taken off the table as an existential threat, it may have been inevitable that those fault lines would rupture.

If it is possible that conservatives are going to abandon their long love affair with big business, it seems almost certain that big business is going to abandon conservatives (especially the brand of conservatives Hillary Clinton famously dismissed as deplorables).

I explore the reasons for that development in my article Corporate Purpose in a Populist Era, available at SSRN: https://ssrn.com/abstract=3237107.  In it, I observe that both left- and right-wing populists historically have viewed corporate directors and managers as elites opposed to the best interests of the people. Today, however, right of center populists find themselves increasingly at odds with an emergent class of social justice warrior CEOs, whose views on a variety of critical issues are increasingly closer to those of blue state elites than those of red state populists.

To be sure, as Josh Barro perceptively argues, brands like Nike have profit maximizing reasons for aligning themselves with woke coastal millennials, who are at the core of the supposedly most desirable marketing demographic. But there is also something else going on here, which I explore at length in my article:

The values of the elites (the Oligarchs and Clerisy, as Kotkin calls them), on the one hand, and those of non-elites, on the other, have been diverging for several decades. In his 1995 classic The Revolt of the Elites, Christopher Lasch identified the emergent split between what he called the New Elites and the rest of society.[1]Lasch identified several trends that have accelerated in subsequent years. First, he argued, American elites had become increasingly global, rejecting nationalism and patriotism, and refusing to be tied to places or people.[2]Today we refer to those elites, as well as their global counterparts and those who aspire to join them,[3]as Davos Man:

January is when the World Economic Forum (WEF) holds its annual conference at a Swiss mountain resort to “improve the state of the world.” More than a business meeting for 2,500-plus globetrotting academics, executives, politicians, and lobbyists, it is a tribal celebration for leaders who worship a holy trinity of ideas: capitalism, globalization, and innovation. In a 2004 essay, Samuel Huntington, who popularized the term “Davos Man,” described this breed of humans as “view[ing] national boundaries as obstacles that thankfully are vanishing.” (And, yes, more than 80 percent of attendees at the WEF conference are male.)[4]

As The Economist’s Schumpeter columnist observed in 2013, “[o]rdinary folk trust Davos Man no more than they would a lobbyist for the Worldwide Federation of Weasels.”[5] This distrust took on considerable political weight in the 2016 Presidential campaign, as the populists who voted for Trump recognized that a minority comprised of “people from ‘anywhere’” ruled the majority of people who came from “somewhere.”[6]

The first group … holds “achieved” identities based on educational and professional success. Anywheres value social and geographical mobility. The second group is characterised [sic] by identities rooted in a place, and its members value family, authority and nationality.

Whereas Anywheres, whose portable identities are well-suited to the global economy, have largely benefited from cultural and economic openness in the West, he argues, the Somewheres have been left behind—economically, but mainly in terms of respect for the things they hold dear. The Anywheres look down on them, provoking a backlash.[7]

The disdain in which elites now hold non-elites was another critical emergent trend Lasch identified. As Christopher Lasch explained, “the new elites, the professional classes in particular, regard the masses with mingled scorn and apprehension.”[8]Many of Lasch’s new elites dismissed the masses’ values as “mindless patriotism, religious fundamentalism, racism, homophobia, and retrograde views of women.”[9]

Middle Americans, as they appear to the makers of educated opinion, are hopelessly shabby, unfashionable, and provincial, ill informed about changes in taste or intellectual trends, addicted to trashy novels of romance and adventure, and stupefied by prolonged exposure to television. They are at once absurd and vaguely menacing—not because they wish to overthrow the old order but precisely because their defense of it seems so deeply irrational [to the new elites] ….[10]

This tension was perhaps nowhere more pronounced than with respect to religion. When Lasch write over two decades ago, “[a] skeptical, iconoclastic state of mind is one of the distinguishing characteristics of the knowledge classes. ... The elites’ attitude to religion ranges from indifference to active hostility.”[11]

If anything, today’s elites have become even more hostile to religious values. As Samuel Gregg observes, the Davos Man’s moral creed is “a mélange of social liberalism, environmentalism, and a new order of a borderless world. Religion is … considered the refuge of fanatics and anyone stupid enough to be skeptical of gender ideology and techno-utopianism.”[12]

In contrast, modern right-wing populists are highly religious. According to a 2011 Pew Research Center analysis, for example, Tea Party members were “much more likely than registered voters as a whole to say that their religion is the most important factor in determining their opinions on … social issues.”[13]Likewise, a subsequent Pew analysis found that “white born-again or evangelical Christians and white Catholics … strongly supported Donald Trump ….”[14]

Today’s elites thus hold non-elites in at least as much disdain as did the elites of Lasch’s period. The Clerisy, in particular, scarcely bothers to conceal its disdain for the traditional middle and working classes.[15]This disdain manifests itself in a variety of ways, perhaps most notably through the increasing separation between the working class and the elites.

The increasing geographical separation between the elites, on the one hand, and the working class, on the other, with the former migrating to the coasts and large cities and the latter remaining in rural areas, has been widely remarked.[16]Even when they live in relative geographical proximity, however, the elites are increasingly walling themselves off from non-elites. As Joel Kotkin observed, for example, “large sections of the [San Francisco] Bay Area … resemble a ‘gated’ community, where those without the proper academic credentials, and without access to venture funding are forced into a kind of marginal nether-existence.”[17]

Ditto Portland (or, more precisely, Beaverton). The bottom line is that the values, beliefs, and tastes of social justice warrior CEOs like Phil Knight have radically diverged from those of red state populists. In many cases, it simply would not occur to SJWs like Knight that there are folks who would take offense from the Kaepernick ad. And, if it did, Knight and his ilk simply won't care. 

Welcome to the new world.

Conservatives Against Capitalism: A Review Essay

I've posted to SSRN a new paper:Book Review Essay: Conservatives Against Capitalism: From the Industrial Revolution to Globalization by Peter Kolozi (July 2, 2018). American Affairs, Forthcoming; UCLA School of Law, Law-Econ Research Paper No. 18-06. Available at SSRN: https://ssrn.com/abstract=3206963

In Conservatives Against Capitalism, Peter Kolozi, an associate professor with the Department of Social Sciences at the City University of New York, discusses the long tradition of skepticism about—and sometimes outright hostility to—capitalism among important strains of American conservative thought. Kolozi takes a chronological approach focusing on key thinkers representative of the prevailing conservative school of thought in each of six periods: John C. Calhoun, James Henry Hammond, and George Fitzhugh representing the antebellum defenders of slavery; Brook Adams and Theodore Roosevelt of the Progressive Era; the Southern Agrarians; post-war traditionalists such as Russell Kirk and Robert Nisbet; Reagan-Bush era neoconservatives; and paleoconservatives such as Patrick Buchanan and Samuel Francis.

Dealing with Trump's conflicts of interest (the DGCL 144/SOX 406 analogy)

Milan Markovic writes On Trump and Divestment:

I, like many, am very concerned that the President-Elect's business interests will interfere with the performance of his duties as President.  While Trump may sincerely believe that the conflicts of interests posed by his sprawling business empire can be managed by, for example, allowing his children to run his company, virtually every decision involving a foreign nation in which he has investments will inevitably be subject to skepticism, undermining faith in the Presidency and the government as a whole.  This is to say nothing of the matters that the Trump Organization currently has pending before the NLRB and other agencies. 

Nevertheless, I respectfully disagree with Richard Painter and others who have argued that total divestment is the only solution to Trump's very serious conflicts.  Indeed, divestment would hardly eliminate the conflicts and could even make them worse. 

Divestiture or liquidation of one's assets, followed by transferring the proceeds to a blind trust, is the appropriate recourse for individuals whose wealth consists largely of liquid assets such as stock.  For example, former Treasury Secretary and Goldman Sachs banker Hank Paulson liquidated his Goldman stock prior to joining the government.  Of course, the mere fact that Paulson divested his Goldman holdings hardly ensures that he did not favor Goldman's interests while serving in the Treasury.  Lost in all of the discussion of Trump's financial conflicts is that relational conflicts - which are ubiquitous in government circles - can be just as serious.  

Let's assume that Trump does indeed decide to liquidate his substantial holdings.  Three things are certain. 1) As Professor Bainbridge has argued, divesting from a business empire like Trump's will necessitate a lengthy process that likely cannot be completed within the course of a few months and without significant displacement of employees.  2) Some assets and holdings likely cannot be divested at all because of transfer restrictions and alike in membership / joint venture agreements whereas for those assets that are sold, Trump can likely avoid paying hundreds of million dollars in taxes by obtaining a certificate of divestiture.  3) Among the bidders for Trump assets will be foreign entities, including foreign government-owned entitities. On this last point, were one inclined to try to curry favor with Trump, paying above market price for one of his hotels would probably a better strategy than planning a holiday party at one of those same hotels. ...

Rather than pushing for total divestment, which Trump has heretofore resisted and would not eliminate his conflicts of interest, an alternative approach would be for Trump to provide a full accounting of his holdings and to transfer all of his interests (and those of his family) into a voting trust to be managed by an unaffiliated and walled-off third party.

Where we disagree is that I don't think an independent voting trustee is necessary (I also don't think it's something Trump would agree to do). See my earlier post, which proposed that:

In Trump's case, this means:

1. He resigns from all positions with his businesses.
2. He puts all of his shares in the companies he owns into voting trusts and appoints one of his children, probably Ivanka, as trustee.
3. Any members of the Trump family that take formal or informal positions in the White House must resign from any positions they hold in the Trump organization. They should sign confidentiality agreements pursuant to which they commit not to share confidential information with any member of the Trump family, including spouses or children.
4. Any members of the Trump family who do not hold positions in the White House should also sign confidentiality agreements, agreeing not to seek access to confidential information and agreeing not to use any confidential information they may learn from government sources.
5. Senate Ethics Rules provide that:
   
   1. "If a Member’s spouse or immediate family member is a registered lobbyist, or is employed or retained by such a registered lobbyist or an entity that hires or retains a registered lobbyist for the purpose of influencing legislation, the Member shall prohibit all staff employed or supervised by that Member (including staff in personal, committee, and leadership offices) from having any contact with the Member’s spouse or immediate family member that constitutes a lobbying contact as defined by section 3 of the Lobbying Disclosure Act of 1995 by such person."
   2. Trump should adopt a similar rule for West Wing employees having any contact with members of his family who are not themselves west Wing officials.
6.  Any contacts between Trump and anyone affiliated with his business--including his children--should be publicly disclosed.
7. All West Wing employees-including Trump-should adopt a clean desk rule when Trump business affiliates--including his children--are in the building.
8. Any contacts between anyone in the West Wing and any foreign official doing business with the Trump business organization should be disclosed.

In addition, Walter Olson addresses the issue and concludes that "Congress will affirmatively need to 'decide what it is willing to live with in the way of Trump conflicts'—and it should draw those lines before the fact, not after."

Walter argues that even if Trump adopts my proposal, problems would remain under the Emoluments Clause:

... especially those surrounding favorable treatment that a presidentially owned business may not have sought out but which may nonetheless constitute “presents.” Congress should expect to ramp up the expertise it can apply to these problems, and (absent divestiture) assign ongoing committee responsibility to tracking them. And it should issue clear guidelines as to what it is willing and not willing to approve. Such a policy will not only signal that lawmakers are taking their constitutional responsibilities seriously, but could also benefit the Trump Organization itself by clarifying how it needs to respond if and when foreign officials begin acting with otherwise inexplicable solicitude toward its interests.

I will freely confess that I have trouble enough spelling emoluments, let alone saying anything meaningful about what it requires, but even just as a purely prudential matter I think it would be useful for Congress to put its imprimatur on whatever plan Trump comes up.

There is a corporate law analogy here to situations under Delaware General Corporation Law section 144 in which approval of a conflict of interest by independent directors or shareholders cleanses the conflict (technically it transfers the burden of proof to the plaintiff to show waste).

There is also an analogy to Sarbanes-Oxley section 406 and the rules thereunder, which impose a comply or explain obligation with respect to adoption by a corporation of "a code of ethics for its principal executive officer, principal financial officer, principal accounting officer or controllers, or persons performing similar functions. [4]  The SEC defines a code of ethics as written standards that are reasonably designed to deter wrongdoing and to promote: 1) honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships; 2) full, fair, accurate, timely and understandable disclosure in reports and documents that a registrant files with, or submits to, the SEC and in other public communications made by the issuer; 3) compliance with applicable governmental laws, rules and regulations; 4) the prompt internal reporting to an appropriate person or persons identified in the code of violations of the code; and 5) accountability for adherence to the code."

The first wall Trump needs to build is an ethics wall

President-Elect Donald Trump has a unique and difficult problem. Most recent Presidents have come to the office after years of government service with assets that consist mostly of real estate, stocks, bonds, etc... They have not had a distinct business empire of the sort Trump has built.

Many people are calling on Trump to divest his business, including the WSJ editorial board:

Mr. Trump’s best option is to liquidate his stake in the company. Richard Painter and Norman Eisen, ethics lawyers for George W. Bush and President Obama, respectively, have laid out a plan, which involves a leveraged buyout or an initial public offering. 

Mr. Trump could put the cash proceeds in a true blind trust. The Trump children can keep the assets in their name, and he can transfer more to them as long as he pays a hefty gift tax. Finally, Mr. Trump should stipulate that he and his children will have no communication about family business matters. 

The alternatives are fraught, perhaps even for the Trump Organization’s bottom line: Thanks to a Clinton Administration precedent, Presidents can face litigation in private matters—so the company will become a supermagnet for lawsuits. Rudy Giulianilamented on television that divestment would put the Trump children “out of work,” but reorganizing the company may be better for business than unending scrutiny from the press. Progressive groups will soon be out of power and they are already shouting that the Trump family wants to profit from the Presidency.

The political damage to a new Administration could be extensive. If Mr. Trump doesn’t liquidate, he will be accused of a pecuniary motive any time he takes a policy position. For example, the House and Senate are eager to consider tax reform—and one sticking point will be the treatment of real estate, which will be of great interest to the Trump family business. Ditto for repealing the Dodd-Frank financial law, interest rates and so much more.

But I suspect PEOTUS Trump will continue to resist doing so. For one thing, divesting a business as complex as Trump's is not something one can do in a hurry. As a leading guide to corporate divestitures explains, this is a lengthy, complex, and fraught process:

Second, Trump has a perfectly legitimate desire to pass his business on to his children. Requiring him to divest would deny him the ability to do so. It would also set an unfortunate precedent that would discourage business men and women from seeking office in the future, creating even greater dominance of government by a permanent political class that cycles from government jobs, to public office, to lobbyist firms, and over again.

Third, Trump is stubborn and likes to tweet his enemies (NB: I meant tweak, but tweet was a happy accident so I'm leaving it). There will be a strong temptation for him to keep his business just to give the finger to progressives. So a plan devised by Painter--who supported Hillary in the last election and vilified Trump in op-eds--and ex-Obama aide Eisen is probably going to be rejected just because of who's behind it.

At the same time, however, it is clear that Trump's business empire is a fertile source of conflicts of interest. There will be many cases--trumped up (pun intended) or not--where he will be accused of creating pay to play scenarios. And so on.

There is an alternative. It's not ideal, but it would reduce the potential for conflicts of interest and enable Trump to pass his business on to his kids.

First, he needs to take a hard look at his sprawling empire and identify the core pieces--the family jewels, if you will--that he wants to pass on. The non-essential rest should be sold off and the proceeds put into a blind trust.

Second, he needs to create an insulation wall separating his political activities from those of the organization. Such walls were formerly known in colloquial legal speech as “Chinese walls.” As a California appellate judge aptly noted, however:

“Chinese Wall” is [a] piece of legal flotsam that should be emphatically abandoned. The term has an ethnic focus that many would consider a subtle form of linguistic discrimination. Certainly, the continued use of the term would be insensitive to the ethnic identity of the many persons of Chinese descent. . . .

Aside from this discriminatory flavor, the term “Chinese Wall” is being used to describe a barrier of silence and secrecy. . . . [But] “Chinese Wall” is not even an architecturally accurate metaphor for the barrier to communication created to preserve confidentiality. Such a barrier functions as a hermetic seal to prevent two-way communication between two groups. The Great Wall of China, on the other hand, was only a one-way barrier. It was built to keep outsiders out—not to keep insiders in.

In law firms, terms such as “ethical wall” or “ethical screen” are emerging as alternatives. In the present context, however, the term “insulation wall” seems superior. First, it does not connote the professional responsibility aspects associated with the ethical wall terminology. Second, it provides a more exact “architecturally accurate metaphor” than does ethical wall.

Key features of such a wall typically include organizational and physical separation of persons with access to information especially likely to be abused from persons who do not need such access. Prohibitions against and penalties for discussing confidential matters with unauthorized personnel or in locations where such discussions could be overheard are also an important part of the insulation wall. Likewise, procedures for preventing unapproved personnel from accessing confidential information and files, delinking approved personnel compensation from trading profits and regular training of personnel on their legal and commercial responsibilities.

In Trump's case, this means:

1. He resigns from all positions with his businesses.
2. He puts all of his shares in the companies he owns into voting trusts and appoints one of his children, probably Ivanka, as trustee.
3. Any members of the Trump family that take formal or informal positions in the White House must resign from any positions they hold in the Trump organization. They should sign confidentiality agreements pursuant to which they commit not to share confidential information with any member of the Trump family, including spouses or children.
4. Any members of the Trump family who do not hold positions in the White House should also sign confidentiality agreements, agreeing not to seek access to confidential information and agreeing not to use any confidential information they may learn from government sources.
5. Senate Ethics Rules provide that:
   
   1. "If a Member’s spouse or immediate family member is a registered lobbyist, or is employed or retained by such a registered lobbyist or an entity that hires or retains a registered lobbyist for the purpose of influencing legislation, the Member shall prohibit all staff employed or supervised by that Member (including staff in personal, committee, and leadership offices) from having any contact with the Member’s spouse or immediate family member that constitutes a lobbying contact as defined by section 3 of the Lobbying Disclosure Act of 1995 by such person."
   2. Trump should adopt a similar rule for West Wing employees having any contact with members of his family who are not themselves west Wing officials.
6.  Any contacts between Trump and anyone affiliated with his business--including his children--should be publicly disclosed.
7. All West Wing employees-including Trump-should adopt a clean desk rule when Trump business affiliates--including his children--are in the building.
8. Any contacts between anyone in the West Wing and any foreign official doing business with the Trump business organization should be disclosed.

Washington is full of power couples that have faced conflicts of interest (Diane Feinstein springs to mind). The press has allowed them to work out reasonable solutions. People ought to give Trump a chance to create an ethics wall that will separate his family's business interests from his new position as POTUS.

Oh by the way, releasing his tax returns--at least on a going forward basis once he enters office--would be a good place to start.

Update: I was Wrong About Donald Trump: He failed as the beta test of a cure for The Revolt of the Elites

Like most of us, I suppose, I've been thinking a lot about Donald Trump's rise to being the front runner for the GOP nomination. Watching the primary season has called to mind one of the best books on American politics and culture I've ever read: The Revolt of the Elites and the Betrayal of Democracy. If you want to understand what's going on in our politics and the rise of Trump (and, to some extent, Bernie Sanders), it is a book you need to read.

Lasch powerfully and persuasively contends that that the values and attitudes of professional and managerial elites and those of the working classes have dramatically diverged. Although the claim is controverted, many of us on the right (especially social conservatives) agree with the quasi-populist/communitarian notion that democracy works best when all members of society can participate in a world of upward mobility and of achievable status. In such a world, members of society will perceive themselves as belonging to the same team and care about ensuring that that team succeeds. But how can society achieve this sort of mutual interdependence if its members are not part of a community of shared values?

The core problem is thus the revolt of the elites against the values of the wider community: "[T]he new elites, the professional classes in particular, regard the masses with mingled scorn and apprehension." For too many of these elites, the values of "Middle America" - a/k/a "fly-over country" - are mindless patriotism, religious fundamentalism, racism, homophobia, and retrograde views of women. "Middle Americans, as they appear to the makers of educated opinion, are hopelessly shabby, unfashionable, and provincial, ill informed about changes in taste or intellectual trends, addicted to trashy novels of romance and adventure, and stupefied by prolonged exposure to television. They are at once absurd and vaguely menacing." (28)

The tension between elite and non-elite attitudes is most pronounced with respect to religious belief. While our society admittedly is increasingly pluralistic, "the democratic reality, even, if you will, the raw demographic reality," as Father Neuhaus has observed, "is that most Americans derive their values and visions from the biblical tradition." Yet, Lasch points out, elite attitudes towards religion are increasingly hostile: "A skeptical, iconoclastic state of mind is one of the distinguishing characteristics of the knowledge classes. ... The elites' attitude to religion ranges from indifference to active hostility." (215)

In the years since Lasch wrote those words, the divide between the elites and non-elites has only grown. And the non-elites have finally had it.

Peggy Noonan captured this point quite eloquently in her columnfor the WSJ last week. She wrote that:

I keep thinking of how Donald Trump got to be the very likely Republican nominee. There are many answers and reasons, but my thoughts keep revolving around the idea of protection. It is a theme that has been something of a preoccupation in this space over the years, but I think I am seeing it now grow into an overall political dynamic throughout the West.

There are the protected and the unprotected. The protected make public policy. The unprotected live in it. The unprotected are starting to push back, powerfully.

The protected are the accomplished, the secure, the successful—those who have power or access to it. They are protected from much of the roughness of the world. More to the point, they are protected from the world they have created. Again, they make public policy and have for some time. 

I want to call them the elite to load the rhetorical dice, but let’s stick with the protected.

They are figures in government, politics and media. They live in nice neighborhoods, safe ones. Their families function, their kids go to good schools, they’ve got some money. All of these things tend to isolate them, or provide buffers. Some of them—in Washington it is important officials in the executive branch or on the Hill; in Brussels, significant figures in the European Union—literally have their own security details. 

Because they are protected they feel they can do pretty much anything, impose any reality. They’re insulated from many of the effects of their own decisions.

The protected were thus protected, if you will, from the effects of their decisions on the rest of society:

You see the dynamic in many spheres. In Hollywood, as we still call it, where they make our rough culture, they are careful to protect their own children from its ill effects. In places with failing schools, they choose not to help them through the school liberation movement—charter schools, choice, etc.—because they fear to go up against the most reactionary professional group in America, the teachers unions. They let the public schools flounder. But their children go to the best private schools. 

This is a terrible feature of our age—that we are governed by protected people who don’t seem to care that much about their unprotected fellow citizens.

Life thus has been good for the protected:

But the unprotected watched and saw. They realized the protected were not looking out for them, and they inferred that they were not looking out for the country, either. 

The unprotected came to think they owed the establishment—another word for the protected—nothing, no particular loyalty, no old allegiance. 

Mr. Trump came from that.

And it's a global phenomenon, as the growing populist movements in Europe reflect a counter-revolution by the unprotected against the protected elites.

Ben Domenech captured this insight in a thoughtful column, which argues that:

The post-Cold War left-right politics of the nation have been breaking down in slow motion for two decades. They are now being replaced by a different type of inside-outside politics.

The Trump phenomenon is neither a disease nor a symptom – he is instead the beta-test of a cure that the American people are trying out.It won’t work. But this is where our politics are going: working and middle class Americans are reasserting themselves against a political and cultural establishment that has become completely discredited over time and due to their own actions. ...

In other words, Trump is the unprotected class' beta test for a cure for the revolt of the elites. And its about damned time. Which leads me to hope Domenech is right about his next point:

This is not a temporary adjustment. It is a new reality, as Angelo Codevilla writes today.“America is now ruled by a uniformly educated class of persons that occupies the commanding heights of bureaucracy, of the judiciary, education, the media, and of large corporations, and that wields political power through the Democratic Party. Its control of access to prestige, power, privilege, and wealth exerts a gravitational pull that has made the Republican Party’s elites into its satellites.

“This class’s fatal feature is its belief that ordinary Americans are a lesser intellectual and social breed. Its increasing self-absorption, its growing contempt for whoever won’t bow to it, its dependence for votes on sectors of society whose grievances it stokes, have led it to break the most basic rule of republican life: deeming its opposition illegitimate.”

Democrats and Republicans who still think that this is a phase – a fever they just need to wait out before a return to normalcy – are utterly delusional. 

To the establishment, this breakdown looks like chaos. It looks like savagery. It looks like a man with a flamethrowing guitar playing death metal going a hundred miles an hour down Fury Road. But to the American people, it looks like democracy. Something new will replace the old order, and there are a host of smart, young leaders on all sides who must prove they have the capability to figure out how to create or retrofit institutions that can represent and channel this new energy.

I've been very lucky in life. I've made it into the outer fringes of the protected class. But I'm one generation out of the unprotected class and my heart is still with them. I share their values and, perhaps most important, their religious beliefs. The secularism and "progressive" values of the new elites have no appeal for me. So I get why Trump emerged. 

The messenger doubtless is deeply flawed. Trump is no Washington, that's for sure. Donald Trump would not have been my first choice as a GOP nominee. He would't have been my 100th choice. But if the counter-revolutionaries decide they want Trump as the nominee, I will not oppose them. And I will hope that the counter-revolution has now become too big for one deeply and profoundly flawed man to derail.

Update: My point exactly:

Biggest predictor of Trump support is feeling voiceless. Fascinating stuff from Rand Corp https://t.co/bL6pmAAugn pic.twitter.com/MW0gioYaxR

— Nick Riccardi (@NickRiccardi) February 29, 2016

Update 2: It should go without saying, of course, that there are a lot of GOP types in the protected class. Think of the whole DC crowd--the politicians, the talking heads, the pundits--and the Business Roundtable types, all of whom are deeply entrenched in the protected class. They share the values of Lasch's new elites to much the same extent as do limousine liberals. The vehemence of ht GOP elites' anti-Trump rhetoric reflects their fear not just of Trump but of the counter-revolution from what they regard was "below" and the threat it poses to their busy lifestyles:

@MaxBoot helps prove that #GOPe are in the protected class too and will fight to stay there. https://t.co/XEIhmGhqCG https://t.co/Ry6Se8mwwG

— Stephen Bainbridge (@ProfBainbridge) February 29, 2016

Update 3: Here's yet another argument along the same lines, which concludes "I’m sure lots of voters don’t think Trump has what it takes to be a great president. But he is the ideal person to disrupt a political class that deserves a hard smash in the mouth."

Steven Hayward: @powerlineus: Apologia pro vita Trump https://t.co/2X2i024lYE I added a link to my post.

— Stephen Bainbridge (@ProfBainbridge) March 1, 2016

Update 4: I think this is basically right:

Disconnect between GOP elite and its working-class base has led to crisis. In @Slate, thoughts on the way forward: https://t.co/55pbKri2St

— Reihan Salam (@reihan) February 29, 2016

I think @reihan is basically right. For the GOP to survive, it must become a populist party. https://t.co/rItOpbCjP7 pic.twitter.com/kI9cd1O9Kh

— Stephen Bainbridge (@ProfBainbridge) March 1, 2016

Update 5: Looking back on this post from December 2021, I still think I was right about the need for a cure for the revolt of the elites. I still think what Joel Klotkin calls the Oligarchy and the Clerisy have too much power and the wrong values. But trying Trump as a cure turned out disastrously. He has whipped up a dangerous, nativist, populist movement and deployed it in pursuit of personal power. The trouble is that the Trumpists, the Never-Trump DC GOP elites, and the Progressives all share a lust for power that would be put to the wrong ends. So I've joined the American Solidarity Party and am waiting things out.

John McGinnis on the effect of the election on public sector unions

We are not fans of public sector unions here at PB.com. Neither is Professor McGinnis, who opines:

One of the most notable consequences of this election was the setback it dealt to public sector unions. Importantly, the losses came at hands of both parties. Republican Scott Walker was reelected in Wisconsin after rolling back the power of public sector unions. Gina Raimondo gained the governorship of Rhode Island despite using her position as that state’s Treasurer to restructure public pensions and thereby earning the enmity of public sector unions. In my own home state of Illinois, Governor Pat Quinn lost in state where the most important mainstay of his party is public sector unions, whose pensions and other exactions have made Illinois the state with one of the lowest credit ratings and worst business climates in the nation.

The decline in political power and legal privileges of public sector unions would be the single most salutary structural improvement in the states where they enjoy such privileges. The right of public sector unions to check off dues, to mandate collective bargaining, and/or to strike gives them unaccountable power in the delivery of public services. As a result such public services are often more expensive and less efficient. Worst of all public sector unions exercise this leverage to gain above-market, unfunded pensions that need to be financed later—at a time when those who have negotiated those pensions have left government.

It is mistake to analogize unions in the public sector to those in the private sector. In the private sector, negotiations over wages are genuinely two sided with management vigorously representing the interests of shareholders. By contrast, in the public sector the real party in interest—the citizens of the city or state—are generally not well represented at the bargaining table. The elected officials cannot be counted on to negotiate effectively because they want the campaign contributions and political muscle that unions can bring.

The recurring dilemma of democratic politics is that politicians often benefit by giving away benefits to such concentrated groups at the expense of the rest of us. Privileges for public sector unions exacerbate this fundamental problem rather than diminish it.

Kindly go read the whle thing.

Robert F Kennedy Jr. sticks foot in mouth repeatedly, most recently re "executing" corporations

Steven Hayward at Powerline does a nice job of summarizing the teapot tempest:

Robert F. “Little Bobby” Kennedy Jr is trying to backtrack from his latest foam-flecked calls for jailing climate skeptics. He’s taken the pages of EcoWatch.com (what—was Salon.com out of pixels that day?) to affect a denialist pose (heh) of his own previous very clear words:

Hysterics at the right wing think tanks and their acolytes at The Washington Times, talk radio and the blogosphere, are foaming in apoplexy because I supposedly suggested that “all climate deniers should be jailed.” . . . Of course I never said that. I support the First Amendment which makes room for any citizen to, even knowingly, spew far more vile lies without legal consequence.

Nice try. But Little Bobby essentially doubles down on stupid right away:

I do, however, believe that corporations which deliberately, purposefully, maliciously and systematically sponsor climate lies should be given the death penalty. This can be accomplished through an existing legal proceeding known as “charter revocation.” State Attorneys General can invoke this remedy whenever corporations put their profit-making before the “public welfare.”

Not content with delivering lethal injections to corporations, he thinks the idea should extend to non-profit advocacy organizations, too:

An attorney general with particularly potent glands could revoke the charters not just oil industry surrogates like AEI and CEI. . .

What was that about the First Amendment again, Little Bobby? Also, I wonder how Little Bobby would react if a state attorney general turned the same doctrine on his anti-vaccine advocacy, which has immediate real world consequences for children whose stupid parents follow his advice.

Turns out Little Bobby is skilled at backtracking, because he has to do it so much. Just Google “RFK Jr backtracking,” and sit back and enjoy the results....

Let's focus on Kennedy's proposal to kill corporations via "charter revocation." First, in almost all states, there is no procedure called "charter revocation."

In Model Business Corporation Act states, there are three ways in which a charter may be nullified. First, voluntary dissolution approved by the shareholders and the board of directors, which is obviously not relevant here.

Second, there is a process of administrative dissolution, which may be carried out by the secretary of state--not Bobby's attorney general--but only for a very limited set of reasons none of which remotely relate to climate denial:

§ 14.20 Grounds for Administrative Dissolution. The secretary of state may commence a proceeding under section 14.21 to administratively dissolve a corporation if: 

(1) the corporation does not pay within 60 days after they are due any franchise taxes or penalties imposed by this Act or other law;

(2) the corporation does not deliver its annual report to the secretary of state within 60 days after it is due;

(3) the corporation is without a registered agent or registered office in this state for 60 days or more;

(4) the corporation does not notify the secretary of state within 60 days that its registered agent or registered office has been changed, that its registered agent has resigned, or that its registered office has been discontinued; or

(5) the corporation’s period of duration stated in its articles of incorporation expires. 

Do you see anything in there about forced dissolution of corporations that "put their profit-making before the 'public welfare.'" Nope? Me neither.

Finally, there is a process by which the state attorney general can request judicial dissolution of a corporation, but only on very limited grounds:

§ 14.30 Grounds for Judicial Dissolution

(a) The [name or describe court or courts] may dissolve a corporation:

(1) in a proceeding by the attorney general if it is established that:

(i) the corporation obtained its articles of incorporation through fraud; or

(ii) the corporation has continued to exceed or abuse the authority conferred upon it by law ....

The first prong is obviously irrelevant. So for Kennedy's proposal to execute corporations to have any legal validity, you have to believe that climate denial constitutes "exceed[ing] or abus[ing] the authority conferred upon it by law."

Kennedy apparently believes that exercising free speech rights constitutes such an abuse, but despite his "support" for the First Amendment (for which I suppose we should all be grateful), presumably his education omitted much of the law of free speech under the First Amendment. If corporations have free speech rights (as they do), after all, speaking on issues of public policy must be covered and protected by the First Amendment.

Kennedy also apparently believes that "profit-making before the 'public welfare,'" whatever the heck that welfare may be (apparently he gets to define what constitutes such welfare), constitutes "exceed[ing] or abus[ing] the authority conferred upon it by law." Wrong again.

What is the authority conferred upon a corporation by law? Very simply, to make money within the bounds of law:

A business corporation is organized and carried on primarily for the profit of the stockholders. The powers of the directors are to be employed for that end. The discretion of directors is to be exercised in the choice of means to attain that end, and does not extend to a change in the end itself, to the reduction of profits, or to the nondistribution of profits among stockholders in order to devote them to other purposes. ...

As we have pointed out, [...] it is not within the lawful powers of a board of directors to shape and conduct the affairs of a corporation for the merely incidental benefit of shareholders and for the primary purpose of benefiting others, and no one will contend that, if the avowed purpose of the defendant directors was to sacrifice the interests of shareholders, it would not be the duty of the courts to interfere. 

In other words, Kennedy has it exactly backwards. It would be an effort by "directors was to sacrifice the interests of shareholders" that truly would constitute "exceed[ing] or abus[ing] the authority conferred upon it by law ...."

Look, I'm not a climate denialist. Climate change is happening, albeit to debatable extents, and human activity is relevant. But stupid arguments against climate denialists don't help. And, once again, Bobby has been very, very stupid.

Update: Kennedy opines in his article that:

New York, for example, prescribes corporate death whenever a company fails to “serve the common good” and “to cause no harm.”

I have searched the relevant New York statute and case databases on Westlaw for those phrases, as well as the secondary literature, and came up with nothing relevant. So I call BS. I think he made it up or got it from somebody who made it up.