TheMarketForIdeas

My soon-to-be-published book, Government by Permission, grew out of the research I began in graduate school in 1970 for a master’s thesis on the impact of modern science and technology on society. It subsequently developed into a long-term project which I have pursued in many directions and across multiple disciplines and which carried over – interchangeably – into a career of research, lecturing, and writing. To illustrate the continuity, this article is largely composed of passages drawn from my previous work.

As we seek to interpret the relation between modern technology and the increasingly rational, purposive organization of our lives, special attention must be paid to political organization. Technology increases the repertory of means for political organization and action. Assessing the impact of modern technological means is a significant point of departure for understanding our present circumstances.

What we may call the impetus of applied technology as a system – whether it is a building project, business, bureaucracy, or state – is toward the increasing organization of all variables that influence its effective operation. Like language and cognition, it is drawn to filling the previously unclaimed or unorganized margins of its operation and to securing its order against threats which are intrinsic to any state of material or operational insufficiency. Whatever cannot be regulated requires compensation, such as offsets, or accommodation. All of this may lead to conflict with other entities which are in competition or otherwise perceived as threats.

Paul Valéry characterized as “method” the most formidable form of rational organization or technology, particularly “those administrative machines constructed in imitation of the impersonal aspects of the mind.”[1] Techniques and organizations tend to progress toward greater efficiency and refinement in order to manage threats to their operation. This perceived disorder may recede as the organization brings its immediate margins under more effective control. By seeking greater security to their its operations, organizations generate a demand for more control to compensate for deficiencies. The dependence of organizations on growth – whether expansion outward or complication inward – replenishes the supply of uncoordinated and unknown variables at the frontiers, which brings the process back full circle.[2]

I first encountered Valéry’s work in the early 1970s. Valéry’s conception of method, as set out in such essays as “A Conquest by Method” (1897) and “The Crisis of the Mind” (1919), has wide and varied applications. A few years after I wrote my 1974 thesis[3] I applied its template first to a historical study of the development of professional associations as political strategies for occupational control. Afterwards, I applied it to a historical study of the emergence of the Church and its project of developing a Christian civilization, first within the domain of imperial Rome, and then in both partnership and conflict with the systems of states which have succeeded it.[4] This project culminated in my 1984 doctoral dissertation[5] in which I addressed the challenge of how to preserve genuine religious liberty, not merely “toleration.”

We live at a time when the influence of the institutional church is being effaced from the very civilization it had helped knit together over many centuries and stamped with a distinctly Christian hallmark.[6] The irony is perhaps most noticeable to scholars who do not share the faith. In one of his last works, the sociologist Philip Rieff referred to the West as the “church civilization.”[7] Similarly, as the historian Tom Holland writes: “So profound has been the impact of Christianity on the development of Western civilization that it has come to be hidden from view. It is the incomplete revolutions which are remembered; the fate of those which triumph is to be taken for granted.”[8]

Part of the challenge to preserve liberty today is the indefinite scope of civil government and the unlimited – as well as conflicting – demands of political parties and various constituency groups. This development is the natural outgrowth of a long-standing political and economic dynamic associated with scientific materialism – or positivism – and its ideological offspring. Modern technology invests all organizations – from international entities to small farms and families – with the means to increasingly shape all variables which directly impinge on their operation. Moreover, the need to economize an organization’s activities, which is due to a condition of insufficient means, material, and knowledge, motivates an effort to secure greater control over those variables on behalf of its presumed interests.

Although at one time the American political system was strictly defined, federal, and co-operative, it is now becoming highly complex, centralized, and intricately regulated. During the early Republic, legal reforms and judicial rulings tended to take a “release of energy” view of property that encouraged initiative and rewarded the competitive spirit of free enterprise and inner-directedness of the pioneer and the entrepreneur.[9] In recent generations, however, the rise of the administrative state stifles initiative and rewards dependency. Reliance on administrative law throughout the West compounds the problem, especially in an age of identity politics, expressive individualism, and the allegedly sovereign self. Like a codicil to a will, each new policy effectively rewrites the whole Constitution so that its applications are generally governed by the most recent theory or interpretation.

The growing role of – and public acquiescence in – the state as the arbiter of first resort threatens to overpower all other institutions: families, churches, schools and universities, regional and local governments, charities, businesses, trade unions, and professional associations. Historically, these institutions have acted as mediating structures which stand as a buffer between the individual and the central state.[10] Some have weakened or disappeared. Many succumb to the blandishments of a putatively “beneficent state” to serve as one of its appendages through incorporation, regulation, and subsidization. Alexis de Tocqueville in Democracy in America (1835, 1840) noted the significant public role then played by self-governing voluntary associations in America.[11] Those days began receding long before Covid-19 lockdowns made them even more superfluous.[12]

The church historically has been the most powerful of these mediating structures but the state has adopted or coopted many of the ministries it originated – among them, hospitals and universities – while replacing the church’s role in them. In America, the changes have been often slow and subtle, but the old boundaries that once separated church and state have been effectively breached by relaxing constitutional safeguards. Principled opposition to such encroachment fades away with the passage of time until constitutional innovations cease to be questioned. As a consequence, the church has lost much of its distinctive prophetic character. This means, among other things, that institutions which historically were cloaked in robes of authority – the clergy, university professors, and the judiciary – are less equipped to serve as the independent conscience of the polity.[13]

In their pursuit of institutional capture, ideologies and partisan political programs threaten both institutional breakdown – nihilism and anarchy – by replacing what Francis Lieber called institutional liberty with institutional despotism. [14] Given this pattern, the question to ask is: Are we still capable of preserving our early constitutional tradition of ordered liberty where it still thrives and restoring it where it has been lost? The book that follows is a set of previously published commentaries on a series of eight lectures I recorded in 2011 for a course on government regulation.

Events of the past half century suggest that a relationship more characteristic of adversaries than allies is replacing an earlier cooperation or accommodation between church and state. In the formation of Christendom, church and state had acted – not without major conflicts – as interdependent institutions which reflected the Christian jurist Johannes Althusius’s idea of symbiosis.[15] Some cooperation is still evident but an earlier willingness by the state to make common cause with church ministries seems to be giving way to a pattern of domination over the church and society in general. A major indicator of this power shift is the gradual displacement of the protective immunities churches and church schools once enjoyed through exemptions from taxation and regulations that impinge upon their ministry.[16]

This, finally, brings us to the problem at hand. Early in his career, Peter Drucker argued that the most important political consideration is that “a free society and a free government are possible only if there are not one but two competing bases of power: one of social and one of political organization.”[17] This description echoes Francis Lieber’s “theory of institutional liberty” that “real and essential self-government, in the service of liberty” is obtained and perpetuated through “a vast system of institutions, whose number supports the whole, as the many pillars supports the rotunda of our capitol.”[18]

The Constitution of Liberty[19]

In the third chapter of The Constitution of Liberty Friedrich A. Hayek draws on Francis Lieber’s 1849 newspaper essay, “Anglican and Gallican Liberty,” to make a crucial distinction that could help dispel much of the confusion which infects our political discourse. Lieber developed a contrast between two very different traditions of liberty: “one empirical and unsystematic,” as Friedrich Hayek put it in his commentary, “the other speculative and rationalistic – the first based on an interpretation of traditions and institutions which had spontaneously grown up and were but imperfectly understood, the second aiming at the construction of a utopia, which has often been tried but never successfully.”^[20]

Lieber and Hayek here summarize the great dilemma of modern politics. These traditions are the two poles toward which we are drawn. The first relies on the marketplace of individual initiative, giving rise to what Hayek – following Michael Polanyi – called “spontaneous order.”^[21] In the absence of a dependable safety net, people usually know that sufficient resources must be held back in reserve. Such self-reliance and self-government resembles what Aaron Wildavsky called “resilience,” which requires holding resources in reserve. The other side of risk management – ”anticipation” – represents the urge to systematically cover every need and prepare for every eventuality.^[22] Taken to an extreme, the managerial state itself becomes a total package and an exclusive provider: what Hilaire Belloc called “the servile state.” If we start with the open-ended definition of politics given by the political scientist Harold Lasswell^[23] -- “who gets what, when, how” – it is reasonable to conclude that politics will inevitably be contested terrain.

Freedom and the Abundant Life

Western civilization – once known as Christendom – arose out of a combination of Greek learning (paideia), Roman law, and Biblical faith and justice. The first of these elements helped shape our systems of education. The second is preserved in the European civil law codes and international law. The third element, the Biblical tradition, is foundational – the center that still holds – yet increasingly neglected within an increasingly secularized order. Although its contribution is not well understood and has been deliberately ignored in Europe by the Treaty of Lisbon (2009) which governs the European Union, the Bible’s vitality is everywhere felt,^[24] as Sara Rigler has shown.

Soon after the death of his friend Alexis de Tocqueville, Francis Lieber gave an introductory public lecture in 1859 which examined some of the threats to liberty in his day and ours:

“The advance of knowledge and intelligence gives to despotism a brilliancy, and the necessity of peace for exchange and industry give it a facility to establish itself which it never possessed before. . . . Absolutism in our age is daringly draping itself in the mantle of liberty, both in Europe and here. What we suffer in this respect is in many cases the after-pain of Rousseauism, which itself was nothing but democratic absolutism. There is, in our times, a hankering after absolutism; and a widespread, almost fanatical idolatry of success, a worship of will, whose prostrate devotees forget that will is an intensifier and multiplier of our dispositions, whatever they are applied to, most glorious or most abhorrent, as the case may be, and that will, without the shackles of conscience or the reins of a pure purpose, is almost sure of what contemporaries call success. It is so easy to succeed without principle!”^[25]

Lieber had the reign of Napoleon III in mind when he spoke in 1859, but the 20th century was to supply countless examples of “democratic absolutism” which push “Gallican liberty” to the extreme of despotism.

Ralph Raico draws upon the work of Lord Peter Bauer, David Landes, and Harold J. Berman in his article “The European Miracle.”^[26] For him the key to understanding the success of western economic development “is to be found in the fact that, while Europe constituted a single civilization – Latin Christendom – it was at the same time radically decentralized. In contrast to other cultures – especially China, India, and the Islamic world – Europe comprised a system of divided and, hence, competing powers and jurisdictions.”^[27] This is a point that is brought out especially in David Landes’s The Wealth and Poverty of Nations.^[28] Here again what we see at work is a reconciliation of unity and diversity, an institution of checks and balances, and a reliance upon the time, talent, and treasure vested in ordinary people.

Similarly, Francis Lieber attributed the successes of modern societies to the spread and development of Christianity. Among many other scholars, Kenneth Minogue, David Gress,^[29] and Ruben Alvarado have looked at the Middle Ages as a great wellspring of Europe’s political and economic development. Kenneth Minogue notes that the kings of early Christendom were bound by oath to uphold an inherited body of laws that held their kingdoms together.^[30] Thus the rule of law. Medieval Europe was decentralized and yet a common legal order spread through the English and Frankish realms.^[31] Thus Hayek’s idea of spontaneous order.

Yet the literature on political and economic development, like so much within the social science fields, has long endured what Thomas Sowell calls A Conflict of Visions^[32] that pits off the constrained vision, the practical-mindedness of those who promote free markets and investment, against the unconstrained vision of social utopians who demand domestic political intervention and international aid agencies. Sowell’s two visions are merely more recent labels for what Lieber called Anglican and Gallican liberty. What Raico calls the “European Miracle” sprang from an experience that was first and foremost concrete and empirical rather than abstract and rationalistic. To paraphrase what Oliver Wendell Holmes, Jr. said about the life of the law, we may likewise say that the life of Europe’s development is not logic: it is experience.^[33]

Lord Peter Bauer, an adopted Englishman of Hungarian extraction, certainly epitomized the constrained, Anglican vision. In Dissent on Development and other works, Bauer criticized the professional tunnel vision of social scientists who were so obsessed with numbers that they neglected such factors as “[a]bilities and attitudes, mores and institutions, [which] cannot generally be quantified in an illuminating fashion.”^[34] The result is an “amputation of the time dimension.”

Today it is the occupational disease of bureaucracies and universities to elevate specialization over general knowledge and reward a fixation on data which can be statistically massaged. As Bauer observed of the state of academic economics: “The historical background is essential for a worthwhile discussion of economic development, which is an integral part of the historical progress of society. But many of the most widely publicized writings on development effectively disregard both the historical background and the nature of development as a process.”^[35] Here is a nice illustration of the unconstrained vision at work. Tunnel vision, perhaps?

As early as the cusp of the twentieth century, the journalist E. L. Godkin complained that, in Progressive reform circles, laissez faire economics had gone out of fashion. Furthermore, the Declaration of Independence was treated as an embarrassment and the Constitution something to be outgrown. In Soft Despotism, Democracy’s Drift, Paul Rahe cited Godkin’s lament while echoing Lieber’s and Tocqueville’s earlier warnings democratic tyranny. Rahe underscored that Godkin understood

“that those who repudiate the notion of natural rights abandon thereby the principles dictating that government be limited in the ends it may pursue and in the means it may employ, and he recognized that in the name of a largely imaginary public interest – divorced from a concern with individual interests and rights, inspired by Rousseau’s notion of the general will, and grounded in Hegel’s vision of an ethically satisfactory public life – such men would be apt to commit what would hitherto be recognized as monstrous crimes.”^[36]

An earlier visual rendering of this point may be found in Francisco Goya’s etching, “The Dream of Reason Produces Monsters.”

Here we may begin to compare the American tradition of constitutionally-limited government – which is today mostly hidden under a welfare-warfare state overlay – with the European version of political moralism or rationalism in politics, which appears to be a “stalking horse” for global governance. Here I wish to cite a few more witnesses.

Philadelphian Sovereignty vs. a Common European Home

1. H. H. Weiler, director of the Jean Monnet Center at NYU, believes constitutions are supposed to do three things: organize state functions, define the relationship between citizens and the state, and embody “the ethos and the telos” of a given political community. As George Weigel notes: “What Europe’s secularists seem to have forgotten, Weiler suggests, is the third function of constitution-making. . . . Constitutions are the repository, the safe-deposit box, of the values, symbols, and ideas that make a society what it is.” ^[37]

Let us next consider what the American constitutional scholar, Jack Rakove,^[38] had to say two decades ago about the proposed Constitutional-Treaty, which was rejected by the French and Dutch electorates at referenda held in 2005. The former French president, Valéry Giscard d’Estaing, compared his role in drafting it at the Convention on the Future of Europe in 2003 with the contributions of Benjamin Franklin and Thomas Jefferson at the Philadelphia Convention of 1787. But he got his history wrong. Jefferson was in France at the time. Moreover, he subsequently advocated a canon of constitutional interpretation which favored the reserved powers of the states over the expansive view of federal authority held by two predecessors in the presidency. In this regard, Giscard d’Estaing was closer in his thinking to Alexander Hamilton, who favored a loose interpretation of the constitutional language and a greater concentration of power in the central government.

Rakove claims that early state constitutions in America were little more than statutes created by legislatures. Jefferson and the other founders concluded that a truly national constitution had to be framed by a body appointed for that sole purpose and then submitted to the people for their approval. Rakove argued that the European Union’s original constitutional treaty was, by contrast, more of a treaty among nation-states than a constitution for a common people. It would not deprive these states of the power to opt out of the union. In 2003 the European Union had little authority even over war and diplomacy, and lacked the power to tax; but its economic and social authority already went well beyond anything the United States founders envisioned.

From an American perspective, the proposed constitution is easy to disparage, especially its long list of social rights, its weak protection of subsidiarity or a decentralized federalism, the lack of political accountability to the people, and its creation of a dual presidency. Still, Rakove believed that the proposed constitution was a significant step toward the centralization of public policy, especially the federalization of economic and social “competences.”

Unlike the early American states, all EU members are nation-states possessing full political sovereignty and a self-conscious sense of their historical peoplehood; each is aware of the consequences of losing its capacity to assert its national interests. Rakove believed that the new, intensely nationalistic members entering the EU from the old Soviet bloc would be loath to see their stature as sovereign nation-states, capable of acting on the world stage, so soon submerged to an amorphous entity. As a result, he believed that 1) member states would be unlikely to cede their right to conduct their own foreign policy to the EU, and 2) the formal requirement for unanimity would place the entire project in jeopardy.^[39] Twenty years later these conflicts have intensified.

The American founders were able to avoid a similar problem by abandoning the rule of unanimity and requiring the ratifying conventions to vote on the Constitution in its entirety rather than piece by piece. Two advantages resulted: 1) it produced a completely unambiguous decision that bestowed a deep legitimacy upon the whole process; and 2) the direct appeal to the sovereignty of the people powerfully affirmed that the U.S. Constitution would be the supreme law of the land.

On the European side, the political identity of this new entity that Euro-federalists sought to create was left undefined. Critics charged that the EU’s political vision is indelibly elitist, bureaucratic, and technocratic and that the new Europe would never mobilize the patriotic affections of the citizens whose lives were to be regulated. Rakove expected that the process would develop incrementally closer to the British model. But now that Britain has seceded, Brexit has left the centralizers in even greater control.

The project of European integration has always been more an exercise in improving coordination than in achieving genuine political integration. Alexander Hamilton and James Madison could have their argument for and against an expansive interpretation of presidential authority in foreign affairs because the main issue, national authority over foreign relations, had already been settled; but no such consolidation of external relations is proposed for the EU.

Todd Huizinga, a retired American foreign service officer who worked directly with agencies of the European Union, has written a book entitled The New Totalitarian Temptation: Global Governance and the Crisis of Democracy in Europe.^[40] Europeans themselves have long complained about a “deficit of democracy.” But European institutions were never designed to consult the will of the public – either a general European public or the will of the citizens of its member states. Instead, like Rousseau’s general will, these institutions represent something resembling what children’s rights advocates have called “the best interests of the child.” It is ultimately the vision of what the Frankfurt School philosopher, Jürgen Habermas, has described as “a global domestic politics without a world government . . . embedded within the framework of a world organization with the power to impose peace and implement human rights.”^[41] This sounds very much like Gallican liberty for an age of global governance. But, as John Fonte has objected, “the effect of [such] policies would be fundamentally at odds with the basic principles and practices of self-government.” This raises a question: “Do Americans, or other peoples, have the moral right to rule themselves or must they share sovereignty with others?”^[42]

Here Huizinga addresses the practical implications of what Fonte calls the “Philadelphian sovereignty”^[43] reflected by the American Constitution. As Fonte put it in his book Sovereignty or Submission:

“For most of the past half century, the U.S. State Department has routinely qualified American ratification of international treaties with stipulations (in written ‘reservations, understandings, declarations,’ or RUDs) that the United States will not accept anything in the treaty as valid if the treaty provisions violate the U.S. Constitution. If there is a point dispute between an international treaty and the Constitution of the United States, the Constitution trumps the international convention.”^[44]

Huizinga echoes the Declaration of Independence when he notes that that “sovereignty resides in the citizens of a nation, ‘endowed by their Creator with certain unalienable rights,’ not in the government of the nation. The power and authority of the U.S. government are derived from the American people, and the American people alone. This is what John Fonte calls ‘Philadelphian sovereignty,’ or ‘democratic sovereignty,’ which means ‘the sovereignty of a self-governing free people.’”^[45]

The American Constitution describes itself as the “supreme law of the land,” a phrase that is derived from the English Magna Carta. “By contrast,” as Huizinga notes,

“the EU’s goal of creating a post-nation-state, supranationally governed world – in which nations give up key aspects of their national sovereignty to a web of international institutions that administer and enforce a body of international law – is diametrically opposed to Americans’ instinctive refusal to recognize as legitimate any international organization, law, or treaty that claims any authority over Americans above the U.S. Constitution, particularly if that organization, law, or treaty contradicts the Constitution or violates Americans’ constitutional rights.”^[46]

The touchstones of the American tradition of “Philadelphia sovereignty,” much like Francis Lieber’s Anglican liberty, are the rule of law, consent of the governed, and constitutionally limited government. Americans have an aversion to signing a blank check over to anyone. And yet, we see much the opposite on the eastern shore of the Atlantic. Here is the Polish philosopher Ryszard Legutko on the compulsion for conformity:

“Poland shook off the Communist yoke at a time when the Western world had already reached a phase of considerable homogeneity and standardization. Therefore as soon as the Poles liberated themselves and started aspiring to the liberal-democratic world, Poland lost its previous exotic charm as a country in which workers, intellectuals, and priests defied communism, prayed to God, and risked their freedom in defense of truth, good, and beauty. The liberal-democratic world did not want such exoticism in their midst, and would have been embarrassed if the Poles had persisted in their initial ambitions. It expected a different Poland, the one that was indistinguishable from other nations, following this or that pattern of liberal-democratic order, provided it covered all areas of social life. The Poles grasped this quickly and the majority of them adapted to the expectations without protest and without regret.”^[47]

The British philosopher Roger Scruton also addressed what he called “The Totalitarian Temptation” and devoted a chapter in A Political Philosophy to “Newspeak and Eurospeak.”^[48] By contrast, in Democracy without Nations?, the French political philosopher Pierre Manent observed that America unapologetically acts like a nation-state while, in Europe, the idea of the nation is giving up the ghost.^[49]

Finally, we may note that the Italian philosopher and politician, Marcello Pera, raised concerns similar to Weiler’s when he addressed Jürgen Habermas’s concept of constitutional patriotism, which is supposed to be Europe’s politically unifying and binding element. Pera cited Habermas’s 2004 debate with then Cardinal Ratzinger in terms that recall Francis Lieber’s distinction between Anglican and Gallican liberty:

“Cardinal Ratzinger replied to Habermas, ‘[In Europe] there are no longer any motivations for our great ethical principles or for human dignity, and we have finally ended up with positivism because Habermas’ constitutional patriotism is positivism. The constitution by itself produces morality. But that is untrue. It cannot do so, it needs power from the past and we must find and reawaken those powers.’ This is true. Constitutional patriotism is constitutional positivism. Presenting its principles as procedural and discursive axioms cannot change its substance. In the view of Habermas, it is the Charter that produces identity, and not the other way around.

Thus the ethical deficit of constitutional patriotism (and of the Charter [of Nice], which has adopted its philosophy) must be filled. But with what shall it be filled? There is no doubt that in speaking of the ‘powers from the past’ Cardinal Ratzinger was referring to the Judeo-Christian tradition. It is in this tradition that the concept of the person, endowed with dignity because it was created in the image of God, sinks its deepest roots. If constitutional patriotism wishes to become thick and relevant to Europe, and appropriate for its history, why not fill its deficit with an appeal to that tradition? Why not recognize Christianity as its own basis or as a part of itself? The official answer is that any reference to its history would be divisive and not inclusive. But the real answer is: because liberal European culture accepts the secular equation [i.e., equating ‘liberal’ with ‘secular’] and rejects Christianity. But by doing so, and in the absence of adequate substitutes (constitutional patriotism is not an adequate substitute because it contains a deficit it cannot fill), liberal European culture can produce no notion of European identity, either religious or secular. In the end, it opposes the very thing it wishes to promote: the unification of Europe.”^[50]

Pera concludes by urging Europe and the West to save liberalism and liberal freedoms by appreciating their Christian heritage and roots.

A Scofflaw Attitude

In his masterful summary of “The European Miracle,” Ralph Raico cited a few of the points made by Harold Berman in the first volume of Law and Revolution (1983). In fact, Berman’s summary of the principal characteristics of the Western legal tradition – its relative autonomy, professionalism, specialized training, and scientific mindset – provides us with a good place to wind down our survey of the building blocks of the decentralized, cooperative, self-limiting tradition of what Francis Lieber called “institutional liberty.”^[51]

“Institutional self-government trains the mind and nourishes the character for a dependence upon law and a habit of liberty, as well as of a law-abiding acknowledgment of authority. It educates for freedom. It cultivates civil dignity in all partakers, and teaches to respect the rights of others. It has thus a gentlemanly character. It brings home palpable liberty to all, and gives a consciousness of freedom, rights, and corresponding obligations such as no other system does.”^[52]

Lieber likewise warned of the dangers of an institutional despotism, out of which people can be extracted only with the greatest difficulty: “Liberty may be planted where despotism has reigned, but it can be done only by much undoing, and breaking down; by a great deal of rough ploughing.”^[53] Berman himself witnessed and warned decades ago of the direction and dangers posed by the modern administrative state: a form of institutional despotism. His bill of indictment is severe:

“Almost all the nations of the West are threatened today by a cynicism about law, leading to a contempt for law, on the part of all classes of the population. The cities have become increasingly unsafe. The welfare system has almost broken down under unenforceable regulations. There is almost wholesale violation of the tax laws by the rich and the poor and those in between. There is hardly a profession that is not caught up in evasion of one or another form of governmental regulation. And the government itself, from bottom to top, is caught up in illegalities. But that is not the main point. The main point is that the only ones who seem to be conscience-stricken over this matter are those few whose crimes have been exposed.”^[54]

What a picture he paints! Five centuries after Luther took his stand on grounds of conscience and two centuries after Madison saw conscience as the “most sacred property,” where do we stand today? Is the heritage of the West facing foreclosure? Might the corporation we call our “perpetual union” be placed into receivership? The attacks by critical legal theorists and other postmodernists on legal formalism now threaten to sweep aside rule, precedent, policy, and equity:

“In the name of antiformalism, ‘public policy’ has come dangerously close to meaning the will of those who are currently in control: ‘social justice’ and ‘substantive rationality’ have become identified with pragmatism; ‘fairness’ has lost its historical and philosophical roots and is blown about by every wind of fashionable doctrine. The language of law is viewed not only as necessarily complex, ambiguous, and rhetorical (which it is) but also wholly contingent, contemporary, and arbitrary (which it is not). These are harbingers not only of a ‘post-liberal’ age but also of a ‘post-Western’ age.”^[55]

This contempt for law – antinomianism is the word for it – is the specter that haunts the West today. The question is whether the well-tempered engine of the American Constitution with its separation of powers and the European Union with its “democratic deficit” are any match for a post-Christian social order.

Appendix: What the Purloined Soviet Archives Have Disclosed

A very intriguing witness to a pre-Maastricht phase of the European project is Vladimir Bukovsky, who with Pavel Stroilov published a booklet in 2004 entitled EUSSR.^[56] The well-known Soviet-era dissident, who returned to the Soviet Union around the time of the August coup in 1991, later published an account of the circumstances that enabled him to obtain access to Soviet archives and return to the West with thousands of pages of photocopies, which he later placed on the Internet after failing to find a publisher.^[57] This evidence has been publicly accessible for nearly two decades. It has elicited little direct comment in the press. The journalist Claire Berlinski published an article entitled “A Hidden History of Evil” and asking: “Why doesn’t anyone care about the unread Soviet archives?”^[58]

For several years beginning around 2008 I had permission from both Vladmir Bukovsky and Pavel Stroilov to reprint – for classroom use – a sampling of passages from their narrative as well as passages from Kremlin archives. These are included in a 44-page booklet, EUSSR, which excerpts conversations Soviet leader Mikhail Gorbachev had with various European delegations – and at least one from America – that met with him to discuss their future within a “Common European Home.” After I gave a public lecture in Bucharest, which I entitled “Rival Traditions of Liberty” in March 2017, I obtained permission from the Bukovsky Foundation – Vladimir Bukovsky was quite ill by then – to incorporate my digest as an appendix, which may be read online at the end of the published article.^[59]

These conversations reveal much of the vision and political maneuvering that led eventually to the Maastricht Treaty (1992), which created the present European Union. The endgame envisioned by these European and Soviet leaders in the late 1980s was the very embodiment of the Cold War “convergence theory” – a merger of the communist and capitalist systems – which had became popular in social democratic circles thirty years earlier. The collapse of the Soviet Union at the end of 1990 thwarted these plans.

Perhaps the best advice for unearthing a hidden agenda is to scrutinize any such political initiative – under whatever guise it assumes – with a “gimlet eye.” As John Fonte has observed: “From the 1950s through the first decade of the twenty-fifth century, European integration proceeded by what has been called the ‘Monnet method’ . . . . The Monnet method has been called ‘integration by stealth,’ even by supporters of the European Union.”^[60]

In order to preserve and reclaim our liberty, we must endeavor to discern the purposes of a policy not so much from the reasons for it that are publicly stated but from the consequences that result. We should always ask: Cui bono? Who benefits?

Photo sources: [1] PxHere.com; [2] PxHere.com.

Notes:

[1]Paul Valéry, The Collected Works of Paul Valéry, vol. 10: History and Politics, ed. Jackson Mathews, Bollingen Series 45 (New York: Pantheon Books, 1962) 78.

[2]See Steven Alan Samson, “Technology’s Dominion: An Ever-Tightening Web of Dependency,” The Market for Ideas, 31 (Sep.-Oct. 2021). http://www.themarketforideas.com/technologys-dominion-an-ever-tightening-web-of-dependency-a693/.

[3]Steven Alan Samson, The Methodical Conquest: Perceptions of the Impact of Modern Technology on Society, University of Colorado, 1974.

https://digitalcommons.liberty.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1028&context=gov_fac_pubs

[4]See, e.g., Steven Alan Samson, “Early Christendom: Chrysalis of the West,” The Market for Ideas, 40 (Mar.-Apr. 2023). https://www.themarketforideas.com/early-christendom-crysalis-of-the-west-a848/; and “An Uneasy Partnership: Medieé Church and State,” The Market for Ideas, 48 (Jul.-Aug. 2024).

 https://www.themarketforideas.com/an-uneasy-partnership-medieval-church-and-state-a938/

[5]Steven Alan Samson, Crossed Swords: Entanglements Between Church and State in America, University of Oregon, 1984. https://digitalcommons.liberty.edu/fac_dis/index.2.html

[6]The Parable of the Wicked Tenants comes to mind here (Matt. 21:33ff). See Steven Alan Samson, “Civilization Is Built on Borrowed Capital,” The Market for Ideas, 44 (Nov.-Dec. 2023).

https://www.themarketforideas.com/civilization-is-built-on-borrowed-capital-a893/

[7]Philip Rieff, My Life Among the Deathworks: Illustrations of the Aesthetics of Authority (Charlottesville: University of Virginia Press, 2006) 4.

[8]Tom Holland, Dominion: How the Christian Revolution Remade the World (New York: Basic Books, 2019) 17.

[9]James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison, WI: University of Wisconsin Press, 1956) 28; see also David Riesman, with Nathan Glazer and Reuel Denney, The Lonely Crowd: A Study of the Changing American Character (New York: Doubleday Anchor Books, 1953 [1950]).

[10]See Michael Novak, ed. Democracy and Mediating Structures: A Theological Inquiry (Washington, DC: American Enterprise Institute for Public Policy Research, 1980).

[11]Alexis de Tocqueville, Democracy in America, trans. Henry Reeve (New Rochelle, NY: Arlington House,

1965), Second Book, chapter 5.

[12]Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Touchstone, 2001). See “Interposition: Magistrates as Shields Against Tyranny,” Western Australian Jurist, 11 (2020): 301-38. https://kirra.austlii.edu.au/au/journals/WAJurist/2020/13.pdf. It is one of several articles published in Augusto Zimmermann and Joshua Forrester, eds. Fundamental Freedoms in an Age of COVID-19 (Conor Court, 2021).         

[13]See Gary North on the strategy of “capturing the robes.” file:///C:/Users/steve/OneDrive/Documents/SAMSON/North%20Capturing%20the%20Robes.pdf

[14]Francis Lieber, On Civil Liberty and Self-Government, 3rd ed., revised, ed. Theodore D. Woolsey (Philadelphia: J.B. Lippincott, 1877). See also Steven Alan Samson, “Francis Lieber’s Theory of Institutional Liberty,” Journal of Christian Reconstruction, XIV, 2 (Spring 1997): 155-74. https://facultyshare.liberty.edu/ws/portalfiles/portal/39808328/fulltext.pdf

[15]Johannes Althusius, Politica, ed. and trans. Frederick S. Carney (Indianapolis: Liberty Fund, 1995 [1603]). The word symbiosis originally meant the interconnectedness of living together as a community. It anticipates the political forms New England colonists developed to govern their lives in New England. In the mid- to late-nineteenth century, Luigi Taparelli’s idea of subsidiarity, Francis Lieber’s idea of institutional liberty, and Abraham Kuyper’s sphere sovereignty all reflected aspects of Althusius’s symbiosis.

[16]See Samson, Swords, chapter 10: “Fiscal Regulation” https://digitalcommons.liberty.edu/fac_dis/127/

[17]Peter F. Drucker, The Future of Industrial Man: A Conservative Approach (New York: The Mentor Executive Library, 1965 [1942]) 134-35.

[18]Lieber, Self-Government 300.

[19]The balance of this article is drawn from my 2017 lecture at the Academia Romana. Steven Alan Samson, “Rival Traditions of Liberty: America vs. the European Union,” The Review of Social and Economic Issues 1:4 (2017): 96-134. https://digitalcommons.liberty.edu/gov_fac_pubs/510/

[20]Friedrich A. Hayek, The Constitution of Liberty (Chicago: The University of Chicago Press, 1960) 54.

[21]Ibid. 160.

[22]See Aaron Wildavsky, “If Regulation Is Right, Is It Also Safe?” in Tibor Machan and M. Bruce Johnson, eds., Rights and Regulation: Ethical, Political, and Economic Issues (San Francisco: Pacific Institute of Public Policy Research, 1983) xv-xxv.

[23]Harold D. Lasswell, Politics: Who Gets What, When, How (New York: Meridian Books, 1958).

[24]http://www.aish.com/h/sh/t/48962111.html.

[25]Francis Lieber, Miscellaneous Writings, vol. I: Reminiscences, Addresses, and Essays (Philadelphia: J. B. Lippincott, 1880) 383-84. Lieber’s friend and correspondent, Alexis de Tocqueville, who was forced into retirement from public life during Napoleon’s rule, similarly wrote against “democratic despotism.”

[26]https://mises.org/library/european-miracle-0

[27]Ibid.

[28]David Landes, The Wealth and Poverty of Nations: Why Some Are So Rich and Some So Poor (New York: W. W. Norton, 1998). Landes illustrates the decentralization by noting the rise of Holland following its war for independent against Habsburg Spain.

[29]David Gress, From Plato to NATO: The Idea of the West and Its Opponents (New York: Free Press, 1998).

[30]Minogue, Politics 26.

[31]Ruben Alvarado, A Common Law: The Law of Nations and Western Civilization (Aalten, Neth.: Pietas Press, 1999).

[32]Thomas Sowell, A Conflict of Visions: Ideological Origins of Political Struggle (New York: William Morrow, 1987) 19-25.

[33]Holmes, Law.

[34]P. T. Bauer, Dissent on Development (Cambridge, Mass.: Harvard University Press, 1972) 326. See also Peter Bauer, From Subsistence to Exchange and Other Essays (Princeton, NJ: Princeton University Press, 2000) 18-24.

[35]Ibid.. 324-25.

[36]Paul A. Rahe, Soft Despotism, Democracy’s Drift: Montesquieu, Rousseau, Tocqueville, and the Modern Prospect (New Haven, Conn.: Yale University Press, 2009) 246. Francis Lieber’s successor to the political science chair at Columbia University, John W. Burgess, similarly warned that the United States was “on the point of substituting despotic government at home and imperialism abroad for our original distinctly American system of popular sovereignty, limited government, individual immunity, and non-interference abroad.” John W. Burgess, Recent Changes in American Constitutional Theory (New York: Columbia University Press, 1923) 111.

[37]George Weigel, The Cube and the Cathedral: Europe, America, and Politics Without God (New York: Basic Books, 2005) 65.

[38]Jack Rakove, “Europe’s Floundering Fathers,” Foreign Policy. http://foreignpolicy.com/2009/10/29/europes-floundering-fathers/

[39]Ibid.

[40]Todd Huizinga, The New Totalitarian Temptation: Global Governance and the Crisis of Democracy in Europe (New York: Encounter Books, 2016).

[41]Ibid. 23.

[42]Ibid. 23. Quoted from John Fonte, Sovereignty or Submission: Will Americans Rule Themselves or Be Ruled by Others? (New York: Encounter Books, 2011) 342, 366.

[43]Fonte, Sovereignty 36-38.

[44]Ibid. 8.

[45]Huizinga, Temptation 120.

[46]Ibid. 121.

[47]Ryszard Legutko, The Demon in Democracy: Totalitarian Temptations in Free Societies, trans. Teresa Adelson (New York: Encounter Books, 2016) 40.

[48]See “Newspeak and Eurospeak” in Roger Scruton, A Political Philosophy: Arguments for Conservatism (London: Continuum, 2006) 161-75.

[49]Pierre Manent, Democracy without Nations? The Fate of Self-Government in Europe, trans. Paul Seaton (Wilmington, DE: ISI Books, 2007) 24-25.

[50]Marcello Pera, Why We Should Call Ourselves Christians: The Religious Roots of Free Societies, trans. L. B. Lappin (New York: Encounter Books, 2011) 94-95.

[51]Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition Cambridge, Mass Harvard University Press, 1983) 7-10. On “institutional liberty,” see Steven Alan Samson, “Francis Lieber on the Sources of Civil Liberty,” in Humanitas, IX, 2 (1996): 40-62. http://nhinet.org/samson.htm

[52]Francis Lieber, On Civil Liberty and Self-Government, 3rd ed. revised ed., Theodore D. Woolsey (J. Lippincott, 1874) 324.

[53]Ibid. 335.

[54]Berman, Law 40.

[55]Ibid. 41.

[56]Vladimir Bukovsky and Pavel Stroilov, EUSSR: The Soviet Roots of European Integration (Worcester Park, Surrey, England: Sovereignty Publication, 2004. Direct quotations by various speakers are indicated by italics. Most of this material may also be found in chapter 6 of Vladimir Bukovsky, Judgment in Moscow: Soviet Crimes and Western Complicity, trans. Alyona Kojevnikov, ed. Paul Boutin (Ninth of November Press, 2019). For an abridged version see https://bukovsky-archive.com/judgment-in-moscow/. The site of the Bukovsky Archives changed in 2026. See https://bukovsky-archive.com/1987-1994/. An older one is no longer functional. Please note that the address could change again in the future.

[57]Bukovsky gives an account of how he obtained his collection of documents in “Night of the Looters” (1996). https://bukovsky-archive.com/2-night-of-the-looters/.

[58]Claire Berlinski, “A Hidden History of Evil,” City Journal, Spring 2010. https://www.city-journal.org/html/hidden-history-evil-13281.html.

[59]Samson, “Liberty.” https://digitalcommons.liberty.edu/gov_fac_pubs/510/.

[60]Fonte, Submission 121.