Libel Case Involving Controversy Over Allegations of Manipulated Medical Research

From Croce v. Sanders, decided last Wednesday by the Sixth Circuit (Judges Raymond Kethledge, Amul Thapar & Chad Readler):

Carlo Croce’s name appears on over 1,000 scientific research articles. Sometimes all he contributed to the article was an idea, while another scientist conducted the research and wrote up the results. A different scientist, David Sanders, discovered that some of these papers contained manipulated data and plagiarized text. When Sanders went to the press with his discovery, Croce sued him for defamation….

Dr. David Sanders is a biological-sciences professor at Purdue University. He makes a practice of discovering and reporting instances of data falsification and fabrication in scientific papers. So when he received a tip about manipulated images in a scientific article about lung cancer, he took a look. One of the images depicting a protein analysis appeared to have been manipulated.

Among the paper’s authors was Dr. Carlo Croce, a celebrated cancer researcher and professor at the Ohio State University. Croce’s name appeared last—suggesting that the paper came from researchers at Croce’s lab but that Croce did not himself conduct the experiment. Sanders, concerned about what appeared to be intentional manipulation of data, kept digging. He ultimately discovered problems in about thirty articles that listed Croce as a co-author.

Sanders reported his concerns to the respective journals. But he found their responses unsatisfactory, so he contacted a reporter from the New York Times, James Glanz. He told Glanz about the problems he’d discovered in the articles, and Glanz investigated. As part of his investigation, Glanz sent a letter to Ohio State and Croce, asking for comments. The letter described the alleged problems in “Croce’s papers”—papers that Croce had co-authored. In the letter, Glanz named Sanders as the source of the allegations. Glanz’s investigation led to a New York Times article about Croce: Years of Ethics Charges, but Star Cancer Researcher Gets a Pass.

The New York Times article prompted a follow-up report by Meghan Holden of the Lafayette Journal & Courier, a paper local to Sanders’s university. The article, Purdue Biologist Calls Out Cases of Scientific Misconduct, described the thankless and risky work of identifying research misconduct in the scientific field. The piece referenced the New York Times article and said that the costs of whistleblowing “didn’t stop Sanders from alleging that [Croce] falsified data or plagiarized text in more than two dozen articles Croce has authored.” …

Croce identifies six allegedly defamatory statements—two from each document. Of the six, five are either statements of opinion or substantially true. And Croce has offered no admissible evidence in support of the sixth statement, only hearsay. Thus, the district court correctly granted summary judgment to Sanders on each of his claims.

For details, see the opinion, which strikes me as correct.

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Is America Too Bound by Red Tape to Support Space Entrepreneurs?

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Does the United States still have what it takes to venture into a new frontier? It’s a question we need to ask as SpaceX and its founder, Elon Musk, face off with regulators over when and how the government will permit the pioneering commercial space company to test its rockets. While there’s little question that humans will continue exploring beyond the Earth, Americans may be too bound by red tape to lead such efforts.

In December, SpaceX conducted a test of its Starship SN8 prototype that saw the Buck Rogers-looking craft rise and descend as hoped, with the small problem of an explosion on landing. The “rapid unscheduled disassembly” (RUD) wasn’t unexpected, though. Elon Musk had earlier warned that it was a very real possibility for the experimental craft.

Recently, we discovered that the test flight wasn’t supposed to happen at all in the eyes of regulators.

“Prior to the Starship SN8 test launch in December 2020, SpaceX sought a waiver to exceed the maximum public risk allowed by federal safety regulations,” a Federal Aviation Administration (FAA) spokesperson told journalists. “After the FAA denied the request, SpaceX proceeded with the flight. As a result of this non-compliance, the FAA required SpaceX to conduct an investigation of the incident. All testing that could affect public safety at the Boca Chica, Texas, launch site was suspended until the investigation was completed and the FAA approved the company’s corrective actions to protect public safety.”

After a regulator-induced delay, the next test flight—of the Starship SN9—launched on February 2, with an outcome similar to that of its predecessor.

“During the landing flip maneuver, one of the Raptor engines did not relight and caused SN9 to land at high speed and experience a RUD,” the company reports.

As the test flights continue, so do disputes between SpaceX and the FAA.

“Unlike its aircraft division, which is fine, the FAA space division has a fundamentally broken regulatory structure,” Musk protested before the SN9 launch. “Their rules are meant for a handful of expendable launches per year from a few government facilities. Under those rules, humanity will never get to Mars.”

The SpaceX founder isn’t alone in pointing out that regulators haven’t kept up with the times when it comes to the changing nature of ventures into space.

“The era of commercial space travel and the rise of abundant spacefaring nations has led to an increase in space activity, which has outpaced international space laws—laws that were originally imagined for state-sponsored space travel in an arena with only two spacefaring states,” Juan Davalos wrote in a 2015 article for Emory International Law Review.

“Existing space law has not kept up with the growth in the private sector, and the United States lacks a comprehensive regulatory regime,” Brianna Rauenzahn, Jasmine Wang, Jamison Chung, Peter Jacobs, Aaron Kaufman, and Hannah Pugh chimed in last summer in the University of Pennsylvania Law School’s The Regulatory Review.

Worse, the regulatory regime that the U.S. does have, inherited from an era of government-dominance of space, lends itself (as do all intrusive rules) to abuse. That can come from “you will respect mah authoritah” resentment of anybody who bucks bureaucracy. But it can also reflect government seat warmers’ discomfort with the unfamiliar and threatening world of private entrepreneurial activity.

“While at first glance the FAA/SpaceX dust-up over their rapid rocket development might be looked at as a rich entrepreneur breaking the rules, and a federal agency trying to keep the public safe, it is actually an example of a government organization—the FAA—unable to distinguish between innovation and execution,” cautions Silicon Valley’s Steve Blank, for whom Elon Musk once interned. “In innovation failure is part of the process. Test rockets blow up, test airplanes may crash. If you do not push the envelope and discover the limits of your design you’re not innovating fast enough or far enough.”

The aviation industry got its start in an entrepreneurial culture that balanced risk and reward to the satisfaction of innovators, not regulators. Orville Wright was badly injured, and a passenger killed in a disastrous early flight. Otto Lilienthal was one of the early pioneers who died as a result of his efforts. Their experiments might well have exceeded the “maximum public risk allowed” by government regulations had those rules existed at the time, but fortunately they did not. Instead, the innovators and their supporters did much as they pleased within their own risk tolerances, to the world’s benefit.

That’s certainly not the case today, though even the FAA’s political masters recognize that the agency needs to change. The FAA is under orders “to streamline the regulations governing commercial space launch and reentry licensing” under rulemaking that “replaces prescriptive requirements with performance-based criteria.”

But there’s no assurance that “streamline” means easing regulation rather than making it more restrictive.

Advocates of reform with regards to commercial space flight have widely varying ideas. Georgetown University Law Center’s Hope Babcock wants to prevent the extension of private property rights to space so that everything beyond the Earth’s surface is held in common. By contrast, the Mercatus Center’s Eli Dourado urged Congress “to consider blanket authorization for all nongovernmental operations in space that do not cause tangible harm to other parties.”

Space’s X’s Elon Musk is pretty clear about what he wants. When the Wall Street Journal asked him in December 2020 what government could do to foster innovation, he replied that “a lot of the time, the best thing that government can do is just get out of the way.”

If U.S. regulators won’t get out of the way of space entrepreneurs, then maybe this is no longer the right country for those entrepreneurs. Modern innovators might be best served by moving their efforts to locales that are more willing to let them decide which risks are worth taking.

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Trump’s Attorneys Misrepresent Kalt’s Scholarship on Late Impeachments

One of the primary arguments made in defense of Donald Trump in anticipation of and during the first day of the second Trump impeachment trial is that it is unconstitutional for the Senate to conduct such a trial after Trump has left office. This position has garnered the support of an overwhelming majority of Senate Republicans and has convinced some commentators as well, even if it is widely rejected by constitutional attorneys and legal scholars across the spectrum.

In making the argument against so-called late impeachments, the Trump defense brief repeatedly cites the work of Professor Brian Kalt on the impeachment of former federal officials. This makes sense because Professor Kalt is the foremost scholar in this area, having written what is widely regarded as the definitive treatment of the subject. The only problem is that the brief misrepresents Professor Kalt’s work.

Writing in Slate, Professor Kalt details how Trump’s attorneys mangle and distort his work.

Trump’s lawyers focused their attention on the parts of my article that favored their side, and not the parts—including my overall conclusions—that favored late impeachability. Fair enough—their job is to advocate for Trump, not for me. But as I looked more closely at just how they depicted my work, it was clear that there was a problem.

In several places, they cited me as though I had concluded something when in fact I had concluded the opposite. For instance, they said:

The only purpose of impeachment is to remove the President, Vice-President, and civil officers from office. When a President is no longer in office, the objective of an impeachment ceases. (Kalt at 66.)

So what did I say on Page 66? In that section, I looked at some different ways to interpret the constitutional text. One such way, which I called “Interpretation #3,” was consistent with what Trump’s lawyers were citing me for. But after summing up Interpretation #3, I denigrated it, saying that it had “deep flaws.” More to the point, one of its flaws was that removal “is not the sole end of impeachment.” In other words, I said the exact opposite of the proposition for which they cited me.

This is not an isolated example. Professor Kalt goes on to give several others, demonstrating that this is not a case of an overzealous advocate making a small error in the course of drafting a brief on a tight deadline. It rather appears as a sloppily scurrilous effort to create a false narrative about the relevant legal scholarship.

One more example from Kalt’s Slate essay helps make the point. In their brief, Trump’s defense team writes:

One legal scholar described the simplicity of Article II’s limitation, which House Managers try in vain to make seem inscrutable, in this way: “A half-grown boy reads in a newspaper that the President occupies the White House; if he would understand from that that all Ex-Presidents are in it together he would be considered a very unpromising lad.” (Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, 6 Tex. Rev. L. & Pol. 13, 20 (2001).)

Kalt comments:

That’s a great, colorful quotation, and I get why they included it. But I never said it. My article did quote the 19th century lawyer who actually said this line, as part of what I called the simple argument against late impeachment. But remember, my article was 124 pages long. If you want to quote me, quote anywhere from the section of the article on why that 19th century lawyer was wrong. Cite me, without a signal, for my argument about how the text is indeed inscrutable. (Several pages later, in a footnote, Trump’s lawyers used the same quote again, this time properly attributing it to Jeremiah Black. Black was a lawyer in the 1876 case of ex–Secretary of War William Belknap, in which the Senate voted 37–29 against Black’s arguments and in favor of jurisdiction).

It is understandable why Donald Trump’s defenders would rather make technical constitutional arguments about the limits of the Senate’s authority than try to defend Trump’s conduct on the merits, but there is no excuse for such sloppy and dishonest work as contained in their briefing to the Senate.

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Is There a Future for Fusionism?

fusionism

There’s a well-worn tale about modern American conservatism: It says that the movement as we know it came into being during the mid–20th century as a “fusionist” coalition of economic libertarians and religious traditionalists. These groups, whose goals and priorities differed from the start, were held together mainly by two things: the sheer charisma of National Review founder William F. Buckley Jr., and the shared enemy of global communism.

As long as the Cold War endured, the story goes, each wing was willing to cede some ground to the other. In light of the threat posed by a rampaging Soviet Union—as militantly atheistic as it was militantly anti-capitalist—the differences between the libertarians and the traditionalists did not seem so great. Their interests, at least, were aligned.

But the fall of the USSR meant the collapse of the common foe that had sustained the fusionist partnership. It was able to trundle on for a while, powered by a reservoir of goodwill, but it has long been running on fumes. In the last few years, the alliance’s inherent tensions have come to a head. It’s increasingly common to hear that, whatever value there may have been in cooperation during the ’50s, ’60s, ’70s, and ’80s, the era of good conservative feelings is over.

For many libertarians, the Trump years revealed their traditionalist allies to be hypocrites and opportunists, all too willing to sell out the ideals of fusionism in service of an aspiring dictator. Conservatives have commenced a not-so-slow descent toward authoritarianism, some in this group suggest; if the philosophy of liberty is to have a future, it must involve building bridges to the left, not the right.

A number of traditionalists, meanwhile, have been tripping over each other in their rush to celebrate the end of fusionism. What the 21st century demands, they say, is a different, more “muscular” style of politics, practiced by a Republican Party that finally stops worrying and learns to love the state. By passing stronger laws, these “post-liberal” conservatives believe they can restore America’s lost Judeo-Christian character and save their country from itself.

This is quite a change from the Reagan Republicanism of a few decades ago. Back then, most folks on the right insisted that limited government and personal responsibility were the watchwords of conservatism. That consensus has now broken down.

From literature to philosophy to religion, it’s hard to think of a theme less original than the seductiveness of power. That, after all, is the story of Frodo and the ring; of Lord Acton and “absolute power corrupts absolutely”; of Satan and the third temptation of Christ. One of history’s great recurrent lessons is about the importance of keeping that desire in check, in our hearts and our governments alike. Which is why it’s exasperating to watch so many conservatives—self-proclaimed heirs to the axiom that “example is the school of mankind,” in Edmund Burke’s phrase—succumb in real time to the fantasy that they are the exception to this time-tested rule.

II.

As far as the post-liberal conservatives are concerned, libertarianism’s preoccupation with protecting liberty has blinded it to the importance of promoting virtue (and a constellation of related values, including faith, family, community, and patriotism). The most moderate version of this argument suggests that libertarians have come to exercise too much influence over the right-of-center policy agenda and proposes a so-called rebalancing toward traditionalist concerns. A more radical version excoriates libertarianism as philosophically bankrupt and calls upon the keepers of the conservative flame to take a sledgehammer to the fusionist coalition once and for all.

Hillsdale College’s David Azerrad put the latter position starkly in a July 2020 essay for The American Conservative. “The common enemy that justified an alliance with the free market fundamentalists is long gone,” he wrote. “Today, libertarians actively side with our enemies: they promote open borders and empty prisons, and strengthen China’s hand through their consumer-focused economic policies. Ours is primarily a conservatism of countries and borders, citizens and families, none of which can take root in the barren libertarian soil of atomized individuals and global markets.”

The post-liberal agenda is typified by a desire for more government involvement in people’s lives. As The New York Times‘ Ross Douthat wrote in 2019, this group seeks “stronger state interventions in the economy on behalf of socially conservative ends.” Or, as Azerrad put it in his essay, “the right must be comfortable wielding the levers of state power.”

Economically, post-liberalism rejects the doctrine of “unfettered” free markets in favor of tariffs, an “industrial policy” intended to prop up American manufacturers in the face of competition from overseas, wage subsidies, and the like. On social issues, it supports everything from vice laws to a rollback of no-fault divorce to more robust speech restrictions on public morality grounds to (among a lively cohort of radical Catholics especially) the imposition of a confessional state and perhaps even a Christian monarch.

There’s little evidence that the post-liberals are speaking for the average Republican, let alone the average American. But the elite wind does seem to be at their backs.

Fox News host Tucker Carlson was once an avatar of fusionism who supported Ron Paul for president in both 1988 and 2008 and told Reason in 2010, “I despise laws that tell people that they can’t do things for their own good.” By January 2019, he was delivering a 15-minute on-air monologue decrying the failures of capitalism. “Does anyone still believe that cheaper iPhones or more Amazon deliveries of plastic garbage from China are going to make us happy?” Carlson asked. “Libertarians tell us that’s how markets work: consenting adults making voluntary decisions about how to live their lives,” he continued, referring specifically to payday lenders. “OK. But it’s also disgusting.”

Two months later, the Christian journal First Things published a manifesto, signed by 15 conservative intellectuals, inveighing against a “dead consensus” that favors “individual autonomy” at the expense of “permanent truths, family stability, communal solidarity, and much else.” Four months after that, the political theorist Yoram Hazony organized an impressively attended conference promoting conservative nationalism. He took the opportunity on behalf of those present to “declare independence” from neoliberalism, classical liberalism, and libertarianism.

In November 2019, Sen. Marco Rubio (R–Fla.) raised more than a few eyebrows when he gave an address at Washington, D.C.’s Catholic University rejecting “the notion that, left unguided, the market will solve our problems.” He called instead for a system of “common-good capitalism” capable of restoring the “balance between the obligations and rights of the private sector and working Americans.”

This, Rubio argued, can be accomplished only through some measure of state direction. “Promoting the common good will require public policies that drive investments in key industries,” he said, “because pure market principles and our national interest are not aligned.” Fortunately for us all, the senior senator from the Sunshine State came equipped with plans for, among other things, “a national co-operative that guarantees investment” in the rare-earth mineral sector.

Rubio’s fervor for a conservatism that has made its peace with a bigger, more powerful central government has been matched and exceeded by some of his colleagues. First-term Sen. Josh Hawley of Missouri, for example—until recently the Republican Party’s brightest young thing—seems not to have found a meddlesome technology regulation or “pro-family” policy he does not like. “We must put aside the tired orthodoxies of years past,” he said in a May 2019 Senate speech. “We need not just a bigger economy but a better society.”

In spring 2020, a new think tank called American Compass came online—”an organization dedicated to helping American conservatism recover from its chronic case of market fundamentalism,” as founder Oren Cass put it in an announcement published by National Review. Among the group’s favored policies are subsidies for American manufacturers, reducing “toward zero” the number of visas granted to Chinese college students, and legally requiring corporations to put the common good ahead of profit seeking—perhaps by ordering them to include labor representatives on their boards of directors, thus “short-circuiting the default assumptions of shareholder primacy by including workers among those to whom management is accountable.”

That last suggestion is striking in its similarity to a 2018 bill introduced by progressive Sen. Elizabeth Warren (D–Mass.), which would require U.S. companies “to consider the interests of all corporate stakeholders,” including by giving workers the right to fill 40 percent of board seats. Warren has been a public enemy of the political right for nigh on a decade. Yet the conservative media have heaped acclaim on Cass’ efforts and held him out as the future of the movement.

This sentiment culminated last August in a lengthy essay by New York Times columnist David Brooks that contained glowing mini-profiles of Hawley and Rubio and that extensively quoted Cass. “Over the long term,” Brooks concluded, “some version of Working-Class Republicanism will redefine the G.O.P.”

In 2018, Samuel Hammond, a researcher at the centrist Niskanen Center, persuasively argued that Warren’s proposal represented a “corporate catastrophe” in the making. Today, he is a contributor to the American Compass blog, where not long ago he urged readers to stand up and insist: “Conservatives believe in supporting families directly. And if that involves a pinch of redistribution, so be it!”

Is there a contradiction there? Hammond doesn’t think so. “I really urge you to separate Warren’s specific proposal,” he says, “from the broader investigation” that Cass is leading into how to help the working class. In the end, “the right will have to take on an orientation that’s more skeptical of trade, more skeptical of big business, and more curious about pro-labor, pro-family policies.”

III.

The post-liberal conservative movement is a twisted artifact of the now-conventional view of fusionism as a partnership of convenience between two groups that have divergent and even contradictory belief systems: libertarians, who prioritize individual freedom above all else, and traditionalists, who know better.

This understanding is subtly—but crucially—mistaken. Fusionism, properly understood, is not a marriage of two groups. It’s a marriage of two value sets. A fusionist is someone who sees both liberty (in the classical sense of freedom from aggression, coercion, and fraud) and virtue (in the Judeo-Christian sense of submission to God’s commands) as important. Fusionism is therefore a distinct philosophical orientation unto itself. What’s more, it has historically been the dominant orientation on the American right.

Conservatives going back at least to the country’s founding have believed that virtue and liberty were mutually reinforcing—and that neither could survive long without the other. A free society depends on a virtuous populace. (“Our Constitution was made only for a moral and religious people,” wrote John Adams. “It is wholly inadequate to the government of any other.”) But the reverse is also true: Virtue, to be virtuous, must be freely chosen. As the late National Review literary editor Frank Meyer, usually identified as the godfather of fusionism, eloquently put it: “Truth withers when freedom dies, however righteous the authority that kills it; and free individualism uninformed by moral value rots at its core and soon surrenders to tyranny.”

Post-liberals tend to see liberty and virtue as fatally at odds. To be a good person necessarily requires accepting some limits on one’s choices, after all. Mustn’t one of the two fusionist pillars ultimately trump the other?

There’s no denying that the demands of morality, traditionally understood, pull against a theoretical ideal of freedom from all constraint. Fusionism reconciles this tension by insisting that the state protect people’s fundamental rights to be secure in person and property—thus leaving individuals, and the various associations they come together to form, with as much space as possible in which to pursue the higher things. Within the governmental sphere, liberty is indeed the ultimate end. But within the infinitely broader sphere outside of government, it’s just the beginning: A life well-lived consists in using one’s freedom to do what’s right. The clear recognition that these are separate spheres, with separate roles to play for the common good, is the genius of the fusionist project.

Today’s post-liberal conservatives appear to think they’re distinguished by the belief that virtue matters. They behave as if their core disagreement with fusionists is about whether human beings have moral obligations that go beyond leaving others alone to do as they please. This could hardly be more wrong. Anyone who holds to the Judeo-Christian tradition—as fusionists by definition do—accepts that we have manifold duties to one another. The disagreement is about whether it’s the state’s job to enforce those moral obligations.

For a fusionist, the answer to that question must be no, for pragmatic as well as deeply moral reasons.

The weight of evidence through history is that concentrated government power in the best case leads to incompetence and waste, while in the worst case it degenerates quickly into tyranny. Whether your main concern is material enrichment or the protection of human rights, limited government has been shown on the proving grounds of experience to be the best available means to that end.

Arguably even more important is the Judeo-Christian doctrine of human beings’ equal inherent dignity. As the Catechism of the Catholic Church puts it, “God created man a rational being, conferring on him the dignity of a person who can initiate and control his own actions.” And later: “Every human person, created in the image of God, has the natural right to be recognized as a free and responsible being. All owe to each other this duty of respect.” That is why state power is such a grave matter, fraught with danger not just to society but to the souls of those who wield it. Only when absolutely necessary—say, to stop one person from initiating violence against another—is it morally justifiable to overrule someone’s right to live his life as he chooses.

Understanding what fusionism is—and what it is not—is more important than it may seem. An arrangement in which traditionalists and libertarians are merely allies can easily become a game of tug of war in which each side jockeys to ensure that, on balance, its own priorities predominate. If one side finds itself too often on the losing end of that jockeying, it might reasonably move to dissolve the alliance altogether.

But if fusionism is a discrete philosophical worldview—and a pervasive one at that, with a pedigree that runs through the American founding and with roots in the Hebrew Bible—then post-liberalism looks infinitely more radical. Remember: The new conservatives don’t just call for a collective recommitment to the pursuit of virtue in the private sphere; they explicitly insist that power be exercised in the government sphere, with a goal of forcibly reorienting society to the common good.

Such a shift amounts to a rejection of one of the two pillars of fusionism—which is to say it’s a rejection of fusionism itself. How supremely ironic that the people who flatter themselves defenders of tradition have abandoned the hard-won philosophical inheritance of the American political right.

IV.

All this leaves unanswered a serious question: If a free society requires a moral populace, what is a committed fusionist in an unvirtuous age to do?

Traditionalists have plenty of evidence that we’re living in such an age. American religiosity is in decline, with significantly fewer people attending weekly services (even before the coronavirus pandemic) than at any time in the last century. Addiction and suicide are through the roof, likely driven by a sense of alienation. Traditional teachings about sexual morality seem laughably antiquated against the backdrop of modernity. The divorce rate is down, but so is the marriage rate, and hundreds of thousands of abortions are performed each year.

Some libertarians are less bothered by these concerns. Many prefer to focus on the ways market-driven technological advances have vastly improved our quality of life. Others go further, arguing that widespread acceptance of a greater range of lifestyle choices make this the best time ever to be alive. Virtue is overrated, this cohort might say, or at least misunderstood—and if you’re reading this magazine, you may be inclined to agree. If people are using more drugs (see, for instance, the cover of this month’s issue) while having fewer children, that’s fine and dandy so long as it’s their choice.

These libertarians are not fusionists, though they can and do happily work with their fusionist brethren when it comes to protecting rights and liberties in the government sphere. At the same time, many libertarians are uneasy about secularism and community breakdown. As a churchgoing Roman Catholic, I certainly fall into this category—grieving the scourge of abortion, suffering under a culture that feels overly sexualized and excessively consumerist, and fretting that modern man has grown unwilling to sacrifice on behalf of something bigger than himself. I’m not the most stereotypical libertarian, but even within the liberty movement I’m not alone. And on the wider political right, such fears are omnipresent.

Faced with problems like these, the allure of desperate measures is perhaps understandable. One common justification for the post-liberal turn is that culture and institutions, once broken, cannot be expected to repair themselves. External help is needed. The state can provide it, through laws that constrain behavior but also teach the populace to value the correct things: faith and family, community and country.

Alas, the lessons of history do not cease to be true just because they’re inconvenient. You cannot impose virtue on people by force, and a coercive legal regime is no more likely in practice to instill good values than it is to make the underlying problems worse.

For one thing, there’s no guarantee that the people actually in power—now or in the future—will agree with you about what the correct values are (or about how much power is required to enforce them). But beyond that, public policies always come with unintended consequences. Even assuming a legal code that perfectly aligns with the true demands of virtue, we can’t know in advance what the effects will be. Perhaps citizens will absorb a better sense of right and wrong. Or perhaps, freed from the need to make weighty decisions for themselves, their moral muscles will atrophy, rendering them less capable of pursuing the higher things in life.

Before you guess which result is more likely, consider the impact that decades of well-intentioned welfare policy have had on poor communities. As the financial incentives for entrepreneurship and family formation evaporated, recipients of aid learned to see themselves as lacking agency. Neighborly ingenuity, manifested through private charitable efforts and mutual aid societies, was crowded out by top-down government “solutions” that solve very little. Despite ever-increasing state and federal spending, the official poverty rate has hardly budged, and small towns and rural counties increasingly join impoverished inner cities as economic disaster areas. All of which suggests that our best efforts have failed to address the causes of the problem and may have exacerbated them.

The central insight of fusionism is that the common good is best achieved when the state stays focused on protecting rights and liberties, leaving individuals and voluntary associations to do the rest. To be clear, there is nothing easy about that answer.

The post-liberal temptation is to believe that government power can be a substitute for the hard labor of institution building and cultural change. It isn’t. The solution must begin at home—on the front porch, around the kitchen table, and in the mirror. The law is not a magic wand. There are no magic wands, and there is no shortcut to the good society.

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Is There a Future for Fusionism?

fusionism

There’s a well-worn tale about modern American conservatism: It says that the movement as we know it came into being during the mid–20th century as a “fusionist” coalition of economic libertarians and religious traditionalists. These groups, whose goals and priorities differed from the start, were held together mainly by two things: the sheer charisma of National Review founder William F. Buckley Jr., and the shared enemy of global communism.

As long as the Cold War endured, the story goes, each wing was willing to cede some ground to the other. In light of the threat posed by a rampaging Soviet Union—as militantly atheistic as it was militantly anti-capitalist—the differences between the libertarians and the traditionalists did not seem so great. Their interests, at least, were aligned.

But the fall of the USSR meant the collapse of the common foe that had sustained the fusionist partnership. It was able to trundle on for a while, powered by a reservoir of goodwill, but it has long been running on fumes. In the last few years, the alliance’s inherent tensions have come to a head. It’s increasingly common to hear that, whatever value there may have been in cooperation during the ’50s, ’60s, ’70s, and ’80s, the era of good conservative feelings is over.

For many libertarians, the Trump years revealed their traditionalist allies to be hypocrites and opportunists, all too willing to sell out the ideals of fusionism in service of an aspiring dictator. Conservatives have commenced a not-so-slow descent toward authoritarianism, some in this group suggest; if the philosophy of liberty is to have a future, it must involve building bridges to the left, not the right.

A number of traditionalists, meanwhile, have been tripping over each other in their rush to celebrate the end of fusionism. What the 21st century demands, they say, is a different, more “muscular” style of politics, practiced by a Republican Party that finally stops worrying and learns to love the state. By passing stronger laws, these “post-liberal” conservatives believe they can restore America’s lost Judeo-Christian character and save their country from itself.

This is quite a change from the Reagan Republicanism of a few decades ago. Back then, most folks on the right insisted that limited government and personal responsibility were the watchwords of conservatism. That consensus has now broken down.

From literature to philosophy to religion, it’s hard to think of a theme less original than the seductiveness of power. That, after all, is the story of Frodo and the ring; of Lord Acton and “absolute power corrupts absolutely”; of Satan and the third temptation of Christ. One of history’s great recurrent lessons is about the importance of keeping that desire in check, in our hearts and our governments alike. Which is why it’s exasperating to watch so many conservatives—self-proclaimed heirs to the axiom that “example is the school of mankind,” in Edmund Burke’s phrase—succumb in real time to the fantasy that they are the exception to this time-tested rule.

II.

As far as the post-liberal conservatives are concerned, libertarianism’s preoccupation with protecting liberty has blinded it to the importance of promoting virtue (and a constellation of related values, including faith, family, community, and patriotism). The most moderate version of this argument suggests that libertarians have come to exercise too much influence over the right-of-center policy agenda and proposes a so-called rebalancing toward traditionalist concerns. A more radical version excoriates libertarianism as philosophically bankrupt and calls upon the keepers of the conservative flame to take a sledgehammer to the fusionist coalition once and for all.

Hillsdale College’s David Azerrad put the latter position starkly in a July 2020 essay for The American Conservative. “The common enemy that justified an alliance with the free market fundamentalists is long gone,” he wrote. “Today, libertarians actively side with our enemies: they promote open borders and empty prisons, and strengthen China’s hand through their consumer-focused economic policies. Ours is primarily a conservatism of countries and borders, citizens and families, none of which can take root in the barren libertarian soil of atomized individuals and global markets.”

The post-liberal agenda is typified by a desire for more government involvement in people’s lives. As The New York Times‘ Ross Douthat wrote in 2019, this group seeks “stronger state interventions in the economy on behalf of socially conservative ends.” Or, as Azerrad put it in his essay, “the right must be comfortable wielding the levers of state power.”

Economically, post-liberalism rejects the doctrine of “unfettered” free markets in favor of tariffs, an “industrial policy” intended to prop up American manufacturers in the face of competition from overseas, wage subsidies, and the like. On social issues, it supports everything from vice laws to a rollback of no-fault divorce to more robust speech restrictions on public morality grounds to (among a lively cohort of radical Catholics especially) the imposition of a confessional state and perhaps even a Christian monarch.

There’s little evidence that the post-liberals are speaking for the average Republican, let alone the average American. But the elite wind does seem to be at their backs.

Fox News host Tucker Carlson was once an avatar of fusionism who supported Ron Paul for president in both 1988 and 2008 and told Reason in 2010, “I despise laws that tell people that they can’t do things for their own good.” By January 2019, he was delivering a 15-minute on-air monologue decrying the failures of capitalism. “Does anyone still believe that cheaper iPhones or more Amazon deliveries of plastic garbage from China are going to make us happy?” Carlson asked. “Libertarians tell us that’s how markets work: consenting adults making voluntary decisions about how to live their lives,” he continued, referring specifically to payday lenders. “OK. But it’s also disgusting.”

Two months later, the Christian journal First Things published a manifesto, signed by 15 conservative intellectuals, inveighing against a “dead consensus” that favors “individual autonomy” at the expense of “permanent truths, family stability, communal solidarity, and much else.” Four months after that, the political theorist Yoram Hazony organized an impressively attended conference promoting conservative nationalism. He took the opportunity on behalf of those present to “declare independence” from neoliberalism, classical liberalism, and libertarianism.

In November 2019, Sen. Marco Rubio (R–Fla.) raised more than a few eyebrows when he gave an address at Washington, D.C.’s Catholic University rejecting “the notion that, left unguided, the market will solve our problems.” He called instead for a system of “common-good capitalism” capable of restoring the “balance between the obligations and rights of the private sector and working Americans.”

This, Rubio argued, can be accomplished only through some measure of state direction. “Promoting the common good will require public policies that drive investments in key industries,” he said, “because pure market principles and our national interest are not aligned.” Fortunately for us all, the senior senator from the Sunshine State came equipped with plans for, among other things, “a national co-operative that guarantees investment” in the rare-earth mineral sector.

Rubio’s fervor for a conservatism that has made its peace with a bigger, more powerful central government has been matched and exceeded by some of his colleagues. First-term Sen. Josh Hawley of Missouri, for example—until recently the Republican Party’s brightest young thing—seems not to have found a meddlesome technology regulation or “pro-family” policy he does not like. “We must put aside the tired orthodoxies of years past,” he said in a May 2019 Senate speech. “We need not just a bigger economy but a better society.”

In spring 2020, a new think tank called American Compass came online—”an organization dedicated to helping American conservatism recover from its chronic case of market fundamentalism,” as founder Oren Cass put it in an announcement published by National Review. Among the group’s favored policies are subsidies for American manufacturers, reducing “toward zero” the number of visas granted to Chinese college students, and legally requiring corporations to put the common good ahead of profit seeking—perhaps by ordering them to include labor representatives on their boards of directors, thus “short-circuiting the default assumptions of shareholder primacy by including workers among those to whom management is accountable.”

That last suggestion is striking in its similarity to a 2018 bill introduced by progressive Sen. Elizabeth Warren (D–Mass.), which would require U.S. companies “to consider the interests of all corporate stakeholders,” including by giving workers the right to fill 40 percent of board seats. Warren has been a public enemy of the political right for nigh on a decade. Yet the conservative media have heaped acclaim on Cass’ efforts and held him out as the future of the movement.

This sentiment culminated last August in a lengthy essay by New York Times columnist David Brooks that contained glowing mini-profiles of Hawley and Rubio and that extensively quoted Cass. “Over the long term,” Brooks concluded, “some version of Working-Class Republicanism will redefine the G.O.P.”

In 2018, Samuel Hammond, a researcher at the centrist Niskanen Center, persuasively argued that Warren’s proposal represented a “corporate catastrophe” in the making. Today, he is a contributor to the American Compass blog, where not long ago he urged readers to stand up and insist: “Conservatives believe in supporting families directly. And if that involves a pinch of redistribution, so be it!”

Is there a contradiction there? Hammond doesn’t think so. “I really urge you to separate Warren’s specific proposal,” he says, “from the broader investigation” that Cass is leading into how to help the working class. In the end, “the right will have to take on an orientation that’s more skeptical of trade, more skeptical of big business, and more curious about pro-labor, pro-family policies.”

III.

The post-liberal conservative movement is a twisted artifact of the now-conventional view of fusionism as a partnership of convenience between two groups that have divergent and even contradictory belief systems: libertarians, who prioritize individual freedom above all else, and traditionalists, who know better.

This understanding is subtly—but crucially—mistaken. Fusionism, properly understood, is not a marriage of two groups. It’s a marriage of two value sets. A fusionist is someone who sees both liberty (in the classical sense of freedom from aggression, coercion, and fraud) and virtue (in the Judeo-Christian sense of submission to God’s commands) as important. Fusionism is therefore a distinct philosophical orientation unto itself. What’s more, it has historically been the dominant orientation on the American right.

Conservatives going back at least to the country’s founding have believed that virtue and liberty were mutually reinforcing—and that neither could survive long without the other. A free society depends on a virtuous populace. (“Our Constitution was made only for a moral and religious people,” wrote John Adams. “It is wholly inadequate to the government of any other.”) But the reverse is also true: Virtue, to be virtuous, must be freely chosen. As the late National Review literary editor Frank Meyer, usually identified as the godfather of fusionism, eloquently put it: “Truth withers when freedom dies, however righteous the authority that kills it; and free individualism uninformed by moral value rots at its core and soon surrenders to tyranny.”

Post-liberals tend to see liberty and virtue as fatally at odds. To be a good person necessarily requires accepting some limits on one’s choices, after all. Mustn’t one of the two fusionist pillars ultimately trump the other?

There’s no denying that the demands of morality, traditionally understood, pull against a theoretical ideal of freedom from all constraint. Fusionism reconciles this tension by insisting that the state protect people’s fundamental rights to be secure in person and property—thus leaving individuals, and the various associations they come together to form, with as much space as possible in which to pursue the higher things. Within the governmental sphere, liberty is indeed the ultimate end. But within the infinitely broader sphere outside of government, it’s just the beginning: A life well-lived consists in using one’s freedom to do what’s right. The clear recognition that these are separate spheres, with separate roles to play for the common good, is the genius of the fusionist project.

Today’s post-liberal conservatives appear to think they’re distinguished by the belief that virtue matters. They behave as if their core disagreement with fusionists is about whether human beings have moral obligations that go beyond leaving others alone to do as they please. This could hardly be more wrong. Anyone who holds to the Judeo-Christian tradition—as fusionists by definition do—accepts that we have manifold duties to one another. The disagreement is about whether it’s the state’s job to enforce those moral obligations.

For a fusionist, the answer to that question must be no, for pragmatic as well as deeply moral reasons.

The weight of evidence through history is that concentrated government power in the best case leads to incompetence and waste, while in the worst case it degenerates quickly into tyranny. Whether your main concern is material enrichment or the protection of human rights, limited government has been shown on the proving grounds of experience to be the best available means to that end.

Arguably even more important is the Judeo-Christian doctrine of human beings’ equal inherent dignity. As the Catechism of the Catholic Church puts it, “God created man a rational being, conferring on him the dignity of a person who can initiate and control his own actions.” And later: “Every human person, created in the image of God, has the natural right to be recognized as a free and responsible being. All owe to each other this duty of respect.” That is why state power is such a grave matter, fraught with danger not just to society but to the souls of those who wield it. Only when absolutely necessary—say, to stop one person from initiating violence against another—is it morally justifiable to overrule someone’s right to live his life as he chooses.

Understanding what fusionism is—and what it is not—is more important than it may seem. An arrangement in which traditionalists and libertarians are merely allies can easily become a game of tug of war in which each side jockeys to ensure that, on balance, its own priorities predominate. If one side finds itself too often on the losing end of that jockeying, it might reasonably move to dissolve the alliance altogether.

But if fusionism is a discrete philosophical worldview—and a pervasive one at that, with a pedigree that runs through the American founding and with roots in the Hebrew Bible—then post-liberalism looks infinitely more radical. Remember: The new conservatives don’t just call for a collective recommitment to the pursuit of virtue in the private sphere; they explicitly insist that power be exercised in the government sphere, with a goal of forcibly reorienting society to the common good.

Such a shift amounts to a rejection of one of the two pillars of fusionism—which is to say it’s a rejection of fusionism itself. How supremely ironic that the people who flatter themselves defenders of tradition have abandoned the hard-won philosophical inheritance of the American political right.

IV.

All this leaves unanswered a serious question: If a free society requires a moral populace, what is a committed fusionist in an unvirtuous age to do?

Traditionalists have plenty of evidence that we’re living in such an age. American religiosity is in decline, with significantly fewer people attending weekly services (even before the coronavirus pandemic) than at any time in the last century. Addiction and suicide are through the roof, likely driven by a sense of alienation. Traditional teachings about sexual morality seem laughably antiquated against the backdrop of modernity. The divorce rate is down, but so is the marriage rate, and hundreds of thousands of abortions are performed each year.

Some libertarians are less bothered by these concerns. Many prefer to focus on the ways market-driven technological advances have vastly improved our quality of life. Others go further, arguing that widespread acceptance of a greater range of lifestyle choices make this the best time ever to be alive. Virtue is overrated, this cohort might say, or at least misunderstood—and if you’re reading this magazine, you may be inclined to agree. If people are using more drugs (see, for instance, the cover of this month’s issue) while having fewer children, that’s fine and dandy so long as it’s their choice.

These libertarians are not fusionists, though they can and do happily work with their fusionist brethren when it comes to protecting rights and liberties in the government sphere. At the same time, many libertarians are uneasy about secularism and community breakdown. As a churchgoing Roman Catholic, I certainly fall into this category—grieving the scourge of abortion, suffering under a culture that feels overly sexualized and excessively consumerist, and fretting that modern man has grown unwilling to sacrifice on behalf of something bigger than himself. I’m not the most stereotypical libertarian, but even within the liberty movement I’m not alone. And on the wider political right, such fears are omnipresent.

Faced with problems like these, the allure of desperate measures is perhaps understandable. One common justification for the post-liberal turn is that culture and institutions, once broken, cannot be expected to repair themselves. External help is needed. The state can provide it, through laws that constrain behavior but also teach the populace to value the correct things: faith and family, community and country.

Alas, the lessons of history do not cease to be true just because they’re inconvenient. You cannot impose virtue on people by force, and a coercive legal regime is no more likely in practice to instill good values than it is to make the underlying problems worse.

For one thing, there’s no guarantee that the people actually in power—now or in the future—will agree with you about what the correct values are (or about how much power is required to enforce them). But beyond that, public policies always come with unintended consequences. Even assuming a legal code that perfectly aligns with the true demands of virtue, we can’t know in advance what the effects will be. Perhaps citizens will absorb a better sense of right and wrong. Or perhaps, freed from the need to make weighty decisions for themselves, their moral muscles will atrophy, rendering them less capable of pursuing the higher things in life.

Before you guess which result is more likely, consider the impact that decades of well-intentioned welfare policy have had on poor communities. As the financial incentives for entrepreneurship and family formation evaporated, recipients of aid learned to see themselves as lacking agency. Neighborly ingenuity, manifested through private charitable efforts and mutual aid societies, was crowded out by top-down government “solutions” that solve very little. Despite ever-increasing state and federal spending, the official poverty rate has hardly budged, and small towns and rural counties increasingly join impoverished inner cities as economic disaster areas. All of which suggests that our best efforts have failed to address the causes of the problem and may have exacerbated them.

The central insight of fusionism is that the common good is best achieved when the state stays focused on protecting rights and liberties, leaving individuals and voluntary associations to do the rest. To be clear, there is nothing easy about that answer.

The post-liberal temptation is to believe that government power can be a substitute for the hard labor of institution building and cultural change. It isn’t. The solution must begin at home—on the front porch, around the kitchen table, and in the mirror. The law is not a magic wand. There are no magic wands, and there is no shortcut to the good society.

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Brickbat: Happy to Be of Assistance

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At least seven Buffalo, New York, police officers were at the scene and coordinated with bounty hunters who entered a home without a warrant seeking a fugitive who was not there, according to a lawsuit. Security video shows the bounty hunters use hand signals to direct officers to the rear of the building while they entered from the front. They held a man, a pregnant woman, and a toddler at gunpoint while they searched the home. The family was renting one part of a two-unit house that was owned by the fugitive’s brother. The fugitive was wanted for failure to appear in court in Pennsylvania, where he is charged with simple assault, theft and driving with a suspended or revoked license, all misdemeanors, according to the lawsuit.

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Brickbat: Happy to Be of Assistance

manwgun_1161x653

At least seven Buffalo, New York, police officers were at the scene and coordinated with bounty hunters who entered a home without a warrant seeking a fugitive who was not there, according to a lawsuit. Security video shows the bounty hunters use hand signals to direct officers to the rear of the building while they entered from the front. They held a man, a pregnant woman, and a toddler at gunpoint while they searched the home. The family was renting one part of a two-unit house that was owned by the fugitive’s brother. The fugitive was wanted for failure to appear in court in Pennsylvania, where he is charged with simple assault, theft and driving with a suspended or revoked license, all misdemeanors, according to the lawsuit.

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Socialism Doesn’t Work

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Last week, I reported on two myths about socialism. My new video covers three more.

Myth No. 3: Socialism works if it’s “democratic.”

As the Democratic Socialists of America put it, “Society should be run democratically—to meet public needs, not to make profits for a few.”

Sounds nice. If socialists are elected, then we’ll have a more just society.

But Venezuela’s socialists were elected.

“They can start off democratically elected,” says economist Ben Powell, director of the Free Market Institute at Texas Tech, but “once they centralize control over the economy, it becomes impossible to ‘un-elect’ them.”

Hugo Chavez was elected but became an authoritarian who chose his successor, Nicolas Maduro. Maduro now gets “elected,” by having opponents arrested and “ordering state employees to vote for him or they lose their job,” says Powell.

“Socialism always becomes authoritarian?” I ask.

“Everywhere you try socialism, that’s what you get,” he replies. “It’s hard to exercise political freedom if you don’t have economic freedoms. If you’re dependent upon the state for your livelihood, you lose your ability to use your voice to oppose [the state] because you can be punished.

And if the state directs the economy, some government department must manage millions of production decisions and prices. That never works. No bureaucrat can anticipate the needs and wants of millions of people in different places. No politician can match the wisdom of decentralized entrepreneurs making subtle adjustments constantly.

Celebrities like Rosario Dawson, Susan Sarandon, and Danny DeVito star in videos selling “democratic” socialism as “public schools” and “interstate highways.”

They are not wrong. “Some industries are government-owned,” replies Powell, but “when you look at things that are inefficiently done—public education, our congested streets,” it’s clear “socialized industries don’t work well.”

“They do in Scandinavian countries!” say socialism’s promoters.

That’s myth No. 4.

Scandinavia does have big welfare programs, but capitalism pays for them.

The socialists call Sweden socialist, but that’s just wrong. “Volvo is a private company,” says Powell. “Restaurants and hotels are privately owned. Markets organize the vast majority of Swedish economic activity.”

Sweden did once try socialism. The result was high taxes, inflation, and economic decline. It’s an example of how people in prosperous places often don’t know what made their lives better.

In 1950, Sweden was the world’s fourth-richest country. Then Sweden tried socialism. Suddenly, once industrious Swedes started taking sick days. Wealth creation stopped.

“Talent and capital stormed out of Sweden to escape taxes and red tape,” writes Swedish historian Johan Norberg. “Businesses moved headquarters and investments to more hospitable places. IKEA left for the Netherlands…Bjorn Borg and other sports stars fled to Monaco.”

Sweden recovered only when it ended its socialist experiment. They cut taxes, government spending, and sold state-owned businesses.

After economically ignorant politicians like Bernie Sanders called Scandinavia “socialist,” Denmark’s prime minister even came to America to say: “Denmark is far from a socialist planned economy. Denmark is a market economy.”

In fact, in rankings of economic freedom, Denmark ranks as more free market than the United States.

Myth No. 5: Socialism is completely different from fascism.

In Congress, Rep. Louie Gohmert (R–Texas) called Hitler a “socialist.” Rep. Steve Cohen (D–Tenn.) took offense, shouting, “It’s the Nazis that were terrible, not the socialists!”

But Nazis were “national socialists.” There are differences between fascism and socialism, but “both replace market decision-making with command and control,” says Powell. Fascism “leaves private ownership in nominal terms” but neither system allows individual freedom. “You lose…control over your own future. Only under capitalism do you have the freedom to say, ‘No.'”

Socialism appeals to people today because it promises “equality and social justice,” but look at its track record. In Russia, Cuba, North Korea, Nicaragua, Vietnam, and China, socialism has meant a loss of freedom.

Socialist experiments also failed in Israel, India, Great Britain, Afghanistan, Syria, Algeria, Cambodia, Somalia, etc. There are no socialist success stories.

Only capitalist countries create real wealth.

“The history of humanity is poverty, starvation, early death,” Powell points out. “In the last 20 years, we’ve seen more humans escape extreme poverty than any other time in human history. That’s because of markets!”

Yet, millions vote for socialism.

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